Analysis of Delaware 2017-2018 HB 160
The Delaware measure would permit a physician to prescribe “medication” to end the life of a patient who has “expressed a wish to die” if certain conditions are met.[1]
Many people assume that this would be “a pill” a patient could take and then “slip peacefully away.” But that is totally false.
In states where doctor-prescribed suicide is legal, the vast majority of prescriptions for what is often referred to as “death with dignity” are for secobarbital (a sedative). For use as a sedative, the usual dosage is one capsule. The usual prescription under state doctor-prescribed suicide laws is for 90 to 100 capsules.[2]
Under the Delaware proposal:
Physicians could prescribe a lethal overdose of drugs to patients who could live for many years.
Proponents of doctor-prescribed suicide invariably point to the requirement that a person must be terminally ill to obtain the prescription for what they call “death with dignity.” They further explain that the person must have been diagnosed with a six-month or less life expectancy. They call this a safeguard.
But they leave out the fact that, in the proposed Delaware law – as well as in all the assisted-suicide laws that have passed in the various states – the definition of “terminal” allows doctors to prescribe lethal drugs to individuals who could live for many years.[3]
This is because the Delaware measure defines “terminal disease” as an incurable or irreversible disease that will “produce death within 6 months.”[4] But it does not specify that death will occur with or without appropriate treatment.
There is documentation that, under Oregon’s assisted-suicide law, patients who could have lived for years, even decades, have died using legally prescribed lethal drugs. In official Oregon reports, diabetes is noted as the underlying terminal condition that made the patient eligible for a lethal prescription.[5] If insulin-dependent diabetics do not take insulin, they will die within six months. So, they meet the requirements for the definition of “terminal.” If they do take insulin, they can live for many years.
Another such case was described by Dr. Charles Blanke, an oncologist and professor of medicine at Oregon Health and Science University who acknowledges that he has written dozens of prescriptions for assisted suicide.[6] He explained that a young woman with a serious illness had a 90 percent chance of living for decades with recommended treatment. The woman, however, refused the treatment. “That was a very challenging situation,” he said. “You have to ask yourself, ‘Why doesn’t that patient want to take a relatively non-toxic treatment and live for another seven decades?'” Blanke ended up prescribing the deadly overdose for the woman anyway.[7]
Should doctors be able to prescribe assisted suicide for patients who could live for many years?
Assisted suicide would be transformed from a crime into a “medical treatment.”
This would cause emotional and financial pressure on patients. It would give insurance programs the opportunity to cut costs since they could deny payment for treatments that patients need and want while approving payment for the far less costly prescription for a lethal drug overdose.
This has happened in states that permit doctor-prescribed suicide.
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.”[8]
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.[9]
In California, after finding that her insurance company would not cover the chemotherapy her doctor had prescribed, a woman asked if assisted suicide was covered under her plan. She was told, “Yes, we do provide that to our patients, and you would only have to pay $1.20 for the medication.”[10]
California pays for assisted-suicide drugs obtained by MediCal patients under the state’s doctor-prescribed suicide law.[11]
If the Delaware measure becomes law, will insurance programs do the right thing – or the cheap thing?
Severely depressed or mentally ill patients could receive doctor-prescribed suicide without receiving any type of counseling.
Even if a patient is suffering from depression or another psychiatric or psychological disorder, a physician needs to refer a patient for counseling only “if appropriate,”[12] meaning that either the attending or consulting physician believes that the patient’s mental condition is “causing impaired judgment.”[13] The patient’s medical record will include a report of any determinations made during counseling, “if performed.”[14]
This provision is similar to that contained in Oregon’s law where, in 2014, only 3 of the 105 patients who received lethal prescriptions were referred for a psychological evaluation.[15] A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”[16]
Why wouldn’t counseling be required for every patient before a doctor prescribes a lethal dose of drugs?
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.
The measure states that the doctor must inform the patient of all “feasible alternatives.”[17] to prescribed suicide. However, discussing alternatives does not mean the patient will have the resources to access those other options.
Why should the comfortably well off have a choice of treatment options while the poor are left with the only one they can afford – doctor-prescribed suicide?
The written request for doctor-prescribed suicide could be witnessed by someone who would gain financially from the patient’s death.
The written request must be witnessed by two individuals. Only one individual may not be someone who is entitled to any portion of the patient’s estate.[18] Thus, one witness may be a potential heir who is encouraging or pressuring the patient to sign the request. The second witness could be the “best friend” of the potential heir.
