Physicians for Compassionate Care
Affirming an ethic that all human life is inherently valuable
LETHAL DRUG ABUSE PREVENTION ACT OF 1998 (H.R. 4006)
TESTIMONY OF PHYSICIANS FOR COMPASSIONATE CARE
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
JULY 14, 1998
Physicians for Compassionate Care, an organization founded among Oregon doctors with more than 1,000 members, urges each member of the Subcommittee on the Constitution to support legislation clarifying that federal law forbids prescription of scheduled drugs for doctor-assisted suicide or euthanasia. Federal law currently regulates physicians and limits their prescription of controlled substances to those uses intended for medical purposes. This regulation is necessary and appropriate. At this time, however, the public health and safety requires clarification and strengthening of the law. This testimony will demonstrate how Oregon's doctor-assisted suicide law and its implementation highlight the obvious fact that doctor-assisted suicide is not medical. Clearly limiting the prescription of controlled substances to exclude the non-medical procedure of doctor-assisted suicide will protect and make easier improved use of prescription medicines for treatment of pain and suffering in the seriously ill. Experience in the Netherlands, compared to that in Oregon before doctor-assisted suicide was implemented, makes it abundantly clear that acceptance of assisted suicide interferes with the appropriate use of pain medications for palliative care. Furthermore, clarification that the doctor-patient relationship excludes participation of the doctor in the patient's suicide actually provides needed protection for the time-honored relationship of trust between doctor and patient. Without such clarification, the use of controlled substances for doctor-assisted suicides would threaten the public health and safety in many ways, including: allowing states and insurance companies to save millions of dollars by offering patients doctor-assisted suicide instead of medical care; stigmatizing and discriminating against the seriously, perhaps terminally ill; and shrouding this one lethal procedure in an impenetrable cloak of secrecy. Physicians for Compassionate Care urges the members of this committee to vote in favor of the Lethal Drug Abuse Prevention Act of 1998.
Assisted suicide is not medical, and it threatens the public health and safety.
Because all human life is inherently valuable, physicians prescribe medicines to heal illness, prolong life, and alleviate suffering (American Medical Association Code of Medical Ethics Reports, Vol. 2, No. 2, Report 33-34, 1991 & Vol. 5, No. 2, Report 59, 1994). Assisted suicide does not alleviate suffering; it eliminates the sufferer. Neither does it heal illness nor prolong life. Physicians for Compassionate Care agrees with the American Medical Association that "Physician-assisted suicide is fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal risks" (American Medical Association Code of Medical Ethics, 1997, p. 56). That is, assisted suicide is not medical, and it threatens public health and safety.
PHYSICIANS ARE ALREADY REGULATED
If I write a morphine prescription for a patient, that is legal under Oregon law, because I am licensed to practice medicine in Oregon. It is also authorized by the United States Drug Enforcement Agency (DEA), because I am registered with the DEA and because the purpose is both legal and medical. But if I were to write a morphine prescription to enhance a healthy patient's euphoria at the Mt. Hood Jazz Festival, which I assure you I would not do, that would not be allowed under the Controlled Substances Act, because it is not a medical purpose. As the law now stands, I could, and very appropriately so, lose my DEA registration, regardless of whether or not Oregon could or would remove my license to practice medicine. No one would be surprised at such a result, because physicians are accustomed to oversight and to having their prescription of controlled substances regulated. Diverting federally regulated prescription drugs for non-medical purposes is not allowed. And it should not be allowed. If the Controlled Substances Act is unclear on the issue of prescribing controlled substances for patient suicides, as Attorney General Janet Reno seems to think it is, then it is up to the United States Congress to make it clear that using these drugs to kill sick people is not medical, it poses a threat to public health and safety, and therefore, it is not allowed.
OREGON LAW DEMONSTRATES ASSISTED SUICIDE IS NOT MEDICAL
The Oregon assisted suicide law and Oregon's implementation of that law under Governor John Kitzhaber's direction clearly reflects the fact that assisted suicide is not medical. For example, medical malpractice claims are forbidden by Oregon's suicide law. For this procedure and this procedure alone, doctors only need to demonstrate "good faith," instead of being required to provide care which meets the community medical standard, as is the case for medical procedures. This lowering of the legal standard below that required for medical malpractice cases distinguishes assisted suicide from medical care.
