"Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability)."
To view the above document in its entirety, read the text below or click here to read the hard copy filed with the Board. Other documents filed with the Board included a cover letter and a proposed order.
The Text:
1. On March 16, 2012, the Board adopted a revised version of Position Statement No. 20, which refers to “aid in dying” as a “medical procedure or intervention.”[1]
2. The term, “aid in dying,” means assisted suicide and euthanasia.[2]
3. On December 31, 2009, the Montana Supreme Court issued Baxter v. State, 354 Mont. 234 (2009), which addressed a narrow form of “aid in dying.” Baxter did not legalize “aid in dying,” although that fact is disputed by some proponents.[2]
4. Position Statement No. 20 implies that “aid in dying” is confined to “end-of-life” matters.[4] In Baxter, however, the plaintiffs sought to legalize assisted suicide for people who were not necessarily at the “end of life,” for example, an 18 year old who is insulin dependent.[5]
5. In the last [2011] legislative session, a bill seeking to legalize aid in dying, SB 167, was defeated.[6]
6. The Medical Examiner Board derives its power from the Administrative Procedure Act, §§ 2-4-101 to 2-4-711, MCA, and other statutes such as § 37-1-307, MCA, which defines the authority of Boards in general.[7] These statutes do not grant the Medical Examiner Board authority to interpret the meaning of a court decision such as Baxter.[8] These statutes do not grant the Board the power to enact new legislation, for example, to legalize “aid in dying” as a medical procedure or intervention.
7. Interpreting court decisions and enacting legislation are the province of the Judiciary and the Legislature, not the Board. With these circumstances, the Board had no authority to adopt Position Statement No. 20, which effectively interpreted Baxter and/or effectively enacted new legislation to legalize “aid in dying.” Position Statement 20 is null and void.
8. The Board’s lack of authority is a lack of subject matter jurisdiction and requires Position Statement No. 20 to be vacated to the extent that it purports to legalize “aid in dying” and/or refers to “aid in dying” as an “end-of-life” matter.
9. Position Statement No. 20 is also invalid and/or void in its entirety because it is a “rule” under the Administrative Procedure Act, which was adopted without attempting to comply with rulemaking procedures.[9]
10. Position Statement No. 20 is also invalid and/or void in its entirety because there was no oral argument scheduled for members of the public to speak prior to its enactment. § 2-4-302(4), MCA states: “If the proposed rulemaking involves matters of significant interest to the public, the agency shall schedule an oral hearing.” (Emphasis added). A matter is of “significant interest to the public” if the agency knows it “to be of widespread citizen interest.” In the case at hand, the record is overflowing with citizen input including more than 3000 signatures opposed to assisted suicide.[11] The Board knew of “widespread citizen interest” as a matter of law. The Board adopted Position Statement No. 20 without previously scheduling oral argument for the public. For this reason also, the statement is null and void.
11. Position Statement No. 20 is also null and void because it purports to expand a physician’s scope of practice to include “aid in dying.” This is the function of the Legislature, not the Board. Board of Optometry v. Florida Medical Association, 463 So.2d 1213, 1215 (1985).
12. Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability).
13. For the above reasons, Position Statement No. 20 is null and void as a matter of law. It must be vacated and removed from the Board’s website."
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[1] The revised statement [titled Physician Aid in Dying] says: "The Montana Board of Medical Examiners has been asked if it will discipline physicians for participating in aid-in-dying. This statement reflects the Board’s position on this controversial question. [paragraph break] The Board recognizes that its mission is to protect the citizens of Montana against the unprofessional, improper, unauthorized and unqualified practice of medicine by ensuring that its licensees are competent professionals. 37-3-101, MCA. In all matters of medical practice, including end-of-life matters, physicians are held to professional standards. If the Board receives a complaint related to physician aid-in-dying, it will evaluate the complaint on its individual merits and will consider, as it would any other medical procedure or intervention, whether the physician engaged in unprofessional conduct as defined by the Board’s laws and rules pertinent to the Board." [To view the statement of the Board's website, click here.]
[2] Model Aid-in-Dying Act, § 1-102(3), at www.uiowa.edu/~sfklaw/euthan.html Note the letters “euthan” in the link.
[3] See Greg Jackson Esq. and Matt Bowman Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010 (“the Court's narrow decision didn't even "legalize" assisted suicide”), available at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html; statement by Dr. Stephen Speckart conceding that assisted suicide is not legal under Baxter (“[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision"), at [the following link with a similar statement by Senator Anders Blewett] http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; statement by Senator Anders Blewett conceding that a doctor who assisted a suicide could be prosecuted under the Baxter decision (“under current law, ... there’s nothing to protect the doctor from prosecution”), at http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; and The Montana Lawyer, November 2011 (featuring pro-con articles by Senator Blewett and Senator Jim Shockley), available at http://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf.
[4] Id.
[5] See opinion letter from attorney Theresa Schrempp and Dr. Richard Wonderly to the Euthanasia Prevention Coalition, October 22, 2009 (attaching the plaintiffs’ interrogatory answers with a definition of “terminally ill adult patient” broad enough to include “an 18 year old who is insulin dependent”). (Attached hereto at B-1 to B-3). [To view, click here]
[6] See Detailed bill information page, attached hereto at B-4. [To view, click here]
[7] For more information about the Administrative Procedure Act and other statutes, see Memorandum dated May 2, 2012, pp. 1-2, pp. 8-10. A copy of the Act and other statutes are attached thereto at A-1 through A-28
[8] Id.
[9] See Memorandum dated May 2, 2012, pp. 8-10. [To view citation, use link at note 7, above]
[10] § 2-4-102(12)(a).
[11] Memorandum dated May 2, 2012, p. 3; attachments at A-37 to A-45. [To view citations, use links at note 7, above]