Analysis Maryland HB 370 (2017)

The “Richard E. Israel and Roger ‘Pip’ Moyer Death with Dignity Act”  MD (HB 370 ) is patterned on Oregon’s doctor-prescribed suicide law. However, this bill differs, in part, with the Oregon law and creates additional loopholes that place vulnerable patients at risk.

 Under the bill:

 A doctor would be able to prescribe a massive overdose of drugs for a person to take to end his or her life.

 The bill refers to “Aid in Dying” as a “medical practice of a physician prescribing medication to a qualified individual that the qualified individual may self-administer to bring about the qualified individual’s death.”[1]   Many individuals erroneously assume that this means a patient would take “a pill” and slip peacefully away.

According to the latest official report from Oregon, 97.5% of prescriptions since that state’s “death with dignity” law went into effect were for secobarbital or pentobarbital (sedatives).  In recent years, pentobarbital has been difficult to obtain due to growing opposition for its use in capital punishment. This has led to increased use of the more expensive secobarbital for assisted suicide.[2]

The usual therapeutic dosage of secobarbital is one to three 100 mg. capsules.  The usual lethal dose prescribed for doctor-assisted suicide is 90 to 100 capsules![3]

Government bureaucrats and profit-driven health insurance programs could cut costs by denying payment for treatment that patients need and want, while approving payment for less costly assisted suicide deaths. 

There is documented information about terminally ill patients in Oregon and California who were denied coverage for treatment by insurance providers and, instead, were told that doctor-prescribed suicide would be covered.[4]

Referring to payment for assisted suicide, the Oregon Department of Human Services explains, “Individual insurers determine whether the procedure is covered under their policies, just as they do any other medical procedure.”[5]

If the Maryland bill is approved, will private insurance programs and government health programs do the right thing – or the cheap thing?

A third party would be able to communicate the request for the lethal dose without any oversight to determine the accuracy of the request.

Under the bill, patients are considered capable of requesting assisted suicide not only by communicating the decision on their own but also by “communication through another individual familiar with the individual’s manner of communicating if that person is available.”[6]

This could include translating various languages as well as facilitated communication[7] and could lead to a patient’s wishes being misunderstood, misinterpreted, or disregarded. There is no requirement that such communication assistance be verified.

Who will know if the person communicating on behalf of the patient is doing so accurately?  What, if any, professional expertise will be required of those communicating on behalf of the patient?

Doctors would be permitted to prescribe death for patients who, otherwise, could live for many years.

Doctors would be permitted to prescribe assisted suicide to patients who have a “terminal illness,” defined as a condition that “involves a prognosis for an individual that likely will result in the individual’s death within six months.”[8]

There is no requirement that the condition be incurable, irreversible or uncontrollable.  There are many conditions (diabetes or certain types of leukemia) that could meet the definition of terminal illness contained in the bill.

For example, diabetes can be both incurable and irreversible but it is controllable.  An insulin-dependent diabetic patient who stops taking insulin will, within reasonable medical judgment, die within six months.  Thus, under the bill, diabetics could be eligible for doctor-prescribed suicide even though they could live virtually normal lives with insulin.

There is documentation that this has occurred under Oregon’s assisted-suicide law.  In an official report from Oregon, diabetes is noted as the underlying terminal condition that made the patient eligible for a lethal prescription.[9]

Someone who would benefit financially from the patient’s death could serve as a witness and claim that the patient is mentally fit and eligible to request assisted suicide. 

The bill requires that there be two witnesses to the individual’s written request for doctor-prescribed suicide. Only one of those witnesses shall not be a relative or someone entitled to any portion of the person’s estate upon death.[10]

However, this provides little protection since it permits one of the witnesses to be a relative or someone who is entitled to the patient’s estate.  The second witness could be the best friend of the first witness and no one would know.

Severely depressed or mentally ill patients could receive doctor-prescribed suicide, without having any form of counseling.

