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. 

Laws Against Assisted Suicide are Constitutional

By Margaret Dore

This article describes why laws against physician-assisted suicide are constitutional in Montana.  See below.

A.  Physician-Assisted Suicide

The American Medical Association defines "physician-assisted suicide" as follows: "[A] physician facilitates a patient’s death "by providing the necessary means and/or information to enable the patient to perform the life-ending act (e.g., the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide)."[1]

Physician-assisted suicide is also called assisted suicide and "aid in dying," a term which also means euthanasia.[2] 

B. Assisted Suicide is Not Legal in Montana

In Montana, the law on assisted suicide is governed by statutes and case law.[3]  The most recent case law is Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (2009), which gives doctors who assist a patient's suicide a defense to a homicide charge.  Baxter states:

"We therefore hold that under § 45-2-211, MCA, a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply."[4]

Under Baxter, this defense fails if the patient's consent cannot be shown.[5]  In that case, prosecution for homicide can go forward.[6]

Baxter did not overrule Montana case law imposing civil liability on persons who cause or fail to prevent another person's suicide.  See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Other relevant case law includes Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997) (affirming a civil judgment against a doctor who had prescribed an ”excessively large dosage” of barbiturates to a suicidal patient who then killed herself with the barbiturates).  

Attorneys Greg Jackson and Matt Bowman state: "After Baxter, assisted suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[7]  In short, Baxter did not legalize assisted suicide."

C.  Clarifying Legislation Would be Constitutional

Some assisted suicide proponents, nonetheless, claim that assisted suicide is legal under Baxter.[8]  With this situation, clarifying legislation is needed.  Some proponents, however, counter that any such legislation would be unconstitutional.  This is untrue.  See below.

The Oregon Health Plan Steers Patients to Suicide

On September 21, 2012, the Attorney General of Canada filed an affidavit by Dr. Ken Stevens in the Quebec assisted suicide case, Leblanc v Canada.  Therein, Dr. Stevens describes how the Oregon Health Plan steers patients to suicide.

Please view the text of his affidavit below.  To view a hard copy of his affidavit, click here. 

Margaret Dore to Speak at Deaconess Hospital, Bozeman, Sept 12th, 7pm

To view event flyer, click here.

"Assisted Suicide:  Whose Choice?"

A Presentation by Margaret Dore, Esq.

Margaret Dore

Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide.  She is also an attorney in Washington State where assisted suicide is legal and patient choice is not assured.  The law instead invites patient coercion and elder abuse.  The Washington law  also devalues people with disabilities.  Ms. Dore is a former Law Clerk to the Washington State Supreme Court.  She was an amicus curie in Montana's Baxter case.  For more information, see www.margaretdore.com and www.choiceillusion.org  

Ms. Dore will discuss assisted suicide laws in Washington and Oregon and how those laws are a recipe for abuse.  She will compare the situation in Washington and Oregon to proposals seeking to legalize assisted suicide in Montana.

Senator Hinkle Corrects the New England Journal of Medicine

"Assisted Suicide is Not Legal in Montana"

Dear Editor:

I am a Montana State Senator.  I disagree with your article, "Redefining Physicians' Role in Assisted Dying," claiming that assisted suicide is legal in Montana.  At the very least, Montana law is unclear.

Last year, Senate Bill 167, which would have legalized assisted suicide in Montana, failed.  This leaves assisted suicide governed by a Montana Supreme Court case, Baxter v. Montana.  An analysis by attorneys Greg Jackson and Matt Bowman describes Baxter as follows:

"The Montana Supreme Court s assisted-suicide decision . . . didn't even 'legalize' assisted-suicide. . . . After Baxter, assisted-suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[1]

Since then, competing articles have appeared in the official Montana State Bar publication disputing whether Baxter legalized assisted suicide.[2]  The editor's headline states: "Court ruling still leaves the issue open to argument." [3]

Correct reporting would be that assisted suicide is not legal in Montana and/or hotly disputed.  Thank you for your attention to this matter.

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

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

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

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