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Leonard F. Berg
Attorney at Law
(618) 446-9694
NAELA News Journal - NAELA News Online

Assisted Suicide (Medical Aid in Dying)

By Leonard F. Berg
Published February 2020
This letter is in response the 2019 NAELA three-part webinar series titled, “End of Life Issues – Growing National Debate About Medical Aid in Dying (MAID).” The opinions expressed below are those of the author. Neither the webinar series nor the letter below reflect the views or opinions of NAELA or the NAELA Board of Directors. Webinar series moderator Peter Strauss responds below.

NAELA members may access the webinar series through the NAELA Store. (NAELA member sign-in required to access. If you have any questions about your NAELA login information, please contact us.)

I attended NAELA’s 2019 webinar series on medical aid in dying, and feel the series was not balanced in the presentation of the issues concerning the end of life.

Failure to Disclose Position and Choice of Language
The series had learned speakers, however, I feel they were stacked in favor of assisted suicide. The use of the term assisted suicide is deliberate. For millennia suicide was known as the taking of one’s own life. Participants in medical aid in dying (MAID) are assisted by physicians who make the diagnosis of terminal illness and competency, and a physician prescribes the appropriate drugs so that the patient may kill themselves. In my opinion, this is still suicide. Using the term MAID does not change the reality that the person is taking his or her own life. 

Even if MAID is adopted, most states will retain their laws prohibiting assisted suicide. In these states, it will still be a criminal act for someone to assist a person to die by suicide unless the person has a qualifying condition. It will still be illegal for a physician or any other person to assist another to die by suicide even if the patient is greatly suffering from a non-terminal illness such as MS or ALS. 

Language is important. When the proponents of assisted suicide insist on the term “medical assistance in dying” they are clearly trying to frame the debate to fit their objectives. This was illustrated by the program moderator, Peter Strauss, when he tried to bully one of the presenters, Kathryn Carroll, not to use the term assisted suicide during her presentation. Assisted suicide has been condemned by many for centuries. If the proponents of MAID are able to command the public forum with their choice of words, they know that they can shame most people who would object to assisted suicide. 

The proponents of MAID should have the intellectual honesty to admit the importance of their choice of language in changing and framing the nature of the debate.

It was wrong for the moderator not to announce his advocacy of MAID (such as National Public Radio announcing that a major corporation is a sponsor when that corporation is mentioned in a story). The bias of the moderator was demonstrated in his exchange with Ms. Carroll in her use of the phrase assisted suicide. It was also demonstrated during the first session, when the moderator exclaimed to David Leven (another presenter) that it would be a violation of standards of practice for a physician to refuse to participate in any part of the assisted suicide (MAID) regime.

The bias of the moderator was also demonstrated in the very design of the seminars. The moderator allowed Mr. Leven, a proponent of MAID, to declare without challenge that the only consistent objectors to assisted suicide are the small percentage of citizens who happen to attend church regularly. The moderator also failed to include as speakers anyone who objects to the very concept of assisted suicide. On behalf of people with disabilities, Ms. Carroll raised genuine concerns concerning assisted suicide, but she was not given a full episode to present her views. In my opinion, the moderator minimized objections to assisted suicide by failing to include a presenter who objects to the very concept of assisted suicide, regardless of the disability of the patient. 

The significance of the presentation was undermined by this failure to acknowledge bias.

Competence of Physicians
Proponents of MAID presume that all practitioners will be as careful as Lonny Shavelson, M.D.  The presentation of Dr. Shavelson in describing how he acts with his patients to assist in their death, indicated that within this system he is ethical and careful in his work. I believe that it is unlikely that other physicians would be willing to deny “relief” to patients who were not physically or medically competent to engage in their own suicide. And that it is likely that many “unqualified” patients will be able to end their lives if assisted suicide becomes more prevalent and physicians are less diligent than Dr. Shavelson.

Changing Societal Norms
It is my belief that each human being has an essence or spark of life that ordinarily should not be terminated by unnatural means. As a general rule, society should promote the right of an individual to continue life or to permit life to end through natural means. These propositions seem to be accepted by the proponents of MAID.

For centuries, much of society has believed that mankind should not interfere with the natural processes of life and death, and thus homicide is not only wrong, but illegal. I believe suicide, taking one’s own life, was and is something that should be discouraged and prevented. Likewise, the action of one person to assist in the suicide of an another was and is seen as an interruption of that natural order such that it should prohibited and sanctioned by the civil and criminal law.

As human beings we do not and cannot fully understand the natural process that leads to death; we cannot fully understand why some people suffer. Our collective humility in recognizing our lack of understanding in death and dying is reflected in society’s unwillingness to accept death outside of the natural order.

The proponents of MAID wish to change these societal norms by declaring that self-determination in choosing how and when to die is the highest possible virtue; the proponents declare that a person should not be “required to suffer” just to satisfy some collective notion of justice. Logically, it seems that taking one’s own life, commonly known as suicide, to relieve suffering would be the ultimate exercise of self-determination. The proponents of MAID believe that suicide outside of a qualifying condition should be prevented. But the proponents of MAID want the “cover” of involving others in this unnatural process of dying. This is a huge change of societal norms.

