The Commonwealth’s Attorney General’s Summary of the “Death with Dignity” Initiative Petition:
SUMMARY OF NO. 11-12
This proposed law would allow a physician licensed in Massachusetts to prescribe medication, at a terminally ill patient’s request, to end that patient’s life. To qualify, a patient would have to be an adult resident who (1) is medically determined to be mentally capable of making and communicating health care decisions; (2) has been diagnosed by attending and consulting physicians as having an incurable, irreversible disease that will, within reasonable medical judgment, cause death within six months; and (3) voluntarily expresses a wish to die and has made an informed decision. The petition states that the patient would ingest the medicine in order to cause death in a humane and dignified manner.
The proposed law would require the patient, directly or through a person familiar with the patient’s manner of communicating, to orally communicate to a physician on two occasions, 15 days apart, the patient’s request for the medication. At the time of the second request, the physician would have to offer the patient an opportunity to rescind the request. The patient would also have to sign a standard form, in the presence of two witnesses, one of whom is not a relative, a beneficiary of the patient’s estate, or an owner, operator, or employee of a health care facility where the patient receives treatment or lives.
The proposed law would require the attending physician to: (1) determine if the patient is qualified; (2) inform the patient of his or her medical diagnosis and prognosis, the potential risks and probable result of ingesting the medication, and the feasible alternatives, including comfort care, hospice care and pain control; (3) refer the patient to a consulting physician for a diagnosis and prognosis regarding the patient’s disease, and confirmation in writing that the patient is capable, acting voluntarily, and making an informed decision; (4) refer the patient for psychiatric or psychological consultation if the physician believes the patient may have a disorder causing impaired judgment; (5) recommend that the patient notify next of kin of the patient’s intention; (6) recommend that the patient have another person present when the patient ingests the medicine and to not take it in a public place; (7) inform the patient that he or she may rescind the request at any time; (8) write the prescription when the requirements of the law are met, including verifying that the patient is making an informed decision; and (9) arrange for the medicine to be dispensed directly to the patient, or the patient’s agent, but not by mail or courier.
The proposed law would make it punishable by imprisonment and/or fines, for anyone to (1) coerce a patient to request medication, (2) forge a request, or (3) conceal a rescission of a request. The proposed law would not authorize ending a patient’s life by lethal injection, active euthanasia, or mercy killing. The death certificate would list the underlying terminal disease as the cause of death.
Participation under the proposed law would be voluntary. An unwilling health care provider could prohibit or sanction another health care provider for participating while on the premises of, or while acting as an employee of or contractor for, the unwilling provider.
The proposed law states that no person would be civilly or criminally liable or subject to professional discipline for actions that comply with the law, including actions taken in good faith that substantially comply. It also states that it should not be interpreted to lower the applicable standard of care for any health care provider.
A person’s decision to make or rescind a request could not be restricted by will or contract made on or after January 1, 2013, and could not be considered in issuing, or setting the rates for, insurance policies or annuities. Also, the proposed law would require the attending physician to report each case in which life-ending medication is dispensed to the state Department of Public Health. The Department would provide public access to statistical data compiled from the reports.
The proposed law states that if any of its parts was held invalid, the other parts would stay in effect.
Our Analysis of The AG’s Summary:
1. The opening line tracks the AMA definition of physician-assisted suicide. The summary states: “This proposed law would allow a physician licensed in Massachusetts to prescribe medication, at a terminally ill patient’s request, to end that patient’s life.” The AMA definition states:
- “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.” (AMA Code of Medical Ethics, Opinion 2.211). For example, a “physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.” Id.
With this situation, it will be hard for them to argue that the act is not about physician-assisted suicide. (In Montana, C & C calls physician-assisted suicide “aid in dying,” which they say is “different” than “suicide”) Also, with the word “suicide,” the contagion argument is available. Pls compare these talking points from Montana: http://maasdocuments.files.
2. It’s clear that someone else can communicate for the patient and that person does not have to be the patient’s designated agent. The summary states: “The proposed law would require the patient, directly or through a person familiar with the patient’s manner of communicating, to orally communicate to a physician on two occasions, 15 days apart, the patient’s request for the medication.”
