Federal Bill on Assisted Suicide Moves Forward

Despite concerted efforts against it by a coalition of medical groups, the federal Lethal Drug Abuse Prevention Act (S. 2151, H.R. 4006) continued to move toward enactment in August.

On July 31, the Senate Judiciary Committee held a hearing at which medical experts and others testified on both sides of the controversy. Dr. Harold Sox of the American College of Physicians and Dr. Joanne Lynn of the American Geriatrics Society denounced the legislation as a government intrusion into medical practice that would deter physicians from practicing aggressive pain control. However, Dr. Walter Hunter of Hospice of Michigan and Dr. Ralph Miech of Brown University observed that federal law already regulates controlled substances to prevent misuse, and said that the bill's careful distinction between assisted suicide and pain control should encourage physicians to practice good palliative care. "Nothing in this bill will change what I do daily in my work as a hospice physician, "said Dr. Hunter. "Nothing in this bill frightens me that I will become a 'target' of the DEA in a misguided attempt to prevent abuses of these medications."

Dr. Lynn's testimony outlined scenarios in which physicians and families might be frightened by investigations conducted by DEA agents carrying guns. (Asked about this, a DEA official said that diversion control inspectors who monitor physicians are armed with pocket calculators, not guns.) Objections were also raised by a Justice Department official, suggesting that the bill's most serious hurdle may be the White House.

The argument that H.R. 4006 could deter effective pain control has become a mantra among all opponents of the bill -- including those whose real motivation is something else. In a July 29 alert to members, the Hemlock Society urged letters and E-mail messages to Congress using this argument, but warned: "It is not helpful to say you favor physician assisted dying or that you belong to a RTD [right to die] organization." Similarly, the American Pharmaceutical Association (APA) used the "pain control" argument against H.R. 4006 in July 14 testimony, but failed to mention that the group's official policy is to oppose all "laws and regulations" that would "prohibit" pharmacists' participation in assisted suicides [American Journal of Health-System Pharmacy, May 1, 1997]. A recent luncheon and briefing to urge congressional staff to oppose the bill was headlined by the National Hospice Organization, but materials were paid for by the APA which favors allowing pharmacist-assisted suicide.

The bill's alleged "chilling effect" and other arguments were marshaled by several Democrats when the bill was marked up by the 35-member House Judiciary Committee on August 4, but to no avail. Interestingly, no amendment offered by the bill's opponents had anything to do with pain control. Instead the amendments would have narrowed the bill's scope to forbid only involuntary euthanasia, or to cover only states which already ban assisted suicide, or to expand the Attorney General's discretion to allow continued licensing of doctors known to have assisted suicides. These amendments were overwhelmingly defeated. After accepting supporters' amendments to further protect pain control efforts that may unintentionally hasten death, the Committee approved the bill by voice vote. On August 7, a Judiciary Committee report on the bill was issued [see page 3], with a dissenting statement signed by eight of the Committee's 15 Democrats.

The House bill now goes to the Commerce Committee, which must act on the bill or release it for House action by September 18. The companion bill in the Senate may be considered in Judiciary Committee as early as September 17.

News Briefs

Oregon Limits Pain Medicines

Even as Congress debates whether legislation to ban assisted suicide may adversely affect palliative care [see page 1], the opposite question is coming to the fore: Does legal acceptance of assisted suicide undermine palliative care?

The question was starkly posed on September 3, as physicians supporting optimal pain control for the seriously and terminally ill criticized the Oregon Health Plan for restricting access to a key pain medicine. Portland pain control specialist Marshall Bedder, M.D., says 35 of his patients have been affected by the state Medicaid program's decision to place more restrictions on the pain medicine Oxycontin: "The Oregon Health Plan won't pay for their pain medicine, while at the same time they will fund patient suicides," he says [Press release of Physicians for Compassionate Care, 9/3/98].