MAID Harms All of Us
If assisted suicide is adopted under the label of “medical assistance in dying” others will be harmed.

As a society, we collectively recognize that some part of the very fabric of society is lost when someone dies by suicide. That rip in the fabric of society is more pronounced if one person assists another to die by suicide.
Approving assisted suicide will overturn societal values that have governed us legally and morally for many centuries. In my opinion, the proponents of MAID demand that the rest of society accept that the concept of self-determination and relief of suffering is so important to that individual that the rest of society is not entitled to feel any loss at the death of that person; the rest of society must “get over” its long-standing belief that suicide is wrong and is a loss for all of us.

With the widespread adoption of MAID, it is more likely for individual patients to believe that assisted suicide will relieve the emotional, time, and financial burden imposed on caretakers. Conversely, it is more likely that family members will be divided on assisted suicide, thus resulting in family fissures. It is likely that family members who object to assisted suicide will be excluded from the decision-making process on the grounds that they are interfering with the patients right of self-determination.

Simple economics could place pressure on patients to agree to assisted suicide instead of the more expensive choices of palliative care or other treatments. Persons with disabilities and other impaired persons do not have adequate medical and social care, and this is unlikely to change.  

Opponents of assisted suicide have been, and will continue to be, “assaulted” by the proponents of MAID. These assaults occur when opponents of assisted suicide choose not to use the language of medical assistance in dying.  The importance of language is further demonstrated by the term “physician assisted suicide,” which was abandoned when the proponents recognized that the public would not accept this more accurate use of language.

Physicians, pharmacists, and other medical professionals will be forced to participate in assisted suicide. As the moderator indicated, MAID will be the “standard of care” that must be followed. Any attempt to adopt meaningful conscience protection clauses will be seen by the proponents of assisted suicide as interference with the right of self-determination.

The role of physicians will change. In true Orwellian fashion, all physicians would have to accept that the oath to do no harm now includes the concept that helping the “qualified” patient to take his or her own life is not harmful. The concept of determining the conditions that qualify for the termination of life-sustaining treatment is fundamentally different than helping a patient take his or own life.

Coroners and other clerical personnel would be forced to lie when the law requires them to complete death certificates that only list the diagnosed terminal illness as the cause of death. Almost every other factor contributing to death is listed on a death certificate, but proponents of MAID refuse to agree to include this information. 

Under the rubric of “standard of care” and “self-determination,” lawyers would be forced to draft documents and consul clients that conform to MAID principals. Increasingly, guardianships focus on preserving self-determination, and thus court orders for limited guardianships are carefully crafted to take away decision-making authority only to the extant necessary to protect the individual. If MAID is adopted, then attorneys and the courts could be required to violate their own conscience and follow the “standard of care” to draft documents to preserve the right to assisted suicide.

A surrogate decision maker, such as an agent under a health care power of attorney, has the right to make health care decisions. The MAID proposals seem to exclude the authority of a surrogate to make these decisions, but I believe the proponents of MAID will seek that change in the future; if so, attorneys would then be required to be involved in the MAID process by counseling the client in choosing the appropriate agent, and crafting documents that address the concept of substituted judgment as compared to the best-interest standard within the documents.

All citizens would be forced to contribute to the payment of the costs associated with assisted suicide through insurance premiums or government programs such as Medicare, Medicaid, or the Department of Veterans Affairs. Yes, the incremental cost to any citizen will be small, and yes citizens are forced to pay for other medical care that some consider objectionable; that does not make the loss any less real.

Conclusion
The MAID series had helpful information. But if it remains as a resource in the NAELA archives, its status as a tool for advocacy should be acknowledged.

Sincerely yours,
Leonard F. Berg
1013 Richard Drive
Godfrey, IL 62035
618-466-9694
About the Author
Leonard Berg is an active member of NAELA. Before his retirement in June 2019, he was a Certified Elder Law Attorney and a member of the Special Needs Alliance. Mr. Berg received the NAELA Powley Award from NAELA in 2019.
Peter Strauss, Esq., Fellow, the moderator for the three-part End-of-Life webinar series, responds.

Leonard F. Berg writes that NAELA’s 2019 webinar series on medical aid in dying (MAID) was not balanced in presenting differing views. Mr. Berg’s arguments are well known and need to be respected. Most of his points are representative of the views espoused by advocacy organizations representing persons with disabilities and I believe these points were discussed during the three webinar sessions. Kathryn Carroll, Esq., an attorney at the Center for Disability Rights, was a panelist during the third of the three webinar sessions and she advocated for many of the points that Mr. Berg does in his letter. 

