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WHOSE LIFE IS IT ANYWAY?
Vote Yes on I-1000, Washington State's “Death With Dignity” Initiative
Christal Wood, J.D.
October 10, 2008
I recently received a message by attorney Rod Harmon, a Bothell Attorney, complete with a stereotypically pithy set of legal arguments against I-1000, the Death With Dignity Initiative, urging legal professionals to stand against it. You may know that it's currently legal to request that life support be withheld or withdrawn (Chapter 70.122 RCW, the Natural Death Act); but I-1000 would give terminally-ill you the legal right to formally ask your doctor for a lethal dose of medication before reaching the very edge of death. It's likely to be the most emotional issue facing voters this November (even more than whether Sound Transit deserves another $17.9 billion to do, y'know, whatever it's been doing). In order to counterbalance the lack of accuracy in the message being circulated. I'm taking this opportunity to make the argument I couldn't make elsewhere because of requirements of being unbiased. The reference to sections are for smarty-pants lawyers, and so that you can look up the text yourself if you so desire, and I encourage you to do so because as I write this, I've no bloomin' idea whether I passed the Washington State Bar Exam. I do, however, have the degree, and have been making it my particular business to study this measure, along with the rest that will be on your ballot.
SAFEGUARDS and IMMUNITIES
I-1000 does not lack critically necessary safeguards against coercion and abuse of disabled, elderly and vulnerable persons. Nor does it protect potentially egregious conduct. Rather, the standard of care for physicians and medical staff in treatment of a patient outside of participation under this law remains unchanged. (Section 19(4)) If you're disabled, depending on the disability, you may not even qualify to participate, and disability alone definitely does not qualify anyone under this law. (Section 2)
The attending physician is responsible to ensure proper, good faith enforcement and documentation of this law's protocol, including verifying the diagnosis, prognosis, qualification, competency, as well as the voluntariness of both an oral and written request. (Section 4,12). Furthermore, the attending physician as well as the Board of Pharmacy have to communicate all relevant data to the Department of Health. (Section 15) Your data, as a patient can't be made public under existing relevant health care and public disclosure law (section 23); but the records are to be compiled in statistical reports, that are reviewed regularly and published annually by the Department of Health. (Section 15 (3))
“Good faith” participants- -patient and physician alike--are indeed protected from prejudice in employment, contracting, insurance benefits and/or annuities (Section 16,17,19), but abuses of this measure --willful alteration, forgery, concealment/ destruction of documentation and/or request rescission, coercion, or undue influence) by any person become class A felonies under this law. (Section 20(1-2)) Furthermore, if negligence is found, there is no immunity from further civil or criminal action. (Section 20 (3-4))
WITNESSES: “THE GREEDY HEIR” PROBLEM
It is possible--though not stated in the measure-- that your written request for the lethal drug may be witnessed by one person with a financial interest in your estate. However, there must be two witnesses to the written request, and that other must be completely disinterested from your estate or the ownership/operation of your health care facility.(Section 3) Without the assent of both, no request can't go forward. (Section 9)
Now, ask me, does it matter to me if my daughter gets my huge (nonexistent) fortune now or six months from now when the doctor says I am to die? Not really. Last time I checked, the teenage schiester already had most of my money, and “you can't take it with you,” as they say. In fact, as a dying fancy- schmancy juris doctor, I will have already avoided the question with a trust account, or somehow given it to her already to avoid probate. Does it matter to me that I die while I have my faculties and body functions, and may say goodbye properly, rather than pushing the painkiller button an staring into space at the hospice? Absolutely. Back to the law...
It's true that if you're a patient in a long-term care facility, one of the witnesses to your written request will be an individual designated by the facility. (Sections.3 & 22 ) However the designation is qualified by the Department of Health by rule.(Section 3(4)) The measure is arguably silent as to whether the second witness may be one of your heirs, though it appears possible. My guess? This clause is in there in case you don't have any heirs left, or to make sure every thing's legit.
ALL SUICIDE IS NOT THE SAME
One must remember we are also talking about a relatively small population that is already terminally ill--confirmed by two physicians to be certain (as certain as modern medicine can be) to pass away within six months or less. (Section 1, 2, 4, 5, 12, 15) This legislation is not meant for people who merely want to die. This legislation is for those certain of their death, who wish to die “in a dignified manner.” To not distinguish this from suicide of a healthy person is to be disingenuous and confuse this very important proposal. The text of the measure is very clear that this is not to be construed as “assisted suicide” legislation. (Section 18(1), 25) Perhaps that's not only because of the political and moral conflict that comes with a physician's active participation in the expedition of a dying patient's death--even if it would fulfill the sworn edict of “do no (more) harm”--but also that it's written this way because it otherwise may not fit the definition of “Death with Dignity.”
ASSISTED OR NOT?--THE PATIENT CHOOSES
Counselor Harmon and his brethren must choose one argument--a) Is the measure flawed a) because no one has to be there when you pass away, or b) the doc tells you it's good to have someone be there when you pass away? Before prescribing the attending physician has to advise you of the merits of having another person (not the doctor) there when you self-administer the medication, but it's not mandatory. (Section 4(g)) The general spirit and assumption of this measure is that after qualification and fulfilling this official protocol, you've affirmed at several points, orally as well as in writing, that you wish to die in a dignified manner at your own hand. (Section 26) Is is possible to characterize support anyone else gives you at this point to be “coercion?” Perhaps, but it's less likely in my view.