In the context of a will, speaking for the person drafting or executing a will can create a presumption of undue influence. See e.g, Estate of Moretti, 69 Mass.App.Ct. 642, 656, 871 N.E.2d 493 (2007)(“[The appellant’s] direct involvement in the drafting of the will provided ample justification for shifting the burden of proof to [the appellant on the issue of undue influence].
3. It’s fairly clear that one of two witnesses on the lethal dose request can be an heir or other interested party. The summary states: “The patient would also have to sign a standard form, in the presence of two witnesses, one of whom is not a relative, a beneficiary of the patient’s estate, or an owner, operator, or employee of a health care facility where the patient receives treatment or lives.”
If one witness can’t be an interested party, the other can be an interested party such as an heir. In the context of a will, allowing one of two witnesses to be an heir creates a rebuttable presumption of fraud and undue influence. The Massachusetts’ probate code states that when one of two witnesses is a taker under the will, the taker/witness must establish that “the will was not signed … as a result of fraud or undue influence.”
4. It’s clear that someone other than the patient can pick up the lethal dose. The summary states: “The proposed law would require the attending physician to: (1) determine if the patient is qualified; (2) inform the patient of his or her medical diagnosis and prognosis, the potential risks and probable result of ingesting the medication, and the feasible alternatives, including comfort care, hospice care and pain control; (3) refer the patient to a consulting physician for a diagnosis and prognosis regarding the patient’s disease, and confirmation in writing that the patient is capable, acting voluntarily, and making an informed decision; (4) refer the patient for psychiatric or psychological consultation if the physician believes the patient may have a disorder causing impaired judgment; (5) recommend that the patient notify next of kin of the patient’s intention; (6) recommend that the patient have another person present when the patient ingests the medicine and to not take it in a public place; (7) inform the patient that he or she may rescind the request at any time; (8) write the prescription when the requirements of the law are met, including verifying that the patient is making an informed decision; and (9) arrange for the medicine to be dispensed directly to the patient, or the patient’s agent, but not by mail or courier.”
So, once again, the patient not necessarily in control of his fate.
5. The summary’s safeguards end with the dispensing of the drug. No safeguards at the time of death. This allows us to make the “no required witnesses at the death” argument. In other words, without disinterested witnesses, the opportunity is created to administer the lethal dose against the person’s will Even if the patient struggled, who would know? — This is our best, most simple argument for countering choice and/or patient control. [the lethal dose as used in WA and Oregon is water soluble, can be injected].
6. The summary’s described criminal sanctions do not make it a crime to give the patient a lethal dose without consent. [and the proposed law doesn't either]
7. The summary uses the word “ingest” instead of “self-administer.”
8. The summary states that the death certificate would list the underlying terminal disease as the cause of death. The summary states: “The death certificate would list the underlying terminal disease as the cause of death.”
This will cause less accountability since someone wanting to know why mom suddenly died after making her will, will see a natural death. Also, I think the medical examiner and other authorities are cut out of overseeing the deaths, since the deaths must be reported as “natural” and because the law says that the deaths are not suicide or homicide for any purpose.
The law does have the department of health involved, but I don’t think they are empowered to do death investigations. They collect statistics. It might be a good idea for a Mass. lawyer to look into this.
In Washington, even prosecutors are required to list the deaths as “natural.”
9. The summary is clear that only “substantial compliance” with the law is required for a doctor or anyone else to get immunity from criminal or civil liability or professional discipline. The summary states: “The proposed law states that no person would be civilly or criminally liable or subject to professional discipline for actions that comply with the law, including actions taken in good faith that substantially comply.”
So the law’s “requirements” are not necessarily “required.” So, what if there’s only one witness on the lethal dose request? Is that substantial compliance? What about only one of two doctors involved in the process? Is that substantial compliance?
10. The summary mentions the phrase that disallows individual opt outs. The summary states: “A person’s decision to make or rescind a request could not be restricted by will or contract made on or after January 1, 2013, . . .”
In other words, if a person put a clause in her will, that any beneficiary who helps with her death only gets $1.00, that clause would not be valid.