The Administration for Community Living (part of the Administration on Aging within the U.S. Dept. of Health & Human Services) is seeking comments on draft voluntary consensus guidelines for Adult Protective Services. The original deadline for comments was October 30, but it’s been extended to November 13. More information and a portal for submitting online comments is here.
Not Dead Yet submitted two sets of comments, one addressing abuses in health care decision-making by surrogates and providers, the other addressing abuses in states that have legalized assisted suicide.
NDY introduced lengthy comments on health care decision-making as follows:
A couple of weeks ago, Not Dead Yet was contacted by two sisters who are daughters of a woman in the hospital. They claimed that a third sister had decided to withhold tube feeding and fluids from their mother, despite the existence of a video taped statement by the mother that she wanted to continue treatment. The third sister held the mother’s proxy, but the other two sisters claimed that her motivation was inheritance. The sisters reported being banned from visiting their mother. We referred them to legal assistance. Over the nearly twenty years we have been in existence, we have received many calls like this. Given the high rate of elder financial abuse and the aging population, it is likely the frequency of such calls will increase.
Health care decision making laws vary by state, but are supposed to be governed by general principles set forth by the U.S. Supreme Court in the Cruzan decision (497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224, 1990). The Court found that there is a right to refuse unwanted medical treatment, including food and fluids by tube, and that a surrogate decision maker could make that decision for a person who was unable to make and communicate their own decision. However, the surrogate’s decision must be based on what the person would wish rather than on the surrogate’s personal preference if they were in similar circumstances or other factors.
For the complete comment with examples of problem cases, go here.
NDY introduced the comment on assisted suicide this way:
Four states, Oregon, Washington, Vermont and California, have statutes legalizing assisted suicide. Where assisted suicide is legal, an heir (someone who stands to inherit from the patient) or abusive caregiver may steer someone towards assisted suicide, witness the request, pick up the drugs and, since no disinterested witness is required at the death, even give the lethal dose. APS workers should be educated about these statutes so that can be alert to cases of coercion and abuse and, hopefully, prevent resulting harms to an older or disabled individual.
Although proponents claim that assisted suicide statutes contain safeguards to prevent coercion and abuse, the actual provisions are too weak to be effective. A short and clear analysis of the law’s provisions is provided by elder law attorney Margaret Dore in the article “Death With Dignity”: What Do We Advise Our Clients? https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=05&Year=2009&AID=article5.htm . Dore states:
The Act requires an application process to obtain the lethal dose, which includes a written request form with two required witnesses. The Act allows one of these witnesses to be the patient’s heir. The Act also allows someone else to talk for the patient during the lethal-dose request process, for example, the patient’s heir. This does not promote patient choice; it invites coercion. . . . Once the lethal dose is issued by the pharmacy, there is no oversight. The death is not required to be witnessed by disinterested persons. . . . With no witnesses present, someone else can administer the lethal dose 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. (Citations omitted.)
The assisted suicide state reports are based on forms filed by the physician who issued the lethal prescription and the dispensing pharmacy, and do not enable identification of cases involving coercion or abuse. However, cases have come to light though mainstream media.
For the complete comment, which highlighted three cases described in DREDF’s Oregon and Washington State Abuses and Complications, go here.
In connection with both comments, we hope that APS workers will in the future be trained to recognize and prevent abuses whereby elders and people with disabilities are denied health care they desire or are subjected to coercion and abuse under assisted suicide laws that throw a blanket of immunity over the perpetrators.