"My concerns about legalizing assisted suicide include that it will encourage 'lazy doctoring.'”

http://helenair.com/news/opinion/readers_alley/against-physician-assisted-suicide/article_7b17e3b6-9b57-11e3-ab51-001a4bcf887a.html

I am a general medical practitioner, with 30 years experience. I was glad to see that Montanans Against Assisted Suicide has decided to appeal its case with the Montana Medical Examiner Board to the Montana Supreme Court. My hope is that the appeal will end the controversy about assisted suicide possibly being legal in Montana.

My concerns about legalizing assisted suicide include that it will encourage “lazy doctoring.” I say this because it is easier for a doctor to write a prescription (to end the patient’s life,) as opposed to doing the sometimes hard work of figuring out what is wrong with a patient and providing treatment. I am also concerned that legalization will give bad doctors the opportunity to hide malpractice by convincing a patient to take his or her life.

The American Medical Association, Ethics Opinion No. 2.211, states: “Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”

I agree with this statement. Allowing legalization of physician-assisted suicide in Montana will compromise and corrupt my profession. Legalization will also put the lives and well-being of my patients at risk.

Carley C. Robertson, MD
Havre MT

MAAS Will Appeal

On December 13, 2013, District Court Judge Mike Menehan dismissed MAAS's appeal with the Montana Medical Examiners Board. The order ruled that the appeal was moot due to the Board's having recently rescinded "Position Statement No. 20."  (Order, pp. 5-8).  The order also refers to Montana's assisted suicide case, Baxter v. State, as providing a defense to a homicide charge, as follows:

On December 31, 2009, the Montana Supreme Court issued its opinion in Baxter v. State, 2009 MT 449, 354 Mont. 234, 224 P.3d 1211, in which it held that under section 45-2-211 MCA, a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a physician charged with the criminal offense of homicide.  (Order, page 2, lines 17-21).

This part of the order is consistent with Greg Jackson's and Matt Bowman's article, Baxter Case Analysis, Spring 2010 ("the Court's narrow decision didn't even "legalize" assisted suicide"). Available at http://www.choiceillusionmontana.org/p/baxter-case-analysis.html

Since Baxter, there have been two bills proposed in the Montana Legislature to legalize assisted suicide.  Both bills, SB 167 and SB 220, have failed.  Assisted suicide is not legal in Montana.

MAAS is disappointed with the dismissal, but pleased with that the order addresses Baxter, over which there is ongoing controversy as to its meaning..  MAAS will appeal.

* * *

For information about problems with assisted suicide and how it puts people at risk, see http://www.choiceillusionmontana.org/p/quick-facts-about-assisted-suicide.html 

Assisted suicide: Senate bill was defeated

http://www.ravallirepublic.com/news/opinion/mailbag/article_f38cc835-638d-59c1-bd88-880c1cb3c1c8.html 

June 09, 2013 9:45 am

I was appalled to read Charles Johnson’s article implying that assisted suicide is legal in Montana. To the contrary, Senate Bill 220, which had sought to legalize assisted-suicide, was defeated in committee during the 2013 legislative session. The bill was tabled, nine votes to three. See www.montanansagainstassistedsuicide.org/p/sb-220-tabled.html.

MAAS files New Lawsuit Against Board

On Monday, December 17, 2012, MAAS filed a new lawsuit against the Montana Board of Medical Examiners.

The lawsuit is a response to the Board's order entered on November 16, 2012 refusing to vacate Position Statement No. 20.   The lawsuit's claims include that the statement is invalid because it was adopted "without statutory authorization, . . . outside the Board's subject matter jurisdiction and/or because it is an infringement on the role of the Legislature." 

The petition for the lawsuit can be viewed by clicking here.  The attachments to that petition can be viewed by clicking here and here.

Assisted suicide may not bring peace to either terminally ill or their families

http://www.ravallirepublic.com/news/opinion/mailbag/article_68d5ea27-25d1-5654-b61e-ca2c67d0c68d.html?print=true&cid=print

 

November 30, 2012 6:15 am  

 

This letter is a follow up to your recent (Nov. 16) article on assisted suicide and the Montana Medical Board.