The written request could even be signed in the patient’s home. This places elder abuse and domestic abuse victims in great danger since they are unlikely to share their fears with outsiders or to reveal that they are being pressured by family members to “choose” doctor-prescribed suicide.
Why can a potential heir, who would gain from the patient’s death, be allowed to witness the written request?
A person who would benefit financially from the person’s death could pick up the lethal prescription and deliver it to the patient.
The drugs can be dispensed to an expressly identified agent of the patient.[19] A potential heir could encourage the patient to authorize him or her to pick up the drugs for delivery to the patient’s residence.
An interpreter could inaccurately convey the patient’s request as well as any statement about feeling coerced or unduly influenced by another person.
Under the bill, a patient must be “capable,” defined as the “ability to make and communicate an informed decision.” This includes “communication through a person familiar with the individual’s manner of communicating.”[20]
This could lead to a patient’s wishes being misunderstood, misinterpreted, or disregarded. There is no requirement that such communication be independently verified. Nor is there any requirement that the interpreter be an individual who would not gain from the patient’s death.
How would anyone know if the communication accurately expresses the patient’s decision?
Patients would have no protection once the assisted-suicide prescription is filled.
Like the Oregon law, the bill only addresses activities taking place until the prescription is filled. There are no provisions to assure that the patient is competent at the time the lethal drug overdose is taken or that he or she knowingly and willingly took the drugs.
Due to this lack of protection, the bill would place patients at enormous risk. For example, someone who would benefit from the individual’s death could trick or even force the person into taking the fatal drugs. And no one would ever know.
Why aren’t there any safeguards at the most important stage of the process – at the time the patient takes the drugs that will cause death?
Death certificates would be falsified.
The attending physician who wrote the prescription (who would not need to be present when the patient takes the drugs) may sign the patient’s death certificate, which “must list the underlying terminal illness as the cause of death”[21] instead of the true cause: a lethal overdose.
A health care facility could not prevent deaths from doctor-prescribed suicide on its premises.
The bill states that “a health care provider [which includes a health care facility[22]] may prohibit another health care provider from participating” in activities permitted under the proposed law while the provider is on the premises.[23] It further states that nothing prevents “a health care provider from providing health care services to a patient that do not constitute participation” under the proposed law.[24]
However, the bill narrowly defines the meaning of “participation.” It includes only the duties of the attending physician, the consulting physician and the person performing the counseling function.[25]
This does not permit the facility to prohibit a pharmacy on the premises from filling the prescription, nor does it prohibit nurses from bringing those drugs to the patient. Additionally, employees or others could promote doctor-prescribed suicide, witness the written request, transport a resident of a nursing home or senior living facility to an off-premises physician to obtain the prescription which could then be filled and taken on the premises.
A facility willing to permit doctor-prescribed suicide deaths could require pharmacists, nurses and others to facilitate such deaths.
The proposed law states a health care provider may not subject a person to discipline, suspension, etc. for refusing to participate in actions permitted under the bill.[26] But “participate” refers only to performing the duties of the attending physician, consulting physician or counselor. It does not include actions carried out by nurses, pharmacists, etc. Therefore, facilities could require pharmacists to fill prescriptions and nurses to bring the drugs to a patient.
The prescription could be transported to another state where the patient could take it.
Nothing in the bill (or in doctor-prescribed suicide laws passed or proposed in other states) requires that the prescribed drugs be taken in the state in which the prescription is filled. Doctor-prescribed suicide deaths could occur in any state using the prescription filled in a state that permits doctor-prescribed suicide.
If such deaths occur out of state, there would be no record of such deaths. For example,
according to the 2016 California report, the status of more than 30% of patients who received the prescription for the lethal overdose was unknown.[27] And, according to Oregon’s 2016 official report, the death status is unknown for 54 patients who received the prescription for doctor-prescribed suicide.[28]
There is no way to know what is really happening once a doctor-prescribed suicide bill is passed.
Advocates of doctor-assisted suicide point to official reports from Oregon, claiming that the data in those reports proves that the law is working well and is free of problems or abuse. But that claim is subject to skepticism since all information is from self-reporting by the very individuals who are carrying out doctor-prescribed suicide.
Those responsible for issuing official annual reports have acknowledged from the very beginning of Oregon’s assisted-suicide law, that official reports may not be accurate or complete.
