DREDF Urges New Mexico Attorney General to Appeal Lower Court Assisted Suicide Ruling

aid in dying, assisted suicide, court decisions, dredf, Marilyn Golden, New Mexico, Our News & Commentary Blog

As our regular readers know, disability rights advocates have already spoken out against the recent New Mexico District Court ruling exempting assisted suicides of people with a “terminal” prognosis from the state law against assisted suicide.  NDY published a blog about the ruling and the Albuquerque Journal carried an op-ed by Marilyn Golden, Senior Policy Analyst with the Disability Rights Education and Defense Fund (DREDF).

Unfortunately, it’s not a foregone conclusion that the New Mexico Attorney General will appeal.  That decision is still pending.  To support that crucial next step, on January 22, NDY sent a letter urging the appeal, mirroring the points made in our blog.

This Tuesday, DREDF sent a letter as well, and gave us permission to share it with you:

Dear Assistant Attorney General Fuqua:

I am writing you today in my capacity as Senior Policy Analyst with the Disability Rights Education & Defense Fund (DREDF), a national disability rights law and policy center that opposes legalization of assisted suicide, to urge you to appeal the Second Judicial District’s ruling in the Morris assisted suicide case.

DREDF is a leading national law and policy organization that advances the civil and human rights of people with disabilities through legal advocacy, training, education, and public policy and legislative development.

We are deeply concerned about the Morris decision allowing so-called “aid-in-dying,” which is really assisted suicide, or as some call it, doctor-prescribed suicide. Our key concerns include:

  • Deadly mix: Assisted suicide is a deadly mix with our profit-driven healthcare system. At $300, assisted suicide will be the cheapest treatment. Assisted suicide saves insurance companies money—even with full implementation of the greatly-needed Affordable Care Act (“Obamacare”).
  • Abuse: Abuse of people with disabilities, and elder abuse, are rising. Not every family is a supportive family! Where assisted suicide is legal, such as in Oregon, an heir or abusive caregiver may steer someone towards assisted suicide, witness the request, pick up the lethal dose, and even give the drug—no witnesses are required at the death, so who would know?
  • Mistakes: Diagnoses of terminal illness are too often wrong, leading people to give up on treatment and lose good years of their lives, where assisted suicide is legal.
  • Careless: Where assisted suicide is legal, no psychological evaluation is required or even recommended. People with a history of depression and suicide attempts have received the lethal drugs.
  • Burden: Financial and emotional pressures can also make people choose death.
  • Unnecessary: Everyone already has the legal right to refuse treatment and get full palliative care, including, if dying in pain, pain-relieving palliative sedation.
  • No true safeguards:  Where assisted suicide is legal, the safeguards are hollow, with no enforcement or investigation authority.
  • Our quality of life underrated: Society often underrates people with disabilities’ quality of life. Will doctors & nurses fully explore our concerns and fight for our full lives? Will we get suicide prevention or suicide assistance?

Truly, if this decision becomes long-standing New Mexico law, some people’s lives will be ended without their consent, through mistakes and abuse. No safeguards have ever been enacted or proposed that can prevent this outcome, which can never be undone.

Please see more information on all these points at:

http://dredf.org/assisted_suicide/statement.html

… and other information at:

http://dredf.org/assisted_suicide/index.shtml

We plead with you to act. The court appears to have only heard from one side. But the vast preponderance of facts lie on the other side.

And please let us know if we can assist you in any way.

Yours sincerely,

Marilyn Golden
Senior Policy Analyst
Disability Rights Education & Defense Fund (DREDF)

More letters are needed.  Please email your own letter, or even just support for ours, to Attorney General Gary King (gking@nmag.gov) and Assistant Attorney General Scott Fuqua (sfuqua@nmag.gov).  And let’s hope that our next step can be an amicus brief to the higher court explaining why the lower court’s platitudes about assisted suicide safeguards don’t cut it in the real world. – Diane Coleman

Guest Blog by W. Carol Cleigh: Not Paying Attention

assisted suicide, Compassion & Choices, Derek Humphry, euthanasia, Faye Girsh, final exit network, Our News & Commentary Blog, , , ,

Anyone who thinks that the so called ‘right-to-die’ isn’t a loaded gun aimed right at the heads of disabled people simply isn’t paying attention. A cursory perusal on-line of such organizations as Compassion & Choices, Ergo and Final Exit Network yield a plethora of examples.

Compassion & Choices has a long-term disabled man demanding the ‘right to die’ on their home page.  His essay states that he is ”a 38-year-old disabled man with a terminal diagnosis of Duchenne Muscular Dystrophy.” From the photograph accompanying the story, he seems to have a power wheelchair and a ventilator. I find it interesting that he calls MD “a terminal diagnosis,” as I have several friends with MD, none of whom consider it terminal.  It is, in fact, a long-term disabling condition caused by a genetic anomaly.

