Board Denies Hearing on Legal Issues; Legal Challenge Anticipated

On May 7, 2012, the Montana Board of Medical Examiners voted to postpone consideration of whether Position Statement No. 20 should be vacated.[1]  Position Statement No. 20 concerns "aid in dying," a euphemism for assisted suicide and euthanasia.[2]  The reasons given for the delay included "to allow additional time for public input."[3]


On July 6, 2012, Montanans Against Assisted Suicide filed additional "public input" including a letter and a legal memorandum titled:  "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law."[4]  The letter requested twenty minutes oral argument.[5]


On July 20, 2012, the Board held the postponed hearing.  The Board acknowledged that it had received the above documents and also acknowledged the presence of Cory Swanson, attorney for Montanans Against Assisted Suicide.  The Board did not allow Mr. Swanson to speak.


The Board did, however, allow a presentation by a DLI staff attorney on position papers generally.  The Board asked him a few questions and voted to have their staff thank people in writing for their input. The exact text will be posted once we get it.  


Montanans Against Assisted Suicide anticipates a further legal challenge.

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[1]  See Board of Medical Examiner Minutes for May 7, 2012, Item #5. 
[2]  See “Model Aid-in-Dying Act,” published in the Iowa Law Review at   http://www.uiowa.edu/~sfklaw/euthan.html  Note the letters “euthan” in the link.
[3]  See note 1 at Item #4 (Comments by Craig Charlton and Anne O'Leary; the quote is from Ms. O'Leary).
[4]  To see letter, click here.  To see legal memorandum, click here. 
[5]  See letter in note 5.

"Does the Board really want to put itself in the embarrassing position of overstepping its authority by condoning this procedure? "

Dear Members of the Board, 


I am writing again, as a Family Medicine physician in Bozeman since '89, to address the renewed attention given to Position Statement 20. I am having trouble understanding why our Montana Board of Medical Examiners would step out on a limb and seemingly promote, or at least encourage physicians to go along with a procedure, Physician Assisted Suicide for the following reasons: 


1. Compassion and Choices [fna the Hemlock Society], which has brought the original lawsuit, and lobbied for this procedure is an out of state special interest group, looking to expand Physician Assisted Suicide all over the country. How is it that our own Board of Medical Examiners is stepping out on a limb to enable this organization to meet its goals? 


2. The Montana Supreme Court's decision in the Baxter case gives no reassurance that this procedure will not be frowned upon in the court of law when it is tested. Does the Board really want to put itself in the embarrassing position of overstepping its authority by condoning this procedure? 

Suicide Predator Conviction Upheld

Appeals Court upholds nurse's aiding suicide conviction

by Amy Forliti, Associated Press, July 17, 2012

[To for more information, charging document click here]

[To link to Nadia's Light, click here]

http://minnesota.publicradio.org/display/web/2012/07/17/news/melchert-dinkel-aiding-suicide-conviction/

MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Tuesday affirmed the convictions of a former nurse who scanned online chat rooms for suicidal people then, feigning compassion, gave a British man and a young woman in Canada instructions on how to kill themselves. 

William Melchert-Dinkel, 49, of Faribault, acknowledged that what he did was morally wrong but argued he had merely exercised his right to free speech and that the Minnesota law used to convict him in 2011 of aiding suicide was unconstitutional. 

The appeals court disagreed, saying the First Amendment does not bar the state from prosecuting someone for "instructing (suicidal people on) how to kill themselves and coaxing them to do so." 

Position Statement No. 20 Must be Vacated as a Matter of Law

On July 6, 2012, Montanans Against Assisted Suicide (MAAS) filed documents with the Montana Medical Examiner Board for the purpose of vacating Position Statement No. 20, titled "Physician Aid in Dying."  The documents filed included: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law," which states: 


"Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued.  Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or  predators.  With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability)."


To view the above document in its entirety, read the text below or click here to read the hard copy filed with the Board.  Other documents filed with the Board included a cover letter and a proposed order. 


The Text: 


1.  On March 16, 2012, the Board adopted a revised version of  Position Statement No. 20, which refers to “aid in dying” as a “medical procedure or intervention.”[1]


2.  The term, “aid in dying,” means assisted suicide and euthanasia.[2]


3.  On December 31, 2009, the Montana Supreme Court issued Baxter v. State, 354 Mont. 234 (2009), which addressed a narrow form of “aid in dying.”  Baxter did not legalize “aid in dying,” although that fact is disputed by some proponents.[2]


4.  Position Statement No. 20 implies that “aid in dying” is confined to “end-of-life” matters.[4]  In Baxter, however, the plaintiffs sought to legalize assisted suicide for people who were not necessarily at the “end of life,” for example, an 18 year old who is insulin dependent.[5] 


5.  In the last [2011] legislative session, a bill seeking to legalize aid in dying, SB 167, was defeated.[6]


6.  The Medical Examiner Board derives its power from the Administrative Procedure Act, §§ 2-4-101 to 2-4-711, MCA, and other statutes such as § 37-1-307, MCA, which defines the authority of Boards in general.[7]  These statutes do not grant the Medical Examiner Board authority to interpret the meaning of a court decision such as Baxter.[8]  These statutes do not grant the Board the power to enact new legislation, for example, to legalize “aid in dying” as a medical procedure or intervention.


