Rita L. Marker, Lost Credibility.

In a recent article for the right-wing American Thinker, Rita L. Marker takes a very long time trashing health care for school students as provided by the new health care bill, to get to a simple and false point: students in Oregon and Washington will be instructed on and sent for "assisted suicide" when they should be in math class -- and all without parental notification.

If Marker, Executive Director of the increasingly wacky International Task Force on Assisted Suicide and Euthanasia and sometime-consort of ubiquitous, self-important Wesley J. Smith, had only read the Death with Dignity bills, which have been legal, and highly examined and reported since 1997 (Oregon) and 2008 (Washington) she would know that no one -- not a student, not a terminal patient - can get a prescription for lethal drugs in 2 weeks.

In addition to all the other regulations (two written requests, two doctor consultations, less than 6 months to live, etc.) there is a mandatory waiting period of 15 days.

Instead of making things up to imply that the government and Compassion & Choices and school doctors are all out to just kill your kids, she could have read the bills. But that's not how she makes her living.

Agree with the bills or not, there's no place for deceitful discussion regarding the care the way we care for all of our citizens.

The article, with so many other over-the-top insinuations, I'll leave you to find them:

Some years ago, I was speaking to a Nebraska state senator after testifying on a pending bill. I had explained that I wasn't saying that the billwould be interpreted in a certain way, only that it could be. Then he said something I've never forgotten. "Be assured that if a law can be interpreted in a certain way, it will be -- by someone. And it will all be perfectly legal."

In the week during which ObamaCare, euphemistically named the "Patient Protection and Affordable Care Act," was signed into law, I recalled that senator's words.

The catalyst was a story from a Seattle television station reporting a mother's outragethat a school-based health clinic (SBHC) had arranged for her 15-year-old daughter's abortion. The high school student was given a pass, put in a taxi, and sent for an abortion during school hours -- all without the parents' knowledge. To add insult to injury, the teen was told that there wouldn't be any charge for the abortion if she concealed it from her family.

Was this legal?

Yes.

According to Seattle School District spokeswoman Teresa Wippel, "From a legal/procedural standpoint, it's a non-issue."

But this article isn't about abortion and ObamaCare. That topic has been and will continue to be widely discussed. Rather, it is about school-based health clinics, parental consent, and assisted suicide. That aspect of the new law has, until now, been under the radar even though it is part and parcel.

Under ObamaCare, there will be a massive expansion of SBHCs (Sec. 4101), creating full-service clinics across the country.

SBHCs are not new.

Over the years, health-related services in schools have expanded from a part-time nurse who checked to see if little Johnny has a fever to clinics offering such broad services that they have become the primary source of health care for many children, particularly teens. So rapidly did they become entrenched in school across the country that by the mid-'80s, health services on school premises were the subject of national conferences of school-based clinic administrators and personnel. Caseloads in a school-based clinic located in or near high schools and junior high schools ranged from about 500 to 5,000 students per year.

Currently, thousands of such clinics are members of the National Assembly on School-Based Health Care (NASBHC), which has the stated mission "to improve the health status of children and youth by advancing and advocating for school-based health care." But until now, they had been funded by state and private funds. With passage of ObamaCare, the federal government has entered into the fray. According to the NASBHC, passage of ObamaCare was "an unprecedented victory for school-based health centers" which will enable other communities to open school clinics.

Kevin Jennings, the Obama administration's controversial Assistant Deputy Secretary of the Office of Safe and Drug-Free Schools, is slated to keynote the organization's June convention with an address titled "Partnering Education and Health for a Safer School Environment."

Hundreds of millions of federal dollars will be directed to SBHCs.

Since the stated rationale for passing ObamaCare was to provide health care coverage for the uninsured, it would be logical to expect that school-based clinics would become obsolete. It is therefore curious that the very law that was intended to provide health coverage for all allocates millions of dollars to school-based health clinics that will "be integrated into the school environment" and will provide, "at a minimum, comprehensive primary health services." The expanded clinics will provide on-site access during the academic year and 24-hour coverage through backup health providers to ensure access to services on a year-round basis when school is not in session. All of this will proceed with little or no parental involvement.

