Under S.B. 2373:
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?
There is no requirement that the lethal drugs be self-administered.
The bill implies that someone other than the patient could administer the deadly prescription. It requires a “monitor” who “shall be present at the time of actual administration of the medication to the patient.” Note that this does not refer to administration by the patient. According to the proposal, the monitor will have the power to “stop the administration” if it hasn’t been carried out or if it seems that the patient has had a change of mind.[1]
Furthermore, the medical record documentation requirements state that “if applicable, a completed form reporting the actual administration of the medication to the qualified patient,” must be completed by the monitor.[2]
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 life-ending drugs not only by communicating the decision on their own but also by “communication through persons familiar with the patient’s manner of communicating if those persons are available.”[3]
This could include not only translating various languages but also facilitated communication[4] 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?
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.[5] One of those witnesses may be a relative or a person entitled to benefits upon the patient’s death.[6] The second witness could be the best friend of the potential heir – and no one would ever know.
Doctors are permitted to prescribe lethal drugs for depressed or mentally ill patients without providing any type of counseling or psychological evaluation.
A referral for counseling is necessary only “if, in the opinion of the attending physician, the alternate physician, or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder causing impaired judgment.”[7] 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.
“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.”[8]
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.[9]
According to the last official Oregon report, the duration of the patient-physician relationship was, in some cases, less than one week.[10]
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, including comfort care, hospice care and pain control.”[11] 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.[12]
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”[13] 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.
A doctor could write the prescription for a patient without seeing the patient in person after making the diagnosis of a terminal disease.
The bill requires patients to make three requests for the drugs – two oral requests which do not need to be witnessed and one written witnessed request.[14] However, nothing requires that those requests be made in person. The two oral requests could be made by telephone and the written request could be sent by mail or electronic means.
Someone who would benefit financially from the patient’s death could pick up the lethal prescription drugs for delivery to the patient.
The bill does not require that the drugs be provided directly to the patient.
In one known Oregon doctor-prescribed suicide death, the patient received his lethal overdose by Federal Express.[15] Under Hawaii’s proposal, the drugs could be obtained by an “expressly identified agent” and taken to the patient.[16] That agent could be a family member or potential heir who may have pressured the patient to make the request for the deadly drugs.
Doctors would be permitted to prescribe death for patients who could live for many years.
Doctors would be permitted to prescribe a lethal overdose of drugs to patients who have a “terminal disease,” defined as an “incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in the patient’s death within six months.”[17] But there is no requirement that the condition be uncontrollable. There are many conditions (diabetes, certain types of leukemia and, even, alcoholism) that could meet the definition of terminal disease 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 a doctor-prescribed drug overdose 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 doctor-prescribed suicide.[18]
The cause of death from lethal prescriptions would be falsified on death certificates.
If the patient dies from the lethal drugs, the prescribing doctor may sign the patient’s death certificate[19] even though that doctor might not be present when the drugs are administered or when the patient dies.
In Oregon, annual reports indicate that prescribing physicians are present in only eleven percent of deaths from prescribed drug overdoses.[20]
The bill requires that the state health “department shall designate the cause of death as the underlying terminal disease or diseases.”[21]
A health care facility could not prevent deaths from the deadly drugs on its premises. Furthermore, a facility willing to permit such deaths could require pharmacists, nurses, and others to facilitate deaths from the prescribed lethal overdoses.
The bill contains a lengthy section on immunities. Such immunities include a statement that facilities and providers shall not be under any duty to “participate” in the provision of medication to end the life of a patient and that health care facilities or providers may prohibit another health care provider from “participating” in such actions on the premises.[22]
However, the definition of “participate in actions taken pursuant to this chapter” is exceptionally narrow. It means only those actions of the attending physician, the alternate physician, the consulting physician or a person who does the counseling or monitoring.[23]
Therefore, facilities that do not wish to permit deaths from lethal drugs would not be able to ban pharmacists on the premises from filling prescriptions for them and would not be able to prohibit nurses from providing them to a patient or resident. Furthermore, facilities that wish to cooperate in prescribed death could require a pharmacist to fill prescriptions and a nurse to bring the deadly drugs to patients or residents since those actions would not constitute “participation.”
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.[24] 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.”[25]
As with Oregon’s “death with dignity” law, the Hawaii bill requires doctors who write prescriptions for life-ending medication to report those cases to the state.[26] But, as in Oregon’s law, there are no penalties for non-reporting or for inaccurate or incomplete reporting.
From the time that Oregon’s law went into effect, state officials have conceded that it is “difficult, if not impossible to detect accurately”[27] whether reports are complete. Those officials have acknowledged that they “assume, however, that physicians were their usual careful and accurate selves” when filing reports about their involvement in assisted suicide.[28]
One Oregon official explained that investigation into potential assisted-suicide irregularities cannot take place since “not only do we not have the resources to do it, but we do not have any legal authority to insert ourselves.”[29]
The prescription for life-ending drugs would not be available to anyone under fifty years of age.
To be eligible for the deadly drugs, “one must be at least fifty years of age.”[30] Why are other adults not eligible for death? Is this provision inserted into the bill to make it more palatable?
[1] § – 41 (a). (Emphasis added.)
[2] § – 39 (8). (Emphasis added.)
[3] § – 1. Definition of “capable.”
[4] 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.
[5] § – 22 (a).
[6] § – 22 (b) (2).
[7] § – 33. (Emphasis added.)
[8] “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.
[9] Ibid.
[10] 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.
[11] § – 31 (a) (3) (E).
[12] KATU TV, Portland, OR, July 31, 2008.
[13] § – 52 (b).
[14] § – 36.
[15] Erin Hoover, “Dilemma of assisted suicide: When?” Oregonian, Jan. 17,1999.
[16] § – 31 (12) (B) (ii).
[17] § – 1 Definition of “terminal disease.”
[18] 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.
[19] § -31 (b).
[20] Official report for 2015 deaths under Oregon’s Death with Dignity Act, 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.
[21] § – 42 (d). (Emphasis added.)
[22] Part IV. Immunities and Liabilities. § – 51.
[23] § – 51 (b) (3) (1).
[24] “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.
[25] Editorial Board, “Washington state’s assisted-suicide measure: Don’t go there,” Oregonian, Sept. 20, 2008.
[26] § – 42.
[27] New Eng. J. Med, Feb. 18, 1999, p. 583.
[28] OHD, CD Summary, vol. 48, no. 6, March 16, 1999.
[29] Testimony of Dr. Katrina Hedberg before the House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, Assisted Dying for the Terminally Ill Bill [HL], Volume II: Evidence. Apr. 4, 2005, p. 266, question 615.
[30] § – 1. Definition of “qualified patient.”
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