In his article “Farewell to Hemlock: Killed by its name,” on the Ergo site, Derek Humphry says that Hemlock was, “fighting for voluntary euthanasia and physician-assisted suicide to be made legal for terminally and hopelessly ill adults.” Disability activists know that ‘hopelessly ill’ means us.

The other major ‘right to die’ organization in the U.S., Final Exit Network, has the following as the first bullet point in their mission statement:

To work toward obtaining the basic human right of competent adults to choose to end their lives on their own terms when they suffer from irreversible physical illness, intractable pain, or a constellation of chronic, progressive physical disabilities.

Which makes it abundantly clear that they mean us.

Thus it is apparent that these major ‘right-to-die’ organizations are really ‘better-dead-than-disabled’ organizations and that the people that they want the right to get rid of certainly include people with long-term physical disabilities – us.

I have to confess at this point that I, too, had not been paying attention to this for some time.  I’ve been living in my rural paradise and ignoring, to some extent at least, the fact that these organizations have all come out to blatantly target disabled people.  When I was more directly involved in the Jail Jack campaign and other Not Dead Yet activities, the ‘better dead than disabled’ crowd were screening this agenda from the public.  Back then they wanted everyone to believe that it was only for those that were imminently dying and we were a lunatic fringe to feel threatened.  I remember the furor when Faye Girsh, then President of Hemlock Society, came out with a press release stating that nonvoluntary euthanasia for the mentally incompetent and elderly was part of their agenda.  Rather than officially retract the statement, she passed it off (and the national press let her) as ‘unofficial.’  I’m still scratching my head, trying to figure out how a press release on the organization’s letterhead can be ‘unofficial.’ Including non-terminal people with disabilities was controversial then, but my research shows that including us is now accepted within the ‘right-to-die’ lobby. This makes it all the more sinister that they have been changing the law in states like Washington, Vermont and New Mexico and it makes me even more thankful to the dedicated activists from Not Dead Yet and sister organizations that prevented legalization in Massachusetts, Québec and California.

I’ve come back to active status in Not Dead Yet through the issue intruding on my otherwise quiet life. First early last year, a friend told me about another friend of hers who was being systematically starved to death in a nursing home despite being willing and able to feed herself.  Apparently a relative that lives far from here had her put in the nursing home following a heart attack to ‘recover,’ then ordered them not to feed her.  Despite the fact that she’d never been declared incompetent and made her wishes known loudly and often, the nursing home was following the relative’s instructions.  I started preparing for a direct action protest, but also advised my friend that she could and should just get her friend out of there.  “Just take her home,” I advised and if the relative or anyone else showed up, let me know and I’d be there with media.  Her friend lived at home for several more months and eventually died quietly in her own bed.

A second wake-up call occurred when my husband (who is also a wheelchair user) was in a local hospital for a GI issue and the doctor put a DNR (do not resuscitate) order on him without our knowledge or consent! We found out about it when the anesthesiologist for a procedure told us they would be suspending it for the duration of the procedure.  What?  I was livid!  By the time we got back up to the floor following the procedure, the hospital ombudsman had found the doctor and she and I talked.  She claimed that it was a clerical error and that they would not have followed it had he been in crisis because an armband is supposed to accompany the order and he did not have one.  I informed the hospital that I would forgo suing them (for now) only if they reviewed the systems that allowed such a ‘clerical’ error to occur and put in safeguards against it happening again.  I’m still not sure I believe the ‘clerical error’ story, but medical facilities are limited and I’d not like for my sweetheart to be denied services so I’m letting it pass.

The final straw was a Facebook conversation that I had yesterday with an apparently otherwise savvy disabled woman.  She didn’t know what NDY is when I mentioned it, and demanded that I defend the ‘better dead than disabled’ characterization of the ‘right to die’ movement and accused me of ‘beating a drum’ and using her post to do so. However, my research on the ‘better dead than disabled’ movement today has more than justified my statements in that conversation and I definitely stand by them.  I, for one, intend to pay attention, starting now.  I invite all of my sisters and brothers in the disability rights movement to join me.  It’s no exaggeration to say we’re in the fight of our lives. – W. Carol Cleigh

 

 

Rhode Island Medical Reporter Quotes Second Thoughts CT Concerns About MOLST

MOLST, Our News & Commentary Blog, POLST, Rhode Island, Second Thoughts Connecticut, ,

Felice J. Freyer, medical reporter for the Providence Journal, reached out to Second Thoughts Connecticut when covering implementation of Rhode Island’s new MOLST law (Medical Orders on Life-Sustaining Treatment, in some states called POLST for Physician Orders on Life-Sustaining Treatment).  Second Thoughts CT testified against a MOLST bill in Connecticut and was successful in blocking its passage.