From the time that clinics began to expand services, parental consent has been requested for clinic services. The new law also gives lip service to parental consent. However, such consent is obtained by means of a general consent form signed at the beginning of the school year. Parents -- knowing that their children can receive immunizations, sports physicals, etc. through the SBHC-- rarely refuse such authorization for their children. They sign the consent form, naïvely assuming that it is just an inexpensive way to insure convenient, free physicals and care for minor medical problems.

But that's not the way it works.

According to the NASBHC, access to any service (sports physicals, for example) requiresparents to sign written consent for their children to receive the full scope of services provided at the SBHC.

As the Seattle area mom found out, the Ballard High School consent form that she signed gave permission for any and all services available that the clinic provides, either directly or by referral. In addition, it makes it crystal clear that all information is kept confidential, with few exceptions. One such exception is that if a student under 18 years old has a life-threatening health problem, parents will be informed of a child's condition. But that all changes once a child reaches her 18^thbirthday.

Consider the following.

A number of life-threatening (indeed, terminal) conditions can be diagnosed in a clinic or through a referral to a hospital on an outpatient basis. A student may be diagnosed through an SBHC's clinic with acute leukemia or melanoma -- all within school hours, when her parents believe she is in class or at band practice. And she could, under the state's law, be "qualified" for assisted suicide, since, in Washington (as well as in Oregon and Montana), the crime of assisted suicide has been transformed into a "medical treatment." That treatment is available to qualified patients who are at least 18 years old.

Within two weeks of her initial diagnosis, the student who had been looking forward to going to the prom could instead be referred to Compassion & Choices, the assisted suicide advocacy organization formerly called the Hemlock Society. (Compassion & Choices is the go-to group for assisted suicide services, responsible for facilitating most reported assisted suicide deaths in Washington and Oregon.)

Before her parents even knew she was ill, she could be given a prescription for a lethal drug overdose. She could take it. And die.

And her parents would be completely unaware of her condition -- until it's too late.

Will this happen? No one can know for sure.

Can it happen? Yes.

And if it does, the school district could say, "From a legal/procedural standpoint, it's a non-issue."

Welcome to full-service school-based health clinics -- ObamaCare style.

Debunking Mr. Smith on the Washington Numbers.

A recent column from Wesley J. Smith comments on the new report out of Washington on how Death with Dignity is working there. I comment on his posts so often because he's so good at perpetuating lies about Death with Dignity and assisted suicide - on all end of life care. Here are some things he again gets wrong:

The first dehumanizing assisted suicide “statistics” from Washington are in, with 36 people reportedly overdosing themselves via lethally prescribed drugs in the first year. Washington voters were “sold” on assisted suicide, as is always the case, with the fear of being in pain that cannot be alleviated. But, as in Oregon, assisted suicide in practice is mostly about existential fears. These are serious issues to be sure, but they are not demises of writhing agony used by assisted suicide advocates to sell hemlock as if it were honey.

I'm afraid that Smith is out of line with the majority of voters in Oregon who have long had public-square, in-depth discussions about end of life care. I don't think democracy or laws always work to protect individual rights but I have to say that Washington has proven that all the doomsday scenarios painted by opponents of the laws have not come to bear.

What's at contest is how Smith defines death and human life. From his continued involvement with the Schindler family, the Catholic church, and from his writings, it's obvious that he's determined that death - defined until the 60s and 70s as the rather simultaneous end of breathing, heart beat, and brain function - now must be redefined because of technology that can perpetuate the first two artificially.

The latter, brain function, according to Smith and his fellow "pro-life" advocates, is unimportant. (Except when a big news story like the recent finding of brain activity in some PVS patients (though not any patients who suffered anoxia as Terri Schiavo had) comes along as a possible hook that they can hang their insensitive claims of murder on.) But brain function is not unimportant to elders. For many, it defines who they are. In many ways so does physical competence, mobility, living. These values in no way slight the lives of those with less mobility but simply reflect human ideas of what it means to be alive.

Yet, Smith's attempts at redefining death are incongruent with the majority of society and the laws that are constantly evolving to address new technology. Autonomy was cited in the report as the top reason for patients to request aid in dying. That's a statistic, not an opinion. And it signifies that loss of autonomy means something to a lot of people, whether Smith wishes to call it "existential" or not. What's at issue is that his definition of dying - all aggressive care all the time, regardless of the wishes of the patient or their family - is not the definition that society wishes to work from.