According to the Oregon Health Division:
“The entire account [given by reporting doctors] may be a cock and bull story. We assume, however, that physicians were their usual careful and accurate selves.”[29]
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Note: Supporters of the bill point to Oregon in their claim that there are no problems with the law and that safeguards contained in the law are meticulously followed and monitored. Yet, in closed-door sessions, those supporters acknowledge that this is not true. For documented information about this contradiction, see “The Oregon Experience.”[30]
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Isn’t it ironic. At a time when there are warnings about the danger of opioids killing people, there is also a campaign to promote opioids to kill a certain category of people?
As Wesley J. Smith, a Patients Rights Council consultant, has noted, there is a mixed message being sent:
“Don’t abuse opioids, because they can kill you – unless you have a terminal illness and want them to kill you, in which case your overdose will be considered ‘death with dignity. ‘”[31]
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[1] HB 160, Section 2502B (a).
[2] For a full documented description of drugs used for doctor-prescribed suicide, see: “2017 Summary of Drugs Used for Doctor-Prescribed Suicide.” Available at: https://www.patientsrightscouncil.org/site/2017-summary-of-drugs-used-for-doctor-prescribed-suicide. (Last accessed 12/12/17.)
[3] See “Comparison of State Laws Permitting Doctor-Prescribed Suicide: Laws as of September 2017,” Available at: https://www.patientsrightscouncil.org/site/comparison-of-state-laws-permitting-doctor-prescribed-suicide. (Last accessed 12/14/17.)
[4] HB 160, Section 2501B (13).
[5] Official report for 2016 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2016, ” pg. 11, fn. 2. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf (Last accessed 12/12/17.)
[6] Lynne Terry, “Oregon’s Death with Dignity: Barriers remain 20 years later,” Oregon Live: The Oregonian, October 27, 2017.
[7] Tara Bannow, “Rural Oregonians Still Face Death with Dignity Barriers, ” Bend Bulletin, August 14, 2017.
[8] 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 12/12/17.)
[9] 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 12/12/17.)
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 12/12/17.)
[10] 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 12/12/17.)
[11] Kimberly Leonard, “Californians Can Choose to Die – With the Help of Taxpayers,” U.S. News & World Report, March 21, 2016. Available at: https://www.usnews.com/news/articles/2016-03-21/in-california-government-to-pick-up-the-tab-for-death-with-dignity. (Last accessed 12/12/17.)
[12] HB 160, Section 2504B (a) (5).
[13] HB 160, Section 2506B.
[14] HB 160, Section 2512B (5).
[15] Official report for 2014 deaths under Oregon’s Death with Dignity Act, p. 5. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/
year17.pdf. (Last accessed 12/12/17.)
[16] Linda Ganzini, Elizabeth R. Goy, Steven K. Dobscha, “Prevalence of depression and anxiety in patients requesting physicians’ aid in dying: cross sectional survey,” British Medical Journal, Oct. 25, 2008, pp. 973-978.
[17] HB 160, Section 2504B (a) (3) e.
[18] HB 160, Section 2503B (b) (2).
[19] HB 160, Section 2504B (a) (12) b.
[20] HB 160, Section 2501B (3).
[21] HB 160, Section 2504B (b).
[22] HB 160, Section 2501B (6).
[23] HB 160, Section 2518B (5) a. (Emphasis added.)
[24] HB 160, Section 2518B (5) a. (Emphasis added.)
[25] HB 160, Section 2518B (5) d.
[26] HB 160, Section 2518B (2).
[27] Official report for 2016 under California’s End of Life Option Act, pg. 4, Figure 1. Available at: https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPH%20End%20of%20Life%20Option%20Act%20Report.pdf. (Last accessed 12/13/17.)
[28] Official report for Oregon’s Death with Dignity Act – Data Summary 2016, pg. 5. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/
year19.pdf. (Last accessed 12/13/17.)
[29] Oregon Health Division, CD Summary, pg. 2 (See section titled “Study Limitations”). Available at: http://public.health.oregon.gov/DiseasesConditions/CommunicableDisease/CDSummaryNewsletter/Documents/1999/ohd4806.pdf. (Last accessed 12/13/17.)
[30] “The Oregon Experience.” Available at: https://www.patientsrightscouncil.org/site/the-oregon-experience (last accessed 12/14/17).
[31] Wesley J. Smith, “Stop Assisted-Suicide Opioid Abuse,” First Things, August 4, 2017.
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