Ms. Freyer opened her article, entitled Health Insight: New R.I. law aims to ease final days of terminally ill, with a story of someone in the late stages of a terminal condition who did not want to return to the hospital.  Nonetheless, his nursing home sent him back when a medical crisis arose.  His advance directive wasn’t effective in preventing that scenario.  In contrast, a medical order signed by a qualified professional is expected to be more effective.

The Rhode Island bill did not face opposition, despite the concerns that have arisen in a number of states about abuses of this new type of medical directive.  A lot of my personal education about these issues has come from research and advocacy done by two of Second Thoughts Connecticut’s leaders, Stephen Mendelsohn and Cathy Ludlum, as well as from attorney Jason Manne’s blog.  (Some of the information they’ve provided is included in comments I submitted to the Institute of Medicine’s Committee on Approaching Death.)

Ms. Freyer demonstrated some responsible and balanced journalism by reaching out to Second Thoughts Connecticut and interviewing both Stephen and Cathy via e-mail.  The resulting article included the following discussion and quotes:

[Maureen] Glynn [described as “the lawyer who co-chairs the coalition that pushed for the law”] said there was no major opposition to the MOLST law when it came up in Rhode Island. But in Connecticut, a similar proposal failed after a disability-rights group objected. Two members of that group, Second Thoughts Connecticut, shared their concerns with me via email.

Some people with disabilities fear that MOLST laws, already in place in several states, could result in denial of life-saving treatment to those who want it. Although MOLST is supposed to be voluntary, these activists say some nursing homes have presented it as mandatory. And when emergency personnel see that pink sheet tacked to the wall, will they read all its details or will they assume it means “do not resuscitate”?

Cathy Ludlum, of Second Thoughts Connecticut, says that “many people with severe disabilities feel personally threatened” by the law’s definition of “terminal illness” as “an incurable or irreversible condition that, without the administration of life-sustaining procedures, will, in the opinion of the attending physician, result in death.”

“By definition,” Ludlum said, “we have incurable and irreversible conditions, and many of us use life sustaining procedures every day of our (hopefully long) lives.”

These worries show that MOLST, like any medical intervention, has benefits but also hazards. …

To read the full article, go here.

Though Freyer says that MOLST is “only for people whose illness is terminal,” she also reports that, “starting Jan. 1, hospitals and nursing homes have been required to offer the form to patients upon admission — although, importantly, there is no requirement to fill it out.”

This makes me wonder, what do facility staff say when they provide the form to newly admitted patients?  “I have to provide you this form but, if you’re not terminal, then don’t fill it out?”  Or if you fill it out, but are not terminal, what will happen?  Since the form has to be signed by a “physician, nurse practitioner, advanced practice registered nurse, or physician assistant,” can any one of them advise you whether you are “terminal” enough to fill out and sign the form?  Do they have to examine you or read your medical chart to figure out what to say to you?  Will they tell you to “void” the form if you filled it out but are not terminal?

None of this gives me any confidence that the abuses that concern people with disabilities will be avoided in Rhode Island. – Diane Coleman 

DREDF Senior Policy Analyst Weighs In On New Mexico Assisted Suicide Case

aid in dying, assisted suicide, court decisions, dredf, Marilyn Golden, New Mexico, Our News & Commentary Blog, , ,

There’s been no shortage of reactions to the New Mexico lower court ruling enjoining prosecutions of physician assisted suicide in that state, but we rarely see the disability perspective hit the mainstream press so quickly as Marilyn Golden’s op ed in the Albuquerque Journal.

In Assisted suicide full of dangers, which appeared in the Journal’s January 17th edition, Golden provided a thorough and solid explanation of the risks that legalization of assisted suicide poses to people “facing serious illness or disability.”

This ruling tears away at the fabric of what those of us in the disability rights movement have been working to improve: a health care system free to deal with each individual uniquely rather than as a line-item on an accounting ledger, the elimination of abuse and coercion by those seeking to profit or take advantage of someone during a difficult time, and the illusion that individuals with a severe illness or disability should be measured by a flawed societal definition of quality of life.

The New Mexico lower court apparently bought into superficial government reports of a problem free practice of assisted suicide in Oregon and Washington where it is legal, but ignored extensive anecdotal accounts of problems.  As Golden noted:

Oregon’s assisted suicide law passed in 1999 and has been widely scrutinized by those in the medical community, disability rights advocates and ethicists who have noted many examples of unreported problems and complications with the law, generally only brought to light through investigative reporting or personal testimonies.

On the subject of the so-called “choice” of assisted suicide, Golden described the infamous case of Barbara Wagner in Oregon.

Wagner was an Oregon retiree diagnosed with lung cancer. During the course of her treatment, her physician recommended particular chemotherapy, but within weeks, she received a notice from her insurer that they would not cover the life-saving treatment. However, they would pay for assisted suicide.

