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
Saturday, August 18, 2012
Sunday, August 12, 2012
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
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
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
Saturday, August 11, 2012
"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
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
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
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
Labels:
Carol Mungus,
Medical Examiner Board
Monday, July 30, 2012
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.
Saturday, July 21, 2012
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.
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.
Wednesday, July 18, 2012
"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?
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?
Tuesday, July 17, 2012
Suicide Predator Conviction Upheld
Appeals
Court upholds nurse's aiding suicide conviction
by Amy Forliti, Associated Press, July 17, 2012
MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Tuesday affirmed the convictions of a former nurse who scanned online chat rooms for suicidal people then, feigning compassion, gave a British man and a young woman in Canada instructions on how to kill themselves.
William Melchert-Dinkel, 49, of Faribault, acknowledged that what he did was morally wrong but argued he had merely exercised his right to free speech and that the Minnesota law used to convict him in 2011 of aiding suicide was unconstitutional.
The appeals court disagreed, saying the First Amendment does not bar the state from prosecuting someone for "instructing (suicidal people on) how to kill themselves and coaxing them to do so."
by Amy Forliti, Associated Press, July 17, 2012
[To for more
information, charging document click here]
[To link to Nadia's
Light, click
here]
http://minnesota.publicradio.org/display/web/2012/07/17/news/melchert-dinkel-aiding-suicide-conviction/
MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Tuesday affirmed the convictions of a former nurse who scanned online chat rooms for suicidal people then, feigning compassion, gave a British man and a young woman in Canada instructions on how to kill themselves.
William Melchert-Dinkel, 49, of Faribault, acknowledged that what he did was morally wrong but argued he had merely exercised his right to free speech and that the Minnesota law used to convict him in 2011 of aiding suicide was unconstitutional.
The appeals court disagreed, saying the First Amendment does not bar the state from prosecuting someone for "instructing (suicidal people on) how to kill themselves and coaxing them to do so."
Labels:
assisted suicide,
Nadia Kajouji
Saturday, July 7, 2012
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]
"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]
Monday, July 2, 2012
"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
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
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