The Oregon assisted suicide law does not allow physicians, health care providers or professional groups to criticize ("censure") colleagues for acts that are unethical according their own professional ethics for this procedure and this procedure alone. This provision constitutes an exception to Oregon's Medical Practice Act. The exception is required, because assisted suicide is not medical.
Oregon, under Governor John Kitzhaber's direction, has created a parallel death certificate system for assisted suicides. This system is different from that used for all other deaths. Funeral directors have been told to by-pass regular channels and to "direct (sic) report all physicians (sic) assisted death certificates" to the Center for Health Statistics. "Only limited staff in this office will be aware of this type of death, as these records will not be handled through regular channels" (See attached memorandum of Sharon Rice, Oregon Health Division, December 12, 1997). This separate and secret reporting reflects the fact that assisted suicide is different; it is not medical.
As pointed out by Doctor Kenneth Stevens, Professor and Chairman, Department of Radiation Oncology, Oregon Health Sciences University, "The goals of medical treatment are to cure disease and relieve symptoms in order to improve quality of life. Doctor-assisted suicide is not a 'medical treatment'" (Written testimony to the Oregon Health Services Commission, February 26, 1998).
MEDICAL PROCEDURES CAN BE DEFINED BY INTENT
It is possible to use drugs for either medical or non-medical purposes; but physicians may only prescribe drugs for medical purposes. Physicians have long been accustomed to making this distinction. For example, doctors acknowledge that sometimes pain medications appropriately may be prescribed despite some risk to a patient's life, yet it is not appropriate medical practice to prescribe pain medication with the intention of ending the patient's life. This distinction was accepted by the Supreme Court of the United States in 1997 (Dennis C. Vacco, Attorney General of New York, et al., v. Timothy E. Quill et al., No. 95-1858, June 26, 1998), when it stated that " ... in some cases, pain killing 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.'" The Supreme Court went on to emphasize that "The law has long used actors' intent or purpose to distinguish between two acts that may have the same result." What is a medical use and what is not a medical use can clearly be determined according to the doctor's intent. Using the depressant effects of morphine or barbiturates to create a euphoric state in a drug abuser or using those depressant effects to kill a person are not medical purposes. But using those same medicines to relieve pain or calm anxiety in a seriously ill patient are medical purposes.
USE OF MEDICINES TO CONTROL PAIN IS PROTECTED
BY FORBIDDING THEIR USE FOR DOCTOR-ASSISTED SUICIDE
Some individuals or organizations may argue in a misleading fashion that the Lethal Drug Abuse Prevention Act of 1998 may interfere with the use of appropriate pain medication for the seriously ill. Such an assertion could not be further from the truth. In fact, all evidence points to the opposite conclusion: allowing doctor-assisted suicide has interfered with the appropriate use of prescription drugs for treatment of pain and depression and for palliative care where it has been practiced. Dutch ethicist, Doctor Henk Jochemsen testified to the U.S. House Commerce Subcommittee on Health and the Environment (Assisted Suicide: Legal, Medical, Ethical, and Social Issues, Serial No. 105-107, March 7, 1997), "In the Netherlands there still is a lack of facilities with expertise in the field of integral palliative care (hospice care). It must be concluded that to a significant extent euthanasia is practiced as a substitute for palliative care" (p. 127). Doctor Herbert Hendin studied the Dutch experience with assisted suicide, which inevitably led to euthanasia and then to non-voluntary medical killing. He recognized that since that country accepted assisted suicide " ... studies have demonstrated how inadequately physicians are trained in palliative care in the Netherlands" (Seduced by Death, New York: Norton, 1998, p. 143). Doctor Zbigniew Zylicz, the Netherlands's leading palliative care expert, and Doctor Chris Rutenfrans from The Hague's Department of Justice, joined Hendin in declaring in the Journal of the American Medical Association (June 4, 1997) that since the acceptance of assisted suicide, " ... there has been an erosion of medical standards in the care of terminally ill patients in the Netherlands" (p. 1722). They went on to explain that once euthanasia or assisted suicide is accepted for the exceptional case, "In the process, palliative care is one of the casualties." Just this past spring, Hendin warned members of Physicians for Compassionate Care in Portland, Oregon, " ... the dangerous result of accepting assisted suicide is a medical profession and a general population that has no conceptualization of any other response to the elderly or seriously ill, except assistance in suicide" (Hamilton, C., Assisted Suicide and Medical Illness, PCC News, May, 1998, p. 2). Clearly, then, acceptance of doctor-assisted suicide interferes with effective pain management for the seriously ill and therefore poses a threat to public health and safety.
