Two days ago I received this email from Margaret Dore in Seattle:
I am an elder law attorney in Washington state where assisted suicide is legal. You may want to consider my article in the Washington State Bar News about problems with our new Act: http://wsba.org/media/publications/barnews/jul-09+deathwithdignity.htm (text below). Assisted suicide is a "recipe for elder abuse."
If you are interested, I have more information.
Because both the article and Margaret Dore's profile are public (www.margaretdore.com), I am posting my response and her letter online.
The above link takes you to the following article, which I have addressed in colored text. Other responses to Dore's article from the Washington State Bar can be found here. The article by Pamela Hanlon which Dore is responding to can be found here. You can find the complete text of Initiative Measure 1000 here, and the state's website, with an FAQ, forms, death certificate instructions and related data here.
Death with DignityWhat Do We Tell Our Clients?
In April 2009, Bar News ran an article by Pamela Hanlon on Washington's new Death with Dignity Act. This article presents an additional view.
by Margaret Dore
A client wants to know about the new Death with Dignity Act, which legalizes physician-assisted suicide in Washington state. Do you take the politically correct path and agree that it's the best thing since sliced bread? Or, do you do your job as a lawyer and tell him that the Act has problems and that he may want to take steps to protect himself? I would hope the latter.
My understanding is that the role of a lawyer is to be direct with his or her client; "political correctness" is not an option as long as the client's best interests are at issue. The comment that Death with Dignity is the "best thing since sliced bread" sadly demeans the situation the act has been created to address: a patient's choice of how to die is a rightful choice, not a fad.
Not What the Voters Were Promised The new Act was passed by the voters as Initiative 1000 and has now been codified as Chapter 70.245 RCW. During the election, proponents touted it as providing "choice" for end-of-life decisions. A glossy brochure declared: "Only the patient and no one else may administer the [lethal dose]." The Act, however, doesn't say this anywhere. The Act also contains potentially coercive provisions. For example, it allows an heir who will benefit from the patient's death to help the patient sign up for the lethal dose.
Section 3. of the Act states, in total:
NEW SECTION. Sec. 3. FORM OF THE WRITTEN REQUEST. (1) A valid request for medication under this chapter shall be in substantially the form described in section 22 of this act, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is competent, acting voluntarily, and is not being coerced to sign the request.
(2) One of the witnesses shall be a person who is not: (a) A relative of the patient by blood, marriage, or adoption; (b) A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient upon death under any will or by operation of law; or (c) An owner, operator, or employee of a health care facility where the qualified patient is receiving medical
treatment or is a resident. (3) The patient’s attending physician at the time the request is signed shall not be a witness. (4) If the patient is a patient in a long-term care facility at the time the written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified by the department of health by rule.
Dore's insinuation that the allowance of an heir to count as a witness of the request for Death with Dignity is a weakness of the Act is ameliorated by the Act's requirement of two witnesses to prevent such coercion. This section clearly states requirement of the appropriate safeguards. Regarding self-administration of the drugs, see my comments below when Dore readdresses the issue. Voters and patients were promised choice, compassion, and safeguards. The language and structure of this bill provide that and mirror Oregon's Death with Dignity act and therefor were no mystery to voters.
How the Act Works The Act has an application process to obtain the lethal dose, which includes a written request form with two required witnesses. The Act allows one of these witnesses to be the patient's heir. Once the lethal dose is issued by the pharmacy, there is no oversight. The death is not required to be witnessed by disinterested persons. Indeed, no one is required to be present.
Section 4, point (g) states that an attending physician's responsibilities include:
(g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed under this chapter and of not taking the medication in a public place;
But indeed, Dore is correct. A patient found to be mentally competent and, after a specific, detailed process, confirmed to be making an informed decision, is considered capable of administering the medication on their own, in the way they choose: either in the company of friends and family or alone.
A Comparison to Probate Law When signing a will, having an heir act as one of the witnesses creates a presumption of undue influence. The probate statute states that when one of two required witnesses is a taker under the will, there is a rebuttable presumption that the taker/witness: "…procured the gift by duress, menace, fraud, or undue influence." RCW 11.12.160(2). The Act's lethal dose request process, which allows an heir to be a witness on the lethal dose request form, does not promote patient choice. It invites coercion.
Issues of coercion are adequately addressed by the requirements of the Act. An heir can only be one of two witnesses. The patient must request the lethal medication both verbally and with written letter, the doctor must determine mental competence, prognosis, and lack of coercion. How this invites coercion - and why Dore intuits the prevalence of coercion - is something that must be more clearly addressed if a plausible argument is to be made. Because heirs are not privy to the contents of a will, how would one presume inheritance? The patient's rights and safety are protected by the Act; Death with Dignity is not Probate Law.