 

A study was recently released in Switzerland, where assisted suicide is legal (“Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf). The study found that 1 out of 5 family members or friends present at an assisted suicide were traumatized. These persons “experienced full or sub-threshold (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.”

This study is consistent with what I have observed with my law practice clients whose parents participated in the Washington/Oregon death with dignity acts (assisted suicide). With one client, one branch of the family wanted the parent to use the lethal dose, while the other did not. The parent spent much of his final days traumatized and struggling over the decision of whether or not to kill himself. This was instead of making the best of the time that he had left. My client was also traumatized. In that case, the parent did not use assisted suicide and died a natural death.

With another case, it’s unclear that the parent’s assisted-suicide death was voluntary. My client lives with that memory.

Legal assisted suicide is sold as a peaceful and loving death. It may be anything but.

Margaret Dore, Seattle WA

MMA Adopts Helpful Position Statement

The Montana Medical Association's Board of Trustees has adopted a new position statement: Licensing Boards "should not adopt rules that would expand the scope of practice of Montana's licensed health care professionals without first having clear statutory authorization to do so."[1]

Our legal challenges to Position Statement No. 20 include this same reasoning, that Position Statement No. 20 is an invalid expansion of a physician's scope of practice without statutory authority.[2]

We are encouraged to see the Montana Medical Association adopting a similar position. 

* * *

[1]  The MMA's new position statement can be viewed in its entirety by clicking here.
[2]  Position Statement No. 20 is subject to two legal challenges by Montanans Against Assisted Suicide (MAAS).  The first is a formal petition to the Board of Medical Examiners, to request an actual ruling, which has been denied to date.  That petition can be viewed by clicking here.  The second legal challenge is a petition to the First Judicial Court of Lewis and Clark County setting forth MAAS' substantive arguments.  To view the amended petition, filed on October 12, 2012, click here; to view the attachments to that petition, click here.

MAAS Requests Ruling From Board, It's About Time

On September 26, 2012, Montanans Against Assisted Suicide submitted a formal petition to the Board of Medical Examiners requesting that the Board rule on Position Statement No. 20.  A hard copy of the petition can be viewed by clicking here.  The petition states in part:

"This matter has been pending before the Board for a year. On May 2, 2012, MAAS filed a formal request to vacate Position Statement No. 20, which implies that assisted suicide and/or euthanasia is legal in Montana, which is not the case. On July 6, 2012, MAAS submitted additional argument to the Board.

MAAS’s grounds for relief were twofold: (1) The Board enacted Position Statement No. 20 without required notice and participation by the public; and (2) the Board lacks statutory, constitutional and/or rulemaking authority to enter such a statement. These grounds for relief are explained in more detail in the materials previously filed with the Board on this issue. 

To Board: Assisted suicide "kills the very person under the physician's care"

To: DLI BSD Medical Examiners
Subject: Position Statement No 20

To whom it may concern,

Please vacate position statement no. 20 as assisted suicide is neither legal, consistent with established American Medical Association statements, the Hippocratic oath, puts the vulnerable and elderly at risk, and kills the very person under the physician’s care.

Respectfully submitted,
Samuel J. Reck, MD

To Board: "Even Sen. Blewett & Dr. Speckart have admitted that assisted suicide is not legal"

Subject: PLEASE Vacate Position Statement No. 20

I have written you before and I continue to request that you vacate your Position Statement No. 20. Even Sen. Blewett & Dr. Speckart have admitted that assisted suicide is not legal in Montana (see http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf ) How can the Board make it legal?

Sandra A Wedel Great Falls, MT

To Board: " The representatives of the people did not chose legalization"

Subject: Statement 20

July 19, 2012

Dear Members of the Montana Board of Medical Examiners,

Please add my name to those requesting that you vacate Position Statement Number 20. During the last legislative session Senator Anders Blewett stated that suicide was not legal in Montana. His Senate Bill 167 died in committee. The representatives of the people did not chose legalization.

Assisted suicide is too often legalized elder abuse. Suicide is already a problem in our state.

