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Thursday, March 12, 2015

The Carter Decision: Not Safe for Doctors


The Carter decision has been heralded as legalizing "physician-assisted death," more commonly known as physician-assisted suicide and euthanasia.  A closer reading of the decision reveals, however, that these practices are not "legalized" in the sense that they are safe for doctors to perform.  This will be the case until the expiration of a 12 month suspension AND the imposition of regulations by parliament to create safe harbors for practice. 

Carter merely provides that the Criminal Code provisions prohibiting physician-assisted death are of no force or effect when three factors are satisfied: patient competency; clear consent; and a "grievous and irremediable medical condition."  (Decision, paragraph 147).  The problem is that physicians are not always right regarding these factors.

Consider, the Victorio Noval case, in California, where a hospital performed a "terminal extubation," causing his death.  http://legalstuff.kaiserpapers.org/victorino-noval.html  After the fact, the hospital learned that Noval's daughters had lied about his condition for the purpose of a quick inheritance, and that consent from his son had been required, but not obtained. Id.  The hospital and other parties have now been sued.  Id.  Hospital staff are reportedly refusing to testify in order to avoid incriminating themselves on criminal charges.Id.

If, by contrast, Noval had died under a regulatory scheme such as Washington's death with dignity act, there would have been no basis for liability as long as the act was used.  See e.g., Washington State's death certificate instruction for prosecutors, which requires that a death be treated as "Natural" as long as the act was "used."  To view the instruction, please click here.
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Without the imposition of a similar regulatory scheme by Parliament, no doctor who assists a suicide, or who performs a euthanasia, can be assured of his or her safety to do so.  Even after the 12 month suspension period, doctors will be at risk of homicide charges because, like the hospital in  Mr. Noval's case, they learn after the fact that they were wrong on the facts of the case.  
Doctors go forward under Carter at their peril.

Thursday, October 2, 2014

The Perils of Assisted Suicide

11:15 a.m. EDTOctober 2, 2014


This story illustrates a fundamental problem with legalizing assisted suicide. The assistant can have his or her own agenda to encourage someone to kill themselves.

Bradley D. Williams, Hamilton, Mont.

Monday, March 3, 2014

Family members banned from care facilities threaten legal action

People who say they're being prevented from visiting family members at long-term care facilities in Alberta, but not told why, are asking the government to step in.

'I was threatened by the physician," said Huguette Hebert, who was banned for a day from seeing her husband staying at a Covenant Health facility in Edmonton, after she asked to stay in the room while he was changed.

She said she wanted to check for bedsores.

"It's time that somebody does something at the government level, like the minister of health," she said at a news conference Thursday. "You know my name, I really request that you intervene now."

Hebert is one of many Albertans who've had problems seeing their loved ones at continuing care facilities, says lobby group Public Interest Alberta.

Shauna McHarg hasn't seen her father in his care facility for two years ­ and has severely restricted visiting hours with her mother.

"They give no reason," she said. "My parents are aging. This started in 2010. It needs to end immediately."

McHarg appealed to the Ombudsman and the Privacy Commissioner, but Covenant Health refuses to release the reason why she was banned, even fighting the matter in court last week.

People banned from facilities should have more options, said the PIA lawyer Allan Garber.

"These decisions are being made without the due process of law," he said. "And that is a fundamental problem. Especially when we know the people on the other side are frail, elderly people."

Covenant Health said it bans visitors only on rare occasions and only when it believes safety of the patients is in jeopardy.

But the facilities have all the power, leaving banned family members with little recourse, said PIA executive director Bill Moore-Kilgannon.

"They cannot just ban people from seeing their loved ones without a strict process, evidence and guidelines," he said.

"If the government is not willing to act to empower families with real due process, then we will explore taking legal action to represent the rights of these families to be together," Moore-Kilgannon said.

Monday, January 27, 2014

"Is there a way to allow a person to end his life without making someone else a criminal?"

By Margaret Dore, Esq.*

A legislator considering an assisted suicide law asked me this question: "Is there a way to allow a person to end his life without making someone else a criminal?"