No Mental Standard or Consent Is Required at the Time of Administration Under the Act, an "attending physician" and a "consulting physician" are required to determine whether the patient is competent at the time of the lethal dose request. The Act does not, however, require that the patient be competent or even aware when the lethal dose is administered. There is also no language requiring the client's consent at the time of administration. Without a requirement of competency, consent, or even awareness when the lethal dose is administered, the stage is set for undue influence and worse.
This is false. Section 4 states that the attending physician must, among other things:
(i) Verify, immediately before writing the prescription for medication under this chapter, that the patient is making an informed decision;
(k) Ensure that all appropriate steps are carried out in accordance with this chapter before writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner
(A) Contact a pharmacist and inform the pharmacist of the prescription; and
Section 9 states that the patient must make the request orally and in written form and must again orally request the prescription within 15 days of the first request.
Section 10 states that the patient may rescind the request at any time regardless of mental state.
Therefore, the attending physician must confirm qualification for Death with Dignity, including mental competence and lack of coercion, at the time of making the prescription. As well, the patient must be evaluated by a consulting physician for both terminal prognosis and mental competence. Patients must wait 15 days between the time of their oral request and submission of a written request and 48 hours between submitting their written request and receiving the prescription.
The attending physician is also required to notify the patient of other options at this time, including hospice or palliative care and to inform the patient they are in no way required to take the medication once prescribed. Patients are free to change their minds; in fact, statistics show that many patients in Oregon, where Death with Dignity is legal, receive the lethal medication but never use it. The choice of hastening death when and if suffering is unbearable often relieves much of their anxiety. "Self-administer" Does Not Necessarily Mean that a Patient Administers the Lethal Dose to Himself The Act does not state that "only" the patient may administer the lethal dose. The Act instead provides that the patient "self-administer" the dose. In an Orwellian twist, the term "self-administer" does not mean that administration will necessarily be by the patient. "Self-administer" is instead defined as the act of ingesting. The Act states: "Self-administer" means a qualified patient's act of ingesting medication to end his or her life . . . . (Emphasis added). RCW 70.245.010(12). In other words, someone else putting the lethal dose in the patient's mouth qualifies as "self-administration." Someone else putting the lethal dose in a feeding tube or IV nutrition bag would also qualify. "Self-administer" means that someone else can administer the lethal dose to the patient. In summary, someone other than the patient is allowed to administer the lethal dose. The Act contains no requirement that the patient be competent or even aware when the lethal dose is administered. There is no requirement that the patient consent when the lethal dose is administered. Intentionally killing an incompetent person, or intentionally killing some other person without his consent, is homicide. The Act, however, allows this result, as long as the action taken is according to the Act. The Act states: Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. (Emphasis added). RCW 70.245.180(1).
Section 20 states that the liabilities of coercion are:
NEW SECTION. Sec. 20. LIABILITIES. (1) A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient’s death is guilty of a class A felony.
(2) A person who coerces or exerts undue influence on a patient to request medication to end the patient’ s life, or to destroy a rescission of a request, is guilty of a class A felony.
(3) This chapter does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.
(4) The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this chapter.
Regarding Dore's exclusion of "self-" from "self-medication," I am no lawyer but I can deduce from basic grammar that the following definition, from section 1, indicates that the patient and no one else may administer the medication, namely: "a qualified patient's act...to end his or her own life," modified by "of ingesting":
(12) “Self-administer” means a qualified patient’s act of ingesting medication to end his or her life in a humane and dignified manner.
Yet, I concede that I may be wrong. In a court of law regarding a case where a family member has helped the patient ingest the prescription, I find it unlikely that Dore's interpretation of the definition would stand. However, no such case has come out of Oregon where Death with Dignity has been legal since 1994.
If any doubt about who may administer the medication remains, Section 18 puts it to rest:
The Right to Rescind Is Not a Substitute for Requiring Consent The Act's proponents may counter that consent is actually required because patients have a right to rescind a request for the lethal dose "at any time." A right to rescind is not the same thing as a right to consent when the lethal dose is administered. Consider, for example, an incompetent or unaware patient who obtained the lethal dose on a "just-in-case basis" and has not consented to taking it. He would not have the ability to rescind because he is incompetent, sedated, or simply sleeping. Without the right to consent, someone else would, nonetheless, be free to administer the lethal dose to him. Without the right to consent, the client's control over the "time, place, and manner" of his death is an illusion.
