Disability Rights Wisconsin Sues Over Allegedly Illegal Withholding of Treatment at UW Hospital

court decisions, devaluation, life-ending decisions, litigation, Our News & Commentary Blog, Surrogate Decisions & Guardianship, Wisconsin

Disability Rights Wisconsin(DRW) is suing the UW Hospital for allegedly violating the law in pushing for withholding of life-sustaining treatment in the cases of two individuals with developmental disabilities.

The story about the case was published in the May 14th issue of the Wisconsin State Journal. Thanks to Tim Wheat (the first to send me the link) and others who alerted me to this. A more permanent copy of the story can be found at DRW’s website.

Excerpt:

In a case that could have broad legal implications for when some patients are allowed to die, an advocacy group is alleging that doctors at UW Hospital broke the law by withholding treatment from two developmentally disabled patients with apparent cases of pneumonia.

The guardian of one patient, who survived, at first went along with and then later disagreed with the decision to withhold care, the lawsuit by Disability Rights Wisconsin alleges. The parents of the other patient, who died, pushed for the withdrawal of treatment, according to the group’s complaint filed Thursday in Dane County Circuit Court.

One medical ethicist said the case could help to clarify a difficult question in state law: How much power do families and guardians have to make medical decisions for vulnerable patients such as children and the developmentally disabled?

Disability Rights contends state law prevents parents and guardians from withholding treatment from patients who can’t make that decision for themselves unless they are in a “persistent vegetative state,” a condition the group says did not apply to the two patients in the lawsuit.

But a spokeswoman for UW Hospital said the hospital acted in the best interests of both patients and tried to follow the wishes of their families.

“What is at stake in this case is no less than patients’, parents’ and families’ ability to make private health care decisions in the best interests of the patient,” spokeswoman Lisa Brunette said in a statement.

Disability Rights is suing to change hospital practices and to recover the $4,700 it spent investigating the cases, plus legal costs. Attorney Mitch Hagopian said he worried some UW Hospital doctors may be too quick to suggest withdrawing treatment from a developmentally disabled person they perceive to have a low quality of life.

“It’s a great medical institution. They provide great care to their patients,” Hagopian said. “All we want is for them to provide that same great care to developmentally disabled people who are not dying.”(emphasis added)

One has to wonder just how much of this is happening in hospitals across the country, under the radar. Just this last February, the Disability Rights Network of Pennsylvania announced a Superior Court decision clarifying protections for people with developmental disabilities and their right to life-sustaining treatment.

Considering these two cases, it is as good a time as any to invite people to acquaint – or reacquaint – themselves with the “STATEMENT OF COMMON PRINCIPLES ON LIFE-SUSTAINING CARE AND TREATMENT OF PEOPLE WITH DISABILITIES.”

Excerpt:

  • People with disabilities are entitled to exercise their rights to life-sustaining care and treatment and to self-determination and autonomy.
  • Absent clear and convincing evidence of the desires of people with disabilities to decline life-sustaining care or treatment, such care and treatment should not be withheld or withdrawn unless death is genuinely imminent and the care or treatment is objectively futile and would only prolong the dying process.
  • For the limited number of people who have lifelong cognitive disabilities and who have never had the ability to exercise self-determination regarding life-sustaining care and treatment, such care and treatment should not be withheld or withdrawn unless death is genuinely imminent and the care or treatment is objectively futile and would only prolong the dying process.
  • When doubt exists as to whether to provide life-sustaining care and treatment a presumption must always be made in favor of providing such care and treatment.

Please check out the entire statement – endorsements can still be made – both individual and organizational. And from the looks of things, the statement is more relevant than ever. –Stephen Drake


Breaking News: Four Final Exit Network Members Busted on “Conspiracy to Commit Murder” Charges in Arizona

assisted suicide, crime and punishment, final exit network, media coverage, Our News & Commentary Blog

The Phoenix New Times, which was the only newspaper to cover the initial investigation into the death of Jana Van Voorhis, reports that four members of the Final Exit Network have been arrested. Van Voorhis had minor physical complaints, but had a long history of struggles with psychological and emotional issues.

From the article:

Maricopa County Attorney Andrew Thomas announced a few minutes ago that investigators from his office have busted four people on murder charges in the 2005 “assisted suicide” death of a seriously mentally ill Phoenix woman.

