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.

The Perils of Assisted Suicide

11:15 a.m. EDT, October 2, 2014

In Montana there was a recent case in which a man was charged with "aiding or soliciting" the suicide of a 16-year-old girl. He is accused of trying to prevent her from testifying against him in another matter by getting her to kill herself.

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.

Read more:http://www.baltimoresun.com/news/opinion/readersrespond/bs-ed-assisted-suicide-20141002,0,1616588.story#ixzz3F1VD5Sx5

Family members banned from care facilities threaten legal action

http://ca.news.yahoo.com/family-members-banned-care-facilities-threaten-legal-action-014019928.html

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.

"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.

www.choiceillusion.org 

WE WON!!!!

EUTHANASIA PREVENTION COALITION APPLAUDS RULING OF BC APPEAL COURT ON ASSISTED SUICIDE

Media Release - Toronto, Thursday October 10, 2013 /CNW/

The BC Court of Appeal has struck down the decision by Justice Smith and upheld the current laws which protect Canadians from euthanasia and assisted suicide.

The Euthanasia Prevention Coalition (EPC) intervened in the BC assisted suicide case in order to uphold the principles of Parliamentary sovereignty and basic human rights. EPC is pleased that the Court has followed the lead of Canadian Parliament, the Supreme Court of Canada, and of the majority of Parliaments and Supreme Courts around the world in finding that the prohibitions against assisted suicide represent an important protection against abuse of vulnerable people.

EPC legal counsel Hugh Scher states:

EPC is concerned about the safety, security and equality of people with disabilities and seniors, which is central to the protections set out under the Charter of Rights and Freedoms and our Criminal Code. 

EPC-BC chair Dr. Will Johnston states:

The debate is over whether what the suicidal person proposes – to kill themselves – is a goal which should be shared and facilitated by the state. I suggest there are alternate goals like the treatment of depression and other symptoms, to which the state should apply itself. When someone has lost hope for the future, finds no meaning in their life, and sees only one solution – death – we recognize a suicidal depression. That bleak tunnel vision should evoke suicide prevention, not euthanasia.

Disability rights advocate Amy Hasbrouck of Toujours Vivant - Not Dead Yet states:

People with disabilities, chronic illness and seniors are negatively affected by assisted suicide and euthanasia because it leads to the impression that our lives are lacking in meaning and value as compared to other Canadians.

EPC Executive Director, Alex Schadenberg states:

The evidence is clear that in jurisdictions where these practices have been legalized, there have been significant abuses of vulnerable people. For example, studies in Belgium demonstrate that 32% of people killed under the Belgian law were killed without consent and without their own request, in breach of a fundamental condition of that law. 

Not one of these doctors has been prosecuted.

In the event today's ruling is appealed to the Supreme Court of Canada, EPC will seek to intervene with a view to protecting the dignity and equality of all Canadians, particularly those who are most vulnerable to the risks of abuse from assisted suicide.

Please consider a generous donation to help us cover expenses and to prepare for the next round.  Thank you for your support!  To donate, click here.

For further information, please contact:

Dr. Will Johnston, (Vancouver) EPC-BC Chair: (604) 220-2042 – willjohnston@shaw.ca

Alex Schadenberg, (London) EPC Executive Director: (519) 851-1434 – info@epcc.ca

Amy Hasbrouck, (Montreal) Tourjours Vivant - Not Dead Yet: (450) 921-3057 – info@tv-ndy.ca

Beware of Vultures: The Observations of a Montana State Senator

"[I]t seems odd that the top lobby spender in Montana this year was Compassion and Choices, a 'nonprofit' group that spent $160,356 advocating for legalization of assisted suicide."

By Senator Jennifer Fielder

As we wrangled through the budget this spring, the beautiful state capitol began to feel like a big, ripe carcass with a dark cloud of vultures circling about. 

Senator Jennifer Fielder

The magnitude of money in government attracts far more folks who want to be on the receiving end than it does those who just want fair and functional government. Until that ratio improves, it may be impossible to rein in unnecessary regulation and spending. 