Counselor Harmon criticizes the definition of 'self-administer' as being overly broad, allowing for another to be present and coerce you into actually taking the medication. In the text it's defined as “a qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner.” (Section 1(12) How much more narrow should it be? Under this measure, it is advisable that another person be there, but the issue is not forced.
IS COUNSELING MANDATORY OR NOT?
There seems to be confusion over the role of--or possible lack of--psychological assessment under I-1000. It's true that under Section 6 of the measure, psychological/ psychiatric counseling is not mandatory for all patients, but it's mandatory for both the attending and consulting physician to ensure that, in their professional opinion, you're competent to make the request that you're making. (Sections 4, 5) They're also mandated to refer for you for counseling, if either suspects you may be “suffering from a psychiatric or psychological disorder or depression causing impaired judgment.” (Section 6) Thus, under the doctrine of C..YA., there is an exceedingly slim possibility that counseling will not occur. And, once referred, you can't receive a prescription until and unless the counselor agrees that your judgment is not impaired. Will there be people situationally depressed by the fact that they are terminally ill? Probably. Does that mean that the patient is clinically disordered, or that their request is not sound? This determination is not in the patient's hands alone, but in that of two physicians, and counselor, if referred. (Section 6) It is for this reason I believe it's blatantly untrue to say that a “a suicidal cry for help could be met with a bottle of lethal drugs, instead of encouragement and treatment,” as the good counselor and others have asserted.
“AT ANY TIME, IN ANY MANNER”
Section 16 of the measure invalidates any contractual provision that affects the ability to make or rescind this request. However, for those afraid that one can't opt-out of this law, I personally assure you the measure repeatedly and emphatically provides for the freedom to rescind. The attending physician must remind the you that you can rescind “at any time,and in any manner,” at every juncture, including just before dispensing/prescrib ing. (Section 4 (h), 9, 10) The witnesses and professionals must all attest that you know this, and that the decision is voluntary, in light of known risks, and all available alternatives. (Sections 1(3, 7), 3, 4,5, 7, 9, 10,12, 20)
"A COST-CUTTERS DREAM?"
Life insurers cannot deny coverage or benefits due to participation under this measure as suicide or assisted suicide. (Section 17) The proper examinations, counseling, administration and reporting necessary under this measure will cost. This data will be kept and published by the Department of Health, and not go into a vacuum. I suggest that no health provider would see any savings worth the risk becoming known for over-participation under this law. Rather than guessing at how insurers will behave, we need only look over to Oregon, whose Death With Dignity law has been in effect for over a decade. My understanding is that participation has been minimal, and that fewer patients actually took the medication than were dispensed it. Perhaps what matters most to those patients is the comfort of having the option--even if in the end, you do not end up taking it.
THE DEATH CERTIFICATE - SHADES OF FALSITY
It is true that the measure requires the attending physician list the underlying disease as the cause of death on the death certificate, rather than listing the dosage of lethal medication as the actual cause of death. However, this is also the case under existing law for removal of life supporting treatment at the patient's contemporaneous or advance directive. (Chapter 70.122 RCW, the Natural Death Act) Is that falsification as well? This is a question we have apparently decided before, and we have the chance to decide again this November. Candidly I did also wonder about this part. My personal decision was that it was of lesser consequence than the legislation as a whole. There is also the possibility of amending this section at some future point.
WHOSE LIFE IS IT, ANYWAY?
Some have argued that there have been adequate advances in palliative care (fancy word for pain control), such that this measure is unnecessary. Surprising that such sentiments would come from those in the business of health care. Even in the legal arena, “suffering” is acknowledged as encompassing intellectual and psychological anguish as well as physical pain. What reasoning founded in justice would deny an individual the right to request that it cease? As I recall one protester's sign asking of no one in particular, “You'll do it for your dog, why won't you do it for me?” Or if that is too coarse a comparison, let us ask ourselves the real underlying question: “Whose life is it, anyway?”
If neither you nor I are the one that has to endure the time after visiting hours, alone with the medicinal smells and incessant stirrings of even the kindest of health care facilities-- and our own soul, than we have no right to frame the discussion in terms of what a dying person has the right to do. If the question is whether this legislation as good as we can make it in addressing this issue--I say it is, aside from relatively minor points.
THE ROLE OF FAMILIES
One point the esteemed counselor didn't bring up, but others have, is that although this measure requires the attending physician to advise you on the merits of notifying your kin, it isn't mandatory. (Section 8) “Suicide is the most selfish of acts,” or so it is said, especially if you do not warn your family. Again, we must distinguish suicide from terminal illness, and consider how selfish--no matter how well meaning--it is to keep a person around in body as a touchstone for what once was, despite the fact that person is terminally ill, suffering and has expressed on no uncertain terms their wish to die.
AND LASTLY, LOVE...
One of the most painful and profound questions that ever faces one human being who loves another is, “Do I love you enough to let you go?” This question is often insurmountable in fact, when your existence is entwined with another's--which is why loved ones can't be trusted with this decision. I respectfully suggest that, instead, our question for all of us should be, “Do we care enough for each other to let people decide for themselves when enough is enough--and trust that they will include us in that decision?” We have the chance to answer that question on November 4th. I would argue--or rather, I hope that we will have the heart to say yes.
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Christal Wood, J.D. is a social justice advocate and former candidate for Seattle Mayor and City Council. She received her juris doctorate from the University of Washington School of Law in December of 2007. She's affiliated with several local organizations, including the Seattle League of Women Voters Board of Directors, Ballot Issues Committee and Speakers Bureau. Please note, however, that the Seattle League itself has taken no official position on this issue.
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