Even if the patient is severely depressed or has a mental illness, a physician does not need to refer the patient for a mental health professional assessment unless the physician believes the patient has “impaired judgment” that prevents the patient from making medical decisions.[11]

If the depressed or mentally ill patient understands the nature and consequences of a health care decision as well as the relevant facts surrounding that decision, he or she is considered able to make an informed decision and would not be referred for counseling.[12]

The most marginalized individuals – poor, hardworking people – would be in particular danger.

“Choice” is an appealing word but inequity in health care is a harsh reality.

Under the bill, before writing a prescription for death, a doctor must discuss “any feasible alternatives and health care treatment options, including palliative care and hospice.”[13]  However, discussing all options does not mean the patient will have the ability to access those options.

Patients who have insurance may find that it does not cover the “feasible alternatives.”

Doctor-prescribed suicide may well become a “choice” for the comfortably well off, but the only “medical treatment” the poor can afford.  The last to receive health care could be the first to receive doctor-prescribed suicide.

A health care facility could not prevent deaths from doctor-prescribed suicide on its premises.  Furthermore, a facility willing to permit assisted-suicide deaths could require pharmacists, nurses and others to facilitate such deaths.

The bill states that a health care provider may prohibit participation on the premises.[14]

It provides that no one can be subjected to a penalty for “participating or refusing to participate;” participation is “voluntary:”[15] and that a “health care facility may not require the physicians on the medical staff to participate in aid in dying.”[16]

Note, however, that the word “participate” is very narrowly defined in the bill.[17]  It refers only to performing the duties of the attending physician, the consulting physician or the mental health professional.  It does not include nurses, pharmacists, etc.

Therefore, facilities could require pharmacists to fill prescriptions and nurses to bring the drugs to a patient since such activities would not constitute participation.  Furthermore, facilities would not be able to ban pharmacies on the premises from filling prescriptions for the lethal drugs and would not be able to prohibit nurses from providing them to a patient or resident.

Family members or health care providers and others could advise, suggest, encourage or exert subtle and not so subtle pressure on patients to request doctor-prescribed suicide, setting the stage for elder abuse and pressure on vulnerable patients.

The bill would penalize anyone who “coerces or exerts undue influence”[18] on a patient to request the lethal prescription. However, those words have a very narrow legal meaning.  The proposal does not prohibit someone from suggesting, advising, pressuring or encouraging a patient to request doctor-prescribed suicide.

Since victims of domestic abuse, including elder abuse, are extremely vulnerable to persuasion from their abusers, it takes little imagination to understand how abused patients could be persuaded to request doctor-prescribed suicide.

A patient could be led to request assisted suicide based on fear of being a burden to others.   

Many families are under tremendous strain.  At a time of rising insurance deductibles, home foreclosures and general economic uncertainty, it would be foolhardy to ignore the role that finances would play when making life and death decisions.

Would some patients feel that they should request doctor-prescribed suicide so that they wouldn’t be a financial or emotional burden on their family?

Even in families where there would be emotional and practical support for a patient diagnosed with a terminal illness, patients could feel that they are being selfish for not sparing their family.  This has been documented in Oregon as a reason for requesting the prescription for death.

According to Oregon’s latest official report, 48 percent of patients who died using that state’s assisted suicide law did so to avoid being a burden on their family, friends or caregivers.[19]

Furthermore, while we would all like to believe that family means warmth, love and protection, we need to face the reality that dysfunctional families are not rare and elder abuse – much of it at the hands of a family member – is a fact of life.

Persons responsible for completing and signing death certificates would be required to falsify the cause and manner of death. 

If the patient dies after taking the lethal drugs, the prescribing doctor may sign the patient’s death certificate[20] and the death “shall be deemed to be a death from natural causes, specifically as a result of the terminal illness from which the qualified individual suffered.”[21]

“Doctor shopping” could take place until a health care professional can be found to declare that the patient is qualified for the lethal prescription.

If an attending physician believes a patient does not have the ability to make an informed decision or that the patient is being pressured to request the prescription for assisted suicide, nothing in the bill prohibits a health care provider, family member or another person from arranging for the patient to be evaluated by other health care professionals until one is found who would declare the patient capable of choosing assisted suicide.

