‘Death with Dignity’ Law Imperils the Poor

http://realchangenews.org/index.php/site/archives/9122

Last week’s article by an assisted suicide/euthanasia advocate struck me as a bizarre article for Real Change, which advocates for the dignity and self-determination of the poor. (“Terminally ill patients face shortage of right-to-die drug amid controversy over capital punishment,” Real Change, June 18, 2014)

Washington’s assisted suicide law was passed in 2008 and went into effect in 2009. This was after a deceptive initiative campaign promised us that “only” the patient would be allowed to take the lethal dose. Our law does not say that anywhere. See Margaret K. Dore, “’Death with Dignity,” What Do We Advise Our Clients?,” King County Bar Association, Bar Bulletin, May 2009, available at https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm.

WA Case Medical Homicide

 State probe finds hospital 'sloppy' in man's death

http://www.tri-cityherald.com/news/local/article31786419.html
August 20, 2010

By Sheila Hagar, Walla Walla Union-Bulletin

WALLA WALLA -- A Washington state Department of Health investigation found procedural problems at Providence St. Mary Medical Center in a death that Walla Walla County Coroner Frank Brown has listed as a medical homicide.

The department launched its investigation when a caller to the state's complaint hotline alleged that a 60-year-old patient at the hospital died March 1 of accidental acute morphine overdose. The caller, who is not named in the report, pointed to a forensic pathologist's autopsy, health officials said.

Brown labeled the death "medical homicide," a decision agreed with by Dr. Carl Wigren, the forensic pathologist who performed the autopsy. Wigren is paid by the county for his services.

Washington's Act Allows Euthanasia

By Margaret Dore, Esq., MBA

Washington's Death with Dignity Act, Chapter 70.245, RCW, allows a patient to "self-administer" a lethal dose to end his or her life. See e.g., RCW 70.245.010(11). On close examination, this term allows euthanasia.

Per the act, self-administer is defined as the “act of ingesting.” RCW 70.245.010(12) states:

“Self-administer” means a qualified patient’s act of ingesting medication to end his or her life . . .   (Emphasis added)

The act does not define “ingest.”  Dictionary definitions include:

[T]o take (food, drugs, etc.) into the body, as by swallowing, inhaling, or absorbing.” (Emphasis added). 

With these definitions, someone else putting the lethal dose in the patient’s mouth qualifies as proper administration because the patient will be “swallowing” the lethal dose, i.e., “ingesting” it. Someone else placing a medication patch on the patient’s arm will qualify because the patient will be “absorbing” the lethal dose, i.e., “ingesting” it. Gas administration, similarly, will qualify because the patient will be “inhaling” the lethal dose, i.e., “ingesting” it. With self-administer defined as mere ingesting, someone else is allowed to administer the lethal dose to the patient. 

Allowing someone else to administer the lethal dose to the patient is "euthanasia" under generally accepted medical terminology. The American Medical Association's Ethics Opinion 2.21 states: 

"Euthanasia is the administration of a lethal agent by another person to a patient . . . " (Emphasis added).

Washington's act allows euthanasia.

Washington’s ‘Death with Dignity’ law imperils the poor

http://realchangenews.org/index.php/site/archives/9122

Last week’s article by an assisted suicide/euthanasia advocate struck me as a bizarre article for Real Change, which advocates for the dignity and self-determination of the poor. (“Terminally ill patients face shortage of right-to-die drug amid controversy over capital punishment,” Real Change, June 18)

Washington’s assisted suicide law was passed in 2008 and went into effect in 2009. This was after a deceptive initiative campaign promised us that “only” the patient would be allowed to take the lethal dose. Our law does not say that anywhere. See Margaret K. Dore, “’Death with Dignity,” What Do We Advise Our Clients?,” King County Bar Association, Bar Bulletin, May 2009, available at https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm.

In Oregon, which has a similar law, that state’s Medicaid program using the law to steer patients to suicide. In other words, indigent patients are offered suicide in lieu of desired treatments to cure or to extend life. The most well-known cases are Barbara Wagner and Randy Stroup.  See: Susan Donaldson James, “Death Drugs Cause Uproar in Oregon,” ABC News, August 6, 2008, at http://abcnews.go.com/Health/story?id=5517492&page=1; and “Letter noting assisted suicide raises questions,” KATU TV, July 30, 2008, at http://www.katu.com/news/specialreports/26119539.html  See also the Affidavit of Kenneth Stevens, MD, filed by the Canadian government in Leblanc v. Canada, available at http://maasdocuments.files.wordpress.com/2012/09/signed-stevens-aff-9-18-12.pdf.