This was my (slightly edited) response:

People take their lives all the time.  One of my cousins shot himself and another threw himself in front of a train.  There was no criminality involved.  Also, if people are in pain, palliative care laws allow medical personnel to give patients copious amounts of drugs, including up to sedation, which can hasten the patient's death. This is the principal of double effect.  This is legal.  For more information, read theAffidavit of Kenneth Stevens, MD, page 3, paragraph 13.

There is also palliative care abuse in which no one seems to be held accountable, except for maybe one case in California where doctors relied on a wealthy patient's daughters, who said that their father was really bad off and didn't want treatment, which was not the case.  At least, that's what's claimed by the man's son. See William Dotinga, "Grim Complaint Against Kaiser Hospital," Court House News Service, February 6, 2012.

I've had like 15-20 contacts in the past year by people upset about their family member being suddenly off'd by medical personnel and/or having DNR's put on family members/friends without the patient's consent.  My caregiver friends also talk about guarding their patients in the hospital.  Here are some letters from Montana.  http://www.montanansagainstassistedsuicide.org/2013/04/dont-give-doctors-more-power-to-abuse.html

Here's a letter from Washington State where assisted suicide is legal. The letter talks about doctors being quick with the morphine and also regarding the conduct of an adult son shortly after our assisted suicide law was passed ("an adult child of one of our clients asked about getting the pills [to kill the father].  It wasn't the father saying that he wanted to die"). http://www.montanansagainstassistedsuicide.org/2012/07/dear-montana-board-of-medical-examiners.html  Here's a letter from a wife about how she was afraid to leave her husband alone after a doctor pitched assisted suicide to her husband. http://www.montanansagainstassistedsuicide.org/2013/01/i-was-afraid-to-leave-my-husband-alone.html

There is also the issue that people who say they want to die don't mean it, as with any suicide.  See http://www.montanansagainstassistedsuicide.org/p/what-people-mean-when-they-say-they.html

I've had two clients whose fathers signed up for the Oregon/Washington assisted suicide acts.  With the first case, one side of the family wanted the father to use the act and the other side didn't.  He spent the last months of his life torn over whether of not he should kill himself.  His daughter was also traumatized.  He died a natural death.  There is a Swiss study that you might be interested in, that 1 out of 5 family members were traumatized by witnessing the legal assisted suicide of a family member.  See http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf

In my other case, the father had two suicide parties and it's not clear that it was voluntary.  My client, his son, was told that his dad had said "You're not killing me, I'm going to bed").  Regarding the next day, my client was told that his dad was already high on alcohol when he drank the lethal dose.  But then the person telling him this changed his story.  In Montana, Senator Jeff Essman, made a relevant observation regarding this point:
"[All] 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 on SB 167 on February 10, 2011

I, however, doubt that a person in Oregon could be prosecuted.  If you read the act carefully, there is no requirement of patient consent to administration of the lethal dose, and to the extent that's ambiguous, there's the rule of lenity.  In Washington State, prosecutors are required to report assisted suicide deaths as "Natural" - no matter what - at least, that's what the regulation says: http://www.doh.wa.gov/portals/1/Documents/5300/DWDAMedCoroner.pdf   How can you prosecute someone for homicide if the death is required to be reported as "Natural?"

Here in Washington, we have already had some informal proposals to expand the scope of our assisted suicide act.  One in particular disturbed me.  A Seattle Times column suggested euthanasia as a solution for people unable to support themselves, which would be involuntary euthanasia.  See Jerry Large, "Planning for old age at a premium," March 8, 2012, which states:
"After Monday's column,  . . . a few [readers] suggested that if you couldn't save enough money to see you through your old age, you shouldn't expect society to bail you out. At least a couple mentioned euthanasia as a solution."  (Emphasis added)
So, if you worked hard and paid taxes all your life and then your company pension plan goes belly up, this is how you want society to pay you back?

As a Democrat, I see us as looking out for the little guy, not passing laws to protect perpetrators, healthcare systems, etc. from legitimate claims.  I hope that you will vote against any effort to legalize assisted suicide/euthanasia.

Thank you for writing me back.

Margaret Dore, Esq.