This has taken place in Oregon where it has been noted that “a psychological disorder — senility, for example — does not necessarily disqualify a person.”[22]

A woman died of assisted suicide under Oregon’s “Death with Dignity Act,” even though she was suffering from early dementia. Her own physician had declined to provide a lethal prescription for her. When counseling to determine her capacity was sought, a psychiatrist determined that she was not eligible for assisted suicide since she was not explicitly pushing for it and her daughter seemed to be coaching her to do so. She was then taken to a psychologist who determined that she was competent but possibly under the influence of her daughter who was “somewhat coercive.”

Finally, she was assessed by a managed care ethicist who determined that she qualified for assisted suicide, and the lethal dose was prescribed.[23]

According to the latest official Oregon report, the duration of the patient-physician relationship was, in some cases, less than one week.[24]

All of the purported safeguards in the bill cease the moment the prescription is received.

The bill contains six references to the fact that the prescription is to be “voluntarily” requested.  However, nothing in the proposal states that the drugs, once prescribed, must be knowingly or voluntarily taken.

Why are there no safeguards at the most important part of the process – at the time the patient takes the drugs that will cause death?

………………..

[1]  §5-6A-01 (B).

[2]  Kimberly Leonard, “Drug Used in ‘Death with Dignity’ Is the Same Used in Executions,” US News and World Report,  October 16, 2015.  Available at: http://www.usnews.com/news/articles/2015/10/16/drug-shortage-creates-hurdle-for-death-with-dignity-movement. (Last accessed 2/2/17.)

[3]  Jennifer Fass and Andrea Fass, “Physician-assisted Suicide: Ongoing Challenges for Pharmacists,” Am. J. Health Syst. Pharm. 2011:68(9): 846-849.  Available at: http://www.medscape.com/viewarticle/742070_print.  (Last accessed 1/31/17).   For more information on drugs used for doctor-prescribed suicide, see: http://www.patientsrightscouncil.org/site/doctor-prescribed-suicide-drugs. (Last accessed 2/1/17.)

[4]  See, for example:  Bradford Richardson, “Assisted-suicide law prompts insurance company to deny coverage to terminally ill California woman,” Washington Times, October 20, 2016.  Available at: http://www.washingtontimes.com/news/2016/oct/20/assisted-suicide-law-prompts-insurance-company-den. (Last accessed 1/27/17.)
Also see: Susan Donaldson James, “Death Drugs Cause Uproar in Oregon,” ABC News, August 6, 2008.  Available at:  http://abcnews.go.com/Health/story?id=5517492&page=1. (Last accessed 1/28/17.)

[5]  Oregon Dept. of Human Services, “FAQs about the Death with Dignity Act.”  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/faqs.pdf. (Last accessed 2/1/17.)

[6]  §5-6A-01 (D) (3).

[7]  Facilitated communication can take place when a person, called a “facilitator,” supports the hand or arm of a person who is impaired, using a device such as a keyboard to help the individual communicate.

[8]  §5-6A-01 (S).

[9]  Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2015,” pg. 7, fn. 2.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf. (Last accessed 2/1/17.)

[10]  §5-6A-03 (B).

[11]  §5-6A-06 (A).

[12]  §5-6A-01(D) (1) & (2) and (H). As noted in the information required in the medical records, the prescribing physician is to include a report of the outcome of and determination made during the mental health professional assessment if the patient was referred for such an assessment. §5-6A-08 (A) (5).

[13]  §5-6A-04 (C) (5).

[14]  §5-6A-14 (B) (1).

[15]  §5-6A-15 (A).

[16]  §5-6A-15 (A) (2).

[17]  §5-6A-14 (A) (3) (I).

[18]  §5-6A-16 (B).

[19]  Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary,”  February 4, 2016, p. 6.   Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/7/17.)

[20]  §5-6A-07 (C).

[21]  §5-6A-11 (A).

[22]  “Physician-assisted suicide: A family struggles with the question of whether mom is capable of choosing to die,” Oregonian, February 4, 2015. Available at: http://www.oregonlive.com/health/index.ssf/2015/02/physician-assisted_suicide_a_f.html. (Last accessed 2/7/17.)

[23]  Ibid.

[24]  Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary,”  February 4, 2016, p. 6.   Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/7/17.)

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