Finally, consider this quote from a March 8, 2012 Jerry Large column in the Seattle Times. He says that at least a couple of his readers suggested euthanasia “if you couldn’t save enough money to see you through your old age.”http://seattletimes.com/text/2017693023.html  For the poor, this would be non-voluntary or involuntary euthanasia. 

So much for the dignity and self-determination of the poor.

Margaret Dore, Esq., MBA*
Seattle

*www.margaretdore.com & www.choiceillusion.org 

Preventing Abuse and Exploitation: A Personal Shift in Focus

http://choiceisanillusion.files.wordpress.com/2014/02/dore-preventing-abuse-and-exploitation-aba.pdf

By Margaret K. Dore, Esq., MBA

The Voice of Experience, American Bar Association

Volume 25, No. 4, Winter 2014

I graduated from law school in 1986.  I first worked for the courts and then for the United States Department of Justice.  After that, I worked for other lawyers, and then, in 1994, I officially started my own practice in Washington State.  Like many lawyers with a new practice, I signed up for court-appointed work in the guardianship/probate context.  This was mostly guardian ad litem work.  Once in awhile, I was appointed as an attorney for a proposed ward, termed an “alleged incapacitated person.”  In other states, a guardianship might be called a “conservatorship” or an “interdiction.”  A guardian ad litem might be called a “court visitor.”

My Guardianship Cases
Most of my guardianship cases were straightforward.  There would typically be a elderly person who could no longer handle his or her affairs.  I would be the guardian ad litem.  My job would be to determine whether the person needed a guardian, and if that were the case, to recommend a person or agency to fill that role.

My work also included private pay cases with moderate estates.  With these cases, I would sometimes see financial abuse and exploitation.  For example, there was an elderly woman whose nephew took her to the bank each week to obtain a large cash withdrawal.  She had dementia, but she could pass as “competent” to get the money.  In another case, “an old friend from 30 years ago” took “Jim,” a 90 year old man, to lunch.  The friend invited Jim to live with him in exchange for making the friend sole beneficiary of his will.  Jim agreed.  The will was executed and he went to live with the friend in a nearby town.  A guardianship was started and I was appointed guardian ad litem.  I drove to the friend’s house, which was dilapidated.  Jim did not seem to have his own room.  I asked him if he would like to go home.  He said “yes” and got in my car.  He was not incompetent, but he had allowed someone else to take advantage of him.  In another case, there was a disabled man whose caregiver had used his credit card to remodel her home.  He too was competent, but he had been unable to protect himself.

In those first few years, I loved my guardianship cases.  I had been close to my grandmother and enjoyed working with older people.  I met guardians and other people who genuinely wanted to help others.

But then I got a case involving a competent man who had been railroaded into guardianship.  The guardian, a company, refused to let him out.  The guardian also appeared to be churning the case, i.e., causing conflict and then billing for work to respond to the conflict and/or to cause more conflict.  I have an accounting background and also saw markers of embezzlement.  I tried to tell the court, but the supervising commissioner didn’t know much about accounting.  She allowed the guardian to hire its own CPA to investigate the situation, which predictably exonerated the guardian.  The guardian had many cases and if what I said had been proved true, there would have been political fallout.  There were also conflicts of interest among the lawyers.

At this point, the scales began to fall from my eyes.  My focus started to shift from working within the system to seeing how the system itself sometimes facilitates abuse.  This led me to write articles addressing some of the system’s flaws.  See e.g., Margaret K. Dore, Ten Reasons People Get Railroaded into Guardianship, 21 AM. J. FAM. L. 148 (2008), available atwww.margaretdore.com/pdf/Dore_AJFL_Winter08.pdf; Margaret K. Dore, The Time is Now: Guardians Should be Licensed and Regulated Under the Executive Branch, Not the Courts, WASH. ST. B. ASS’N B. NEWS, Mar. 2007 at 27-9, available athttp://maasdocuments.files.wordpress.com/2013/08/dore-the-time-is-now-ashx.pdf

The MetLife Studies
In 2009, the MetLife Mature Market Institute released its landmark study on elder financial abuse.  Seewww.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf  The estimated financial loss by victims in the United States was $2.6 billion per year.

