Physician-assisted Suicide: a Recipe for Elder Abuse and the Illusion of Personal Choice
| Publication year | 2011 |
| Citation | Vol. 2011 No. 12 |
Winter 2011-#9. Physician-Assisted Suicide: A Recipe for Elder Abuse and the Illusion of Personal Choice
Volume 36, No. 4
Winter 2011
"Elders and people with disabilities are, as a group, at high risk far violence, abuse and exploitation." Vermont Center for Crime Victim Services(fn1)
In 2009, a legislative proposal to legalize physician-assisted suicide in Vermont was introduced, but not brought to a vote.(fn2) The proposal was modeled on Oregon's assisted suicide act.(fn3) Oregon is one of just two states where assisted suicide is legal. In Vermont, proponents have indicated that they will be backing a similar proposal in the 2011 legislative session.(fn4)
The American Medical Association (AMA) defines physician-assisted suicide as follows: "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 (e.g., the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide)."(fn5)
The AMA rejects assisted suicide.(fn6) Assisted suicide is also opposed by disability rights groups such as the Disability Rights Education and Defense Fund, and Not Dead Yet.(fn7)
The vast majority of states to consider assisted suicide, have rejected it.(fn8) In 2010, New Hampshire and Canada rejected it by wide margins.(fn9) In Vermont, legislative proposals to enact assisted suicide have failed multiple times.(fn10)
There are just two states where assisted suicide is legal: Oregon and Washington. These states have acts that give doctors and others immunity from criminal and civil liability.(fn11) In Montana, there is a court decision that gives doctors a potential defense to criminal prosecution, but does not legalize assisted suicide by giving doctors and others criminal and civil immunity.(fn12)
Oregon's act was passed via a ballot initiative and went into effect in 1997.(fn13) Washington's act was passed via another initiative and went into effect in 2009.(fn14) Washington's act is modeled on Oregon's act.(fn15)
In both states, voters were promised that assisted suicide would assure their choice over the manner and timing of their deaths.(fn16) Both the Oregon and Washington acts, however, have significant gaps so that such choice is not assured. For example, neither act requires witnesses at the death.(fn17) Without disinterested witnesses, the opportunity is created for someone else to administer the lethal dose to the person without his consent. Even if he struggled, who would know?
Oregon and Washington are also "Don't Ask, Don't Tell" states. Required official forms and reports do not ask about or report on whether the person who died consented to administration of the lethal dose.(fn18) Consent at the time of death is also not required by the language of the acts themselves.(fn19) Without the right to consent at the time of administration, the claimed control over the manner and timing of death is an illusion. Once again and contrary to marketing rhetoric, choice is not assured.
In 2009, the proposal to legalize assisted suicide in Vermont consisted of two identical bills: Senate Bill S.144 and House Bill H.455.(fn20) As in Oregon and Washington, proponents claimed that choice would be assured.(fn21) This choice was, however, not assured. Like Oregon and Washington, the proposal lacked witnesses at the death.(fn22) The proposal also failed to require consent when the lethal dose was administered.(fn23) Two of the proposal's other gaps are discussed below.
"Self-administer"
The Vermont proposal stated that a person "may request medication to be self-administered for the purpose of hastening his or her death."(fn24) There was, however, no language stating that administration "must" be by self-administration.(fn25) This left the door open to someone else administering it. Without a clear right to self-administration, the person's ability to choose the manner and timing of death was not assured.(fn26)
Interested parties
The Vermont proposal had an application process to obtain the lethal dose, which included a written request form with two required witnesses.(fn27) The witnesses were not allowed to be interested parties, such as a beneficiary of the patient's will, who would benefit financially from the death.(fn28) The proposal did not, however, prohibit interested persons from procuring the patient's signature.(fn29) An example of procurement would be: providing the lethal dose request form; recruiting the witnesses; and supervising the signing.
In the context of signing a will, a beneficiary's procurement of the will is a "suspicious circumstance," capable of supporting a presumption of undue influence. The Vermont Supreme Court in Estate of Raedel states: "[I]n cases of suspicious circumstances, usually 'the beneficiary has procured the will to be made or has advised as to its provisions.'"(fn30)
Other states have similar laws. Burns v. Kabboul, a Pennsylvania case, states: "It will weigh heavily against the proponent [of the will] on the issue of undue influence when the proponent was... present at [its] dictation ... "(fn31) The Vermont proposal's lethal dose request process, which allowed interested parties to procure the person's signature on the lethal dose request form, did not promote choice. It invited coercion.
Not Necessarily Dying
The Vermont proposal applied to "terminal" patients, defined as having no more than six months to live.(fn32) Such persons are not necessarily dying. Doctor...
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