The Oregon Health Plan, the only state Medicaid program in the nation to practice formal rationing of health services for the poor, came under fire earlier this year when it restricted coverage for seven major antidepressant drugs shortly before deciding to cover assisted suicides for the terminally ill ["Medicaid seeks cut in drugs for poor," The Oregonian, 1/17/98; "Oregon will cover assisted suicide," Id., 2/27].

While some Oregonians predicted dramatic gains in use of pain medicines once the state's voters approved assisted suicide, this has not come to pass. According to figures from the U.S. Drug Enforcement Administration, Oregon ranked third highest in per capita use of morphine in 1995; in 1997, and the first quarter of 1998, it ranked sixth. Use of morphine for pain control has increased in Oregon, but has increased more rapidly in some states where assisted suicide remains a crime; since 1990, use of morphine has doubled nationwide.

Several "friend of the court" briefs filed in the U.S. Supreme Court's assisted suicide cases last year, including those filed by the American Medical Association and National Hospice Organization, had warned that legalizing physician-assisted suicide will undermine efforts to devote society's resources to improved palliative care for dying patients.

Michigan Prepares for Assisted Suicide Vote

As Michigan's new statutory ban on assisted suicide takes effect September 1, debate has begun on the November ballot measure by which the group called Merian's Friends hopes to take the state in the opposite direction.

On August 24, the state Board of Canvassers unanimously approved final language for presenting the assisted suicide measure on the November 3 ballot. While Merian's Friends wanted the ballot title to advertise that the measure would advance a "terminally ill patient's right to end unbearable pain or suffering," their opponents' arguments in favor of clear and direct language influenced the final compromise. The measure will appear on the ballot as Proposal B, described as "Initiated Legislation to legalize the prescription of a lethal dose of medication to terminally ill, competent, informed adults in order to commit suicide" [Detroit News, 8/25; Editorial, Id., 8/28].

Also to appear on the November ballot is the name of Kevorkian's chief attorney, Geoffrey Fieger, who won the Democratic nomination for governor August 5. Fieger, who has announced his support for Proposal B, has prompted some soul-searching among Michigan Democratic leaders, who are being asked to distance themselves from Fieger's offensive and anti-religious statements [see: "GOP seeks Fieger rebuke," Detroit News, 7/2/98; George Will, "Michigan Crude," Washington Post, 8/30]. Merian's Friends, however, is also taking a firm line against religious groups. Responding to an August 17 statement by the Catholic Campaign for America, which urged Catholic elected officials to follow Catholic teaching on euthanasia and oppose Proposal B, Merian's Friends says such appeals are "outright un-American, since our country was founded on the separation of church and state" [Press release, Merian's Friends, 9/1].

VERBATIM: House Judiciary Committee on "Lethal Drug Abuse Prevention Act"

After approving the Lethal Drug Abuse Prevention Act (H.R. 4006) on August 4, the House Judiciary Committee issued a report to explain the Act and its purpose. Excerpts follow (footnotes omitted):

The professional literature reports that state controlled substances acts, while originally based on the Federal Controlled Substances Act, often also contain 'more stringent modifications.' In 1996, the American Medical Association (AMA) testified before this Committee that the failure of most states to expressly permit pain management that may unintentionally hasten death had 'generated reluctance among physicians to prescribe adequate pain medication.' This year the AMA testified before the Committee that progress has occurred on this front, but many states still have not changed their laws. Many state laws against assisted suicide, including the law recently enacted in Michigan, lack any provision regarding the legitimacy of aggressive pain control that may unintentionally hasten death.

In contrast, the federal standard contained in H.R. 4006 employs language from the Assisted Suicide Funding Restriction Act of 1997 which the AMA has said 'assures patients and physicians alike that legislation opposing assisted suicide will not chill appropriate palliative and end-of-life care.' Therefore, for the first time, H.R. 4006 amends the CSA to expressly permit and encourage the use of controlled substances for palliative and end-of-life care. This reaffirmation clarifies for many physicians the fact that they are free to use federally controlled substances properly and adequately, and thus encourage better treatment of pain and suffering. Too many physicians mistakenly fear prosecution and hesitate to treat pain and suffering under the current statutory scheme of the CSA.