Special interest groups spent over $6 million dollars on lobbyists to pressure Montana legislators during the 2013 session. Seems like a lot of money, until you compare it to the billions of taxpayer dollars at stake. Does the average taxpayer stand a chance against organized forces like that?

As your Senator one of my main duties is to sort out who wants your money, or a change in a law, and why. Getting to the bottom of it takes work. It would certainly help if well-intentioned citizens would do a little more research before clamoring onto any particular bandwagons as well.

We have to be careful not to be fooled by catchy slogans, shallow campaign propaganda, biased media reports, or plays on our emotions which, too often, conceal a multitude of hidden agendas. 

For example, it seems odd that the top lobby spender in Montana this year was Compassion and Choices, a “nonprofit” group that spent $160,356 advocating for legalization of assisted suicide. The second biggest spender was MEA-MFT, the teachers and public employees union who spent $120,319 pushing for state budget increases.

I earned a reputation for asking a lot of questions. I certainly didn’t take this job to rubber stamp anything. It's my duty to determine whether a proposal relates to an essential, necessary service of fair and functional government, or if it is motivated by piles of money to be gained from ill-advised government decisions.

You see, there is so much money in government that almost everything in government is about the money. The usual tactic is to disguise a ploy as “the humane thing to do”. . . .

Some groups work very hard to provide factual information about their issue. Others stoop to the lowest of lows to invoke heart wrenching emotions, twisted half-truths, or outright lies. You really have to look carefully for all the angles.

Assisted suicide is another issue that can be highly emotional. There are deep and valid concerns on both sides of this life and death debate. But I found myself wondering, “Where does all the lobby money come from?” If it really is about a few terminally ill people who might seek help ending their suffering, why was more money spent on promoting assisted suicide than any other issue in Montana?

Could it be that convincing an ill person to end their life early will help health insurance companies save a bundle on what would have been ongoing medical treatment? How much would the government gain if it stopped paying social security, Medicare, or Medicaid on thousands of people a few months early? How much financial relief would pension systems see? Why was the proposed law to legalize assisted suicide [SB 220] written so loosely? Would vulnerable old people be encouraged to end their life unnecessarily early by those seeking financial gain? 

When considering the financial aspects of assisted suicide, it is clear that millions, maybe billions of dollars, are intertwined with the issue being marketed as “Compassion and Choices”. Beware.

Public issues are not easy, and they are not always about money. But often times they are. If we want fair and functional government, we need to look deeper than most people are willing to look.. . .

* * *
Published as Communication from Your State Senator, "Beware of Vultures," by Montana State Senator Jennifer Fielder, Sanders County Ledger, http://www.scledger.net, page 2, 6-4-13. Senator Fielder lives in Thompson Falls MT, USA representing Montana State Senate District 7.

Assisted Suicide's Dangerous Illusion of Control

http://www.calgaryherald.com/opinion/columnists/Johnston+Assisted+suicide+dangerous+illusion+control/7716999/story.html

By Will Johnston, MD

The daughters are beside themselves. One sat in my office recently, telling me about her father’s trips to the bank that are draining his savings. He gets angry when his daughters challenge him.

The money — thousands of dollars, slowly saved from a meagre pension and needed for his care — seems to be going to a recently acquired girlfriend some years younger than himself. He speaks almost no English. The situation was detected by chance when a daughter gave him a ride to the bank and saw his bank book.

Some time ago, I performed a competency assessment on a socially isolated older person who had been placed in a nursing home. An unrelated neighbour had listed the person’s home for sale and was receiving inquiries before a relative became aware.

On another occasion, an older woman had adequate resources to stay in her attractive home and employ a live-in caregiver. A family member, an heir and beneficiary, arranged to have her met at her door by an ambulance crew with a gurney. She was told that if she did not co-operate, the police would be called. She submitted and was transported to a dingy nursing home that she described as a prison. Her home was sold.

A colleague recalls being on duty in an emergency room several years ago when an older bachelor came in desperately ill and confused, accompanied by his niece and nephew.

“He’s had a good life. He wouldn’t want any treatment,” his only relatives (and presumably heirs) attested. With ordinary care and rehydration, the older man walked out of hospital a week later.