Despite this evidence from the Netherlands that assisted suicide and euthanasia result in inadequate use of pain medication for palliative care, some Oregon doctors and politicians claim that Oregon's current high morphine use is a victory for legalization of assisted suicide in that state. This claim is deceptive, indeed. The truth is that the Oregon Board of Medical Examiners began its campaign for the increased use of narcotics in the treatment of pain before assisted suicide was legalized. In January, 1993, well before the assisted suicide ballot measure in fall, 1994, the Oregon Board of Medical Examiners (BME) issued the following statement: "Likewise, physicians often prescribe narcotics too sparingly for their terminally ill patients. The BME believes that physicians should make every effort to relieve the pain and suffering of their dying patients. This may require either intermittent or continued administration of large doses of narcotics" (Oregon Board of Medical Examiners, Pain Management in Acute Conditions and in Terminal Illness, January, 1993). In response to such educational efforts, Oregon doctors increased their use of pain medication. During the time Oregon's morphine use increased so dramatically, the assisted suicide law had an injunction against it and was not in effect. The use of that drug or any other drug for assisted suicide was clearly illegal and every doctor in Oregon knew it. Certainly, then, Oregon's case itself illustrates that even while it is illegal to use controlled substances for assisted suicide or euthanasia, appropriate use of pain medication in the seriously or terminally ill can continue to improve. The Lethal Drug Abuse Prevention Act of 1998 will not interfere with the effective use of pain medication to alleviate discomfort in the seriously ill. In fact, it will help prevent deterioration in the appropriate use of pain medicines like that which has taken place in the Netherlands.
THE DOCTOR-PATIENT RELATIONSHIP IS PROTECTED BY CLARIFICATION
Individuals promoting assisted suicide may claim that the Lethal Drug Abuse Prevention Act of 1998 might interfere with the doctor-patient relationship. Nothing could be further from the truth. Actually, "The doctor-patient relationship is particularly charged emotionally; doctors depend upon role clarity to guide them in their responsibility to act in the best interest of the patient. If physicians alter their ethics to include assisting in suicides as one of their roles, it will alter the physician-patient relationship in complex and potentially dangerous ways" (Hamilton, N.G. et al., The Doctor-Patient Relationship and Assisted Suicide, American Journal of Forensic Psychiatry 19:59-75, 1998, p. 59). In addition, "In a complex and irrevocable life ending decision such as assisted suicide, both life and liberty would be endangered by changing medical ethics and the physician's role in suicides. Those individuals who are most dependent on the medical profession to care for them would be at greatest risk" (p. 70). And, "More generally, if physicians change their ethics and begin to hold the belief that the lives of some patients are no longer worthwhile, it will damage the physician's trusted social role in the context of the doctor-patient relationship" (p. 70). Physicians for Compassionate Care agrees with the American Medical Association that "Physician-assisted suicide is fundamentally incompatible with the physician's role as healer" (American Medical Association Code of Medical Ethics, 1997, p. 56). The best protection for the integrity of the doctor-patient relationship is to clarify the physician's role in that relationship -- in this instance, to clarify that participation in a patient's suicide is excluded. The Lethal Drug Abuse Prevention Act of 1998 protects the doctor-patient relationship by clarifying it.
