Propaganda About Montana: Baxter & Assisted Suicide

By Margaret Dore, Esq.

Barbara Coombs Lee, President of Compassion & Choices, has posted a propaganda piece on Huffington Post falsely claiming that a physician who assists a suicide in Montana is "safe" from prosecution.  My request for equal time to correct the record on Huffington Post has been ignored.  A discussion of the actual law of Montana is set forth below. 

A.  Assisted Suicide

There are just two states where physician-assisted suicide is legal: Oregon and Washington.  These states have statutes that give doctors and others who participate in a qualified patient’s suicide, immunity from criminal and civil liability.  (ORS 127.800-995 and RCW 70.245). 

In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009).  Baxter gives doctors who assist a suicide a potential defense to criminal prosecution.  Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.  Under Baxter, a doctor cannot be assured that a particular suicide will qualify for the defense. 

B.  The Baxter Decision is Wrong

Baxter found that there was no indication in Montana law that physician-assisted suicide, which the Court termed “aid in dying,” is against public policy.  (354 Mont. at 240, ¶¶ 13, 49-50).  Based on this finding, the Court held that a patient’s consent to assisted suicide “constitutes a statutory defense to a charge of homicide against the aiding physician.”  (Id. at 251, ¶ 50).

Baxter, however, overlooked caselaw imposing civil liability on persons who cause or fail to prevent a suicide.  See e.g., Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Baxter also overlooked elder abuse.  The Court stated that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.”  (354 Mont. at 239, ¶ 11).  The Court thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.

The Baxter decision is fundamentally flawed and wrong.

C.  Doctors are not "Safe" Under Baxter

Baxter is a narrow decision via which doctors cannot be assured that a particular suicide will qualify for the defense. Attorneys Greg Jackson and Matt Bowman provide this analysis:

"If the patient is less than 'conscious,' is unable to 'vocalize' his decision, or gets help because he is unable to 'self-administer,' or the drug fails and someone helps complete the killing, Baxter would not apply. . . .

http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

Even if a doctor "beats the rap" on prosecution, there is the issue of civil liability.  See Krieg and Nelson, supra.  Like O.J. Simpson, a doctor who escapes criminal liability could find himself sued by a family member upset that he "killed mom."  The doctor could be held liable for civil damages.

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Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide. (www.choiceillusion.org)  She is also an attorney in Washington State where assisted suicide is legal.

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[1] http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html 

Barbara Coombs Lee Renews Plea to Eliminate Oregon Reporting Consistent with Elder Abuse

By Margaret Dore

Today, Barbara Coombs Lee, President of Compassion & Choices, published a blog on Huffington Post arguing that reporting for Oregon's assisted suicide act is no longer needed.[1]  This is the same claim that Compassion & Choices made in Montana before its proposed bill to legalize assisted suicide was defeated last February.

The reporting in question is consistent with elder abuse, i.e., of people with money.  This quote is from my memo against Compassion & Choices' bill, SB 167:

"Doctor reporting is . . . eliminated.¹  The former Hemlock Society, Compassion & Choices, claims that this is because Oregon’s reporting system has “demonstrated the safety of the practice.”²  To the contrary, Oregon’s reports support that the claimed safety is speculative.  The reported statistics are also consistent with elder abuse.  No wonder Compassion & Choices wants the reporting system gone."

To view the entire memo, click here. 

Washington State: "Hear No Evil, See No Evil"

Dear Editor:

Margaret K. Dore's article regarding Washington's assisted suicide law [Bar Bulletin, July] highlights a troubling disconnect between this statute and the commendable trend in Washington law to recognize and protect elders from abuse.

On the one hand, the Slayer's Statute, RCW 11.84, was recently amended to penalize heirs who financially exploit a vulnerable adult. On the other hand, safeguards for assisted suicide are minimal, far less than the standards demanded for executing a valid will. As Ms. Dore points out, record-keeping by the state appears to consist of the "hear-no-evil, see-no-evil" variety.

Theresa Schrempp
Sonkin & Schrempp, PLLC

To view Dore's article, "Assisted-Suicide Report Lacks Information about Consent, click here.

To view Washington's official report, click here.

To view the above letter, go here (the link may not work for non-bar members):  https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=09&Year=2011&AID=letters.htm

The Emperor Has No Clothes: "VSED"

Compassion & Choices, the Denver-based organization behind the push to legalize assisted suicide in Montana, has a new campaign.  They call it VSED: "Voluntarily" stopping eating and drinking.  Below, Kate Kelly provides a real life example: "I watched her suffer." 

______________________________________________

Mild stroke led to mother's forced starvation 
 

By Kate Kelly

I watched an old woman die of hunger and thirst.  She had Alzheimer's, this old woman, and was child-like, trusting, vulnerable, with a child's delight at treats of chocolate and ice cream, and a child's fear and frustration when tired or ill.

I watched her die for six days and nights.

Senator Blewett's Statements Concede That Assisted Suicide is Not Legal in Montana

Health care:  State doesn't need legal suicide,
Published in the Missoulian, Wednesday, June 15, 2011 8:45 am

I am amazed with the letter by Sen. Anders Blewett claiming that doctors can't be convicted of homicide if they cause or assist a suicide in Montana ("Physician aid in dying: Bill's rejection a step forward," June 10). His bill, Senate Bill 167, which would have accomplished that goal, was defeated this last legislative session.

Blewett's current claim is also the exact opposite of what he said when he was trying to get his bill passed. I have transcripts from the hearings on SB167. Blewett's quotes include: "under the current law ... there's nothing to protect the doctor from prosecution." Similar statements were made by others. For example, Dr. Stephen Speckart testified: "most physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision." 

To view transcript excerpts, go here: http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf

Blewett's current claim is also contrary to the analysis of Montana attorney Greg Jackson, who with attorney Matt Bowman, states: "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."  http://montanansagainstassistedsuicide.blogspot.com/p/baxter-case-analysis.html 

Blewett's bill, SB167, was defeated because it was a doctor-protection bill at the expense of individual patient rights. Legal assisted suicide is also a recipe for elder abuse in which heirs and others are empowered to pressure and abuse older people to cut short their lives. In Oregon, where assisted suicide is legal, patients desiring treatment have been offered assisted suicide instead. With the gaps in that law, patients are also unprotected from someone administering the lethal dose to them against their will.

Assisted suicide is not legal in Montana. Let's keep it that way.

Sen. Greg Hinkle, Thompson Falls

Legal Analysis of SB 167

In the 2011 Legislative Session, Senator Anders Blewett sponsored SB 167, which would have legalized Oregon-style assisted suicide in Montana.  The bill failed in Committee the day after it was heard.  To read an analysis of that bill, go here.