Analysis of Delaware 2019 HB 140

The Delaware measure would permit a physician to prescribe “medication” to end the life of a patient if certain conditions are met. It is modeled on Oregon’s law permitting assisted suicide and proponents of the bill point to Oregon as a state where such a law is working flawlessly.

Many people assume that the “medication” 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.[1]

Under the Delaware proposal:

Individuals who could live for many years would be eligible for doctor-prescribed suicide.

The patient must be diagnosed as having a “terminal illness,” defined as “an incurable and irreversible disease, illness, or condition that as a medical probability will result in death within 6 months.”[2]  This is similar, but even more expansive, than Oregon’s definition of terminal disease which states that the disease will, “within reasonable medical certainty, produce death within six months.”[3]

What if the condition is controllable?  This definition of “terminal illness” does not require that the condition be uncontrollable.

Examples of eligibility due to having a “terminal disease” in Oregon:

  • The latest official Oregon report states that the “terminal diseases” that qualified some patients for the lethal overdose included diabetes and arthritis.[4]
  • In Oregon, patients who refuse treatment are eligible for the lethal prescription.
  • Charles Blanke, an oncologist and professor of medicine diagnosed a young woman with a condition that gave her a 90 percent chance of survival with recommended treatment. The woman, however, refused the treatment.  In an interview, Blanke said, “Why doesn’t that patient want to take relatively non-toxic treatment and live for another seven decades?”  He ended up prescribing the deadly overdose.[5]   Blanke has written about 15% of prescriptions for the lethal drug overdose in Oregon.[6]

There are no safeguards after the prescription is written.   

HB 140 contains eight references to the fact that the prescription is to be “voluntarily” requested.  However, nothing in the proposal prevents a patient from being forced or tricked into taking the lethal overdose.  No witnesses need be present and no one will know if the drugs were willingly or voluntarily taken.

Why aren’t there any safeguards at the most important part of the process – at the time the patient takes the drugs that will cause death?

Severely depressed or mentally ill patients could receive a prescription for a deadly overdose of drugs without any counseling for their depression or mental illness.

Even if a patient is depressed or mentally ill, physicians don’t need to refer them for “counseling” unless the physician believes they may not have “decision-making capacity.”[7]   That “counseling” is merely an assessment for the purpose of determining that patients who are depressed or mentally ill have the ability to know what they are requesting.

There are no penalties for non-reporting or for inaccurate or incomplete reporting.

Those who are promoting HB140 point to Oregon’s more than twenty-year experience.

They claim safeguards protect patients and annual official reports prove that there have been no problems or abuses.  But all information in official reports is provided by those who carry out assisted suicide. Oregon officials say that the state has no authority and no funding to examine the accuracy of the reports.

Are we really naïve enough to believe that doctors will report that they have broken the law and violated the guidelines?

Accuracy on death certificates is banned.

“If thought corrupts language, language can also corrupt thought” was recognized many years ago.[8]  And it is prevalent in HB 140 to legalize assisted suicide.

As noted by the Washington Post, the bill “mandates that the death certificate for anyone who commits doctor-assisted suicide falsely state that the cause of death was the underlying illness, not suicide.  This provides a mechanism that would allow a beneficiary to collect on a life insurance policy that otherwise excludes coverage for suicide.”[9]

This requirement that death certificates contain Orwellian manipulation of language is similar to that in states that have passed doctor-prescribed suicide laws.

For example, Washington state’s “Death with Dignity Act” requires physicians to falsify death certificates. The law does not allow deaths resulting from doctor-prescribed suicide to be listed as assisted suicide.  Physicians are required to list the underlying terminal disease as the cause of death.[10]

The State’s “Instructions for Physicians and other Medical Certifiers” are explicit:[11]
“If you know that the decedent used the Death with Dignity Act, you must comply with the strict requirements of the law when completing the death record.”

Words that are not permitted on the death certificate include: suicide, assisted suicide, physician-assisted suicide, death with dignity, Secobarbital, Seconal, Pentobarbital or Nembutal.

The instructions warn: “The Washington State Registrar will reject any death certificate that does not properly adhere to the requirements of the Death with Dignity Act.”

Thus, unless the death certificate falsifies the real cause of death, it will not be accepted and the physician will be required to submit a new death certificate that hides the facts.