OREGON'S ASSISTED SUICIDE LAW THREATENS HEALTH AND SAFETY
Just after implementation of Oregon's assisted suicide law last fall, that state decided to fund assisted suicides for the poor and disabled on its rationed Oregon Health Plan, while cutting needed services for these same patients. Assisted suicide proponent, Ms. Barbara Coombs Lee, Executive Director of Compassion in Dying, adamantly denied to the U.S. House Commerce Subcommittee on Health and the Environment (Assisted Suicide: Legal, Medical, Ethical, and Social Issues, Serial No. 105-107, March 7, 1997, p. 92 & p. 102-103) that there were any such plans, claiming that authorities had been "misrepresented" in previous testimony. Yet, Oregon immediately approved doctor assisted suicide under the "comfort care" section of the Oregon Health Plan upon implementation of the doctor-assisted suicide law. The Oregon Health Services Commission, each member appointed by Governor John Kitzhaber, did this despite the fact that every organization representing the poor and disabled at their hearings objected to funding doctor-assisted suicide, because it endangers the poor and disabled. Governor John Kitzhaber implemented this recommendation in the context of woefully inadequate funding for mental health care, including treatment of depression in the terminally ill. The Oregon Health Plan carves out mental health care and provides what treatment it does through health maintenance organizations (HMO) on a fully capitated basis. That is, contracting mental health clinics or groups are paid in advance per enrolled patient; they can actually profit by failing to deliver care. It is well known that depression, more often than pain, leads to suicidal ideation in the seriously ill.
Similar to the Oregon Health Plan, many HMOs have announced that they will fund assisted suicides in Oregon. Last fall, I called up one of these HMOs, PACC, and asked them what their benefit was for home palliative care of the terminally ill. I was shocked when I was told the answer: it was a mere $1,000. What is this HMO going to do when that $1,000 is gone in a few weeks? When the seriously ill ask what their options are, will the HMO remind the patient that their assisted suicide benefit has not been used yet? This kind of financial incentive for HMOs will inevitably pressure patients to accept lethal prescriptions instead of good medical care. These incentives to offer suicide instead of medical care clearly pose a serious threat to public health and safety.
STIGMATIZATION OF THE SERIOUSLY ILL
The state of Oregon, through changing its laws, now allows HMOs and Governor John Kitzhaber's Oregon Health Plan to offer suicide instead of medical care for one population and one population alone. By doing so, it stigmatizes and devalues a whole class of Americans, those labeled terminally ill. As a result, the state of Oregon has set up a system which deprives those individuals of equal protection under the law. All other citizens are protected from suicide. But those labeled terminal are offered suicide instead of treatment and hope. No state should be allowed to stigmatize, devalue, and discriminate against a vulnerable group such as the seriously ill.
The U.S. Supreme Court (Washington et al., v. Harold Glucksberg, No. 96-110, June 26, 1998) determined that there is no Constitutional right to assisted suicide. The Justices discovered, that "... it turns out that what is couched as a limited right to 'physician assisted suicide' is likely, in effect, a much broader license, which could prove extremely difficult to police and contain." This fact has been clearly documented in "A Report of Chairman Charles T. Canady" to this Subcommittee on the Constitution (September, 1996). Already, in Oregon, this progression has taken place. For example, a Corvallis, Oregon doctor has already caused his comatose patient to be killed with a lethal injection he prescribed -- without her consent. And right-to-die activists mounted a media campaign to protect him from prosecution. State officials ultimately declared that, given public sentiment in Oregon, there would be no point in trying to prosecute him. Such a discriminatory campaign and decision would not be tolerated if it were directed against any group other than the seriously, perhaps terminally ill or a similarly vulnerable group. Non-consensual killing in the medical setting happens routinely where government rules and regulations codify consensual killing, because such codification, by its very existence, stigmatizes the seriously ill as having lives less worth living.
SHROUDED IN SECRECY
The people of Oregon and of America were promised that a doctor-assisted suicide law would bring the practice out in the open. Instead, this law has shrouded assisted suicide in an impenetrable cloak of secrecy. Doctors may voluntarily report cases or may make medical records available for review. But there is no punishment for failure to report. Indeed, there is no effective oversight to make sure that abuses are not taking place.