I'll let his juvenile attempts to discredit the report - a long-time tactic of end of life care opponents, science-deniers, ideologues, and conservative religious groups bent on dictating how we should live - and his portrait of proponents of aid in dying as killers slide. No one is out to cut down terminal patients but to treat them as they wish to be treated at the end of life, not as someone else thinks they should be treated. Hemlock as honey? "Sold" on assisted suicide? Fear of end of life "quality of life" is real and great. We are inhumane fools to ignore them. But Smith has an agenda. And the fact that the report doesn't show his predictions of old ladies being coerced into ingesting lethal drugs for their money, minorities and the disabled being preyed on, the "culture of death" devouring the most vulnerable in society, makes him more surly than usual. He's got a "slippery slope" argument to prove and unfortunately, the statistics don't work in his favor. So what does he do? He goes after hospice.

From the story:

Doctors said loss of autonomy was an end-of-life concern for all 47 patients. Ninety-one percent were also concerned about losing the ability to participate in activities that made life enjoyable, and 82 percent were worried about “loss of dignity,” their doctors said. The report also said that more than 40 percent were worried about losing control of bodily functions, 23 percent about being a burden on family, friends or caregivers, and 25 percent were concerned about inadequate pain control. Only one person was concerned about the financial implications of treatment, according to the doctors’ reports.

The report also states that 72% of people who committed assisted suicide were in hospice. This marks the continues assault by assisted suicide consciousness on hospice medicine. Suicide prevention is one of the important services hospice is supposed to provide, along with other interventions, to help a suicidal terminally ill patient get past the darkness to live the rest of his or her life.

Uh, what's 72% of 36? That hospice is being taken over by AS advocates is silly. The common practice in hospice is to treat a terminal patient's paint - indeed that's why it was founded. The issue here is that treating pain often means sedation, often until death. That's not an option that some like. Conflating suicide with with assisted suicide is a disingenuous trope. As Death with Dignity works in Oregon and Washington, the patient is dying from a terminal disease. That disease is the killer, not terminal illness.

It works, too. Several years ago, St. Christopher’s Hospice, founded by the great medical humanitarian Dame Cecily Saunders, released a report showing that of 1700 AIDS patients, only two had requested assisted suicide and none had killed themselves, a remarkable figure since this was when the epidemic was at its worst. The point of the report was to show that quality of their care could overcome the worst situations. But with legalized assisted suicide, this essential service is often (or always, who knows?) denied to patients, particularly since the ideologues of Compassion and Choices are usually involved in facilitating these deaths.

Saunders founded her hospice at a time when technology was just starting to change the definition of death. And she's been quoted as saying, as a staunch Catholic and following of C.S. Lewis, that she founded hospice in part to combat euthanasia. Modern assisted suicide is divorced from early definitions of euthanasia, both Socrates-type and the Nazi-type. Hospice is a brilliant and humane approach to end of life care; by proclaiming it as a service that reduces patients' options, as subject to "the culture of death" is absurd. But it's a common method of scaring the dying into spending their last days, weeks, months in hospitals, exactly where 80% of them say they don't want to be. We know that Oregon, since the legalization of Death with Dignity, has the highest percentage of in-home deaths of any state in the country. For all his claims at knowledge of this subject, he is woefully uninformed or dishonest about hospice use in states where DwD is legal. I won't even touch Saunder's AIDS report. The AIDS movement is responsible for reviving the assisted suicide movement. Yes, ending suffering at the end of life is sufficient to give some terminal patients the peace they want. Others see no difference between sedation to unconsciousness and ending their suffering.

So, Washington looks like Oregon, redux. And that’s too bad. Terminally ill patients deserve better than to have their worst fears verified by doctors issuing lethal prescriptions instead of vowing to stay with the patient to the end caring for their pain, validating their dignity, and supporting the importance of their lives.

Dignity, pain, suffering, autonomy, "quality of life" are not the same for all terminal patients. That the Washington report confirms Oregon's results is fantastic news! These bills have encouraged the elderly and ill to discuss how they die; have perpetuated humane treatment of the dying; have moved more patients into hospice; have allowed patients to die where they want, at home with their family; have established successful "do not resuscitate" laws and practices; have encouraged families to work together to ensure that patients have the treatments they want at the end of life. Think what you want about assisted suicide. These bills have proven that accepting death and working to give patient's their choices in treatment are imperative, life-affirming, humane, and encouraging signs.

