After my recent post about this bill in the legislature entitled the Colorado End-of-Life Options act, I was contacted by someone who was concerned that I had omitted some very important information about the proposed legislation. I am posting further on this topic to provide more detail about the legislation and also to express my concern, as an elder law and probate attorney, about the particular implications of those important details – which I missed the first time around.
The bill contains no requirements regarding documentation and reporting of any of the processes described in the bill.
This is a big departure from the 2015 version of the bill – which contained provisions concerning reporting and documentation for the public health record (Colorado Department of Public Health and Environment) or the patient’s medical record.
Why is this a big deal?
Other states with similar legislation have documentation, reporting and review requirements. This is for several good reasons, but the two with which I am concerned – protecting a vulnerable population of elders at risk of abuse safe from potential coercion and ensuring their consent to end their lives is one with consent given which is sufficiently sound and documented. This reporting is to keep track of the many important details surrounding physician assisted death (PAD). Without reporting requirements, there will be no way to know how the state’s PAD is working or not working.
Elders and vulnerable elders (as defined in Colorado’s mandatory reporting of elder abuse or exploitation law) have not generally been at the forefront of the PAD movement. However, much of our death-denying and youth-glorifying culture is obsessed with the fear of losing one’s autonomy, losing control over one’s choice – and these fears factor substantially in the PAD debate. As a civil rights issue, PAD focuses on self-determination and autonomy to allow for an individual’s decision to end one’s life with PAD.
My concern is that a population of elders could be coerced and exploited into ending a life prematurely and without documentation and reporting requirements for PAD, there would be no information to document many important details surrounding a patient’s death with PAD. I believe this situation could be used by someone looking to benefit themselves by a terminally ill elder’s PAD. So what am I talking about . . . really?
In Colorado, we have a “slayer statute,” codified at Colo. Rev. Stat. § 15-11-803. The statute generally prevents a slayer from profiting from their act of killing another.
Many exploiters of elders use tactics not unlike those of perpetrators of domestic violence. These can include: isolating an elder from their loved ones or community members so as to make the elder dependent on the abuser; controlling basic life activities like provision of adequate nutrition, sleep deprivation or medication mismanagement; and devaluation of the elder’s dignity and personhood through words and action.
The state of Washington, which has a physician assisted death law as a result of a ballot initiative, also has a “slayer and abuser” statute, which is a rather unique combination. The Washington slayer statute was amended to extend the slayer statute’s application to prevent financial abusers of vulnerable adults from acquiring property or any benefit from their victim’s estate. This amendment was done during the pendency of a will/living trust challenge proceeding brought by the adult children of an elder against the elder parent’s surviving spouse, a second wife fifty years the decedent’s junior. Here is the Washington Supreme Court’s en banc decision in In re: the Estate of James W. Haviland, which concerns this tragic exploitation.
The linking of slayer statutes and elder abuse laws is a relatively recent development. One aspect of the link is the massive transfer of inherited wealth that has been underway for several years now. The sad fact is, some folks simply don’t want to wait for the uncertain date when someone dies to inherit from the person. In my line of work, these folks are referred to as “impatient heirs.” The vast majority will not resort to violence to accomplish their goals, but it can be difficult to determine this in many circumstances. Here’s a link to an abstract of a recent article on Expanding Slayer Statutes to Elder Abuse in the Journal of the American Academy of Psychiatry and the Law.
Why am I combining these two issues – the Slayer Statute as it relates to elder abuse and the lack of documentation and reporting requirements in the 2016 bill?
I don’t think it is too far of a stretch that, if this “End of Life Options” bill were to become law and not provide for ANY record-keeping, documentation for either the individual’s medical record or for the public health record, that this lack of information and reporting could provide a potential avenue for death-hastening abuse of an at-risk elder, who happens to be terminally ill and whose health status otherwise falls under the purview of this bill. The process described in the bill, devoid of any reporting requirements, opens up a vulnerable population to be exploited by an abuser such that the cause of death could be determined to have been at the terminally ill person’s own hand . . .
In short, I believe the Colorado bill’s lack of safeguards, which could otherwise serve to prevent coercion and consent, fall dangerously short as it relates to the population of elders. For more information about other states’ existing laws, take a look at the Colorado Health Institute’s piece from January 2016 on this topic.
Here’s a recent and well-reasoned Denver Post article on this topic that focuses on the bill’s lack of requirements for oversight, documentation or enforcement.
This debate is also happening in other parts of the US where similar bills have been introduced. Here’s a recent article about the assisted dying debate in Canada, where there is a new federal assisted dying law. I will close for now, but will likely be writing posts to update this very controversial topic.
© 2016 Barbara Cashman www.DenverElderLaw.org