I-1000: Prescription for Coercion, Not Freedom

By John Ruhl and William Watts, M.D.
King County Bar Bulletin, October 2008
Source

Since Oregon passed its physician-assisted-suicide law in 1994 — the only state to do so — similar ballot measures and legislative bills have been introduced in 21 other states, some multiple times. Every single one has failed.1 The American Medical Association and state medical associations in 49 states, including Washington, oppose the legalization of assisted suicide, and the Oregon Medical Association has supported repeal of Oregon’s statute.2

Initiative 1000 would legalize physician-assisted suicide in Washington.3 Regardless of one’s opinion as to the propriety of assisted suicide as a concept, we urge voters to reject I-1000 because it would subject poor, disabled and other vulnerable patients to dangerous outside pressures to end their lives prematurely, could not effectively be monitored or policed, and is deeply contrary to the role of health care providers as healers.

“Freedom” To Be Coerced

Proponents of I-1000 are promoting it as a measure that would expand the liberty of individuals to make choices about their healthcare. But this kind of “liberty,” like the “liberty” to work a 70-hour work week without overtime pay or the “freedom to choose” to sell one’s labor for less than the minimum wage, cannot be viewed in a vacuum. The proposed “freedom to choose” physician-assisted suicide would expose vulnerable citizens — especially poor or disabled patients — to new and dangerous pressures that they are shielded from under current law.

Former dean of the University of Washington School of Nursing, Rheba de Tornyay, has framed the dilemma succinctly:

[T]hose who suffer prolonged problems and people with disabilities … fear — reasonably, I believe — that a profit-preoccupied medical establishment combined with emotionally and financially stressed families would press them to accept death, regardless of the heralded safeguards laws would contain.4

The “liberty” promised by backers of I-1000 would do little or nothing to alleviate patients’ very real and legitimate fears of coercion. The coercion need not be flagrant or calculating, but merely implicit. For example, a son could be going through financial difficulties and, because dad has some assets, he could consciously or unconsciously nudge dad toward suicide. Such coercive pressures might not be discernible to persons outside the family.

Conflict of Interest: Heir as Witness

The witness provision in the proposed act illustrates how it would mask, not prevent, coercion. Section 3(2) provides that a patient’s own heir could be one of the two witnesses who would certify that the patient was not “coerced” into requesting the lethal drugs. This is a useless safeguard for any dependent patient who is unable to voice feelings of coercion in front of his or her heir. By contrast, the Washington will statute directly discourages similar conflicts of interest for witnesses of wills. If an “interested witness” (i.e., heir) serves as a witness to a person’s will, there arises a rebuttable presumption that the witness procured the bequest by “duress, menace, fraud, or undue influence.”5

No Witness Required at Patient’s Death

The most gaping procedural omission in I-1000 is that there is no requirement that any health care provider (or anyone at all) witness and verify that the patient actually ingested the lethal dose knowingly and voluntarily. This leaves the door open for very serious abuse that no other purported safeguard in the act could prevent.

Patient Unknowingly May Ingest Lethal Drugs

The initiative allows physicians to prescribe lethal drugs that the patient “may self-administer”6 — a curious phrase not used in the Oregon act. The initiative defines the term “self-administer” to mean “ingest.”7 If one replaces “self-administer” with “ingest,” a patient’s “ingestion” of the lethal drug would be legal even if the patient was unaware of what he or she was ingesting.

Others May Administer Lethal Drugs to Patient

The use of the word “may” in the vague phrase, “may self-administer,” leaves the phrase so broad that it allows for scenarios in which someone other than the patient “may” administer the lethal drugs to the patient — even if the patient is unconscious.

Reporting, Enforcement and Verification Deficiencies

It would be virtually impossible for the State’s bureaucracy to discover abuse — whether at the time of prescription or at the time of death — because I-1000 gives the State no adequate enforcement mechanisms.8 Ferreting out victims of abuse would be even more difficult because the patient’s death certificate would be required to “list the underlying terminal disease as the cause of death”9 rather than suicide.