To read the rest if Golden’s excellent op ed, I encourage our readers to go here. – Diane Coleman

 

New Mexico Lower Court Parrots the Language and Platitudes of Assisted Suicide Advocacy Groups

assisted suicide, court cases, court decisions, diane coleman, New Mexico, Our News & Commentary Blog, , ,

As many of our readers have heard by now, a New Mexico Second Judicial District Judge has ruled that the state constitution establishes a fundamental right of people who are diagnosed as terminally ill to receive a lethal prescription from a doctor, with a corresponding right of the doctor not to be prosecuted under the state law that prohibits assisted suicide.

The judge admitted that the conduct involved would fall within the prohibition on assisted suicide enacted by the state legislature, and that the legislature was aware of the public debate on the issue and wrote the law in a way that clearly included physician assisted suicide.  She even admitted that calling it “aid in dying”, as assisted suicide proponents advocate, doesn’t change the fact that it is prohibited by the statute.  But she ruled that the state constitution makes “aid in dying” a fundamental right.  On that basis, she carved it out of the statute, asserting that no state interest justified limiting the fundamental right, thus declaring the statute unconstitutional as to “aid in dying.”

Stephen Drake has been talking about the proponents’ word game in promoting the term “aid in dying” for years.  I’ll refer readers to his entertaining piece entitled Using and Promoting Change of Language to Make the Objectionable Acceptable.

The effort to sell this language as a way of avoiding substantive concerns did not get anywhere in Connecticut.  As I pointed out in my blog on a 2012 interview about the New Mexico case with Health Policy Solutions (Doctors, patient challenge New Mexico assisted suicide ban), the Connecticut court viewed this as more appropriate for legislative than judicial action, stating:

Legislative determination is particularly important given the significant medical legal and ethical concerns about legalized physician assisted suicide that have been raised across the country. Among the other difficult and important public policy concerns that the legislature would have to evaluate – and is uniquely positioned in our system of government to evaluate – are the following:

–           Whether physician-assisted suicide threatens the most vulnerable in society, including the poor, the elderly, and the disabled, who are at risk of being threatened, coerced, or influenced to end their lives to spare their families the financial costs and emotional strain of caring for them; …

–           Whether physician-assisted suicide shifts the focus of physicians and insurers away from vitally important measures such as identifying and treating depression and providing end-of-life pain control and palliative care; . . .
–           Whether physician-assisted suicide undermines the physician-patient relationship and the integrity of the medical profession by eroding patient trust in the doctor’s role as healer;…

–           Whether physician-assisted suicide opens the door to the possibility of involuntary euthanasia, as has occurred in the Netherlands, because “what is couched as a limited right to ‘physician-assisted suicide’ is likely, in effect, a much broader license which could prove extremely difficult to police and contain,” Washington v. Glucksberg, 521 U.S. 702, 733 (1997). (Blick Decision on Motion to Dismiss.)

The New Mexico judge didn’t seem to feel the need to get into all that.  In fact, the “Findings of Fact” read like C&C platitudes and propaganda rather than objective statements of fact.  Just to highlight two of them:

[Finding of Fact] 31. Where it is permitted, the application for an aid in dying prescription must be made by the mentally competent, terminally ill patient and cannot be made by a surrogate decision maker.

But the Oregon, Washington and Vermont statutes all say that your request for a lethal prescription can be made by someone else familiar with your manner of communicating, which would include the typical surrogate.  The disability experience is that doctors all too often prefer to talk to a relative or other companion rather than the person with a disability.

[Finding of Fact] 32. Where it is permitted, an aid in dying prescription must be self-administered by the mentally competent, terminally ill patient and cannot be administered by a surrogate decision maker.

As elder law attorney Margaret Dore has pointed out, assisted suicide statutes provide that the person must be competent at the time of the request for a lethal prescription, but say nothing about the time the dose is administered.  More importantly, no independent witness is required at the death, and without such witness, there’s no way to know whether the fatal drugs were administered by the person or their surrogate.

It all comes back to the conclusion I reached about the New Mexico case when I last wrote about it:

The New Mexico plaintiffs are all people who seem privileged enough to be justified in their confidence that the patient in this case will not be coerced into assisted suicide, will not be denied care that she wants, will not be treated like an unwanted burden on those around her, and is not at risk of being administered the lethal drugs without her consent.

It would be nice if everyone with a difficult illness could have the same confidence.  But in the real world, where elder abuse is on the rise, C&C’s platitudes should not distract us from our collective obligation to consider the impact on everyone, not just the privileged few.

What needs to happen next is an appeal by the New Mexico Attorney General.  Please contact AG Gary King through his Director of Communications Phil Sisneros at psisneros@nmag.gov to urge that essential next step. – Diane Coleman