In the excitement over the good news that New Hampshire and Massachusetts will not be legalizing assisted suicide this year, we completely forgot about this important document from pharmacist Bob Orleck. Act 39 does not protect pharmacists and other health care workers from civil and criminal penalties for participating in assisted suicide, despite the words of Linda Waite-Simpson and the apparently private words of Vermont’s attorney general to some proponents of the law. Here, in italics, is the document, an addendum to Orleck’s “A Pharmacist’s Analysis of Vermont’s Physician Assisted Suicide Statute”, which we posted in September, 2013.
Addendum to A Pharmacist’s Analysis of Vermont’s Physician Assisted Suicide Statute
To again make it clear, what I say here is my opinion only. Each professional pharmacist, physician or other healthcare worker must make their own decision and choice and if they need legal counsel they should seek it. For me, I feel comfortable looking at the entirety of the matter and making my own decision which would be to never fill such a lethal prescription if ever in such a situation.
Why then even speak about it? Because I believe the profession of pharmacy is one that should be involved in treating and curing patients and not killing them. I want other pharmacists and health care works to stop and think about this before they go down the road that will lead to someone’s death or serious injury!
Here are some of my thoughts:
A prescribing physician has limited (see Sec. 5283(b)) conditional (see Sec. 5283(a)) immunity from civil or criminal liability or professional disciplinary action but not the referral physician under Sec. 5283(b)(7), a psychiatrist, psychologist or licensed clinical social worker under Sec. 5283(b)(8) or even the patient’s primary physician if consulting under Sec. 5283(b)(9).
The law grants a special protection to the “prescriber” of the prescription for the lethal dose of medication but the pharmacist filling the same prescription (who is one step closer to the actual ingestion) does not receive any form of immunity for dispensing. Nothing in the law as passed provides immunity to pharmacists, nurses or other health care professionals, pharmacy techs, pharmacies, hospitals or any others who might have a role to play in the application of the law.
The Attorney General’s Office on its website http://www.atg.state.vt.us/issues/attorney-general-opinions.php indicates that “Our office prepares perhaps a half dozen formal legal opinions per year on a variety of topics, usually when a state agency or the Legislature has requested an opinion and where it seems likely that a formal written document might help resolve a major dispute or uncertainty in the law.” There is no indication on this site that the AG has issued any formal opinion on “physician assisted suicide”. In fact it shows the last formal opinion on anything was issued in 2008 and a total of 11 opinions since 2000 (far from 6 per year).
“The office of the Attorney General is dedicated to the protection of the health and safety of all Vermonters.” Factual evidence is clear that some participants in the “physician assisted suicide” will or could suffer unnecessary adverse health consequences and/or be victims of improper conduct resulting in their injury or death. Such being the case the AG should by definition protect these people since he is charged with doing so for “all Vermonters.” http://www.atg.state.vt.us/office-organization-information/about-the-attorney-general.php, “We act as legal counsel to all state agencies and to the Legislature.” http://www.atg.state.vt.us/office-organization-information.php. There exists I am told a letter from Linda Waite-Simpson, Vermont legislator and State Director, Vermont, Compassion and Choices about her new job which in part states: “When opponents here tried to frighten pharmacists into thinking they could be prosecuted if they filled prescriptions for terminal patients who qualify for aid, we got the state attorney general to make a statement allaying their fears. He made it crystal-clear that this is a lawful medical procedure even reaching out personally to let concerned pharmacists know there’s no reason to worry” This raises some serious questions as to the role the AG is playing in this matter.
- If the AG is correct in his statement then why is it any different for a pharmacist or other healthcare worker? Why give immunity to physicians if it is really not needed? If it is for them why not pharmacists and other healthcare workers?
- Has this statement been made public by the Attorney General? Does he intend it to function as an official Attorney General’s Opinion?
- The liability issues seem less than clear from the statute that protects one group and not another so might it not be better for him to say rather than “not to worry”, that he would consider asking a court of law for a “Declaratory Judgment” to settle the matter?
- Is the Attorney General providing legal advice and legal counsel to private individuals (pharmacists)?Is this a proper role for the AG?
- Has the Attorney General prejudged any and all possible criminal complaints against pharmacists related to filling such prescriptions? Is this proper?
- There are circumstances where even prescribing physicians can be charged criminally for “gross negligence, recklessness or intentional misconduct.” Is he claiming that any procedure under the law is “lawful medical procedure” and if so is he improperly prejudging and thus prejudicing any valid future charges brought by a State’s Attorney? Is this proper?
- Even if the statement was made as written by Linda Waite-Simpson it does not speak about civil liability or professional misconduct charges. The AG also did not address similar issues with other health care professionals.
Could pharmacists and other health care professionals be lured into a sense of false security because of such a statement from the state’s top law enforcement agent? In a civil case it is doubtful if his statement would even be admissible let alone have any precedential value. When a potential plaintiff realizes that the physician is immune, who are they going to think of first to sue? Probably the pharmacist or others involved who have no immunity!
Pharmacists are required by regulation to offer counseling to the patient to insure proper use of drugs. Administrative Rules Vermont Board of Pharmacy Index to Rules (effective October 1, 2009). The pharmacist can initiate or the patient can request a private conversation that can include “Intended use of the drug and expected action.” It can also include “Special directions and precautions for preparation, administration and use by the patient.” There are many other areas but this points out that counseling or lack thereof if this is a lethal dose creates many pitfalls for a pharmacist who could be sued for malpractice, criminally charged or administratively challenged. How does the pharmacist counsel when it may or may not be the intention of the patient to use the lethal dose until later when they feel like they absolutely have a need? It may be six months or a year before the patient decides to use the medication and that patient’s condition may have changed dramatically so the pharmacist must even think of those possibilities or it may become a question for a jury as to whether they were negligent or not in that regard.
I believe this is a dangerous law that puts healthcare workers in a role they were never intended to be in and will result in loss of trust for the professions and potential legal and moral liability for participating and needs to be repealed before it does actual harm.
This is my opinion!
Robert L. Orleck, Randolph, Vermont 802-728-9806
802-728-9806 bob@ussorleck.com