Nor would the press or public be able to verify the accuracy of the State’s summary statistical reports, because I-1000 provides specifically that “[e]xcept as otherwise required by law, the information collected [regarding compliance with I-1000] is not a public record and may not be made available for inspection by the public.”10

I-1000 Contradicts Physicians’ Role as Healers

In 2007, the Washington State Medical Association adopted a resolution supporting quality end-of-life care “without participation in hastening death or providing a means for patients to hasten their own death” and restating its prior position that physicians should not “intentionally cause death.”11 In a July 2, 2008 press release, WSMA President Dr. Brian Wicks stated, “We believe physician-assisted suicide is fundamentally incompatible with the role of physicians as healers.”12

Likewise, in September 2007, the Washington Hospice and Palliative Care Organization adopted a resolution stating that it “does not support the legalization of physician aid in dying.” The National Hospice and Palliative Care Organization adopted a similar resolution in 2005. The reason why the concept of assisted suicide has very little historical precedent is that it runs contrary to the basic principles of the health care profession.

Initiative Is Unnecessary

Assisted-suicide legislation would be an unnecessary anachronism in Washington. Recent major improvements in pain management and hospice care allow terminally ill patients effectively to manage their own pain and symptoms and spend the final stage of their lives in peace with their loved ones. Paradoxically, the assisted-suicide debate has been a major stimulus for the medical community in improving end-of-life health care management.

Conclusion

I-1000’s flawed procedures would expose vulnerable adults to the risk of coercion to end their lives prematurely, would require no witnesses or other meaningful safeguards for patients at the moment of death, and would place health care providers squarely at odds with their role as healers.

Washington voters should reject I-1000.

John Ruhl was the president of the King County Bar Association in 2006–07. He is a commercial trial lawyer, arbitrator and mediator, and is a member of Eisenhower & Carlson, PLLC, in Seattle.

William Watts, M.D. was the president of the King County Medical Society in 2007. He practices with Overlake Internal Medicine Associates in Bellevue. His practice is restricted to hospital critical care and hospital-based pulmonary consultation.

1 See http://dredf.org/assisted_suicide/Failed_attempts.pdf.

2 See Washington State Medical Association press release, July 2, 2008, at http://www.wsma.org/press-room_detail.cfm?nid=373.

3 The complete text of Initiative 1000 can be reviewed at the website of the Washington Secretary of State, at http://www.secstate.wa.gov/elections/initiatives/text/i1000.pdf.

4 Rheba de Tornyay, “Proposal is reckless, unnecessary,” Seattle Post-Intelligencer, August 25, 2008, http://seattlepi.nwsource.com/opinion/376408_antidignity26.html.

5 RCW § 11.12.160(2).

6 Section 2(1).

7 Section 1(12): “‘Self Administer’ means a qualified patient’s act of ingesting a medication to end his or her life … .”

8 For example, Section 15(1)(b) imposes no penalty whatsoever for failure to report information to the State and merely provides: “In the event that anyone required under this chapter to report information to the department of health provides an inadequate or incomplete report, the department shall contact the person to request a complete report.”

9 Section 4(2).

10 Section 15(2). The Oregonian recently made the same criticism of Oregon’s statute: “Oregon’s physician-assisted suicide program has not been sufficiently transparent. Essentially, a coterie of insiders run the program, with a handful of doctors and others deciding what the public may know. We’re aware of no substantiated abuses, but we’d feel more confident with more sunlight on the program.” “Washington state’s assisted-suicide measure: Don’t go there,” The Oregonian Editorial Board, September 20, 2008, http://www.oregonlive.com/opinion/index.ssf/2008/09/washington_states_assistedsuic.html.

11 “Doctors divided on assisted suicide,” September 22, 2008, http://seattletimes.nwsource.com/html/localnews/2008194843_death22m.html.

12 See, supra, note 2.