Physician-Assisted Suicide Redux

Last year about this time (February 2015) I wrote about the “Death with Dignity,” proposed legislation, and tried to convey just how corrosive to human dignity and the sanctity of life it actually was. It died, I am proud to report, an ignominious death. This year it’s back, sporting a new title, “The Colorado Options-in-Dying Act,” but it’s brought to you by the same group, the former Hemlock Society, who advertise it as all-new, vastly-improved, and a gare-own-teed express lane to state-assisted oblivion.

As a practicing lawyer for 38 years specializing in estate planning, probate, and guardians and conservatorships for incapacitated adults, I am personally familiar with the people, families and situations to which the so-called End of Life Options Act would apply. The Act gives me grave concerns based upon experience about its potential for abuse, and in particular the absence of any meaningful safeguards that would prevent it from becoming a warrant for the quick extermination of what this law deems to be unvalued lives. If last year’s “Death with Dignity” Act made at least token efforts towards safeguards this year’s version barely pretends to do so. In fact, the Act hardly even puts speed bumps in the way of a Dr. Kevorkian and a depressed and despairing patient.

I must assume that this is intentional, since language in the Bill systematically neutralizes any standards for the administration of the lethal drugs. Let me be specific.

  1. The “protections” built into the law will not work in practice.
  • The requirement for two people to witness the written request permits a person who benefits financially in the patient’s death to be a witness. This obvious conflict of interest is not permitted by our current law governing advance medical directives.
  • There is no requirement for the witnesses to have any objective, independent knowledge of the state of mind, history, medical condition, mental health or circumstances of the patient. They don’t even have to know the patient. Undue influence is a nice legal concept, but as the courts have observed, it is seldom done publicly, and in practice very hard to prove in court. In my experience too many seniors and disabled are subtly made to feel guilty for the ostensible burden they are to their family and to their physicians and caregivers.
  • Weak though they are, what “protections” exist are meaningless because there is neither the means to identify them nor the mechanism to enforce them. No documentation is required of the two oral requests, the completeness of the physician’s counseling, the state of mind of the patient, the diagnosis, the referral to a second physician, or a mental health professional. There is no “cooling off” period between the written request and the provision of the lethal drugs. There is no requirement that the ingestion of the lethal drug be witnessed, much less documented. There is no requirement for reporting.

2.“Decisional capacity” means no more than the capability to announce a decision. Because over 90% of suicides are attributable to untreated mental disorders, the word “capable” does nothing to address the strong likelihood that a decision is the creature of guilt, undue influence, depression, mental illness, or a witch’s brew of all four.

3. The opportunity for somebody other than the patient to procure and administer the lethal dose makes this bill a warrant for euthanasia, carving out a gaping hole in Colorado’s 140-year treatment of homicide.

Let’s try something new in this discussion–honesty. The least expensive treatment for an intractable medical condition is to put the patient to death. An elderly, disabled, demented or infirm patient told by a physician of her condition is apt to be in shock and to be depressed. To require the physician to offer among the menu of options to a “terminal” patient the option to end one’s life presents the question of suicide precisely when a patient is at her most vulnerable.  

If a physician-assisted suicide bill is to pass this legislature, it ought to be open about its purpose, its implementation, and its provisions, and ought to have protections that are intended to work. This has none of those. Provisions in the bill that flatly require dishonesty in record-keeping, that a suicide is not a suicide, that euthanasia is not euthanasia, that lethal poison is somehow “medication,” that the actual cause of death be falsely entered into an official State record and into the medical records, taken alone or together, render the text of the bill at best unserious, at worst deceitful.  

And while we’re being frank, it is important to understand that if this law passes, the written request will in short order be made into a Colorado form that will be used and marketed as “Colorado End of Life Options Act Compliance” form.   Boutique law firms, possibly in an informal partnership with one or two physicians and mental health providers, may well position themselves to specialize in such things, and to advertise their assistance in facilitating a patient’s suicide. When that happens, I can assure you that they will use their administrative staff to witness the documents, just as they often do for wills, medical powers of attorney, and advance medical directives. The bottom line is this: the requirement for witnesses does nothing to actually prevent a rogue provider, an overreaching family member or both from pressuring the senior, incapacitated or disabled citizen into a decision or subtly directing the decision-making process.

When we tell our most vulnerable citizens that their life is less worthwhile, less valuable to us, we don’t give them autonomy, we don’t give them choices, we impose upon them the message that we see their life as just another commodity, and that, all things considered, we are well rid of them. I don’t believe that to be the expression of a moral or decent society, and I continue to believe that is what we are.