Each of these scenarios is different, and none of them grace a research paper, but all of them are the real face of elder abuse. I could list 10 more from my own experience. Government of Canada policy recognizes the epidemic of elder abuse and the unusual difficulty of detecting it, often because the victim resists the revelation of abuse.

I routinely see people induced to do things and accept arrangements that are contrary to their own interests. People can be surprisingly naive.

High profile assisted suicide cases might at first seem to be about another kind of person, a sophisticated and clear-minded sort, immune to undue influence. I suggest that this presumption is also naive.

We all take our cues from those around us. It only takes a few words to promote suicide. If the law is changed, an obligation to mention the legal fact of assisted suicide will be created. Some patients will experience even the most perfunctory acknowledgment of assisted suicide as an inducement to it.
If state-sanctioned suicide becomes part of the atmosphere in our hospitals, a presumption in that direction will be created. I predict the same erosion of medical diligence that many of us on the front lines have already watched happen when caregivers choose to see a patient as having finished all useful life. How much more will this be the case when the patient’s present fear and loss of hope feed smoothly into an official assisted-suicide regime?

Some people would throw away months or years of life, and some would miss good medical care or medical advances they would have wanted to enjoy.

Consider the case of Jeanette Hall, who wanted to use Oregon’s assisted suicide law and is grateful, 12 years later, that her doctor directed her toward treatment rather than suicide.

One of Dr. Ken Stevens’ Oregonian patients was not so lucky — part way into his cancer treatment, he became despondent and was given suicide pills by another doctor.

I know someone, happy to be alive, who had alarming symptoms and a clear diagnosis of Lou Gehrig’s disease more than a decade ago. The symptoms inexplicably resolved. Huntington’s disease, a factor in a recent high-profile suicide in Toronto, moved closer to a treatment recently in a stem cell experiment.

If a legal assisted suicide offer is always dangling, variations in the competence and diligence of doctors create arbitrary forces that move choice and control to others, not the patient.

When you or your loved one goes to the hospital, you need to be able to trust that an assisted-suicide-minded doctor or nurse will not be steering you or them toward death. People can be offered the illusion of control and autonomy when the choices are really being shaped by others.

When empowered medical personnel — and right-to-die activists — choose their own opinions about your quality of life, and have been given constitutional protection to counsel, facilitate and steer you toward suicide, you and your loved ones will not be safe.

The choices created by legal assisted suicide may end up being someone else’s, not yours. The speculative legal changes being offered are dangerous and irresponsible. Parliament rejected them firmly two years ago. We will all be safer if our courts do the same.

Dr. Will Johnston is chair of the Euthanasia Prevention Coalition of BC
Read more: http://www.calgaryherald.com/Johnston+Assisted+suicide+dangerous+illusion+control/7716999/story.html#ixzz2GZkbdvWG

Assisted suicide opens the door to grave abuses of elderly

http://www.thestar.com/opinion/editorialopinion/article/1287933--assisted-suicide-opens-the-door-to-grave-abuses-of-elderly

Derek Miedema, November 14, 2012

Canadians can watch disturbing videos on a government website warning about elder abuse — an elderly man is pushed to move faster, an adult child steals money from a grandmother’s wallet. 

However, just as some still turn a blind eye to the fact that elder abuse is happening, proponents of assisted suicide refuse to connect the dots between legalized assisted suicide and the potential for serious abuse.

Carter: The Attorney General's Factum

The Attorney General's Factum of the Appellant, filed October 22, 2012, can be viewed by clicking here.

Assisted suicide too risky, allowing it demeans value of life, federal gov't says

http://www.vancouversun.com/news/Assisted+suicide+risky+allowing+demeans+value+life+federal+says/7447066/story.html

The Canadian Press October 25, 2012 12:30 PM

 

VANCOUVER - The federal government says allowing doctor-assisted suicide demeans the value of life and puts vulnerable people at risk in moments of weakness.

Ottawa has filed its arguments in an appeal of a B.C. decision that struck down the prohibition on doctor-assisted suicide, arguing the trial judge was wrong to conclude the law is unconstitutional.

