California has
passed a bill to legalize physician-assisted suicide, which is scheduled
to go into effect during 2016. "The End of Life Option Act" was sold as
giving patients choice and control at the end of life. The bill, in
fact, is about ending the lives of people who are not necessarily dying
anytime soon and giving other people the "option" to hurry them along.
The bill is a recipe for elder abuse and family trauma.
The American Medical Association (AMA) defines physician-assisted
suicide as occurring when "a physician facilitates a patient's death by
providing the necessary means and/or information to enable the patient
to perform the life-ending act." The AMA gives the
example:
"[A] physician provides sleeping pills and information about the lethal
dose, while aware that the patient may commit suicide." Assisted
suicide is a general term in which the assisting person is not
necessarily a physician. Euthanasia, by contrast, is the direct
administration of a lethal agent with the intent to cause another
person's death.
The AMA
rejects assisted suicide and euthanasia
stating that they are "fundamentally incompatible with the physician's
role as healer, would be difficult or impossible to control, and would
pose serious societal risks."
In the last five years, four states
have strengthened their laws against assisted suicide. Assisted suicide is no longer legal in New Mexico due to a
court decision.
There are just three states where assisted suicide is legal: Oregon,
Washington and Vermont. In a fourth state, Montana, case law gives
doctors who assist a suicide a
potential defense to a homicide charge.
The California bill applies to persons with a "terminal disease," which is
defined
as having a medical prognosis of less than six months to live. Such
persons can, in reality, have years to live, with the more obvious
reasons being
misdiagnosis and the fact that
predicting life expectancy is not an exact science. Doctors can sometimes be
very wrong.
In Oregon and Washington, where assisted suicide laws use a nearly identical definition of
terminal disease, terminality is determined
without treatment. Consider,
for example, Oregon resident Jeanette Hall who was diagnosed with
cancer in 2000 and wanted to do assisted suicide. Her doctor convinced
her to be treated instead. Twelve years later, she
stated: "This last July, it was 12 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead."
Elder Abuse
Elder Abuse
is a problem throughout the United States. Perpetrators are often
family members, some of whom feel entitled to the older person's assets.
They often start out with small crimes, such as stealing jewelry and
blank checks, before moving on to larger items or coercing victims to
sign over deeds to their homes, change their wills or liquidate their
assets. Victims may even be murdered.
In California, prominent elder abuse cases include:
Victorino Noval, whose daughters allegedly told doctors to medically kill him, so as to obtain inheritances; and the "
Black Widow"
murders in which two women insured the lives of homeless men and then
killed them to collect the money. Paul Vados, a 73-year-old man, was one
of the victims.
How the California Bill Works
The bill,
ABX2-15, has an application process to obtain the lethal dose, which includes a written
lethal dose request form with two required witnesses. Once
the lethal dose is issued by the pharmacy, there is no oversight over
administration. No one, not even a doctor, is required to be present at
the death.
ABX2-15
allows
one of the two witnesses on the lethal dose request form to be the
patient's heir, who will financially benefit from the patient's death.
This is an extreme conflict of interest. Indeed, under California's
Probate Code, similar conduct (an heir's acting as a witness on a will)
can
create a presumption
that the will was procured by "duress, menace, fraud or undue
influence." ABX2-15, which specifically allows the patient's heir to be a
witness on the lethal dose request form, does not promote patient
choice. It invites duress, menace, fraud and undue influence.
Patients are also at risk due to the lack of oversight at the death.
Alex Schadenberg, of the Euthanasia Prevention Coalition, explains:
"With assisted suicide laws in Washington and Oregon [and with ABX2-15], perpetrators can ... take a "legal" route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration ... Even if a patient struggled, "who would know" (Emphasis added)."
In 2011, the lack of oversight over administration of the lethal dose
in Oregon prompted Montana State Senator Jeff Essmann to observe that
studies claiming that Oregon's assisted suicide law is safe are
invalid. During a legislative committee hearing, he
stated:
"[All]
the protections end after the prescription is written. [The proponents]
admitted that the provisions in the Oregon law would permit one person
to be alone in that room with the patient. And in that situation, there
is no guarantee that that medication is self-administered. So frankly,
any of the studies that come out of the state of Oregon's experience are
invalid because no one who administers that drug ... to that patient is
going to be turning themselves in for the commission of a homicide."
The Death Must Be Certified as "Natural"
ABX2-15
states,
"Actions taken in accordance with this [act] shall not, for any
purposes, constitute suicide, assisted suicide, homicide or elder abuse
under the law." In Washington State, similar language, interpreted by
the Department of Health, requires
Medical Examiners, Coroners and Prosecuting Attorneys
to certify a death as "Natural" if Washington's assisted suicide law
was used. If California follows this interpretation, no matter what the
facts, even a "murder for the money" will be certified as natural if the
California bill is used. The significance will be a lack of
transparency and a legal inability to prosecute criminal behavior. The
opportunity will be created for the perfect crime.
Trauma
In 2012, a
study
was published addressing trauma suffered by people who witnessed a
legal assisted suicide in Switzerland. The study found that one out of
five family members or friends present at an assisted suicide were
traumatized. These people "[E]xperienced full or sub-threshold PTSD
(Post Traumatic Stress Disorder) related to the loss of a close person
through assisted suicide."
Two of my clients, whose fathers signed up for the lethal dose in
Washington and Oregon, suffered similar trauma. In the first case, one
side of the family wanted the father to take the lethal dose, while the
other side did not. The father spent the last months of his life caught
in the middle and torn over whether or not he should kill himself. My
client, his adult daughter, was severely traumatized. The father did not
take the lethal dose and died a natural death. In the other case, it is
not clear that administration of the lethal dose was voluntary. A man
who was present told my client that the client's father had refused to
take the lethal dose when it was delivered, stating: "You're not killing
me. I'm going to bed." But then took the lethal dose the next night
when he was already intoxicated on alcohol. My client, although he was
not present, was traumatized over the incident, and also by the sudden
loss of his father.
How Did We Get Here?
ABX2-15 was passed by the California legislature via an
expedited process during a special session.
Many legislators debated the bill in religious, moral and personal
terms; there was little debate over what the bill said and did.
California Governor Jerry Brown, in a poignant letter explaining his
decision to sign ABX2-15, continued this theme, stating that he had
considered "
theological and religious perspectives." He also said "The
crux of the matter
is whether the State of California should continue to make it a crime
for a dying person to end his life..." There is, however,
no such crime in California. Governor Brown did not understand what he was signing.
California's new law is promoted as assuring choice and control. The
bill instead creates new paths of elder abuse, which will be legally
permissible. There will be family trauma. Persons with years, even
decades, to live will be encouraged to throw away their lives. In
Vermont, which is the only other state to have enacted assisted suicide
via a legislature, there is an active repeal movement.
Californians
should do the same.
Margaret Dore is a lawyer in Washington State where assisted
suicide is legal. She has been licensed to practice law in since
1986. She is a former Law Clerk to the Washington State Supreme Court
and a former Chair of the Elder Law Committee of the American Bar
Association Family Law Section. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia.
Suggested Citation: Margaret Dore,
California's New Assisted Suicide Law: Whose Choice Will it Be?,
JURIST - Professional Commentary, October 24, 2015,
http://jurist.org/hotline/2015/10/margaret-dore-physician-assisted-suicide.php
Full Article & Source:
California's New Assisted Suicide Law: Whose Choice Will it Be?