7.  Interpreting court decisions and enacting legislation are the province of the Judiciary and the Legislature, not the Board.  With these circumstances, the Board had no authority to adopt Position Statement No. 20, which effectively interpreted Baxter and/or effectively enacted new legislation to legalize “aid in dying.”  Position Statement 20 is null and void.

8.  The Board’s lack of authority is a lack of subject matter jurisdiction and requires Position Statement No. 20 to be vacated to the extent that it purports to legalize “aid in dying” and/or refers to “aid in dying” as an “end-of-life” matter.


9.  Position Statement No. 20 is also invalid and/or void in its entirety because it is a “rule” under the Administrative Procedure Act, which was adopted without attempting to comply with rulemaking procedures.[9]


10.  Position Statement No. 20 is also invalid and/or void in its entirety because there was no oral argument scheduled for members of the public to speak prior to its enactment.  § 2-4-302(4), MCA  states: “If the proposed rulemaking involves matters of significant interest to the public, the agency shall schedule an oral hearing.”  (Emphasis added).  A matter is of “significant interest to the public” if the agency knows it “to be of widespread citizen interest.”  In the case at hand, the record is overflowing with citizen input including more than 3000 signatures opposed to assisted suicide.[11]  The Board knew of “widespread citizen interest” as a matter of law.  The Board adopted Position Statement No. 20 without previously scheduling oral argument for the public.  For this reason also, the statement is null and void.  


11. Position Statement No. 20 is also null and void because it purports to expand a physician’s scope of practice to include “aid in dying.”  This is the function of the Legislature, not the Board.  Board of Optometry v. Florida Medical Association, 463 So.2d 1213, 1215 (1985).


12.  Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued.  Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or  predators.  With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability).


13.  For the above reasons, Position Statement No. 20 is null and void as a matter of law.  It must be vacated and removed from the Board’s website." 

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[1]  The revised statement [titled Physician Aid in Dying] says: "The Montana Board of Medical Examiners has been asked if it will discipline physicians for participating in  aid-in-dying.  This statement reflects the Board’s position on this controversial question. [paragraph break] The Board recognizes that its mission is to protect the citizens of Montana against the unprofessional, improper, unauthorized and unqualified practice of medicine by ensuring that its licensees are competent professionals.  37-3-101, MCA.  In all matters of medical practice, including end-of-life matters, physicians are held to professional standards.  If the Board receives a complaint related to physician aid-in-dying, it will evaluate the complaint on its individual merits and will consider, as it would any other medical procedure or intervention, whether the physician engaged in unprofessional conduct as defined by the Board’s laws and rules pertinent to the Board."  [To view the statement of the Board's website, click here.] 
[2]  Model Aid-in-Dying Act, § 1-102(3), at www.uiowa.edu/~sfklaw/euthan.html  Note the letters “euthan” in the link. 
[3]  See Greg Jackson Esq. and Matt Bowman Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010 (“the Court's narrow decision didn't even "legalize" assisted suicide”), available at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html; statement by Dr. Stephen Speckart conceding that assisted suicide is not legal under Baxter (“[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision"), at [the following link with a similar statement by Senator Anders Blewett] http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; statement by Senator Anders Blewett conceding that a doctor who assisted a suicide could be prosecuted under the Baxter decision (“under current law, ... there’s nothing to protect the doctor from prosecution”), at http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; and The Montana Lawyer, November 2011 (featuring pro-con articles by Senator Blewett and Senator Jim Shockley), available at http://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf.
[4]  Id.
[5]  See opinion letter from attorney Theresa Schrempp and Dr. Richard Wonderly to the Euthanasia Prevention Coalition, October 22, 2009 (attaching the plaintiffs’ interrogatory answers with a definition of “terminally ill adult patient” broad enough to include “an 18 year old who is insulin dependent”).  (Attached hereto at B-1 to B-3). [To view, click here]
[6] See Detailed bill information page, attached hereto at B-4. [To view, click here]
[7]  For more information about the Administrative Procedure Act and other statutes, see Memorandum dated May 2, 2012, pp. 1-2, pp. 8-10.  A copy of the Act and other statutes are attached thereto at A-1 through A-28
[8]  Id.
[9]  See Memorandum dated May 2, 2012, pp. 8-10. [To view citation, use link at note 7, above]
[10]  § 2-4-102(12)(a). 
[11]  Memorandum dated May 2, 2012, p. 3; attachments at A-37 to A-45.  [To view citations, use links at note 7, above]