Vermont Assisted Suicide Bill Allows a Third Party to Speak for an Elder or Disabled Person
S. 77, the assisted suicide bill passed by the Vermont State Senate on Wednesday, endangers disabled people, elderly people and ill people. The Vermont House should reconsider its earlier support of the legislation and work to protect the vulnerable citizens of Vermont.
Like the laws in Oregon and Washington, S. 77 provides no protection from an heir or other interested person misrepresenting an applicant’s wishes.
“Capable” means that a patient has the ability to make and communicate health care decisions to a physician, including communication through persons familiar with the patient’s manner of communication if those persons are available.**[§5281 (a)(2)]
And yet a person “familiar with the patient’s manner of communication” could be an heir or other interested person. And that person could be pressuring the person to choose assisted suicide.
Washington elder law attorney Margaret Dore details how the bill, like the Oregon and Washington laws it is modeled on, invites fraud and abuse. Because no witness is required at the death, “the opportunity is created for the patient’s heir, or for another person who will benefit financially from the death, to administer the lethal dose to the patient without his consent.” No matter what happened, charges of homicide would be difficult or impossible to bring in the face of the statute’s ironclad immunity.
Senator Peter Galbraith, whose vote switch got the bill through the Senate, said, “I understand and sympathize with the desire for people to have a say, to have some control, at the end of their lives.” Unfortunately, neither he nor many other legislators have sympathy for people who are already threatened with loss of control.
Bill Peace writes at the Bad Cripple Blog that while he has much respect for Vermonters’ sense of strong community, “I would speculate Vermonters have embraced a type of individualism that does not permit them to think about vulnerable populations and the risks they can encounter.”
He recounts the story of Vermonter Amanda Baggs, a leading disability rights activist who is autistic. But when she recently needed the insertion of a feeding tube to save her life, she was barraged by hostile hospital staff with urgings to consider “the alternative” – which could only be interpreted as doing nothing and dying. Peace also links to his own harrowing story of being encouraged to give up and die during a hospitalization.
This is the discrimination at the heart of assisted suicide legislation. When disabled people come into contact with medical professionals, they judge our quality of life to be so poor that death may be preferable. When some members of society consider the possibility of acquiring disabling conditions, they believe that it might be better to “choose” death. Amy Hasbrouck of Not Dead Yet Canada expressed this perfectly in her recent piece, Suicide Celebration Instead of Suicide Prevention.
Peter Galbraith based his initial opposition to legalized assisted suicide on the problem of involving the state in the practice. In February, he said on the Senate floor that he wanted to “leave it to the doctor and the patient.” He said that “opponents were concerned about a state-prescribed process for suicide. The medical profession is concerned about a profession that is about prolonging life being involved in a process to end life. The disabled community expressed concern to me that having a state-sponsored process would in some way diminish them in society. These are sincerely held convictions.”
In my own conversation with Galbraith, I emphasized that any state run program would discriminate against people with disabilities by commending certain disability-related reasons as sufficient for suicide. As demonstrated out in Oregon, these include losing certain physical abilities, “feeling like a burden”, and “loss of control of bodily functions.”
Vermont doctors, whose organization strongly opposed the legislation, will be made into gatekeepers of death, judging some reasons (e.g., embarrassment over incontinence) as rational reasons for suicide, but (presumably) rejecting others (e.g., being told by Martians to commit suicide) as not rational. Disabled people’s concern is that these disability related reasons are the products of a complex array of social conditioning, stigma and failings in public policy, and should never be used to justify providing suicide assistance rather than suicide prevention. — John Kelly, Second Thoughts Massachusetts
Terror is the word that fits, for those of us who
are severely disabled, and/or old and with any
cognitive difficulty (as a 73 year old disabled by
severe
CFS/ME chronic fatigue syndrome/Myalgic Encephalomyelitis,
age 73), I “fit”, depending on who is defining. I would
not exclude landlords who want rent controlled and
rent stabilized (translation: rent regulated) in NYC.
Think it’s a stretch? Many older people, especially
women, have gone into the hospital for short term illness,
including pneumonia, recovered and shipped to rehab,
(subdivisions of nursing homes but the less threatening,
and perhaps qualifying for more gov’t funding as rehab,
but in the same building as the nursing home) and never
see their rent regulated (against gouging by landlords
who can go to “market”-luxury rents as soon as the
apartment is vacated and they fix it up a little) apartments
again. I have two neighbors who keep bouncing back and
forth, but they have relatives still in their respective
apartments….
#2: Some examples of what I pointed to in first
comment:
-My neighbor, L., a man, my neighbor, in his 60s,
had raised his daughters in his apartment, was
living alone. He was friendly, often around
the lobby, chatting. My husband and I liked
him. He had a limp from a car crash. One day
he was gone. “Where’s L?” I asked another
neighbor, and got the rumor distortion: “He
was always drunk, so he was put into a nursing
home.”. His apartment was going luxury.
-My aunt provides several examples. My miserable
cousin lived nearer to her and I agreed that he
was more available in case of emergency than my
husband, caring for me and working full time.
My aunt was a widow without children. My
cousin was in the hospital himself and I got a
call from a Brooklyn hospital asking me to give
permission, as her available third party, to have
my aunt transferred from the hospital to an isolation
ward/unit in a nursing home because she had a staph
infection. I said, “NO! You gave her the infection
so you get rid of it in the hospital.” My husband
visited my aunt; she was capable of making her own
decisions. And she’d gone to the emergency room with
a pain in her shoulder (badly done surgery resulted in
pain, and she was admitted for something else, a
problem she’d not complained of; while there, she got
a staph infection in the hospital).
On an earlier occasion, I was able to visit her
when she’d had the shoulder surgery, in a hospital
near where I live. I was in her room, low because
I was in my wheelchair, whch use due CFS/ME, and
a nurse came in, asked my husband to OK sending
my aunt to a rehab place, he should pick one. He
said his wife, me, was the relative and the nurse
noted that the chart had said, “No relatives” but
took my word and asked me to pick a rehab place
for my aunt, who was full of pain drugs.
I had brought my aunt her favorite ice cream and
was feeding it to her, noting she knew who I was but
not speaking. I had said to the nurse, “It’s not
worth my life, wait until my aunt can tell y9ou where
she wants to go.”. I refused to chose a place to send
my aunt. The surgeon came in, stopped when he saw
me in the aisle next to her bed, and I said, “I
haven’t seen anyone this stoned since the 1960s.”
Her pain dosage was reduced. She picked a place near
her apartment for rehab and then went to her apartment.
Around that time, I got a call from a NYC agency,
asking me if my aunt was competent; I questioned the
caller until I got the story: my aunt lived in a co-op
apartment near the Atlantic Ocean in Brooklyn, modest
place. The Board of the building was claiming she
was incompetent and the city would take over her
finances and the co-op Board could resell her apartment.
I said the truth: my aunt is fully competent, I don’t
know why you are calling me.” My aunt could have had
her property and bank accounts seized by the city,
who would pay her bills, taking off administrative
costs (there’s been scandals every couple of decades
about the lucrative business of giving such administrative
rights to judges or other persons chosen).
-Finally, I know of a frequent on the air caller to WBAI,
a community radio station in NYC. She lives in another
Borough, the Bronx (as opposed to Manhattan or Brooklyn).
She was deemed incompetent after a complaint from her
landlord, put into a mental institution and her
apartment seized, her belongings put into the street.
She was able to get out, fight and get a different
apartment in her building. Yes, her apartment had been
rent regulated.
Yes! The problem of third parties who have a special interest in the death of the patient is ignored. The Vermont Assisted Suicide law is such that abuse and fraud would be possible and probably never discovered because the patient is dead and the matter is moot. Unfortunately, the third- party perpetrators are both enabled and protected by flawed law. .
We can see that third parties such as physicians/hospitals are NOW extrapolating DNR Code Status into the medical charts of patients (primarily the elderly/disabled) to shorten their lives, often unilaterally and without informed consent, when they know that any further treatment will not be reimbursed by Medicare/Medicaid and the private insurers under existing reimbursement protocols. (See article “Hospital Do-Not-Resuscitate Orders: Why They Have Failed and How to Fix Them” published by the Journal of General Internal Medicine on the Internet in Feb 2011)
The flawed and imprecise law of the 1991 Patient Self-Determination Act passed by the Congress at the request of the financial arm of Medicare –and which did not include for-profit physicians and clinics under its mandate —has evolved to enable physicians/clinics to OVER TREAT elderly/disabled patients for profit and UNDER TREAT (shorten life) of those SAME patients sometimes covertly when Medicare/Medicaid refuses to further reimburse them for non-beneficial treatments.
The slippery slope of euthanasia of the elderly/disabled to save dollars for the public good is further enabled by Assisted Suicide Laws when government itself, in partnership with the for-profit sector as in Medicare, becomes an interested third party who encourages the shortening of life of the elderly and disabled to preserve profits and save $$$$$.
It grieves me that my federal government, the Executive, and my Congress of the United States, both political parties, for over 21 years have taken NO steps to really stop the overtreatment of the elderly for profit and the unilateral immoral and illegal? undertreatment (also for profit). This undertreatment shortens life without the competent patient’s informed consent for the purpose of capping the costs of non-beneficial tretment or errors and omissions that are not NOW (and for many years) being reimbursed by Medicare and the private insurers to physicians and hospitals.
The Hospitals and physicians have to EAT these costs (the patients aren’t billed) and the incentive to extrapolate unilateral overt asnd covert DNR Code Status into the charts of elderly patients to limit treatments that won’t be reimbursed may be growing or epidemic —–who really knows?
The deaf and dumb Congress ignores this situation because of its political implications and refuses to provide guidance or clarification of the 1991 Federal Patient Self Determination Act to the states.
A few of the States, like New York, have passed laws within the past few years to attempt to protect their elderly patients from overtreatments and undertreatments by forcing physicians to inform patients about the other standard of care reimbursed by Medicare, i.e. Palliative care and transition to Hospice. In complying with the somewhat new state law, the physicians incur the legal resposibility to SEEK informed consent for Curative Care as opposed to Palliative Care/Hospice or face lawsuits —and/or lack of reimbursement from Medicare for the treatment.
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The Supreme Court asppears to enable Assisted Suicide Laws by suggesting that the States are responsible for monitoring medical “treatments” within the state and setting the parameters of “medical futility” to deny treatments EVEN as the Supreme Court indicates there is NO consitutional right to assisted suicide.
Apparently! Vermont, and other states like Oregon, who treat assisted suicide and the prescription for “instant death” as a “treatment” offered by the physician (even though the treatment is self-administered) escape the purview of the higher courts.
The NY Times OPINION written in May of 1992, over 21 years ago, by Krishan Gupta, M.D,. Falhalla, N.Y., a professor of clinical medicine in the Division of Gerontology and Geriatric Medicine, New ork Medical College, advises that Medical Obertreatment of the Elderly is Common,
We do not have PATIENT CENTERED CARE —-We have PROFIT CENTERED CARE under Medicare —Follow the money! SHAME on the Congress.
Carol J. Eblen,
With one exception (will get back to it), I think your comments are very powerful in a positive way.
The “OUCH” exception is your use of “the deaf and dumb Congress”. It’s is powerful, but in a negative way, continuing the ableist language, reflective of what I call “disabilophobia” of the nondisabled majority media/community at large, even if meant as well intentioned. It furthers the stereotypes we are fighting against. It goes full circle, in a way, to the story several months ago on NDY of the deaf twin brothers, diagnosed with a rare visual disease, in Brussels, who did “assisted suicide”….
Yes! I agree! Sondra Aronson! I could have said it better and I didn’t mean to offend and I understand why it is offensive. My beloved late husband had a good childhood friend who was deaf and was a Drum Major in the High School Band who later became President of the Gallaudet University for the Deaf. I know better!
It is just that The Congress must KNOW that the Patient Self Determination Act needs to be clarified because both the right to live and the right to die are being circumvented for fiscal reasons by the hospitals and the physicians.
Yet! the federal government does nothing and only six or seven of the 50 States have passsed new laws to protect elderly/disabled patients from overtreatment for profit —and undertreatment, also for profit, to cap treatment costs NOT reimbursed by CMS and the private insurers.
When killing to save “treatment” dollars becomes possible and is rationalized as serving the public good, it is the diabled and elderly who are endangered and whose autonomy is threatened and whose lives are shortened without their informed consent. .
Carol Eblen,
Thank you. My name is SANDA – no R and no O.
Sometimes there’s a disconnect between what we grew up knowing about disability. I “forgot” at times that my father was disabled (WWII Vet) when I was on a topic about disability or my aunt by marriage who was a polio survivor from her childhood bout that left her using braces on her arm and leg. When writing my comment to you, I was,however, thinking of my childhood neighbors across the hall in our small apartment building. I was the babysitter for the family until I went to college. The couple were both deaf as a result of their mothers having had German measles, called Rubella now. Neighbors had a slang term for them. I babysat for their 3 children, all hearing, some evenings. The couple would communicate with me using pencil and paper.
Over the years, I have known two adult children, hearing, of deaf parents. And, all the women in my grandmother’s line lose hearing with age, including me. My mother’s hearing aids no longer worked at all by the time she died at 93.
You are right! I apologize to any I may have offended. I know better! My beloved late husband had a good friend in high school who was deaf but he was a Drum Major for the Highschool Band who never missed a beat and was respected by all of his contemporaries. Later, he became the President of the prestigous Gallaudet University for the Deaf.
Please forgive! I am an elderly widow —going on 86, who is sick at heart that MY beloved Country, MY Government, MY Congress would create a situation wherein my husband, a retired Regular Army veteran of combat theaters in three wars, and Agent Orange presumptive could be OVERTREATED to hide a mistake and without his informed consent —and THEN subjected to a unilateral and covert DNR in his hospital chart, a covert attempt to shorten his life, that ultimately removed both his asutonomy and my autonomy to make an informed decision about a life-extending treatment that both the Hospital and the physician KNEW would NOT be reimbursed by CMS and our TricareforLife insurance.
I know because of my experience in three different hospitals that “physicians inappropriately extrapolate DNR orders to limit other treatments” — that they KNOW or anticipate will not be reimbursed under existing Medicare (CMS) reimbursement protocol.
I really believe that the “hospitalists” –a somewhat new position in the hospitals these last 10 years or so –are charged with getting DNR Code Status into the hospital charts. This is because, when the patients of the “specialists” who are sometimes overtreating elderly patients (because they know they will be reimbursed up to the Diagnosis Group Cap for the disease they are treating) threaten to exceed these caps or suffer expensive complications, neither the physician nor the hospital is reimbursed under CMS protocols. The treating specialist, however, doesn’t want to be put in the position of talking about CPR and the Do Not Resuscitate Order and imminent death with the patient he has been treating and from whom he didn’t seek informed consent for curative care, as opposed to palliative care.
The Congress really hung the elderly and the disabled out to dry when they didn’t put the for-profit physicians and clinic and private hospitals under the provisions of the 1991 Patient Self Determinatin Act.
And they do NOTHING tol stop the killing of the elderly and the disabled that is a direct reaction to CMS Reimbursement Protocols that negatively impact the bottom lines of hospitals and physicians.
For shame!
Absolutely terrifying! I had a medical emergency a few years back, I had a stroke, my blood pressure crashed, I stopped breathing etc. and doctors turned to my “family” to decide what to do. My family has abused me since i was a child, I was even removed from their care they wanted the doctors to “let me go” because I had “suffered enough” if it were not for my best friend intervening I would be dead right now. After being released from hospital my “family” fought to have me put in a home, i was 26 years old! I have had to move 5 times since then just to get away from the very people doctors turn to to speak on my behalf. This third party business is dangerous!