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NS-Margaret Dore, Esq Informs NS About Pending Physician Suicide Legislation
Jan L. Warner & Jan Collins

Legal Physician-Assisted Suicide: What do we Advise our Clients?
By Margaret Dore, Esq.
__________________________________________________

A client wants to know about the new Death with Dignity Act, which legalizes physician-assisted suicide in Washington State. Do you take the politically correct path and agree that it’s the best thing since sliced bread? Or, do you do your job as a lawyer and tell him that the act has problems and that he may want to take steps to protect himself? I would hope the latter.

Patient “Control” is an Illusion

The new act was passed by the voters as Initiative 1000 and has now been codified as Chapter 70.245 RCW.

During the election, proponents touted it as providing “choice” for end of life decisions. A glossy brochure declared that “only” the patient could administer the lethal dose. The brochure stated:
Only the patient - and no one else - may administer the [lethal dose].
I-1000 Color Pamphlet, (“Paid for by Yes! on 1000").

The Act, however, doesn’t say this - anywhere. The Act also contains coercive provisions. For example, it allows an heir who will benefit from the patient’s death, to help the patient sign up for the lethal dose.

How the Act Works

The Act has an application process to obtain the lethal dose, which includes a written request form with two required witnesses.1 The Act allows one of these witnesses to be the patient’s heir.2

The Act also allows someone else to talk for the patient during the lethal dose request process, for example, the patient’s heir.3

Once the lethal dose is issued by the pharmacy, there is no oversight. Chapter 70.245 RCW. The death is not required to be witnessed by disinterested persons. (Id.). Indeed, no one is required to be present. (Id.).

Interested witness

When signing a will, having one of the witnesses be an heir creates a presumption of undue influence. The probate statute states that when one of the two required witnesses is a taker under the will, there is a rebuttable presumption that the taker/witness:
"procured the gift by duress, menace, fraud, or undue influence."
RCW 11.88.160(2).

The lethal dose request process, which allows an heir to be a witness on the lethal dose request form, does not promote patient choice. It invites coercion.

“ Self-administer”

The Act does not state that “only” the patient may administer the lethal dose. Chapter 70.245 RCW. The Act instead provides that the patient “self-administer” the dose.

In an Orwellian twist, the term “self-administer” does not mean that administration will necessarily be by the patient. “Self-administer” is instead defined as the act of ingesting. The Act states:
“Self-administer” means a qualified patient’s act of ingestingmedication to end his or her life . . . . (Emphasis added).
RCW 70.245.010 (12) (Scroll down).

In other words, someone else putting the lethal dose in the patient’s mouth qualifies as “self-administration.” Someone else putting the lethal dose in a feeding tube or IV nutrition bag would also qualify. “Self-administer” means that someone else can administer the lethal dose to the patient.

No witnesses at the death

If, for the purpose of argument, “self-administer” means that only the patient can administer the lethal dose himself, the patient is still vulnerable to the actions of other people. This is due to the lack of required witnesses at the death.

With no witnesses present, someone else can administer the lethal dose to the patient without the patient’s consent. Indeed, someone could use an alternate method such as suffocation. Even if the patient struggled, who would know? The lethal dose request would provide an alibi.

This situation is especially significant for patients with money. A California case, People v. Stuart, 67 Cal Rptr. 3rd 129, 143 (2007), states:
"Financial reasons [are] an all too common motivation for killing someone."
Without disinterested witnesses, the patient’s control over the “time, place and manner” of his death, is not guaranteed.

What to Tell Clients
1. Signing the form will lead to a loss of control
By signing the form, the client is taking an official position that if he dies suddenly, no questions should be asked. The client will be unprotected against others in the event he wants to live. This would seem especially important for clients with money. There is, regardless, a loss of control.
2. Reality check
The Act applies to adults determined by an “attending physician” and a “consulting physician” to have a disease expected to produce death within six months. RCW 70.245.010 (11) & (13) (scroll down). (scroll down). But what if the doctors are wrong? This is the point of a recentarticle in The Seattle Weekly: Even patients with cancer can live years beyond expectations.4 The article states:
Since the day [the patient] was given two to four months to live, [she] has gone with her children on a series of vacations . . . .
“We almost lost her because she was having too much fun, not from cancer,” [her son chuckles].5
Conclusion

As lawyers, we often advise our clients of worst case scenarios. This is our obligation regardless of whether it is politically correct to do so. The Death with Dignity Act is not about dignity or choice. It is about enabling people to pressure others to an early death or even cause it. The Act may also encourage patients with years to live, to give up hope. We should advise our clients accordingly.
* * *
Margaret Dore is a Seattle attorney admitted to practice in 1986. She is a former law clerk to the Chief Justice of the Washington State Supreme Court, and also to Judge John Petrich of the Washington State Court of Appeals. She is the immediate past chair of the Elder Law Committee of the ABA Family Law Section. She is a former chair of what is now the King County Bar Guardianship and Elder Law Section. For more information on Ms. Dore, see www.margaretdore.com.

Endnotes:
1. RCW 70.245.030 &70.245.220 state that one of two required witnesses to the lethal dose request form cannot be the patient’s heir or other person who will benefit from the patient’s death; the other witness is allowed to be an heir or another person who will benefit from the patient’s death.

2. Id.

3. RCW 70.245.010(3) allows someone else to talk for the patient during the lethal dose request process, for example, . This there is no prohibition against this person being the patient’s heir or other person who will benefit from the patient’s death. The only requirement is that the person doing the talking be “familiar with the patient’s manner of communicating.” RCW 70.245.010(3) states:

"Competent" means that . . . a patient has the ability to make and communicate an informed decision to health care providers,including communication through persons familiar with the patient's manner of communicating if those persons are available. (Emphasis added).

4. Nina Shapiro,“Terminal Uncertainty,” Washington’s new “Death with Dignity” law allows doctors to help people commit suicide - once they’ve determined that the patient has only six months to live. But what if they’re wrong? The Seattle Weekly, January 14, 2009. http://www.seattleweekly.com/2009-01-14/news/terminal-uncertainty.

5. Id.



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