Date: Sun, 1 Jun 2003 17:39:10 -0400 (EDT)
From: rosemccreery@earthlink.net
Subject: LifeTree Leg Alert Assisted Suicide ACTION NOW

>> The study topic must be limited to pain management and palliative care, and not include assisted suicide.

>> The first two Safe Harbor exceptions, i.e., Section 2 (d) (1) and (d) (2), should be removed because already existing statutes have these protections for health care providers.

The following explains why there are still problems that need to be addressed in the current version of S145:

    It turns out that the definition of which bills are subject to "crossover" is sufficiently malleable that the leadership has now decided that Sen. Forrester's S-145 bill to ban Assisted Suicide is viable after all.  It is still pending action in the Senate Judiciary II Committee.  Several groups have been pressuring Sen. Forrester from varying directions.  The North Carolina Medical Society, hospice organizations, lawyers who specialize in elder-care law, and Pro-Life organizations are all suggesting changes.  LifeTree is especially concerned over proposals to amend this bill to require action by a professional society in place of (or prior to) any criminal prosecutions for health care providers.

    Our April 28 Legislative Alert indicated that the current draft (Version 6) of S-145 corrected the problems that we had originally identified with the bill.  We saw this version as an improvement.  However, after closer review of it by several nationally recognized legal and health care experts on end of life issues, we now see that there are still serious problems in Version 6 of the bill.  This Version 6 is on our website at www.lifetree.org/S145_v6draft.htm.  For your information, there is a proposed revision to version 6 that still has problems.

There are three points we would like for you to know about.

 
First, there are still serious problems in the definition of assisted suicide.  In version 6 the adjective "medical" before the noun "procedure" limited its reach so that it didn't cover many who would actively assist in a suicide. A proposed change to version 6 would broaden "medical procedure" to be "medical or other procedure". However, the definition of the crime in proposed revised version 6 now contains a series of limiting adjectives ("...direct, knowing and active physical participation or involvement...") which will give cover for rogue physicians and Hemlock Society followers.

Reasoning 1:  The proposed change to version 6 broadening it to "non-medical" procedures is an improvement.  However the added adjectives in the new version 6 render the definition ineffective because the bill would still not authorize prosecution of assistance as it is provided by groups such as Caring Friends.  This Program is run by the Hemlock Society (See http://www.hemlock.org/about/services.asp ) and are people who can be summoned to aid a suicide after the necessary technical materials (exit bag, Nitschke's suicide machine, etc) have been obtained. They are present to assist in connecting the equipment so that it performs properly or are there to advise, encourage, and help plan the suicide.  They play no active, physical role in the procedure.  They have not prescribed or provided anything and are not directly participating in the procedure, so their actions may not open them to prosecution for assisting a suicide as it is proposed in version 6 or the revised version 6.

    We do not support the definition of assisted suicide as it is proposed in revised version 6.  Each new word in a definition offers a new loophole.  Including the word "direct" will provide cover for physicians or assistants who wish to hasten death and can do so indirectly.  For example, in a hospice it is often true that that the family gives the medicine to the patient after a doctor has left a PRN order on paper.  The family incorrectly assumes that the doctor is there to help the patient and are duped to assist in hastening death without knowing it.

    The Michigan statute provides an example of good legislation, a product of several years of study.  It defines the crime of assisted suicide simply as follows:  The person who commits assisted suicide is one who "(a) provides the means by which the individual attempts to kill himself or herself or kills himself or herself, (b) participates in an act by which the individual attempts to kill himself or herself or kills himself or herself, or (c) helps the individual plan to attempt to kill himself or herself or to kill himself or herself."

Conclusion 1: The definition of the crime should be as simple and clear as possible so that it cannot provide cover for those who will encourage and assist in suicides in any way.  The definition in Version 6 or the revised version 6 that would add words such as "direct, knowing, active, physical, etc." are loopholes which will render the law ineffective  and are unnecessary in a good definition.

 
    Second, Version 6 proposes to spend taxpayer dollars for the NC Institute of Medicine to study assisted suicide, suicide, and prevention of suicide.  This is an unwise and unnecessary expenditure of tax dollars.

Reasoning 2:  A study of assisted suicide by the NC Institute of Medicine will provide a platform for advocates of assisted suicide to weaken North Carolina's resolve to make it criminal.  A Michigan study already exists, the product of a six years' study by a broad spectrum of experts including pro-life advocates.  The result of that study has become the Michigan statute criminalizing assisted suicide that is working well.  We do not need to spend tax dollars to learn what we already know from the Oregon experience that most people who want assistance in their suicide are people who are depressed and whose real need is someone to help with the mental aspects of their illness.