The study also explained that perpetrators are often family members, some of whom feel themselves “entitled” to the elder’s assets.  The study states that perpetrators start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or coercing elders to sign over the deeds to their homes, change their wills or liquidate their assets.

In 2011, Met Life released another study available atwww.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf, which described how financial abuse can be catalyst for other types of abuse and which was illustrated by the following example.  “A woman barely came away with her life after her caretaker of four years stole money from her and pushed her wheelchair in front of a train.  After the incident the woman said, “We were so good of friends . . . I’m so hurt that I can’t stop crying.”

Failure to Report
A big reason that elder abuse and exploitation are prevalent is that victims do not report.  This failure to report can be for many reasons.  A mother being abused by her son might not want him to go to jail.  She might also be humiliated, ashamed or embarrassed about what’s happening.  She might be legitimately afraid that if she reveals the abuse, she will be put under guardianship.

The statistics that I’ve seen on unreported cases vary, from only 2 in 4 cases being reported, to one in 20 cases.  Elder abuse and exploitation are, regardless, a largely uncontrolled problem.

A New Development: Legalized Assisted Suicide
Another development relevant to abuse and exploitation is the ongoing push to legalize assisted suicide and euthanasia in the United States.  “Assisted suicide” means that someone provides the means and/or information for another person to commit suicide.  If the assisting person is a physician who prescribes a lethal dose, a more precise term is “physician-assisted suicide.”  “Euthanasia,” by contrast, is the direct administration of a lethal agent with the intent to cause another person’s death.

In the United States, physician-assisted suicide is legal in three states:  Oregon, Washington and Vermont.  Eligible patients are required to be “terminal,” which means having less than six months to live.  Such patients, however, are not necessarily dying.  One reason is because expectations of life expectancy can be wrong.  Treatment can also lead to recovery.  I have a friend who was talked out of using Oregon’s law in 2000.  Her doctor, who did not believe in assisted suicide, convinced her to be treated instead.  She is still alive today, 13 years later.

Oregon’s law was enacted by a ballot measure in 1997.  Washington’s law was passed by another measure in 2008 and went into effect in 2009.  Vermont’s law was enacted on May 20, 2013.  All three laws are a recipe for abuse.  Onw reason is that they allow someone else to talk for the patient during the lethal dose request process.  Moreover, once the lethal dose is issued by the pharmacy, there is no oversight over administration.  Even if the patient struggled, who would know? [See e.g., http://www.choiceillusion.org/2013/11/quick-facts-about-assisted-suicide_11.html]

Here in Washington State, we have already had informal proposals to expand our law to non-terminal people.  The first time I saw this was in a newspaper article in 2011.  More recently, there was a newspaper column suggesting euthanasia “if you couldn’t save enough money to see yourself through your old age,” which would be involuntary euthanasia.  Prior to our law being passed, I never heard anyone talk like this.

I have written multiple articles discussing problems with legalization, including Margaret K. Dore, "Death with Dignity”: What Do We Advise Our Clients?," King Co. B. ASS’N, B. BuLL., May 2009, available at  www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm; Margaret K. Dore, Aid in Dying: Not Legal in Idaho; Not About Choice, 52 THE ADVOCATE [the official publication of the Idaho State Bar] 9, 18-20 (Sept. 2013) available at www.margaretdore.com/pdf/Not_Legal_in_Idaho.pdf  

My Cases Involving the Oregon and Washington Assisted Suicide Laws
I have had two clients whose parents signed up for the lethal dose.  In the first case, one side of the family wanted the father to take the lethal dose, while the other did not.  He  spent the last months of his life caught in the middle and traumatized over whether or not he should kill himself.  My client, his adult daughter, was also traumatized.  The father did not take the lethal dose and died a natural death.

In the other case, it's not clear that administration of the lethal dose was voluntary.  A man who was present told my client that the father refused to take the lethal dose when it was  delivered (“You’re not killing me.  I’m going to bed”), but then took it the next night when he was high on alcohol.  The man who told this to my client later recanted.  My client did not want to pursue the matter further.

Conclusion
In my guardianship cases, people were financially abused and sometimes treated terribly, but nobody died and sometimes we were able to make their lives much better.  With legal assisted suicide, the abuse is final.  Don’t make Washinton’s mistake.

