Patterned on Oregon’s doctor-prescribed suicide law, this bill differs, in part, with that law and creates additional loopholes that place vulnerable patients at greater risk.
Under the Arizona “Death with Dignity Act of 2016” (HB 2347):
A person, other than the patient, could administer the lethal drugs to the patient.
Although the bill states that “death with dignity” means “the issuance of a prescription for self-administration, that will terminate the life of a qualified patient,”[1] is makes an exception permitting another person to administer the lethal drugs. It states that another person is not authorized to administer the deadly overdose “unless that person is designated by a qualified patient to administer or dispense the medication because of the qualified patient’s physical disability.”[2]
“Terminal condition” is so broadly defined that it would permit doctors to prescribe death for patients who could live for many years, including individuals who have been severely injured in an accident.
Doctors would be permitted to prescribe death for patients who have a “terminal condition,” defined as a condition that “results from an accident or an incurable and irreversible disease” that is expected to cause death within six months.[3]
Many individuals who have been severely injured in an accident could live for years with medical assistance. Yet, without it, they could be expected to die in six months or less.[4] They would be eligible for death under this bill.
In addition, there are many conditions (diabetes, certain types of leukemia and, even, alcoholism) 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.[5]
Death could be prescribed for a patient without any defined waiting period after the diagnosis of a terminal condition.
The bill stipulates that there must be at least 15 days between the patient’s initial request and the writing of the prescription.[6] However, that waiting period “may be shortened if the attending physician certifies in writing that the patient is in extreme pain and the imposition of a waiting period would serve only to extend the suffering of the patient.”[7] Such pain or suffering need not be physical. The entire process could take hours from the time of diagnosis or accident until the drugs are prescribed.[8]
Severely depressed or mentally ill patients could receive the prescription to cause death, without having any form of counseling.
Counseling is only required if, “in the opinion of the attending physician or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”[9] So, while a person may be depressed or mentally ill, a referral for counseling is necessary only if the physician believes the patient’s judgment is impaired (i.e., the patient is unable to make decisions regarding personal, interpersonal, financial and/or medical affairs). Many people who are depressed or mentally ill are capable of making such decisions.
Furthermore, even if the patient is referred for counseling, such counseling is only one consultation with the counselor to determine if the patient has impaired judgment.[10]
According to the last official report in Oregon, fewer than 4% of patients were referred for counseling prior to receiving a prescription for the lethal overdose.[11]
Someone who would benefit financially from the patient’s death could play a key role in signing the patient up for the prescription for the deadly overdose of drugs.
Two witnesses are required to sign the patient’s written request for the lethal overdose of drugs.[12] One of those witnesses may be a relative or a person entitled to benefits upon the patient’s death.[13] The second witness could be the best friend of the potential heir – and no one would ever know.
“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 death, 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 life-ending drugs.
This has taken place in Oregon where it has been noted that “a psychological disorder — senility, for example — does not necessarily disqualify a person.”[14]
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.[15]
According to the last official Oregon report, the duration of the patient-physician relationship was, in some cases, less than one week.[16]
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 the “feasible alternatives to taking the medication, including comfort care, hospice care and pain control.”[17] 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.”
In Oregon, some patients have been told by their health insurance provider that a costly drug prescribed by a doctor to treat the patient’s illness would not be covered but that payment for inexpensive lethal drugs would be authorized.[18]
A prescription for lethal drugs 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 death.
Family members or health care providers and others could advise, suggest, encourage or exert subtle and not so subtle pressure on patients to request the life-ending drugs, setting the stage for elder abuse and pressure on vulnerable patients.
The bill would penalize anyone who “coerces or exerts undue influence”[19] on a patient to request the lethal prescription.
However, those words have a very narrow legal meaning.
The proposal does not prohibit anyone from suggesting, advising, pressuring or encouraging a patient to request life-ending drugs.
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 the deadly drugs.
There are no provisions to investigate inaccurate, incomplete and misleading reports or to investigate abuse surrounding deaths as a result of life-ending medication.
Oregon’s doctor-prescribed suicide advocates claim that official reports about that state’s practice prove there have been no problems or abuses. That claim is, at best, misleading.
According to data provided by Compassion & Choices – the advocacy group that is the chief promoter of “death with dignity” bills – the organization has participated in three quarters of Oregon’s assisted-suicide deaths.[20] Oregon’s largest newspaper characterized this as a situation in which “essentially, a coterie of insiders run the program, with a handful of doctors and others deciding what the public may know.”[21]
As with Oregon’s “death with dignity” law, the Arizona bill requires doctors to maintain records regarding prescriptions for life-ending medication[22] and to report those cases to the state. But, as in Oregon’s law, there are no penalties for non-reporting or for inaccurate or incomplete reporting.
In 2000, Katherine Hedberg, a medical epidemiologist with the Oregon Health Division and co-author of the state’s official report said neither the law approved by voters nor the legislature had given any enforcement powers to the Health Division. She noted that the division had to rely on the word of doctors who are not required to be at the patient’s bedside when the lethal drugs are taken. For that reason, the doctors who provide information for the annual reports may not have knowledge about any complications.[23]
Provision of life-ending drugs would become a “medical treatment.”
This would give insurance programs the opportunity to cut costs by denying payment of more expensive treatments while approving payment for the less costly prescription for a lethal drug overdose. If the bill is approved, will health insurance programs do the right thing – or the cheap thing?
………………..
[1] § 36-3301 (3).
[2] § 36-3316 (2). (Emphasis added.)
[3] § 36-3301 (8). (Emphasis added.)
[4] For extensive information about the disability rights perspective, see: Not Dead Yet (http://notdeadyet.org), the Disability Rights Education and Defense Fund (http://dredf.org) and Second Thoughts (http://www.second-thoughts.org/about).
[5] 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.
[6] § 36-3310 A.
[7] § 36-3310 B. (Emphasis added.)
[8] The attending physician and consulting physician could confirm the diagnosis within hours of each other, the attending physician could provide required information and the patient’s written request could be carried out at the same time.
[9] § 36-3305 A. (Emphasis added.)
[10] § 36-3301 (2).
[11] Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2015,” pg. 6. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.
[12] § 36-3302 B.
[13] § 36-3302 C.
[14] “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.
[15] Ibid.
[16] Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2015,” pg. 7. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.
[17] § 36-3303 (2) (e).
[18] KATU TV, Portland, OR, July 31, 2008.
[19] § 36-3317 B.
[20] “Compassion & Choices of Oregon, Summary of Deceased Patients, 1/1/98 through 9/25/08” distributed by George Eighmey, Executive Director of C & C of Oregon, Vancouver, WA Public Library Forum on I-1000, Sept. 25, 2008.
[21] Editorial Board, “Washington state’s assisted-suicide measure: Don’t go there,” Oregonian, Sept. 20, 2008.
[22] § 36-3311.
[23] Joe Rojas-Burke, “Suicide critics say lack of problems in Oregon is odd,” Oregonian, February 24, 2000.
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