Representative Janna Taylor
House District 11

"The Board is both misleading physicians and endangering patients"

To the Montana Board of Medical Examiners:

Not Dead Yet is a national disability rights group with members in Montana. This letter is to urge you to rescind the position statement that the Board of Medical Examiners formulated entitled "Physician Aid in Dying" (Position 20).

First, it is incorrect to state that the Baxter decision will "...shield a physician from liability for acting in accordance with a patient's end-of-life wishes if an adult, mentally competent terminally ill patient consents to the physician's aid-in-dying." The Montana Supreme Court merely stated that if the physician can show that he/she acted in accordance with a person's wishes and consent, then such consent can be raised as a defense to a charge of homicide against the physician. Once raised, a judge or jury may or may not find the defense valid after considering all the facts and circumstances of the case.

For example, a judge or jury could reasonably expect a doctor who assists in a patient’s suicide to take practical steps to ensure that the patient’s request to die is voluntary and not coerced by others who might benefit from the death financially or by being relieved of care giving responsibilities. The potential for coercion is fraught with risks for physicians.

It is estimated that there are 21,265 cases of elder abuse annually in Montana, reported and unreported. http://www.eadaily.com/15/elder-abuse-statistics/ Statistically, 90% of elder abusers are a family member or trusted other. Similarly, people with disabilities are up to four times more likely to be abused than their same-age nondisabled peers.

A relative who is willing to abuse an elder or disabled person might be equally willing to bring up assisted suicide as an option for an ill relative. An abuser might take their relative to visit the doctor to request assisted suicide. An abuser might pick up the lethal prescription at the pharmacy. Even if the abuser went so far as to administer the drugs without the person’s actual consent at the time of death, who would know?

It is simply naïve to suggest that assisted suicide can be added to the array of medical treatment options, on a par with palliative care, without taking into account the harsh realities of elder abuse and the related potential for coercion. The Montana Supreme Court overlooked the public policy implications of elder abuse in its analysis, but in individual cases this issue is likely to become a factor that physicians could only ignore at their peril.

In stating that physicians have a shield against liability for assisted suicide when either a judge or a jury may view a case very differently, the Board is both misleading physicians and endangering patients.

We urge the Board to reconsider and rescind its position on assisted suicide.

Sincerely,

Diane Coleman, JD, MBA
President/CEO
Not Dead Yet

Position Statement No. 20: "Let's nip this in the bud, and send it to its death forever."

I have written before, but just want to gently remind you that as a Montana state citizen I am very much opposed to physician assisted suicide. We've heard from folks in Oregon and Washington and it is a moral and legal outrage. We don't want this sort of open-ended legal wrangling here.

I am respectfully asking you to vacate the new position statement #20. Let's nip this in the bud, and send it to its death forever.

I remain respectfully yours,

Mrs. Garnett Rope

To Board, asking to speak "to expand on my previously expressed concerns"

July 12, 2012

Subject: Request to be put on agenda for July 20 meeting


Mr. Marquand:

I respectfully request permission to speak to Position Statement No.20 at the meeting of the Board of Medical Examiners on Friday, July 20th, 2012, to expand on my previously expressed concerns about this proposal. There may be a number of others attending the meeting with me, but none are asking to speak.

Thank you.

Carol Mungas

Update on Board: Thank You Letter Received

As described in an earlier post, on July 20, 2012, the Montana Board of Medical Examiners denied Montanans Against Assisted Suicide and other members of the public a requested hearing on Position Statement No. 20.   The Board voted to instead thank interested persons in writing.  A copy of the letter sent to Montanans Against Assisted Suicide can be viewed here. Montanans Against Assisted Suicide anticipates a further legal challenge. 

Board Denies Hearing on Legal Issues; Legal Challenge Anticipated

On May 7, 2012, the Montana Board of Medical Examiners voted to postpone consideration of whether Position Statement No. 20 should be vacated.[1]  Position Statement No. 20 concerns "aid in dying," a euphemism for assisted suicide and euthanasia.[2]  The reasons given for the delay included "to allow additional time for public input."[3]


On July 6, 2012, Montanans Against Assisted Suicide filed additional "public input" including a letter and a legal memorandum titled:  "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law."[4]  The letter requested twenty minutes oral argument.[5]


On July 20, 2012, the Board held the postponed hearing.  The Board acknowledged that it had received the above documents and also acknowledged the presence of Cory Swanson, attorney for Montanans Against Assisted Suicide.  The Board did not allow Mr. Swanson to speak.


