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

Assisted Suicide not legal in state, needs clarification

http://mtstandard.com/news/opinion/mailbag/our-readers-speak-assisted-suicide-not-legal-in-state-needs/article_6d1ca724-337f-11e2-9eee-001a4bcf887a.html

November 21, 2012 12:15 am  •  by David W. Hafer

A recent Associated Press article, which appeared last Friday in most major newspapers in our state, incorrectly stated that Montana is the third state to allow assisted suicide, along with Washington and Oregon.

Attorneys Greg Jackson and Matt Bowman did an extensive analysis of the case and concluded it “did not legalize assisted suicide and it continues to carry both criminal and civil liability for any doctor, institution, or lay person involved.”  [Click here to see Jackson/Bowman article]

The Montana Lawyer, the official publication of the Montana State Bar concluded the issue is open to argument, confirming that the Legislature needs to clarify the issue this coming session. [Click here for link to Montana Lawyer article, with this headline:  "The aid-in-dying debate: Can a physician legally help a patient die in Montana? Court ruling still leaves the issue open to argument"]

Assisted Suicide is Not Legal in Montana

This letter, by attorney Craig Charlton, responds to a prior letter claiming that assisted suicide is legal.  Mr. Charlton, attorney for Montanans Against Assisted Suicide, states:

Dear Physician . . . 

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 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:

"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."[1]

You may also be interested in this analysis of Baxter by attorneys Greg Jackson and Matt Bowman:

"[T]he Court's narrow 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."[2]

Please note that [Compassion & Choices'] "aid in dying" letter omits any discussion of a doctor’s potential civil liability for wrongful death and/or malpractice.  Baxter did not overrule Montana case law imposing civil liability on doctors who cause or fail to prevent a suicide. See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, Para 32-33 (1999).  Other cases include  Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997)(affirming a civil judgment against a physician who had prescribed an "excessively large dosage" of barbiturates to a suicidal patient who then killed herself with the barbiturates).

For another example, see William Dotinga, "Grim Complaint Against Kaiser Hospital," at http ://www.courthousenews.com/2012/02/06/43641.htm  This case is relevant to Baxter given that patient consent is the linchpin to Baxter's defense to prosecution. Moreover, even if a doctor avoids prosecution, there is civil liability. . . .

Letter from Craig Charlton to Montana Physicians, dated June 20, 2012.  To see a print copy of the entire letter, click here.   

* * * 

[1]  Baxter v. Montana, 354 Mont. 234, para. 50, 224 P.3d 1211 (2009).

[2]  To see the entire Jackson/Bowman analysis, go here: http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

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.

MMA Position Statement on Scope of Practice

The Montana Medical Association Bulletin sets forth the following Position Statement adopted by the MMA Board of Trustees on September 7, 2012.  To view a print copy, click here.

Expansion of Scope of Practice by Professional Licensing Boards

The Montana Medical Association recognizes that professional licensing boards authorized by Montana state statutes to license individuals in certain health care professions ("health care licensing boards") have, at times, attempted to and actually have expanded the scope of health care licensees without having the statutory authority to do so. This practice is of concern to medical physicians and other licensed health care professionals.

Laws Against Assisted Suicide are Constitutional

Laws prohibiting assisted suicide in Montana are constitutional under both the US Constitution and the Montana State Constitution.  This is true for three reasons. 

1.  The US Supreme Court Upheld Constitutionality

In 1997, the Supreme Court of the United States upheld the constitutionality of a statute prohibiting assisted suicide under the United States Constitution.  In Washington v. Glucksberg, 521 U.S. 702, 705-6, 117 S.Ct. 2258, 2261 (1997), the Supreme Court stated:

"The question presented . . . is whether Washington's prohibition against 'caus[ing]' or 'aid[ing] a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not."

2.  Montana's Constitution Does Not Include a "Right to Die"

Montana's Constitution was adopted in 1972.  Archived documents show that during the Constitutional Convention, a proposed right to die was considered and rejected.[1]  

With this history, there is no right to die in the Montana Constitution.[2] 

3.  The Montana Supreme Court's Constitutional Ruling

In Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (2009), the Supreme Court of Montana vacated a district court decision holding that there is a Constitutional right to physician-assisted suicide under the Montana Constitution.[3] The Supreme Court stated:  "The District Court's ruling on the constitutional issues is vacated . . ."[4]