Medical Examiner Board Statement is Null & Void

Today, Montanans Against Assisted Suicide & For Living with Dignity filed a request with the Montana Board of Medical Examiners to vacate its recent position statement, which misstates the Baxter decision and erroneously implies that assisted suicide is legal in Montana.  This request is brought for the sake of public safety.

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

Senator Jim Shockley Published in the Montana Lawyer

"No, physician-assisted suicide is not legal in Montana:

 It's a recipe for elder abuse and more".[1] 

By State Senator Jim Shockley and Margaret Dore
Published in The Montana Lawyer
The State Bar of Montana

There are 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 patient’s 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 suicide will qualify for the defense.  Some assisted suicide proponents nonetheless claim that Baxter has legalized assisted suicide in Montana.

Legalizing assisted suicide in Montana would be a recipe for elder abuse.  The practice has multiple other problems.

What is physician-assisted suicide?

The American Medical Association (AMA) states: “Physician-assisted suicide occurs when 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.”  (Code of Medical Ethics Opinion 2.211).  For example, a “physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.”  (Id.)

The Baxter decision

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 aid in dying “constitutes a statutory defense to a charge of homicide against the aiding physician.”  (Id. at 251, ¶ 50).

Baxter, however, 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.

Baxter also overlooked caselaw imposing civil liability on persons 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, ¶¶ 32-33 (1999).  Baxter is, regardless, a narrow decision in which doctors cannot be assured that a suicide will qualify for the defense.  Attorneys Greg Jackson and Matt Bowman provide this analysis:

If the idea of suicide itself is suggested to the patient first by the doctor or even by the family, instead of being on the patient's sole initiative, the situation exceeds "aid in dying" as conceived by the Court.  If a particular suicide decision process is anything but "private, civil, and compassionate," . . . , the Court's decision wouldn't guarantee a consent defense.  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. . . .

No doctor can prevent these human contingencies from occurring in a given case . . . in order to make sure that he can later use the consent defense if he is charged with murder.

“Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, at  http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html


The 2011 Legislative Session

The 2011 legislative session featured two bills in response to Baxter, both of which failed: SB 116, which would have eliminated Baxter’s potential defense; and SB 167, which would have legalized assisted suicide by providing doctors and others with immunity from criminal and civil liability.

During a hearing on SB 167, the bill's sponsor, Senator Anders Blewett, said:  “[U]nder current law, ... there’s nothing to protect the doctor from prosecution.”  ( http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf ).  Dr. Stephen Speckart made a similar statement: "[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision."  (Id. at p.2)

Legalization would create new paths of abuse

In Montana, there has been a rapid growth of elder abuse.  Elders' vulnerabilities and larger net worth make them a target for financial abuse.  The perpetrators are often family members motivated by an inheritance.  See e.g.  www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf .

Preventing elder abuse is official Montana state policy.  See e.g., 52-3-801, MCA.  If Montana would legalize physician-assisted suicide, a new path of abuse would be created against the elderly, which would be contrary to that policy.  Alex Schadenberg, Chair of the Euthanasia Prevention Coalition, International, states:

With assisted suicide laws in Washington and Oregon, perpetrators can . . . take a 'legal' route, by getting an elder to sign a lethal dose request.  Once the prescription is filled, there is no supervision over the administration. . . . [E]ven if a patient struggled, “who would know?

http://www.isb.idaho.gov/pdf/advocate/issues/adv10oct.pdf, p. 14.

“Terminally Ill” Does Not Mean Dying

Baxter’s potential defense applies when patients are "terminally ill," which Baxter does not define.  In Oregon, “terminal” patients are defined as those having less than six months to live.  Such persons are not necessarily dying.  Doctors can be wrong.  Moreover, treatment can lead to recovery.  Oregon resident, Jeanette Hall, who was diagnosed with cancer and told that she had six months to a year to live, said:

I wanted to do our [assisted suicide] law and I wanted my doctor to help me.  Instead, he encouraged me to not give up . . .  I had both chemotherapy and radiation. . . .

It is now 10 years later.  If my doctor had believed in assisted suicide, I would be dead. 

http://mtstandard.com/news/opinion/mailbag/article_aeef3982-9a98-11df-8db2-001cc4c002e0.html 

Legal physician-assisted suicide empowered the Oregon Health Plan, not individual patients 

Once a patient is labeled “terminal,” an easy argument can be made that his or her treatment should be denied.  This has happened in Oregon where patients labeled “terminal” have not only been denied coverage for treatment, they have been offered assisted-suicide instead.