Washington State Reports on First Year of Death with Dignity.

From Seattle Times:

Sixty-three suicide prescriptions were dispensed during the first nine months of Washington state's "death with dignity" act and at least 36 people used that lethal dose of medicine to end their lives, state officials said Thursday.

The prescriptions for lethal doses of medication were written by 53 different doctors and dispensed by 29 different pharmacists, the Department of Health said in its first annual report on the law that took effect in March 2009.

The statistics show that use of the program has been similar to the first year of Oregon's assisted suicide law, said Health Department spokesman Donn Moyer. Oregon adopted the nation's first "death with dignity" law in 1997.

Montana became the third state to allow assisted suicide at the end of 2009 after the Montana Supreme Court ruled that nothing in state law prevents patients from seeking physician-assisted suicide.

Washington state has received zero complaints from the public about doctors and pharmacists and their compliance with the law, the agency said.

"We're very satisfied with the compliance by the health care provider community," Moyer said.

Of the 63 people who received lethal doses of prescription medicine between March and December 2009, 47 are known to have died. Thirty-six of them died after taking the medications and seven most likely died from their ailment.

The agency said it doesn't know the details of the other four because the death certificate or death report hasn't been filed.

Those who died were between the ages of 48 and 95. Nearly all of them lived west of the Cascades. Most had terminal cancer and all were expected to die within six months.

Under the Washington law, any patient requesting fatal medication must be at least 18 years old, be declared mentally competent, and a resident of the state and have a terminal condition and six months or less to live.

From conservative LifeNews.

From The Guardian.

Heritage Foundation Finds Religious Tolerance on President's Day.

I subscribe to The Morning Bell, a daily email publication by the ultra-conservative Heritage Foundation. Always good to know what ahistorical, revisionist work they're up to. Usually I'm rightly disdainful of most of the shit they post and rant about. But today, I'm happily surprised to say, they got it just about right:

First in War, First in Peace, and First in the Hearts of His Countrymen

This season’s snow falls and Snowpocalypse presents a great opportunity to remember our president who also suffered through the cold to save the Republic.

Happy William Henry Harrison Day! No wait. That is not right.Failing to wear a coat in cold weather is not the same asdefeating the British during a blizzard.

The third Monday in February has come to be known—wrongly—as President’s Day. But, this is not a day to celebrate every president in our Nation’s history: like one who served only a month in office. This is the day that we celebrate the man who led America to victory in the War for Independence, who was instrumental in the creation of our Constitution, and whose character forever shaped the executive branch. We celebrate George Washington. That’s why it’s Washington’s Birthday; not President’s day.

What makes George Washington a great president, worthy of such celebration, and example to all other presidents? In short, he was committed to the principles of the American Founding. Liberty, Natural Rights, Equality, Religious Liberty, Economic Opportunity, the Rule of Law, Constitutionalism, Self-government, National Independence: these are the truths that George Washington held.

Matthew Spalding, in his latest book We Still Hold These Truths, explains each of these first principles in depth and often points to Washington as an exemplar practitioner. For instance, Spalding points to an important series of letters to different religious congregations as an example Washington’s commitment to the principle of religious liberty. In a letter to a congregation of Jewish people, one of the most persecuted religious minoritiesin all history, Washington explains:

The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy—a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

Washington understood that citizenship did not require professing particular religious doctrines. Nor does the possession of rights depend upon one’s membership in a certain race or social class.

Not all presidents are George Washington. But all presidents—and all Americans—can and should dedicate themselves to preserving American’s First Principles.

Discerning Coercion or Abuse Under the Death with Dignity Act.

Margaret Dore is a very new acquaintance. I posted a rebuttal to her article in Washington State Bar News; she called me and vigorously contested my points. And then she emailed me a number of times to make sure she had been clear and understood.

As someone who works to eliminate elder abuse, Dore's issue with the Death with Dignity Act in Oregon boils down to three main points, as I can discern:

1. a family member, perhaps one who is working to coerce their loved one into Death with Dignity, can act as one of two witnesses to the Death with Dignity document

Dore contends that allowing one of the two required witnesses to be a family member opens the door to elder abuse and coercion.