The Board did, however, allow a presentation by a DLI staff attorney on position papers generally.  The Board asked him a few questions and voted to have their staff thank people in writing for their input. The exact text will be posted once we get it.  


Montanans Against Assisted Suicide anticipates a further legal challenge.

* * *

[1]  See Board of Medical Examiner Minutes for May 7, 2012, Item #5. 
[2]  See “Model Aid-in-Dying Act,” published in the Iowa Law Review at   http://www.uiowa.edu/~sfklaw/euthan.html  Note the letters “euthan” in the link.
[3]  See note 1 at Item #4 (Comments by Craig Charlton and Anne O'Leary; the quote is from Ms. O'Leary).
[4]  To see letter, click here.  To see legal memorandum, click here. 
[5]  See letter in note 5.

"Does the Board really want to put itself in the embarrassing position of overstepping its authority by condoning this procedure? "

Dear Members of the Board, 


I am writing again, as a Family Medicine physician in Bozeman since '89, to address the renewed attention given to Position Statement 20. I am having trouble understanding why our Montana Board of Medical Examiners would step out on a limb and seemingly promote, or at least encourage physicians to go along with a procedure, Physician Assisted Suicide for the following reasons: 


1. Compassion and Choices [fna the Hemlock Society], which has brought the original lawsuit, and lobbied for this procedure is an out of state special interest group, looking to expand Physician Assisted Suicide all over the country. How is it that our own Board of Medical Examiners is stepping out on a limb to enable this organization to meet its goals? 


2. The Montana Supreme Court's decision in the Baxter case gives no reassurance that this procedure will not be frowned upon in the court of law when it is tested. Does the Board really want to put itself in the embarrassing position of overstepping its authority by condoning this procedure? 

Position Statement No. 20 Must be Vacated as a Matter of Law

On July 6, 2012, Montanans Against Assisted Suicide (MAAS) filed documents with the Montana Medical Examiner Board for the purpose of vacating Position Statement No. 20, titled "Physician Aid in Dying."  The documents filed included: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law," which states: 


"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." 

* * *

[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]

"The Board's reckless action puts ordinary Montanans at risk, especially the elderly and the disabled"

Dear Board of Medical Examiners:

The new Position 20 is worse than the old position 20. First, we are talking about physician assisted suicide. I don't find "aid in dying" a helpful term to explain what's really going on -- suicide. But the so-called "aid in dying" without definition could include direct euthanasia! (See Charlton letter, memo and attachments, click here and here) The Board's reckless action puts ordinary Montanans at risk, especially the elderly and the disabled.


Also, the Board has no jurisdiction. It is not above the law. As a citizen who believes in the integrity of government, I request that Position Statement No. 20 be vacated due for the reasons set forth in Mr. Charlton's letter and memo. 


Cort Freeman
Butte, Montana

"It wasn't the father saying that he wanted to die"

Dear Montana Board of Medical Examiners:
   
My wife and I operate two adult family homes in Washington State where assisted suicide is legal.  I am writing to urge you to not make Washington's mistake.

Our assisted suicide law was passed via a ballot initiative in November 2008.  During the election, that law was promoted as a right of individual people to make their own choices.  That has not been our experience.  We have also noticed a shift in the attitudes of doctors and nurses towards our typically elderly clients, to eliminate their choices.

Four days after the election, an adult child of one of our clients asked about getting the pills (to kill the father).  It wasn't the father saying that he wanted to die.

False & Misleading "Aid in Dying" Letter

To view a copy of Mr. Charlton's letter, dated June 20 2012, as sent, click here.


Dear Physician:

I represent Montanans Against Assisted Suicide & For Living with Dignity.  You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012.  The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009.  This is untrue.  I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.


The letter states: “Physicians [under Baxter] can provide prescriptions to such patients without fear that doing so could give rise to criminal or disciplinary sanction."  This statement is contrary to Baxter, which merely gives doctors a defense to prosecution.  Baxter states: