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Update 2009-4
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Special
report
Can we afford "America's
Affordable Health Choices Act"?
Rita L. Marker
"America's Affordable Health
Choices Act of 2009" (HR 3200) has been more widely debated,
discussed and distorted that any legislative proposal in
recent memory. Its stated intent is "to provide affordable,
quality health care for all Americans and reduce the growth
in health care spending, and for other purposes."1
For those who have taken the time to read the bill, there
seems to be more emphasis on cost containment and other
purposes than on quality health care.
One particular portion of the bill, Section 1233, dealing
with "Advance Care Planning Consultation,"2
has been particularly contentious.
What, specifically, does that section do?
It provides payment to practitioners (doctors, nurse
practitioners, and physicians' assistants) who provide
"advance care planning consultations" to Medicare patients.
While the consultations are not mandatory (at least for
now), if they do take place, their contents are. Among
required elements that each consultation "shall include" are
an explanation of legal documents such as living wills and
durable powers of attorney, orders regarding life sustaining
treatments, and an explanation of the continuum of
end-of-life services. Patients need not be experiencing a
live-threatening situation but, because they are over a
certain age, they will be urged to consider how they want
their lives to end.
In practice, if Aunt Mildred, a healthy 65-year-old who
regularly plays tennis, goes to her doctor, she will be
counseled to consider her end-of-life options.
End-of-life information currently available
To hear proponents of Section 1233 talk about it, one would
think that people have no access to information about
advance directives. However, for years, federal law has
required that patients be provided with general information
about advance directives.
In 1992, Congress passed the Patient Self-Determination Act
(PSDA), intended to give patients' greater control over
their own health care. The PSDA mandates that health care
facilities and organizations receiving Medicare or Medicaid
funds comply with certain record keeping and patient
notification requirements related to advance directives.
These requirements include:
• At the time of
admission, provide a written summary of a patient's rights
under state
law to make health care decisions, including the right to have an advance
directive.
• Ask all adults
entering for treatment whether they have an existing advance
directive.
• Document the
existence of an advance directive in the patient's medical
record.
• Make it clear
that treatment and care cannot be conditioned on the
existence or
non-existence of an advance directive.3
Yet those who support Section 1233 claim that physicians
won't tell their patients about options regarding available
treatments and the right to accept or reject those
treatments unless they receive reimbursement for doing so.
In fact, a physician already has a responsibility to provide
that information to patients so they can give or withhold
consent to available treatments. This is known as informed
consent.
Nonetheless, some say that, because of their age, Medicare
patients need more details about end-of-life planning. They
ignore the fact that, beginning in 2009, doctors have been
required to discuss end-of-life planning, including advance
directives, with all Medicare patients at their initial
"Welcome to Medicare" physical exam.4
With all of these requirements currently in place, why the
push to place even more emphasis on end-of-life
consultation? Is it, perhaps, intended to be subtle (or not
so subtle) pressure on elderly patients to decide that they
will make a decision to forgo treatment for an, as yet,
undiagnosed condition? Is this part and parcel of reducing
the growth of health care spending?
Given the fact that one component of the advance care
consultation will include encouraging patients to have an
"order regarding life sustaining treatment" (often referred
to as a POLST form), this seems highly likely. The POLST
form essentially circumvents the need for any further
discussion of what a patient may or may not want in the
future. In practice, a physician discusses hypothetical
situations with a patient and then writes orders to withhold
certain treatments in the future. Those orders are
maintained in the patient's medical record and can bypass
the need to ask a competent patient for her wishes at the
time that the order is carried out.
Section 1233's compulsory discussion about the "continuum of
end-of-life services" deserves particular scrutiny. In most
states that continuum would culminate in such services as
palliative care and hospice. However, in Oregon and
Washington, the continuum extends to the provision of a
lethal drug prescription under those states' "Death with
Dignity" laws. This should be of concern to all.
Laying the groundwork
Section 1233 did not just show up on the doorstep of health
care reform. It was packaged and delivered by Compassion &
Choices (C&C), the assisted-suicide advocacy group
previously known as the Hemlock Society.
According to C&C, it is "part of a great advance in
end-of-life care, building upon several years of thoughtful
and strategic groundwork."5
C&C proudly acknowledges its leadership role in placing
Section 1233 in the bill:
"Compassion & Choices and its supporters have worked
tirelessly with supportive members of Congress to include in
proposed reform legislation a provision requiring Medicare
to cover patient consultation with their doctors about
end-of-life choice (section 1233 of House Bill 3200)."6
"As Congress debates health insurance reform, Compassion &
Choices is leading the charge to make end-of-life choice a
centerpiece of any program that emerges. We are working hard
to reach our goal to make end-of-life choice a centerpiece
of national health insurance reform."7
The organization's strategy has entailed close cooperation
with Oregon Democratic Congressman Earl Blumenauer, who the
organization describes as a "longtime supporter of
individual choice."8
7
Indeed, Blumenauer has been an outspoken supporter of
Oregon's assisted-suicide law, the "Death with Dignity Act"
(DWDA). During a floor speech in 1998, he stated:
"In Oregon, our
legislation, Death with Dignity, is still a work in
progress, but the fact is the preliminary evidence
suggests that this option may actually reduce the
incidence of violent suicide while easing the burden on
both the individual and their family....
"As we age as a society, exponentially, with the
increase of the elderly population, and just the growth
in our population, this will become more serious....The
evidence suggests that Americans support the principles
of Death with Dignity."9
In a 2004 press release, he
applauded a court ruling upholding the assisted-suicide law.
"This is a great victory for the people of Oregon who
decided not once, but twice that people should have the
right to make personal end-of-life decisions without federal
interference," he said. "Every day people across the country
struggle with these end-of-life decisions but Oregon is the
only state that has protections and safeguards in place."10
(Note that he, like other assisted-suicide activists, refers
to assisted suicide as an "end-of-life decision.")
Blumenauer's "end-of-life" terminology is part and parcel of
Section 1233. Clearly expressing his ownership of the
section, he described an incident that took place when he
was presiding over House proceedings. Explaining that a
colleague admonished people to read the bill, specifically
citing Section 1233, Blumenauer wrote, "Actually, I know a
little bit about this section because it's a bill that I
wrote which was incorporated into the overall legislation."11
His earlier incorporated bill is HR 2911, titled the
"Advance Planning and Compassionate Care Act." In fact, a
portion of that bill12
makes up almost the entirety of Section 1233.
While Blumenauer and other defenders of the advance care
planning consultation in Section 1233 vociferously deny that
it could have anything to do with assisted suicide, it is
important to note that his earlier bill acknowledged that a
discussion of assisted suicide would be included in such
consultations. Since federal law currently prohibits federal
funding from being used for "items and services" related to
assisted suicide,13
Blumenauer inserted language into his bill stating that
advance care planning provided in accordance with the
proposal "shall not be construed to violate the Assisted
Suicide Funding Restriction Act of 1997."14
This exception is not contained in HR 3200, but it is likely
that the drafters believed it was not necessary since
consultation and explanation merely give information. Even
more likely is the fact that they believed any reference to
assisted suicide would raise red flags. Also, not contained
in HR 3200 is a provision from Blumenauer's earlier bill to
"encourage providers to discuss advance care planning with
their patients of all ages."15
Blumenauer is not the only lawmaker to propose advance care
planning consultations. Senator Mark Warner (D-VA)
introduced a similar bill, quaintly titled the "Senior
Navigation and Planning Act of 2009" (SB 1251).16
Warner explained that he submitted the legislation because
Congress is considering health care reform and he would like
to see some of his ideas incorporated into that legislation.17
His bill would force doctors to provide information on
advance directives and other end-of-life planning tools in
"a form and manner, and at a time, determined to be
appropriate by the Secretary [of Health and Human
Services]."18
The consequence for not doing so would be severe. No payment
would be made to physicians for any items and services
furnished after January 1, 2014, unless they agreed (under a
process established by the Secretary of Health and Human
Service) to provide individuals with information on advance
directives and other end-of-life planning tools.19
What health benefits will be included under HR 3200?
If a particular intervention is not mentioned in HR 3200,
does that mean that it will not be covered under any
Qualified Health Care Plan (QHCP)? The answer is a
resounding, "No."
Minimum services to be covered are only very broadly
defined,20
with the specifics to be worked out after passage of the
measure. For example, a "Health Benefits Advisory Committee"
(HBAC), chaired by the Surgeon General and made up of
between 18 and 26 members (9 to 17 of whom will be appointed
by the President) will "recommend covered benefits."21
Included in their duties would be standards respecting the
essential benefits package "including categories of covered
treatments" as well as "items and services within benefit
classes."22
Recommendations by the Committee would be reviewed by the
Secretary of Health and Human Services who could propose
their adoption. Standards would not be subject to
Congressional approval but would, instead, be adopted
through the rulemaking process.23
The HBAC, other committees and appointed officials would
essentially be in charge of telling doctors what they can
and cannot provide for their patients.
Could this eventually include the actual provision of,
rather than just information about, assisted suicide? That
depends. The Assisted Suicide Funding Restriction Act
specifically prohibits use of federal funding for "any
health care item or service furnished for the purpose of
causing, or for the purpose of assisting in causing, the
death of any individual, such as by assisted suicide,
euthanasia or mercy killing."24
It is likely that those who eventually determine the details
about what will be a covered benefit will claim that merely
explaining or offering assisted suicide is solely
information and does not fall within the definition of an
"item or service" and, thus, would not fall within that
prohibition. Less likely, but possible, is the prospect that
physician-assisted suicide could be redefined as an
"end-of-life option" that does not constitute assisted
suicide, euthanasia or mercy killing. In fact, this type of
redefinition has been done in Oregon and Washington where a
death that takes place under those states' "Death with
Dignity" laws is considered a medical treatment, not
assisted suicide.25
In the final analysis, any particular "treatment" that is
not explicitly prohibited in a health care reform bill could
become a covered benefit.
Other curious elements of HB 3200
With the scrutiny on Sec. 1233, other curious additions and
omissions in the current proposal have been largely
overlooked. For example, much has been made of the need to
reduce the incidence of obesity in the United States. But
there is no mention in the bill of interventions to address
this problem. Undoubtedly, those who make the final
determinations of covered benefits will address weight
control. However, it does seem odd that, while weight
control programs are not explicitly addressed, there are
specific and detailed provisions for programs such as nurse
visitation services for certain families aimed at
"improving… health and pregnancy outcomes or increasing
birth intervals between pregnancies";26
monitored programs for families "to ensure that services are
delivered according to the specified model," including
"consulting and coaching on parenting practices";27
and the establishment of more school-based health clinics.28
(When school-based clinics were first introduced in the
1980s, they were intended for children whose families did
not have health insurance. If health care reform will cover
everyone, why is an expansion of such clinics necessary?)
There have definitely been heated and passionate debates
about HR 3200. Some say that those who express concerns
about the health reform bill are alarmists. Is it possible
that, rather than being alarmists, those who oppose HR 3200
are realists who recognize the bill as a massive program of
social engineering?
________________________________________
Rita L. Marker, is an attorney and the executive
director of the
International Task Force on Euthanasia & Assisted Suicide.
________________________________________
Notes
1 The
“Affordable Health Choices Act of 2009,” Hereafter cited as
HR 3200,
http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.+3200:
(last
accessed 7/14/09).
2 HR 3200, Sec. 1233.
3 Omnibus Budget Reconciliation Act of 1991, Pub. L. No.
101-508, §§ 4206 and 4751, 104 Stat. 1388, 1388-115 to 117,
1388-204 to 206 (codified respectively at 42 U.S.C. §§
1395cc(f) (Medicare) and 1396a(w) (Medicaid)).
4 Medicare web site,
“Preventative Services: One-time ‘Welcome to Medicare’
Physical Exam,”
http://www.medicare.gov/health/physicalexam.asp
(last accessed 8/19/09).
5 "Compassion & Choices
Works for Health Care Reform" C&C newsletter, July 2009.
http://www.compassionandchoices.org/newsletter72009
(last accessed 8/19/09).
6 “Opponents Distort Health
Care Debate,” C&C web site, Aug. 13, 2009.
http://www.capwiz.com/compassionandchoices/issues/alert/?alertid=13786016
&type=ME
(Last accessed 8/19/09).
7 “Health Insurance Reform,”
August 13, 2009.
http://www.compassionandchoices.org/act/legislative_work/healthcare_reform
(last accessed 8/19/09).
8
“Congressman Wants Funding for Doctors and Patients to
Discuss Treatment Options,” C & C newsletter, May 2009.
http://www.compassionandchoices.org/newsletter52009
(last accessed 8/19/09).
9
Congressman Earl Blumenauer, “Oregon Death with Dignity
Law,” Congressional Record, July 14, 1998. Available at
http://www.c-spanarchives.org/congress/?q=node/77531&id=6713674
(last accessed 8/19/09) (emphasis added).
10
“Blumenauer Responds to Appeals Court Decision on Death with
Dignity Act,” May 24, 2004.
http://blumenauer.house.gov/index.php?option=com_content&task=view&id=528&Itemid=170
(last accessed 8/20/09).
11 Rep. Earl Blumenauer,
“Unhinged,” Huffington Post, July 28, 2009.
http://www.huffingtonpost.com/rep-earl-blumenauer/unhinged_b_246632.html
(last accessed 8/19/09).
12 HR 2911, “Advance Planning and Compassionate Care Act of 2009,” Sec.
211. Available at
http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.+2911:
(last accessed 8/24/09).
13 Assisted Suicide Funding Restriction Act of 1997 (42
U.S.C. 14401 et seq.).
14 HR 2911, Sec. 111. This section referred to
assistance through the Legal Services Corporation for
advance care planning and explicitly exempts advance care
planning consultations from activities addressed by the
Assisted Suicide Funding Restriction Act of 1997.
15 HR
2911, Sec. 121 (emphasis added).
16 S 1251, “Senior Navigation and Planning Act of 2009,”
http://thomas.loc.gov/cgi-bin/query/z?c111:S.B.+1251:
(last accessed 8/24/09).
17
Thaddeus Pope, "The Senior Navigation and Planning Act of
2009 (S.B. 1251), June 13, 2009.
http://medicalfutility.blogspot.com/2009/06/s1251-senior-navigation-and-planning.html
(last accessed 8/20/09).
18 S 1251, Sec. 6.
19 S 1251, Sec. 6.
20 HR 3200, Sec. 122.
21 HR 3200, Sec. 123.
22 HR 3200, Sec. 123.
23 HR 3200, Sec. 124.
24 Assisted Suicide Funding Restriction Act of 1997 (42
U.S.C. 14401 et seq.)
25 Washington's assisted-suicide law, the Washington "Death
with Dignity Act," states: "Nothing in this chapter
authorizes a physician or any other person to end a
patient's life by lethal injection, mercy killing or active
euthanasia. Actions taken in accordance with this chapter do
not, for an purpose, constitute suicide, assisted suicide,
mercy killing, or homicide, under the law. State reports
shall not refer to practice under this chapter as 'suicide'
or 'assisted suicide." (RCW 70.245.180)
Similarly, Oregon's assisted-suicide law, the Oregon
"Death with Dignity Act" states: "Nothing in ORS 127.800 to
127.897 shall be construed to authorize a physician or any
other person to end a patient's life by lethal injection,
mercy killing or active euthanasia. Actions taken in
accordance with ORS 127.800 to 127.897 shall not, for any
purpose, constitute suicide, assisted suicide, mercy killing
or homicide, under the law. (ORS 127.880. s. 3.14)
26 HR 3200, Sec. 1713.
27 HR 3200, Sec. 1904.
28 HR 3200, Sec. 2511.
________________________________________
New information revealed about Oregon's
experience with assisted suicide
Two articles, published in
the current issue of The Journal of Clinical Ethics,
shed new light on Oregon's experience with legalized
assisted suicide between 1998 and 2007. The lead author of
both articles is Katrina Hedberg, M.D., an epidemiologist
with the Oregon Department of Human Services (ODHS) and lead
author of most the state's official annual reports on
Oregon's assisted-suicide practice.
• The first article is a
study that examines the first 10 years under Oregon's
assisted-suicide law, the Death with Dignity Act (DWDA), for
trends in doctor and patient participation.
During that period, doctors reported writing 546
prescriptions for lethal drugs that 341 patients took to end
their lives. Most of the patients were White or Asian, were
younger than 85, had some form of cancer, and were highly
educated. In fact, those with a post-graduate education were
9.5 times more likely to opt for assisted suicide than those
without a high school education. [Hedberg et al., "The
10-Year Experience of Oregon's Death with Dignity Act:
1998-2007, Journal of Clinical Ethics, Summer 2009,
p.125; hereafter cited as 10-Year Experience.]
Researchers found "several worrisome trends." Over the
10-year span, there was an increase in patients' concern
about "inadequate (current or future) pain control," despite
the DWDA's requirement that lethally-prescribing doctors
discuss with patients alternatives to assisted suicide,
including pain control and comfort care.
Also "worrisome" is the decline in psychiatric evaluation
referrals for death-requesting patients. During the first
two years under the DWDA, approximately one-third of the
assisted-suicide patients were referred for mental
evaluations by either the prescribing doctor or the
consulting physician. By 2007, not one of the 49
assisted-suicide patients who died that year were referred
for evaluation. According to the study's authors, "[T]he
decline in formal evaluations raises concerns that
depression remains undiagnosed in some patients who request
and receive a prescription under the DWDA." [10-Year
Experience, pp. 130-131]
Of the 109 different doctors who wrote lethal drug
prescriptions in 2001 through 2007, 72 (66.1%) wrote one
prescription and 17 (15.6%) wrote two. However, three
physicians (unnamed) wrote 62 death-inducing prescriptions,
amounting to almost one-fourth of all the lethal
prescriptions written during the seven-year time span.
Researchers note that about half of Oregon's doctors are not
willing to write assisted-suicide prescriptions and that
patients are likely being referred to doctors with more
experience with lethal prescriptions or who are "known
advocates" of the DWDA. "This may account for why half of
the patients knew the prescribing physician for three months
or less," researchers conclude. [10-Year Experience, pp. 127
& 131]
During years 1998 through 2007, the ODHS submitted 18
reports to the Oregon Medical Board (OMB) on doctors who had
failed to comply with DWDA requirements. Law violations
included improper completion of patients written death
requests, failure to report assisted-suicide deaths in a
timely fashion, incomplete case reports, and failure to wait
the mandated 48 hours after receiving the patient's written
death request before writing the lethal drug prescription.
In all cases, the OMB ruled that the reported doctors had
not violated good faith compliance with the assisted suicide
law. [10-Year Experience, p. 127]
• The second article is
an analysis of the characteristics of the 296,217 Oregonians
who died between 1998 and 2007 but did not opt for
physician-assisted suicide. "The reality is," the authors
wrote, "that the vast majority of Oregon decedents are
either not interested in, or are medically ineligible to
participate in DWDA." [Hedberg & Tolle, "Putting Oregon's
Death with Dignity Act in Perspective: Characteristics of
Decedents Who Did Not Participate," Journal of Clinical
Ethics, Summer 2009, p 133; hereafter cited as
Perspective.]
During the 10-year span studied, not one African-American
opted for an assisted-suicide death, a finding that the
authors said was consistent with their 2002 interviews of
family members who said their deceased African-American
relatives never personally considered assisted suicide. The
lack of DWDA support and participation was evident in other
minority groups as well. While 332 of the 341 patients who
died by assisted suicide between 1998 and 2007 were
Caucasian (97.4%), only six were Asian (1.8%), two were
Hispanic (0.6%), and 1 was Native American (0.3%).
Those with "less formal education" were also less likely to
want an assisted-suicide death. While 64.2 percent of those
who died by assisted suicide had college and post-graduate
educations, 65.8 percent of those who died naturally had
high school educations or less.
Reasons cited for patients not choosing assisted suicide
include, outright opposition to the DWDA by "a sizable
proportion of Oregonians," illnesses where it is difficult
or impossible to predict death within 6 months or less as
required by law, conditions that render patients cognitively
impaired, difficulty in finding a doctor willing to write a
lethal drug prescription, and patients who do not live long
enough to satisfy the 15-day waiting period or cannot
satisfy other requirements of the law. [Perspective, p.135]
Oral arguments
scheduled in Montana appeal
The Montana Supreme Court
will hear oral arguments in Montana v. Baxter on
September 2, 2009. The state is appealing the December 5,
2008, ruling of Montana's First Judicial District Court
Judge Dorothy McCarter, who singlehandedly legalized
physician-assisted suicide-a ruling she made effective
immediately. When the state requested that she stay her
ruling until the state supreme court ruled on the appeal,
she refused. "[A] stay pending appeal would deny the
fundamental right of Montanans to die with dignity…," she
wrote. [Baxter v. Montana, Decision & Order, 1/6/09]
But Montana physicians have refused to engage in
assisted-suicide practice even though it is technically
legal to do so. The case has been orchestrated by Kathryn
Tucker, the lead litigator for Compassion & Choices
(formerly the Hemlock Society).
Washington
pharmacists & pharmacies required to dispense lethal drugs
When Washington State passed
an initiative last November legalizing assisted suicide,
many people assumed that pharmacists, like physicians, could
opt out of participating in the death-inducing process. But
that is not the case.
While pharmacists are considered "health care providers"
under the assisted-suicide law, that law only grants the
option to not participate in assisted suicides to health
care providers who "perform the duties of an attending
physician under RCW 70.245.040, the consulting
physician function under RCW 70.245.050, or the
counseling function under RCW 70.245.060." [RCW
70.245.200 (2)(d)(ii); emphasis added] In other words,
pharmacists are not explicitly granted the non-participation
option.
Moreover, the U.S. Ninth Circuit Court of Appeals recently
reversed a preliminary injunction barring Washington from
enforcing its rule requiring all pharmacies to deliver and
distribute lawfully prescribed drugs or devices to patients.
[Stormans v.Selecky, No. 07-36039, U.S. App. LEXIS
15210, July 8, 2009] Consequently, the Ninth Circuit ruling
requires pharmacies, not individual pharmacists, to dispense
all lethal drug prescriptions lawfully written under the new
assisted-suicide law.
According to the reinstated rule, "Pharmacies have a duty to
deliver lawfully prescribed drugs or devices to patients…or
provide a therapeutically equivalent drug or device in a
timely manner…." [WAC 246-869-010]
News briefs from home and abroad…
On August 14, 2009, the
Wisconsin Medical Society's Ethics Committee rejected a
resolution that broadly endorsed physician-assisted suicide
(PAS). Resolution 14, which was defeated by a vote of
13 to 5, would have reversed the group's opposition stand on
PAS and placed the Society in the position of actively
supporting any state legislation that would legalize the
practice. It also called upon the group's delegation to the
American Medical Association to "submit a resolution
to the 2009 AMA House of Delegates Annual Meeting to
encourage all states to introduce such Death with
Dignity legislation." [Resolution 14 - 2009, lines 31-33;
emphasis added]
In requested written testimony submitted to the Ethics
Committee, ITF Executive Director Rita L. Marker
wrote,
"[Resolution 14] would
cause legislators and the public to assume that the
Wisconsin Medical Society favors any and all proposals
that may seek to permit physician-assisted suicide
even though members of the Wisconsin Medical Society
have not examined the contents of such proposals in
advance. The content of those proposals could pose
problems for both physicians and their patients, yet the
endorsement of the Wisconsin Medical Society could be
used to promote their passage." [ITF, "Testimony: Points
for Physicians to Consider," 8/14/09]
____________
Australia's "Dr. Death"
and how-to-commit-suicide guru, Philip Nitschke,
is setting up shop in North America. He has chosen
Bellingham, Washington, as the American base of
operations for his organization, Exit International
(aka, Exit US). He's already scheduled Exit's first
North America tour, consisting of how-to workshops primarily
aimed at senior citizens. Topics he will cover include how
to get life-ending barbiturates (from questionable sources
in Mexico), how to use his "Euthanasia Testing Kit"
to test the quality and potency of those drugs, how to make
your own death-producing "Peaceful Pill," and how to
asphyxiate yourself using inert gases (like helium) and a
tricked out plastic bag. The cities targeted for his
workshops are San Francisco, CA (Sept. 8);
Vancouver, B.C. (Sept. 10); Bellingham, WA (Sept.
10); and Anaheim, CA, (Sept. 15). [e-Deliverance
(Exit International's newsletter), 8/09, p. 4]
____________
Many British news reports heralded the recent House of
Lord's ruling in the Debbie Purdy appeal as a
victory for legalized assisted suicide. Some even hinted
that the ruling mandated that Parliament legalize the
practice. But it was hype, generated in part by the
right-to-die group Dignity in Dying.
Purdy, a charismatic woman
with multiple sclerosis, had earlier petitioned two lower
courts to force the director of public prosecutions (DPP),
Kier Stamer, to specify whether her husband would be
prosecuted under Britain's Suicide Act of 1961 if he
accompanied her to the Swiss suicide clinic Dignitas
to die-even though not one of those who escorted the
previous 115-plus Britons to Dignitas were ever prosecuted.
The law expressly states that, if convicted, anyone who
"aids, abets, counsels or procures the suicide of another"
could face a 14-year prison sentence. Both lower courts
denied her request, holding that the current law is clear,
and only Parliament, not the courts, can change that law.
[Guardian, 10/30/08; AP, 2/19/09; BBC, 2/19/09] Purdy, with
the help of organized assisted-suicide advocates, appealed
her case to the Appellate Committee of House of
Lords, Britain's highest court.
On July 30, 2009, a panel of five Lords ruled that the DPP
must issue a policy outlining the factors he considers
relevant in deciding whether to prosecute those involved in
another's suicide, and that the absence of such a policy was
a violation Purdy's right to respect for private and family
life guaranteed under Article 8 of the European
Convention of Human Rights. The ruling ordered a
clarification of the existing law, not it's reversal. [R
(on the application of Purdy) v the Director of Public
Prosecutions [2009] UKHL 44]
DPP Starmer is expected to issue an interim policy
clarification by the end of September, after which he will
ask for input from the public on any permanent guidelines.
"This policy is going to cover all assisted suicides,"
Starmer said. "The same broad principles will apply. They've
got to apply to all acts, in the jurisdiction or out of it,"
he explained. "We won't have separate rules for Dignitas."
Making a distinction between assisted suicides that occur in
Britain and abroad, he said, would require a change in the
law. "We can't change the law, just fill in the policy." [Daily
Telegraph, 8/3/09]
Meanwhile, Parliament has shown no interest in changing the
law. In March of this year, the House of Commons took no
action, not even a debate, on an amendment to exempt those
who accompany a loved one abroad to commit suicide from
prosecution, and the House of Lords rejected a similar
amendment in July. [Daily Mail, 7/17/09
____________
On July 10, 2009, a highly
respected British conductor and his wife committed suicide
together at the Zurich-based suicide clinic
Dignitas. The wife, 74 year-old Lady Joan Downes,
a former ballet dancer and noted choreographer, was
reportedly terminally ill with cancer. Her husband, Sir
Edward Downes, 85, was not. His biggest health
complaints were losses in hearing and eyesight. According to
their children (who were with them when they died), "After
54 happy years together they decided to end their own lives
rather than continue to struggle with serious health
problems." [Daily Telegraph, 7/14/09]
____________
Two initiatives aimed at
curtailing Dignitas' assisted-suicide business have
garnered enough signatures to be voted on by Zurich
citizens. One mandates limiting suicide assistance to
residents, and the other calls for a change in Swiss law to
ban all encouragement of and assistance to suicide. [genevalunch.com,
8/7/09]
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