As moderator for the three webinars, I viewed my role as directing the participants to focus on the issues and arguments of all positions regarding the issues of medical aid in dying (MAID). Even though my personal views are in favor of all U.S. citizens having a choice as to how their lives will end, including the right to seek medical aid in dying, this should not preclude me, as moderator, from asking hard questions of all speakers.    

The leading opponents of MAID are disability rights advocates, and I believe their views were equally represented on the webinars. I and supporters of MAID feel that those opposed to MAID are misguided in their objections to MAID. For example, in its position paper titled “Suicide Prevention and Assisted Suicide,” the Center for Disability Rights states:

Not every person with a disability is terminally ill, but every person who is terminally ill is or eventually becomes a person with a disability. … Accordingly, physician assisted suicide is only provided to people with disabilities, by definition. This is discrimination.1 

I did, in fact, press Ms. Carroll on this point during the webinar. In my opinion, the premise is false, as is the conclusion that flows from it.

The NAELA members who participated in the second webinar of the series heard Lonny Shavelson, MD, whose medical practice in California now focuses on advocating for and assisting patients in the exercise of their rights under the new California MAID statute. During the webinar, he emphatically stated that the care and monitoring of persons who have obtained prescriptions for terminal medication is seriously lacking in many respects. His presentation should give comfort to persons with disabilities that they will not be mistreated or abandoned if they are under the care of such a dedicated physician.

While I am not able to respond to all of Mr. Berg’s other points, I must respond to his use of the words “assisted suicide” in his letter.  As he says,
 
The use of the term assisted suicide is deliberate. For millennia suicide was known as the taking of one’s own life. Participants in medical aid in dying (MAID) are assisted by physicians who make the diagnosis of terminal illness and competency, and a physician prescribes the appropriate drugs so that the patient may kill themselves. In my opinion, this is still suicide. Using the term MAID does not change the reality that the person is taking his or her own life.

That argument could be applied to persons who direct that their kidney dialysis should be stopped causing their death or that they no longer wished to have tube feeding continued. Is it murder or manslaughter when an agent under a health care proxy elects to make the same decision for the principal based on the principal’s advance directive? Decisions to withhold or withdraw life-sustaining treatment are universally considered legal and are not deemed suicide, though an act of a person – often a treating physician – that accelerates death is occurring.
 
Terminally ill patients who consume life-ending medicines are not suicidal. Stark differences exist. Death by suicide is committed by those who can continue to live, but choose not to; are done in isolation, often impulsively and violently; and they are tragic. To the contrary, MAID is available only to terminally ill patients who will soon die; the process usually takes at least several weeks; it occurs after consultation with two physicians and almost always with family support, and; it is empowering. The term “assisted suicide” is rejected by the American Public Health Association, American Academy of Hospice and Palliative Medicine, American Medical Women’s Association, the American Psychological Association, American Academy of Family Physicians, among others, and in the state laws that permit medical aid in dying. Here is a summary of the American Public Health Association’s position on the terms “suicide” and “assisted suicide” on the Death With Dignity website:

In 2006, the [American Public Health Association] APHA, the nation’s largest public health association, adopted a policy recognizing that “the term ‘suicide’ or ‘assisted suicide’ is inappropriate when discussing the choice of a mentally competent terminally ill patient to seek medications that he or she could consume to bring about a peaceful and dignified death.”

The APHA policy emphasizes “the importance to public health of using accurate language.”

In 2008, the APHA adopted a policy supporting aid in dying. The policy acknowledges “allowing a mentally competent, terminally ill adult to obtain a prescription for medication that the person could self-administer to control the time, place, and manner of his or her impending death, where safeguards equivalent to those in the Oregon [Death with Dignity Act] are in place.”2 

Another point in response to Mr. Berg’s statement that,“If assisted suicide is adopted under the label of ‘medical assistance in dying’ others will be harmed.” In my opinion, there is no evidence whatsoever of such harm. I suggest that members look at the statistics published by the Oregon Health Authority.3 There is no support for the concern about the slippery slope of patient abuse. Many prescriptions that are written are never filled. Persons have the right to change their minds. As Dr. Shavelson stated in his presentation, more effort and training need to be put in place to ensure that there is the freedom to do so.
  
Advocates of MAID and opponents of MAID are natural allies in the struggle to eliminate discrimination against persons with disabilities in health care, employment, housing, education, and many other aspects of daily living. The door is open – and remains open – for meaningful discussion of solutions to the concerns of a person with disabilities. NAELA could be the forum for that discussion to take place.

Peter J. Strauss
New York, New York

Citations
1 Center for Disability Rights, Inc., CDR Position Paper: Suicide Prevention and Assisted Suicide, http://cdrnys.org/wp-content/uploads/2015/12/Assisted-Suicide-Position-Paper.pdf (accessed 2/11/20).
2 Death With Dignity, Terminology of Assisted Dying, https://www.deathwithdignity.org/terminology/ (accessed Feb. 11, 2020).
3 Oregon Health Authority Public Health Division, Oregon Death with Dignity Act 2017 Data Summary, https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year20.pdf (Feb. 9, 2018).