Supreme Court must decide suicide issue

http://billingsgazette.com/news/opinion/mailbag/supreme-court-must-decide-suicide-issue/article_93397931-2907-50d1-9c45-774bb42c5a68.html

I have been following the assisted suicide issue closely for the previous several years. I am happy to see that Montanans Against Assisted Suicide is appealing its court case to the Montana Supreme Court. In the past two legislative sessions there have been bills brought before the House and the Senate for and against legalizing assisted suicide. Compassion and Choices [the former Hemlock Society] claims that assisted suicide is already legal in the state (it is not). That false rhetoric has carried to other news mediums, out-of-state legislative bodies and the general public . . . .

We need clarification on this issue once and for all. The Montana Medical Board of Examiners conduct in adopting their position paper, implying that assisted suicide is legal, was a dreadful overstep of its authority, complicated by failing to give public notice regarding the issue.  [See MAAS petition here]

This issue will not go away until the Supreme Court undoes the mess it made with Baxter and resolves the issue by reversing the Baxter decision. The medical profession still has the respect of society. We must not allow that respect to be destroyed by putting this kind of power in the hands of doctors. Doctors can be wrong, yet the doctor is the one who ultimately will decide whether that patient is ready to die or not. This will change medical practice as we know it forever; the trust factor between patient and doctor will be destroyed.

Dr. David W. Hafer
Dayton, MT

Assisted suicide a bad proposition

http://helenair.com/news/opinion/readers_alley/assisted-suicide-a-bad-proposition/article_0ca98042-3537-11e2-957f-001a4bcf887a.html?print=true&cid=print

Letter to the Editor:

November 23, 2012 12:00 am

 

I have been following assisted suicide issues in various states for several years. Who could have ever imagined that a free society would come to this?

Last year, many of us attended a meeting where we heard from lawyers and doctors from Washington and Oregon speak out about assisted suicide in their states. Their true accounts of elder abuse, suicide parties, fraud, theft, legal wrangling and what can only be called murder were very unsettling.

I sat there stunned and sick inside, thinking of all the misdeeds that had been done under the guise of mercy.

Friends, do we want to bring this type of debacle to our great state? I think not. Assisted suicide is not legal in Montana — though some would like us to think otherwise. Let us work together and take steps to keep it out. As a member of Montanans Against Assisted Suicide, I ask you to join us in our opposition to this barbaric practice. Many vulnerable folks are counting on us to get this one right.

Mrs. Garnett Rope

Vaughn

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 the Board: "Why do you think Montana has such a high rate of suicide?"

To: DLI BSD Medical Examiners

Subject: Against Assisted suicide

We agree with Montanans Against Assisted Suicide.  Please vacate statement No. 20. Senator Blewitt and Dr Speckert admit it is illegal, so how can the Board make it legal?  This puts everyone at risk especially the elderly and special needs people.  Why do you think Montana has such a high rate of suicide?  Our young people see how human beings are not regarded with real honor and respect and figure if life gets hard, suicide is an option.  This will also add to elder abuse.

Sincerely Jerry and Virginia Geier

Board: "Please do not go down Washington's path"

Subject: Position Statement No. 20

To the Board of Medical Examiners:

I am an attorney in Bellevue, Washington.

My law practice emphasizes elder law and probate matters. I am writing to urge you to VACATE Position Statement No. 20.

Instances of elder abuse have risen significantly in recent years. Assisted suicide provides an easy cover for an abuser who coerces a vulnerable adult into “signing up” rather than “burdening” the expectant heir. Warning signs of financial abuse often go unrecognized by physicians and others.

You are undoubtedly aware that assisted suicide is unfortunately legal in Washington. I support the position of Montanans Against Assisted Suicide. Please do not go down Washington’s path.

Do not hesitate to contact me if you have any questions. Thank you.

Theresa Schrempp
theresas@lawyerseattle.com
Sonkin & Schrempp, PLLC
12715 Bel Red Rd Ste. 150
Bellevue WA 98005
425 289.3444 direct

Ted Friesen: "They would be dead before their time"

As published in the Senior News for August/September 2012:

I was glad to see the advertising in your publication by Montanans Against Assisted Suicide & For Living with Dignity.  Assisted suicide is an important topic for Montana where  proponents are wrongly claiming that the practice is legal and the majority of the population are senior citizens (over 50 years of age).

I retired from the Motion Picture Pension and Health Plans in Studio City, California, as the Chief Financial Officer.  One reason that I retired to Montana was that I had the perception that it was senior citizen friendly, unlike Oregon and Washington, which have adopted laws allowing doctors and family members to assist people in killing themselves.  That was repugnant to me. 

The proposed legalization is for terminally-ill persons.  “Terminally-ill” is a term that I am all too familiar with.  In my previous employment, one would need to be terminally-ill to qualify for a pension if they had not attained a specified age.  Many, many times doctors deemed someone terminally-ill and they wound up outliving their care-givers, not really but they lived many years.  If these persons had instead been applying for a lethal dose and used it, they would be dead before their time.

Ted Friesen, Big Fork

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.

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]

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:

Revised Board Statement is Null & Void

On May 2, 2012, Montanans Against Assisted Suicide & For Living with Dignity filed a request with the Montana Board of Medical Examiners to vacate Position Statement No. 20, titled "Physician Aid in Dying."  This request is brought for the sake of public safety.  The cover letter by attorney Craig D. Charlton states:

"[T]he record shows that the Board acted without proper public notice.  Representative Dick Barrett and Senator Anders Blewitt, in a March 20, 2012 letter to the Board, echoed a similar concern.  

As also detailed in the memorandum, the Board's actions exceeded its statutory authority and therefore its jurisdiction.  Additionally, the Board infringed on the role of the Legislature, the Board's actions have put doctors and the public at risk."

To view the cover letter and memorandum by attorney Craig D. Charlton, click here.  To view the attachments to that memorandum, click here.