(1) Nothing in this chapter authorizes a physician or any other person to end a patient’ s life by lethal injection, mercy killing, or active euthanasia.
This point is iligitimate when the proper and unmotivated interpretation of "self-administration" is understood. When of sound mind, the patient has chosen to utilize a lethal prescription. Should, after receiving the prescription, the patient become mentally incompetent, the right to rescind is still applicable. No one but the patient may legally administer the medication.
No Witnesses at the Death If, for the purpose of argument, the Act does not "allow" a patient's death without consent, patients are, nonetheless, unprotected from this result, due to the lack of required witnesses at the death. Without witnesses, the opportunity is created for someone other than the patient to administer the lethal dose to the patient without his consent. Even if he struggled, who would know? The lethal dose request would provide the alibi. This scenario would seem especially significant for patients with money. A California case, People v. Stuart, 67 Cal Rptr. 3rd 129, 143 (2007), states: "Financial reasons [are] an all too common motivation for killing someone…."
Because a patient is determined competent when requesting and receiving the medication, the medication is simply another deadly resource, like a gun or a smothering pillow. My point is that there remains little motivation for an heir to get to their inheritence a few months, weeks or days earlier than the patient wishes. The patient is already terminally ill and soon to die. The lethal medication is not the cause of death, the terminal disease is. As well, the Act employs various filters prior to this stage in the patient's life that prevent coercion. Greater oversight via the Death with Dignity Act prevents the types of coercion Dore warns of. Other patients who have, for whatever reason, employed less control over their end of life decisions are at much greater risk of "killing" by outside actors.
No Liability for Administration Without Consent Proponents may counter that the Act protects patients from wrongdoing due to provisions imposing civil and criminal liability in RCW 70.245.200. None of these provisions purports to prohibit administration of the lethal dose without the patient's consent. These provisions are instead concerned with the lethal dose request and general issues.
Section 18 states:
(1) Nothing in this chapter authorizes a physician or any other person to end a patient’ s life by lethal injection, mercy killing, or active euthanasia.
Laws against homicide and assisting suicide stand as before, unaltered by the Death with Dignity Act.
Illusory Liability for Undue Influence In connection with the lethal dose request, the Act purports to impose criminal liability for undue influence. This purported liability is illusory because the concept of undue influence is too vague to be criminally enforced. (See City of Tacoma v. Luvene, 118 Wn.2d 826, 844-5, 827 P.2d 1374 (1992) (citizens must be given clear notice of prohibited conduct); and Mays v. State, 116 Wn. App. 864, 876, 68 P.3d 1114 (2003) (statute unconstitutionally vague where "reasonably intelligent people must guess as to its meaning").) As noted above, the Act specifically allows conduct that would normally create a presumption of undue influence (allowing an heir to act as a witness on the lethal dose request form). In addition, the Act's prohibition against undue influence is not defined and has no elements of proof. Undue influence is also a traditionally equitable concept, which is "not susceptible of precise definition and must depend heavily on the facts of each case." What elements would a prosecutor be required to prove for the purported "crime" of undue influence? It's hard to say.
Undue influence is indeed a vague term which must be determined in each case. The safeguards against undue influence in the Death with Dignity Act are adequate and have already been noted, but to recap:
Patient's oral request, repeated 15 days later, then stated in writing; a doctor and consulting physician must determine the mental and physical state of the patient; a second witness must oversee the signing of the letter; and the doctor must document all procedures; coercion is illegal and prosecutable.
Official Cover In the event anyone questions a patient's death, a meaningful response from law enforcement, generally, seems unlikely. This is because medical examiners, coroners, and prosecuting attorneys are required to treat deaths under the Act as "natural." The death certificate is required to list an underlying disease as the official cause of death.
This is preposterous, really. The safeguards against murder and coercion are no less great among those who choose to exercise Death with Dignity, in fact they are more prevalent. Dore has construed the hastening of an impending death with vulnerability, unable to accept that one of sound mind could choose to die when and how they wish. Here she works to undermine that choice with unlikely scenarios. What would the motive be to kill a patient who is dying and has expressed repeatedly the desire to hasten that death and has obtained the means to do so, and who remains in the oversight of a physician or family members or a hospice or medical institution?
And what, I must ask, prevents the murder of terminal patients who do not have the supervision of a physician? She assumes that accessible means of "murder," the lethal prescription, precludes that "murder."
Here, more than anywhere else in the document, she betrays her belief that terminal patients are depressed or coerced if they wish to end their lives in the manner of their choosing; depression may be a symptom of terminal illness but it is not the cause, and coercion need not be present for one to wish to avoid a painful death. Her argument is based on a misunderstanding of Death with Dignity as, in all cases, legalization of "killing." Her argument shows a lack of knowledge regarding the desires of those who are mentally competent, terminally ill and wish to exercise their right to control the time and place of their immanent death.
What to Tell Clients 1. Signing the form will lead to a loss of control By signing the lethal dose request form, the client is taking an official position that if he dies suddenly, no questions should be asked. The client will be unprotected against others in the event he changes his mind after the lethal prescription is filled and decides that he wants to live. This would seem especially important for patients with money. There is, regardless, a loss of control.
Terminal patients do wish to live. But they will not. Those who choose Death with Dignity have accepted that they will die and wish to choose the time and place of that death to ease their own suffering and that of their family. No one is forced to elect Death with Dignity. The law protects those who have elected Death with Dignity; they may rescind that election at any time. And the law is designed to prevent coercion or administration of the lethal medication by anyone but the self.
2. Prognoses can be wrong The Act applies to adults determined by an "attending physician" and a "consulting physician" to have a disease expected to produce death within six months. But what if the doctors are wrong? This is the point of a recent Seattle Weekly article: Even patients with cancer can live years beyond expectations. The article states: Since the day [the patient] was given two to four months to live, [she] has gone with her children on a series of vacations . . . . "We almost lost her because she was having too much fun, not from cancer" [her son chuckles].
This is a commonly used argument against Death with Dignity. Again, no one is forced to employ the Death with Dignity act. Yes, some prognoses are wrong. However, those who choose to employ the Act demonstrate oversight of their own illnesses, have typically exhausted all available treatment measures, have chosen to rationally put away "hope for a miracle" and tend to love life but accept that there is no cure for death.
Citing very rare cases of "miraculous" longevity in the face of a terminal diagnosis does not change the prognosis for most patients. False hope and lack of options, rather, is what leads terminal patients to die in ways they would never have chosen: in hospitals, after lengthy, painful, and ineffective treatments, outside their home, or away from friends and family. Death with Dignity restores choice to the patient, it doesn't remove it.
Conclusion As lawyers, we often advise our clients of worst-case scenarios. This is our obligation, regardless of whether it is politically correct to do so. TheDeath with Dignity Act is not about dignity or choice. It is about enabling people to pressure others to an early death or even cause it. The Act may also encourage patients with years to live to give up hope. We should advise our clients accordingly.
This is more of a political position than a legal one; this article is a position paper, not a legal analysis of the Death with Dignity act. See my comments below.
Margaret Dore is an attorney admitted to practice in 1986. Her practice has included probate, guardianship, and appeals. She is the immediate past chair of the Elder Law Committee of the ABA Family Law Section. She is a former chair of what is now the King County Bar Guardianship and Elder Law Section. She is also a former law clerk to both the Washington State Supreme Court and the Washington State Court of Appeals. For more information on Ms. Dore, see www.margaretdore.com. NOTES 1. I-1000 Pamphlet, "Paid for by Yes! on 1000." 2. RCW §§ 70.245.030 and .220 state that one of two required witnesses to the lethal dose request form cannot be the patient's heir or other person who will benefit from the patient's death; the other witness may be an heir or other person who will benefit from the death. 3. Id. 4. See Entire Act, Chapter 70.245 RCW. 5. Id. 6. Id. 7. RCW 70.245.040(1)(a) and RCW 70.245.050. 8. The following Act provisions address the issue of competency in conjunction with the lethal dose request, not later. See: RCW 70.245.010(3); RCW 70.245.010(5); RCW 70.245.010(11); RCW 70.245.020; RCW 70.245.030(1); RCW 70.245.040(1)(a); RCW 70.245.040(1)(d); RCW 70.245.050; RCW 70.245.120(3) & (4); and RCW 70.245.220 (regarding the patient's appearing to be of "sound mind"). There is no provision that requires the patient to be competent or even aware at the time of administration. See Entire Act, Chapter 70.245 RCW. 9. The following provisions require that a determination of whether a patient is acting "voluntarily" be made in conjunction with the lethal dose request, not later. See RCW 70.245.020(1); RCW 70.245.030(1); RCW 70.245.040(1)(a); RCW 70.245.040(1)(d); RCW 70.245.050; RCW 70.245.120(3) and (4); and RCW 70.245.220. There is no provision that requires the patient to be acting voluntarily and/or give consent at the time of administration. See Entire Act, Chapter 70.245 RCW ("consent" not mentioned). 10. See Entire Act, Chapter 70.245 RCW. 11. See RCW 70.245.010(7); RCW 70.245.010(12); RCW 70.245.020(1); RCW 70.245.090; RCW 70.245.140; RCW 70.245.170; RCW 70.245.180(1); and RCW 70.245.220. 12. Webster's New World College Dictionary at www.yourdictionary.com/ingest defines "ingest" as: "to take (food, drugs, etc.) into the body, as by swallowing, inhaling or absorbing." Someone putting the lethal dose in the patient's mouth qualifies as "self-administration" because the patient will thereby "ingest" the dose. 13. Someone putting the lethal dose in a feeding tube or IV nutrition bag qualifies as "self-administration" because the patient will thereby "ingest" the dose. 14. Cf. RCW 9A.32.010 (defining "homicide"); RCW 9A.32.020 (regarding premeditation); and RCW 9A.32.030 (defining "murder"). 15. RCW 70.245.100. 16. RCW 70.245.200 states: (1) A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death is guilty of a class A felony. (2) A person who coerces or exerts undue influence on a patient to request medication to end the patient's life, or to destroy a rescission of a request, is guilty of a class A felony. (3) This chapter does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person. (4) The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this chapter. (Emphasis added). 17. The Act states: "A person who coerces or exerts undue influence on a patient to request medication to end the patient's life, or to destroy a rescission of a request, is guilty of a class A felony." RCW 70.245.200(2). 18. See 70.245.200(2) and Entire Act, Chapter 70.245 RCW. 19. Reutlinger, Mark, "Washington Law of Wills and Intestate Succession," Washington State Bar Association, 2006, p.88. 20. "Instructions for Medical Examiners, Coroners, and Prosecuting Attorneys: Compliance with the Death with Dignity Act," Washington State Department of Health, revised April 8, 2009, at www.doh.wa.gov/dwda/forms/mesandcoroners.pdf. 21. Id., RCW 70.245.040(2) and RCW 70.245.180(1). 22. RCW 70.245.040(1)(a); RCW 70.245.050; and RCW 70.245.010(13). 23. Shapiro, Nina, "Terminal Uncertainty Washington's new 'Death with Dignity' law allows doctors to help people commit suicide once they've determined that the patient has only six months to live. But what if they're wrong?" Seattle Weekly, January 14, 2009,www.seattleweekly.com/2009-01-14/news/terminal-uncertainty. 24. Id.
Dore's position that the Death with Dignity Act encourages coercion by heirs is erroneous. In other states where Death with Dignity is illegal, end of life choices are now unmonitored, unreported, and uncensored by outside parties. The new light that this Act brings to the end of life period helps to prevent the kind of coercion Dore warns about.
While I respect Dore's advocacy for elder rights - I intend to be an elder some day too - I find her over-zealous and close-minded opposition (indicated by her positioned tone) to choice in dying and Washington's Death with Dignity Act an affront to elder rights and the compassion deserved the terminal patient.
Furthermore, her opposition to Death with Dignity in any form is documented. In May of 2009 Margaret Dore was a speaker at the Second Annual Symposium on Assisted Suicide and Euthanasia titled, "Never Again," an anti-death with dignity event sponsored by various "pro-life" and advocacy groups including: Euthanasia Prevention Coalition, International Task Force on Euthanasia and Assisted Suicide, Not Dead Yet, Terri Schindler Schiavo Foundation, and Care Not Killing Alliance. Other speakers include Rita Marker and Wesley J. Smith (of International Task Force), Bobby Schindler (Terri Schiavo's brother and, with his family, founder of the Terri Schindler Schiavo Foundation), and Alex Schadenberg (Euthanasia Prevention Coalition). While participation in this event simply puts her in the company of "pro-life" activists, it is fairly safe to say that her role as a presenter betrays her political stance on the subject.
Protection of patients is imperative. No one is advocating for the termination of the elderly or of terminal patients. There is no "culture of death" or "slippery slope" to the devaluation of life. Elder and terminal patient care is tantamount to those who advocate for choice in dying.
Paternalizing patients or assuming they are incapable of making their own end of life decisions is demeaning - particularly when done from an ideological position. And it is a fostering of a practice within society and medicine which has long held patients subject to others' decisions.
Labels: assisted suicide, death with dignity, end of life care, oregon, washington