2. a patient, according to her interpretation of the Act, is not required to self-administer the lethal medication

The language regarding self-administration seems clear enough to me but Dore insists that "self-administration" is defined as "ingest" and therefor allows someone else to inject the medication into a feeding tube or to administer the medication in another way, perhaps for their own nefarious purposes. (See above link for more of our exchange.)

3. the act does not require that a witness be present at the time the lethal medication is ingested

Again, Dore insists that this opens the door for elder abuse. Her concern is that most abuse of the elderly is perpetrated by family members. A "loved one" who wishes to end the life of a patient can, without supervision, achieve that goal once the patient has received the medication. Dore contends that the Act serves as an alibi for the acting family member, that no investigation is likely if the patient has successfully fulfilled the qualifications for Death with Dignity and has received the lethal medication.

How this witnessing differs from the common practice of assigning a medical proxy is unclear to me.

Today Dore writes a letter to the ConcordMonitor:

Re "Doctors shouldn't facilitate suicide" (Monitor Opinion page, Oct. 16):

I am an attorney in Washington state, where assisted suicide was recently legalized via a citizens' initiative. Voters thought that they were voting for "choice." Our new law is instead a recipe for elder abuse. Your proposed assisted suicide bill, House Bill 304, has the same problem.

Under HB 304, someone else is allowed to talk for the patient during the lethal dose request process. This someone else could be an heir or new "best friend" who will benefit from the death. There are also no required witnesses at the death. Without disinterested witnesses, the opportunity is created for someone other than the patient to administer the lethal dose to him without his consent. Even if he struggled, who would know? The lethal dose request facilitated by the heir or new "best friend" would provide the alibi.

Don't make Washington's mistake. Protect yourself and your family. Keep assisted suicide out of New Hampshire.

MARGARET DORE

Seattle

Without betraying my private communications with Dore, I feel it necessary to say that no Death with Dignity advocate wishes to promote elder abuse or coercion. In fact, advocates state repeatedly that their efforts are to ensure patient and elder rights and choice at the end of life. My interpretation of the Act - and the state's, and voters' - is that necessary safeguards are in place to prevent coercion or elder abuse.

I am clearly not a lawyer, but I wonder if use of the Act removes motive from any nefariously acting family member. The patient must verbally state their desire for Death with Dignity, then restate it again within 15 days. The attending physician must determine that the patient is terminal and mentally competent and a consulting physician must concur. The request must then be made in writing. Someone other than the family member must also witness the signing. A period of 48 hours must pass before the prescription is written. The physician must deliver or see to the delivery of the prescription. Any doctor working in compliance of the Act must determine that no coercion or abuse is present and the Act states that both coercion and facilitation of the medication is prosecutable. The patient may at any time, whether mentally competent or not, choose not to use the prescription.

If a patient is determined qualified for Death with Dignity, is dying, and has stated repeatedly a wish to die, I wonder if this removes motive from a coercing or abusive family member? Getting to one's inheritance a few days, weeks, or months sooner is cause to act in this situation, at the threat of prosecution? According to Dore, we don't know because the Act, as she says, provides the coercing family member with an alibi.

Reader Response: Death with Dignity is a Recipe for Elder Abuse.

Two days ago I received this email from Margaret Dore in Seattle:

Hello,

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 Dignity

What 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]."[1] 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.[2] The Act allows one of these witnesses to be the patient's heir.[3] Once the lethal dose is issued by the pharmacy, there is no oversight.[4] The death is not required to be witnessed by disinterested persons.[5] Indeed, no one is required to be present.[6]

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.[7] The Act does not, however, require that the patient be competent or even aware when the lethal dose is administered.[8] There is also no language requiring the client's consent at the time of administration.[9] 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

and

(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.[10] The Act instead provides that the patient "self-administer" the dose.[11] 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."[12] Someone else putting the lethal dose in a feeding tube or IV nutrition bag would also qualify.[13] "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.[14] 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:

(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.

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."[15] 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.

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.[16]

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.[17] 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.[18] 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."[19] 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."[20] The death certificate is required to list an underlying disease as the official cause of death.[21]

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.[22] 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.[23] 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].[24]

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.

To conclude:

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.