    Americans United for Life has chronicled and applauded the many states that have passed resolutions or legislation to study pain management, use of palliative care and ways to improve hospices and other organizations providing care for the terminally ill.  We have learned that the section 3 now currently being proposed in the revised version 6 includes study of suicide and assisted suicide, along with a study of pain management and palliative care.  Again, if the study includes assisted suicide this will open the door to those who will say that assisted suicide can be a good thing.

Conclusion 2: Authorize a study of pain management and palliative care only, not a study of assisted suicide, or omit section 3 altogether.

 
    Third, the first two safe harbor exceptions are still problematic.  Section 2 (d) (1) and (2)  make specific reference to other North Carolina statutes, in particular, to Article 3 of Chapter 32A relating to Health Care Powers of Attorney and to Article 23 of Chapter 90 relating to Right to a Natural Death; Brain Death.  If a good definition of assisted suicide is in the bill, it seems that these two subsections are superfluous.

Reasoning 3:  Language in these two already existing statutes specifically covers the concerns of any physician or any person involved in conduct which might cross a criminal line of assisted suicide.  We quote from the two referenced chapters of the North Carolina General Statutes.

From Section 32A-24:  (In the health care power of attorney statutes)
(c) ...The withholding or withdrawal of life sustaining procedures by or under the orders of a physician pursuant to the authorization of a health care agent shall not be considered suicide or the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct or a lack of professional competence. Any person, institution or facility, including without limitation the health care agent and the attending physician, against whom criminal or civil liability is asserted because of conduct described in this section, may interpose this section as a defense.

From Section 90-321:  (In the desire for a natural death statutes)
(f) ...The execution and consummation of declarations made in accordance with subsection (c) shall not constitute suicide for any purpose.

And from Section 90-322:  (In the desire for a natural death statutes)
(d) ...The withholding or discontinuance of such extraordinary means or artificial nutrition or hydration shall not be considered the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct. Any person, institution or facility against whom criminal or civil liability is asserted because of conduct in compliance with this section may interpose this section as a defense.

In addition, if the definition of assisted suicide is changed to make it effective, it would not be possible for a health care power of attorney to call for someone to assist in a suicide because of the following language in existing law.

from Section 32A-19:  (In the health care power of attorney statutes)
(a) ...A health care power of attorney may also contain or incorporate by reference any lawful guidelines or direction relating to the health care of the principal as the principal deems appropriate.

To summarize our third point on safe harbor exceptions:

    Already existing NC statutes specifically and sufficiently address the political concerns coming from the health care community that are reflected in the first two safe harbor exceptions (d) (1) and (2).  In addition, deleting (d) (2) would take away the need to define "life sustaining procedure" and "medical treatments" which are not clearly referenced and are therefore subject to debate and confusion in their interpretation.

    We must be cautious about inserting safe harbor exceptions when they are not needed because they will provide the basis for further pressure on health care providers who object to causing or hastening death. These providers are already experiencing harassment and intimidation when they speak out or refuse to participate in procedures such as terminal sedation and/or withdrawal of basic treatment from the nondying brain-injured.

Conclusion 3:  The verbosity and cumbersome wording of the first two safe harbor exceptions is superfluous and they should be eliminated from the bill

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One final point.  S 145 is being held up at the General Assembly primarily because of opposition coming from certain hospice groups, not from pro-life people.  There are many documented "problematic deaths" in hospice that you may wish to read about at the website run by a pro-life, patient advocacy hospice group called Hospice Patients Alliance.  (Go to:  http://www.hospicepatients.org/euth-center.html).  You may also wish to read about Senator Forrester's comments about this opposition in the AMA newsletter at  http://www.ama-assn.org/sci-pubs/amnews/pick_03/prsd0519.htm.

 
Overall Conclusion:  The risk of these "unintended" consequences is too great to support passage of the bill in version 6 or the revision of version 6.

God bless you all.  Thank you for your help and prayers.
If you have any questions, please don't hesitate to call.

Elizabeth D. Wickham, Ph.D.
Executive Director, LifeTree
919-785-0855
lifetree@lifetree.org.nospam (remove the ".nospam")
PO Box 17301, Raleigh, NC, 27619
http://www.lifetree.org/ltree.html