In documents filed with the B.C. Court of Appeal, the government says the law reflects a reasonable belief that allowing assisted suicide would put vulnerable people at risk of being coerced or even forced to end their lives.

The government says the law reflects Parliament's desire to discourage and prevent suicide in all cases, and it should be up to lawmakers, not the courts, to decide if that needs to change.

Ottawa argues the Supreme Court of Canada's 1993 decision upholding the law in a case involving Sue Rodriguez was final.

The B.C. case was launched by several plaintiffs, including Gloria Taylor, who won a constitutional exemption from the law but died earlier this month without resorting to assisted suicide.
Read more: http://www.vancouversun.com/news/Assisted+suicide+risky+allowing+demeans+value+life+federal+says/7447066/story.html#ixzz2AM32CGOR

Legal Assisted Suicide Can Cause Anguish

By Margaret Dore

I am a lawyer in Washington State USA where assisted suicide is legal.  I am also President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide.

In 2011, a study was released in Switzerland where assisted-suicide is legal.  The study found that approximately 1 out of 5 family members or friends who were present at an assisted suicide were traumatized.  They "experienced full or sub-sthreshold [Post Traumatic Stress Disorder] related to the loss of a close person through assisted suicide."[1]

This is consistent with what I have observed with clients whose parents have participated in the Washington/Oregon death with dignity acts.  With one client, the doctor had suggested assisted-suicide to the parent.  After that, one branch of the family wanted the parent to use the lethal dose, while the other did not.  The parent spent much of his final days struggling over whether or not to kill himself.  This was instead of making the best of the time that he had left.  My client was also traumatized.  In that case, the parent died a natural death.

With another case, it's unclear that the assisted-suicide death was voluntary.  My client lives with that memory.

Legal assisted suicide is sold as a peaceful and loving death.  It may be anything but.

* * *

[1] B. Wagner, J. Muller, A. Maercker, "Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide," European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf

Study: Assisted suicide helpers distressed

http://worldradio.ch/wrs/news/wrsnews/study-assisted-suicide-helpers-distressed.shtml?32735

Thursday, October 4, 2012

One in four people who accompany someone to commit assisted suicide suffer massive psychological distress, according to a new study by the University of Zurich.

Researchers at the university spoke to 85 people who went with a family member or close friend to an EXIT euthanasia clinic.

A quarter suffered from post traumatic stress disorder while 16 percent had depression. Five percent were found to have long-term grief.

The interviews were carried out one to two years after the assisted death of loved ones.

The results state that problems can surface 14 to 24 months later and that a death not from natural causes was a heavy burden for those who supported the deceased.

Although the research didn’t include a direct comparison with the effects of a natural death on a loved one, the study was compared to others.

This showed the researchers that post traumatic stress disorder was more common for people close to an assisted suicide case rather than a natural death.

The results have been published in the October issue of the journal European Psychiatry.

Abbotsford man convicted of manslaughter now accused of steering woman to suicide

http://www.abbotsfordtimes.com/news/Abbotsford+convicted+manslaughter+accused+steering+woman+suicide/7328032/story.html
By Rochelle Baker, Abbotsford Times October 2, 2012 

Abbotsford resident Kenneth Carr, formerly convicted in manslaughter in the death of a teenage girl who was found naked and strangled along train tracks in 1997, has been charged with counselling a person to commit suicide.

An Abbotsford man formerly convicted of manslaughter in the death of a teenage girl is now charged with counselling a person to commit suicide.

Kenneth William Carr, 53, was charged after a woman in her 40s with a history of depression showed up with a relative at the Abbotsford Police station on Thursday with ligature marks around her neck, said Const. Ian MacDonald.

"The family member observed the injuries on the woman's neck, and the victim told her a relatively new acquaintance had given her advice on how to commit suicide," said MacDonald.

"Bear in mind, this a woman who suffers from depression."

As part of the ensuing investigation, a search warrant was executed at Carr's home. Evidence gathered there suggests this may not have been the only time the offender has allegedly engaged in counselling or abetting a suicide, said MacDonald.