If the actions permitted under assisted-suicide laws are so good, why are those who promote them hiding what they are really about? If one calls suicide or assisted suicide by other names, does that change what they are?

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 or additional treatment opportunities[12] 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.[13]  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.[14]  A potential heir could encourage the patient to authorize him or her to pick up the drugs for delivery to the patient’s residence.

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.”[15]

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.[16]

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.”[17]

California pays for assisted-suicide drugs obtained by MediCal patients under the state’s doctor-prescribed suicide law.[18]

If the Delaware bill becomes law, will insurance programs do the right thing – or the cheap thing?

The prescribing physician may have very little relationship with the patient.

In Oregon, the latest official report indicates that the duration of the patient-physician relationship may be as short as one week.[19]  Furthermore, the report indicates complications after the patient took the drugs were unknown in 63% of the deaths.[20]

AN IMPORTANT  QUESTION

Do those who favor the concept of the Delaware proposal
favor such a fatally flawed bill?

May 2019

[1]  For a full documented description of drugs used for doctor-prescribed suicide, see: “2017 Summary of Drugs Used for Doctor-Prescribed Suicide.”  Available at: http://www.patientsrightscouncil.org/site/2017-summary-of-drugs-used-for-doctor-prescribed-suicide.  (Last accessed 12/12/17.)

[2]   HB 140, § 2502B (13).  Definition of “Terminal illness.”  Emphasis added.

[3]   Oregon “Death with Dignity Act,” ORS 127.800 §1.01 (12). Available at: https://www.oregon.gov/oha/ph/ ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx.  (Last accessed 3/21/19.) Emphasis added.

[4]   Oregon “Death with Dignity Data Summary,” Released February 2019, p. 13, fn. 3.  Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf. (Last accessed 4/8/19.)

[5]  Tara Bannow, “Rural Oregonians Still Face Death with Dignity Barriers,” Bend Bulletin, August 14, 2017.  Available at: http://www.bendbulletin.com/health/5512373-151/oregonians-can-choose-how-their-roads-end.  (Last accessed 3/22/19.)

[6]   Markian Hawryluk, “Bill reopens debate over assisted suicide in Oregon,” Bend Bulletin, April 27, 2019.  Available at: https://www.bendbulletin.com/localstate/7117862-151/bill-reopens-debate-over-assisted-suicide-in-oregon. (Last accessed 5/10/19.)

[7]   HB 140. § 2502B (3), Definition of “Counseling,” § 2502B (4),  Definition of “Decision-making capacity and § 2508 B (8), Attending physician responsibilities.

[8]   “Politics and the English Language,” Collected Essays, Journalism & Letters of George Orwell, vol. iv, Harcourt, Brace and World, Inc. (1968) p. 137.

[9]   Randall Chase, “Democrats reintroduce assisted-suicide bill,” Washington Post, May 2, 2019. Available at:
https://www.washingtonpost.com/national/democrats-reintroduce-assisted-suicide-bill/2019/05/02/182c9e06-6d00-11e9-bbe7-1c798fb80536_story.html?noredirect=on&utm_term=.db83071835a3. (Last accessed 5/14/19.)

[10] Washington Death with Dignity Act, “Attending Physician Responsibilities,” RCW 70.245.040 (2).

[11]  “Instructions for Physicians and Other Medical Certifiers for Death Certificates: Compliance with the Death with Dignity Act,” Available at:  https://www.doh.wa.gov/Portals/1/Documents/Pubs/422-151-DWDInstructionsForPhysicians.pdf. (Last accessed 4/8/19)

[12] HB 140, § 2502B (7) e and HB 140, § 2503B (b).

[13] HB 140, § 2505B (d).

[14] HB 140, § 2508B, (13) b.

[15]  Oregon Dept. of Human Services, “FAQs about the Death with Dignity Act,” p.4.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/faqs.pdf. (Last accessed 5/16/19.)

[16]  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.)

[17]  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.)

[18] 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.)

[19]  Oregon “Death with Dignity Data Summary,” Released February 2019, p. 13.   Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf. (Last accessed 4/8/19.)

[20]  Oregon “Death with Dignity Data Summary,” Released February 2019, p. 12.   Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf. (Last accessed 4/8/19.)

 

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