Rather than 'chilling' the use of controlled substances in relief of pain and suffering as opponents of H.R. 4006 speciously argue, the bill would encourage proper use of controlled substances, empower physicians in the relief of pain and suffering, reassure the general public that such usage is both legally and ethically appropriate, and protect the physician who uses controlled substances to relieve pain and suffering, so long as the controlled substance is not also dispensed or distributed for the purpose of causing, or assisting in causing, the death of an individual for any reason.

This distinction between intended and unintended hastening of death, based on what is sometimes called the 'principle of double effect,' enjoys broad support in codes of medical ethics as well as in the Assisted Suicide Funding Restriction Act of 1997 and many state laws on assisted suicide. In upholding New York's law against assisted suicide last year, the U.S. Supreme Court noted:

[A] physician who withdraws, or honors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes and 'to cease doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them.'... The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, 'must, necessarily and indubitably, intend primarily that the patient be made dead.'... Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently.

H.R. 4006 also provides an extra measure of protection for physicians in doubtful cases. The legislation provides for a Medical Review Board on Pain Relief composed of peers to advise the Administrative Law Judge on questions of medical fact. Any physician who believes that a legitimate effort to relieve pain has been misinterpreted by law enforcement officers can convene the Board. Whether the advisory board is convened is purely at the discretion of the physician; such board cannot be convened at the request of the DEA. Such a board is essential in providing protection for physicians who use controlled substances in a manner which is not intended to cause, or assist in causing, the death of an individual for any reason.

Background: Physicians' "Safeguards" on Assisted Suicide

A new study in the Journal of the American Medical Association indicates that physicians involved in assisted suicide or euthanasia often ignore the "safeguards" proposed by supporters of legalization, and are frequently troubled by their involvement in ending patients' lives [Ezekiel J. Emanuel et al., "The Practice of Euthanasia and Physician-Assisted Suicide in the United States," 280 JAMA 507-513 (Aug. 12, 1998)].

Interviews with 355 oncologists indicated 56 (16%) who said they had ever performed euthanasia or assisted a patient's suicide. Of the 53 who agreed to follow-up interviews, 38 (11% of total sample) were shown to have participated in these practices -- 20 cases of assisted suicide and 18 of euthanasia (the other physicians having made decisions about treatment withdrawal or pain control that they confused with these practices).

These 38 physicians were questioned to determine whether they had followed the major "safeguards" against abuse reflected in Dutch law and in proposals for legalization in the U.S. Some results:

• "Most worrisome is that in 15.3% of cases, the patients were not involved in the decision but families wanted the patients' lives ended. This lack of involvement even occurred in cases where the patients were conscious and could have participated in the decision" (p. 511).

• Only 40% of oncologists discussed their decision with a colleague to get a second opinion; only 5% ordered a psychiatric evaluation, though they could have done so without telling the psychiatrist that they were considering assisting a suicide.

• 16% of patients did not have physical pain, though almost all had either pain or "poor physical functioning."

• Only 34% of cases followed all three safeguards (voluntary request by patient, second physician's opinion, and intolerable pain or other suffering).

The authors say that legalization may enhance physicians' compliance with some safeguards, but they note that legalization in the Netherlands "did not measurably affect" willingness to perform euthanasia on mentally incompetent patients who never requested death (p. 511). Some commentators on the study observe that Oregon's rules on concealing all details of assisted suicides from the public and allowing self-reporting by physicians are a recipe for guaranteeing widespread abuse [Editorial, "Death in the dark," Columbus Dispatch, 9/24/98].

Other findings: Virtually all cases used federally regulated drugs, generally narcotics or barbiturates; 20% of patients who obtained drugs for assisted suicide never took them; 15% of attempted suicides failed to kill the patient; physicians regretted having performed euthanasia or assisted suicide "in almost a quarter of cases" (p. 512), and some changed their careers or even moved to another city "to avoid caring for patients who might request" these interventions in the future (p. 512).

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