FIRST REPORTED DOCTOR-ASSISTED SUICIDE
The first reported case of doctor-assisted suicide in Oregon was itself shrouded in secrecy. Although a media event was staged, dramatizing this case, all that is known about the woman's suicide are bits and pieces funneled to the media by the assisted suicide advocacy group that moved to Oregon just weeks after implementation of the law began. This group, the Compassion in Dying Federation, announced to the world media the doctor-assisted suicide of a woman in her mid-80's who had breast cancer. There is no evidence that she was in significant pain. But there is considerable evidence that she was depressed. Her regular doctor did not think that assisted suicide was appropriate and declined to provide her a lethal prescription. Her second doctor was open to the philosophical notion of assisted suicide, but he considered her depressed and not eligible under the law. It was then that the elderly woman's family called the Compassion in
Dying Federation. The medical director from this group, Doctor Peter Goodwin, one of the chief petitioners for Oregon's assisted suicide law and a committed proponent of doctor-assisted suicide, determined over the telephone that he did not consider her depressed but "rational" (Gianelli, American Medical News, April 13, 1998, p. 62). It was then, we are told, the woman was referred to yet another doctor, whose name has been kept secret, but who undoubtedly shared Goodwin's political views favoring suicide within the doctor-patient relationship. It is said the patient eventually saw a psychiatrist for a single consultation (Gianelli, 1998), presumably to confirm her competence. This psychiatrist, most certainly hand picked by the suicide doctors, rendered the expected opinion. He did so in just one session, despite the fact that 94% of Oregon psychiatrists agree they are not very confident that they can determine in a single visit when depression is affecting decisions about assisted suicide (Ganzini, L. et al., Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide, American Journal of Psychiatry, 156:1469-1475, 1996). Once the elderly woman's family had contacted Goodwin, she was given a lethal oral overdose in barely more than the minimum waiting period of two and a half weeks the law requires. Although her second physician determined the patient was suffering from depression, this elderly woman did not receive antidepressant medication in a therapeutic trial to see if treatment of her mood would eliminate her suicidal ideation. Any other patient, who was not stigmatized by the label "terminally ill," would have routinely been given a trial of such treatment.
This case, promoted by assisted suicide advocates as ideal, illustrates that assisted suicide is not medical, because it does not follow standard medical procedures; and it demonstrates that doctor-assisted suicide poses a grave threat to the public health and safety. This patient did not receive the medical standard of care for individuals with suicidal ideation and a medical diagnosis of depression. But, the doctors involved in her suicide can never be sued for malpractice, because suicide is not a medical procedure and, unlike all medical procedures, the doctors are exempt from suit, if the standard of "good faith" is met. This patient's death was handled through a political rather than a medical process; she was used as a political pawn. She was subjected to lethal abuse of controlled substances, obtained, no doubt, by use of a federal DEA registration number.
This case illustrates how controlled substances can be abused and diverted to the non-medical purpose of intentionally causing someone's death. The option of contributing to her suicide interfered with legitimate medical care. This care might have included antidepressant medications, psychotherapy, pain treatment, and other elements of interdisciplinary palliative care, all of which could have alleviated the woman's symptoms without eliminating the woman who had the symptoms. And yet, the reporting processes set up by Governor John Kitzhaber cloak the procedure in secrecy and do not allow even the simplest clinical questions about lack of treatment to be answered. The complacent acceptance of such practice diminishes all persons with a serious, perhaps terminal illness. It stigmatizes them and treats their lives as if they were not as valuable as your life and mine. "Such devaluation can adversely affect both the psychological and physical well-being of the seriously, possibly terminally, ill, whether or not they might ever consider suicide for themselves" (Hamilton et al, 1998, p. 70). To contribute to the suicide of even one person in the medical setting rather than offering them treatment and hope threatens the public health and safety in that it diminishes all seriously ill individuals and treats them as lesser citizens. To complacently accept such a practice, in any state, threatens to create a medical profession and a society which knows no response to the elderly and seriously ill other than assisted suicide (Hendin, 1998).
Because assisted suicide is not medical and because allowing the diversion of controlled substances for assisted suicide threatens the public health and safety, Physicians for Compassionate Care urges each and every member of the Subcommittee on the Constitution to lend your support to the lethal Drug Abuse Prevention Act of 1998 (H.R. 4006).