The most well known cases involve Barbara Wagner and Randy Stroup.  (KATU TV, at http://www.katu.com/news/26119539.html , ABC News, at http://www.abcnews.go.com/Health/Story?id=5517492  Ken Stevens, MD, at pp. 16-17, at http://choiceillusionoregon.blogspot.com/p/oregons-mistake-costs-lives.html).  The Oregon Health Plan refused to pay for their desired treatments and offered to pay for their suicides instead.  Neither Wagner nor Stroup saw this as a celebration of their “choice.”  Wagner said: “I’m not ready to die.”  Stroup said: “This is my life they’re playing with.”
            
Stroup and Wagner were steered to suicide and it was the Oregon Health Plan doing the steering.  Oregon’s law empowered the Oregon Health Plan, not individual patients.

Oregon’s studies are invalid

Oregon’s statute does not require a doctor to be present when the lethal dose is administered.  (ORS 127.800-995).  During a hearing on SB 167, Senator Jeff Essmann made a related point, as follows:

[A]ll the protections [in Oregon’s law] end after the prescription is written.  [The proponents] admitted that the provisions in the Oregon law would permit one person to be alone in that room with the patient.  And in that situation, there is no guarantee that that medication is self-administered.

So frankly, any of the studies that come out of the state of Oregon’s experience are invalid because no one who administers that drug . . . to that patient is going to be turning themselves in for the commission of a homicide.

Senate Judiciary Hearing Transcript, February 10, 2011, p.15, at http://www.margaretdore.com/pdf/senator_essmann_sb_167_001.pdf

Public confusion

In Montana, the moving force behind legalizing assisted suicide is Denver-based Compassion & Choices.  On September 15, 2011, that organization’s president published an article on Huffington Post claiming that under Baxter physicians in Montana are “safe from prosecution.”  ( http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html )  This is clearly not the case and  propaganda.  A physician relying on her advice could be charged with homicide.

Conclusion  

Baxter is a flawed decision that overlooked elder abuse.  Baxter has created confusion in the law, which has put Montana citizens at risk.  Neither the legal profession nor the medical profession has the necessary guidance to know what is lawful. 


Legalizing assisted suicide is bad public policy.  Doctors’ diagnoses can be wrong and legalization is a recipe for abuse.  Legalization would also allow the state government to encourage citizens to kill themselves.  This is an area where the government does not belong.  Montana consistently has one of the highest suicide rates in the nation.   Montana doesn’t need the “Oregon Experience.”


Legislation should be enacted to overrule Baxter and clearly declare that assisted suicide is not legal in Montana.  
      

* * *

Senator Jim Shockley, of Victor, is a Republican State Senator, probate lawyer, and an adjunct instructor at the University of Montana School of Law. 

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

* * *

[1] To read this article as published in The Montana Lawyer and the opposing article by Senator Anders Blewett, go here:

http://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf                                                                                                  

Compassion & Choices of WA Embraces Derek Humphry

Just in from Washington State:

Compassion & Choices of Washington has announced that Derek Humphry will be the keynote speaker at its 2011 annual meeting.[1]

Derek Humphry has recently been in the news as a promoter of suicide kits from a company now shut down by the FBI.  According to an article in Oregon's Register-Guard newspaper:

"A spotlight was cast on the mail-order suicide kit business after a 29-year-old Eugene man committed suicide in December using a helium hood kit. The Register-Guard traced the $60 kit to [the company, which] has no website and does no advertising; clients find [the] address through the writings of Humphry."[2]

With the choice of Humphry as its keynote speaker, Compassion & Choices shows its true colors?

* * *

[1]  See current newsletter for Compassion & Choices of Washington, stating :  "Derek Humphry to be Keynote Speaker at 2011 Annual Meeting."  To view the newsletter, go to the following link and scroll down to the lower half of the page:  http://choiceisanillusion.files.wordpress.com/2011/10/derek.pdf
[2]  See e.g., Jack Moran, "Police kick in door in confusion over suicide kit:  The FBI message to police about the purchase of the gear failed to mention it was bought seven months ago, "  The Register-Guard, September 21, 2011.

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.

* * *

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.

* * *

[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