New Times broke the news of this unusual and tragic case in 2007 in an extensive piece we called “Death Wish.”

The four defendants — who include retired Scottsdale resident Frank Langsner, a retired college professor — have been charged with conspiracy to commit murder.

Langsner and Wye Hale-Rowe, another so-called “exit guide” from the Final Exit Network (a national assisted suicide outfit based in Georgia), also are facing manslaughter charges.

Phoenix police records (and reporting by New TImes) showed Langsner and Hale-Rowe, both in their 80s, were present when 58-year-old Jana Van Voorhis (seen in the photo in her younger days) killed herself by inhaling helium through a hose, with an oxygen-eliminating hood snugly over her head.

Langsner and Hale-Rowe (a retired family therapist and great-grandmother from Aurora, Colorado) then staged the scene at Van Voorhis’ Phoenix condo to make it look as if the woman had just gone to sleep in her bed and died of unknown causes.

In its literature, Final Exit calls itself “the only organization in the United States willing to help individuals who are not `terminally ill’–six months or less to live–hasten their deaths. No other organization in the U.S. has the courage to make this commitment.”

All of the evidence suggests that Jana Van Voorhis, however, was not suffering from a terminal illness when she died, but had suffered from chronic mental illness.

The New Times promises “more on this one soon.”

I look forward to it. So far, the coverage coming out of Arizona has been much more professional than the coverage coming out of Atlanta and Chicago. –Stephen Drake

Seattle Elder Law Attorney Discusses What Lawyers Should Be Telling Clients About “Death With Dignity” Act

assisted suicide, elder law, legislation, margaret dore, Our News & Commentary Blog, reality check

Margaret Dore has been doing strong work exposing the pitfalls and logical fallacies that are embedded in the framework of Washington State’s “Death With Dignity” law. She does so from the perspective of a lawyer who specializes in Elder Law.

Recently, the King County Bar Association published her analysis of the newly-passed assisted suicide legislation in Washington State, titled “What Do We Advise Our Clients?”

Here is the brief description of Ms. Dore given in the article:

Margaret Dore is a Seattle attorney admitted to practice in 1986. 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 Association Guardianship and Elder Law Section.

Readers here might also want to know that she authored and submitted an amicus brief in support of the Montana attorney general’s appeal of a lower court decision legalizing assisted suicide.

Below is the entire article from Ms. Dore, reproduced in accordance with the guidelines listed by the publication:

May 2009 Bar Bulletin

‘Death with Dignity’:

What Do We Advise Our Clients?

By Margaret Dore

A client wants to know about the new Death with Dignity Act, which legalizes physician-assisted suicide in Washington.1 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?

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, “Only the patient — and no one else — may administer the [lethal dose].”2 The Act, however, does not 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 requires an application process to obtain the lethal dose, which includes a written request form with two required witnesses.3 The Act allows one of these witnesses to be the patient’s heir.4 The Act also allows someone else to talk for the patient during the lethal-dose request process, for example, the patient’s heir.5 This does not promote patient choice; it invites coercion.

Interested witness

By comparison, when a will is signed, having an heir as one of witnesses creates a presumption of undue influence. The probate statute provides 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.”6

Once the lethal dose is issued by the pharmacy, there is no oversight. The death is not required to be witnessed by disinterested persons. Indeed, no one is required to be present. The Act does not state that “only” the patient may administer the lethal dose; it provides that the patient “self-administer” the dose.

“Self-administer”

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 ingesting medication to end his or her life.”7

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 also would 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 still is vulnerable to the actions of other people, due to the lack of required witnesses at the death.

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. A California case states, “Financial reasons [are] an all too common motivation for killing someone.”8 Without disinterested witnesses, the patient’s control over the “time, place and manner” of his death, is not guaranteed.

If one of your clients is considering a “Death with Dignity” decision, it is prudent to be sure that they are aware of the Act’s gaps.

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 changes his mind after the lethal prescription is filled and decides that 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.9 But what if the doctors are wrong? This is the point of a recent article in The Seattle Weekly: Even patients with cancer can live years beyond expectations10. 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].11

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 necessarily about dignity or choice. It also can enable people to pressure others to an early death or even cause it. The Act also may 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 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 Association Guardianship and Elder Law Section. For more information, visit her website at www.margaretdore.com.