Margaret K. Dore (margaretdore@margaretdore.com) JD, MBA, is an attorney in private practice in Washington State where assisted suicide is legal.  She is a former Law Clerk to the Washington State Supreme Court and the Washington State Court of Appeals.  She worked for a year with the U.S. Department of Justice and is president of Choice is an Illusion, www.choiceillusion.org, a nonprofit corporation opposed to assisted suicide and euthanasia.

A Better Response Would be To Repeal Washington's Act as a Fraud on the Voters

By Margaret Dore

On November 16, 2011, an article appeared in a Washington State newspaper arguing for expansion of Washington's physician-assisted suicide act to direct euthanasia and to persons without a terminal disease.[1]  The author, Brian Faller, candidly admitted:  "To improve the chances of passage, the Death with Dignity Act was written to apply only to the choices of the terminally ill who are competent at the time of their death."[2]  Now, he shows the other side's true colors.

In any case, this is my response:

Dear Editor:

I am an attorney who has written multiple articles about our physician-assisted suicide act. I am also President of Choice is an Illusion, a non-profit corporation opposed to assisted-suicide. I disagree with Brian Faller that our physician-assisted act should be expanded to include direct euthanasia. A better course would be to repeal that act as a fraud on the voters.

Our assisted-suicide act was enacted as Initiative 1000 in 2008 and went into effect in 2009. During the election, proponents claimed that its passage would assure individuals control over their deaths. The act is instead a recipe for elder abuse. Key provisions include that a patient’s heir, who will benefit financially from his death, is allowed to actively assist him to sign up for the lethal dose. Specifically, an heir is allowed to be one of two witnesses on the lethal dose request form. In the context of a will, the same situation would create a presumption "duress, menace, fraud, or undue influence." (RCW 11.12.160(2)).

There are also no witnesses required at the death. Without disinterested witnesses, the opportunity is created for someone else, including an heir, to administer the lethal dose to the patient without his consent. Even if he struggled, who would know?

The idea that our act promotes patient control or individual liberty is untrue. Our act instead puts older people and others in the cross-hairs of abuse. For more information, please see www.choiceillusion.org and click on the page for Washington State.

* * *

[1]  Brian Faller, "Perhaps it's time to expand Washington's Death with Dignity Act, The Olympian, November 16, 2011, available at http://www.theolympian.com/2011/11/16/1878667/perhaps-its-time-to-expand-washingtons.html

[2]  Id.

Compassion & Choices Embraces Derek Humphry

Compassion & Choices of Washington has announced that Derek Humphry will be the keynote speaker at its 2011 annual meeting.[1]

Derek Humphry has recently been in the news as a promoter of suicide kits from a company now shut down by the FBI.  According to an article in Oregon's Register-Guard newspaper: 

"A spotlight was cast on the mail-order suicide kit business after a 29-year-old Eugene man committed suicide in December using a helium hood kit. The Register-Guard traced the $60 kit to [the company, which] has no website and does no advertising; clients find [the] address through the writings of Humphry."[2]

* * *

[1]  See current newsletter for Compassion & Choices of Washington, stating:  "Derek Humphry to be Keynote Speaker at 2011 Annual Meeting."  To view the newsletter, go to the following link and scroll down to the lower half of the page:  http://choiceisanillusion.files.wordpress.com/2011/10/derek.pdf

[2]  See e.g., Jack Moran, "Police kick in door in confusion over suicide kit:  The FBI message to police about the purchase of the gear failed to mention it was bought seven months ago, "  The Register-Guard, September 21, 2011.

Theresa Schrempp Published in King County Bar Bulletin

Dear Editor:

Margaret K. Dore's article regarding Washington's assisted suicide law [Bar Bulletin, July] highlights a troubling disconnect between this statute and the commendable trend in Washington law to recognize and protect elders from abuse.

On the one hand, the Slayer's Statute, RCW 11.84, was recently amended to penalize heirs who financially exploit a vulnerable adult. On the other hand, safeguards for assisted suicide are minimal, far less than the standards demanded for executing a valid will. As Ms. Dore points out, record-keeping by the state appears to consist of the "hear-no-evil, see-no-evil" variety.

Theresa Schrempp
Sonkin & Schrempp, PLLC

To view the letter in the Bar Bulletin, go here (the link may not work for non-bar members):  https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=09&Year=2011&AID=letters.htm