1 The Act was passed by the voters in November as Initiative 1000 and has now been codified as RCW chapter 70.245.

2 I-1000 color pamphlet, “Paid for by Yes! on 1000.”

3 RCW §§ 70.245.030 and .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 may be.

4 id.

5 RCW § 70.245.010(3) allows someone else to talk for the patient during the lethal-dose request process; for example, 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.”

6 RCW § 11.88.160(2).

7 RCW § 70.245.010(12).

8 People v. Stuart, 67 Cal. Rptr. 3rd 129, 143 (2007).

9 RCW § 70.245.010(11) & (13).

10 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.

11 id.

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Patients’ Rights Bill Stalled in Texas – Bill Backed by Disability Advocates, Right to Life and ACLU

futile care, futility, legislation, life-ending decisions, Our News & Commentary Blog, texas

This blog has visited the topic of futile care policies more than once. These policies allow hospitals to overrule advanced directives and/or the wishes of family members in removing/refusing life-sustaining treatment to someone unable to express his or her wishes.

Of all the states, Texas has given hospitals the most power in these situations. And the hospitals, safely protected by statute, have been aggressive in implementing their power to overrule families in “futile care” cases.

There have been repeated efforts to try to provide more protections to patients and families in Texas. Right now, it looks like the protection is allocated solely to the medical providers (or, I guess, “non-providers” might be more accurate).

Here’s the latest from the Dallas Morning News:

AUSTIN, Texas – Those who want to extend the time some hospital patients may live before their life support is cut off are worried that their proposal is running into a wall at the Capitol.

Legislation by state Rep. Bryan Hughes, R-Mineola, would require life-sustaining treatment to continue for patients whose condition is deemed futile by doctors until a transfer to another medical facility can be arranged, if their family requests it.

Currently, hospitals can stop life support after 10 days in certain cases if the patient is terminally or irreversibly ill and cannot express treatment wishes.

“No other state in the country has a law that Draconian,” Hughes said. “The balance of power is completely shifted against the patients and the families.”

Hughes’ bill is being pushed by Texas Right to Life, a group best known for its anti-abortion views. Groups for the disabled, including the Coalition of Texans With Disabilities and Not Dead Yet of Texas, also back Hughes’ proposal, as does the American Civil Liberties Union.

Got that? NDY, the Coalition of Texans with Disabilities, Texas Right to Life and the American Civil Liberties Union all back this bill.

That’s a broad base of support if I’ve ever see one. But the bill isn’t going anywhere.

That’s because the Texas Medical Association and the Texas Hospital Association, among others, oppose the bill.

I doubt those organizations could claim to represent as many constituents as the combined supporters of RTL, the disability coalition, NDY and the ACLU – I will bet that the TMA and THA give lots of money to political candidates in Texas. That’s the simplest, if cynical explanation for the current standstill.

And it doesn’t bode well for the future in Texas. –Stephen Drake

More bloggers on Vicious Attacks on Ari Ne’eman

autism, blog recommendations, bloggers, neurodiversity, Our News & Commentary Blog

Yesterday, I wrote about the vicious attack on Ari Ne’eman, president of the Autistic Self Advocacy Network (ASAN), by John Best – Best is a guy that seems to spend whatever free time he has spewing vile comments and barely veiled threats at people who don’t “hate autism” – that includes any supporter of neurodiversity. But he saves his most hateful stuff for the people who are autistic and have the audacity to say they’re happy with the way they are.

I already shared a link to Turning Trolls into Stone, a post with some good constructive suggestions about responding. It’s on the blog Whose Planet Is It Anyway?

Here are some other bloggers alerting others to the attack (apologies ahead of time to anyone I missed):

lastcrazyhorn at Odd One Out writes as someone who is already way too familiar with John Best in her post Death Threats on Ari Ne’eman.

Ms. Cripchick has written a letter to Newsweek on cripchick’s webblog.

At Wood’s Rules, Virginia Wood expresses sympathy for John Best’s situation but cuts him no slack when it comes to his behavior.

Kassiane at The Rettdevil’s Rants writes about the “Latest Mercury Malicia Target.” (This is my first encounter with the word “malicia” – I love it.)

That’s it for now. Good reading. –Stephen Drake