Analysis of Minnesota “End-of-Life Option Act of 2017”

S.F. 1572

This 2017 bill is an attempt by doctor-prescribed suicide activists to transform a prescription for a lethal dose of drugs into a “medical treatment.”  It is patterned after Oregon’s law permitting doctor-prescribed suicide.

Under the Minnesota “End-of-Life Option Act of 2017”:

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 medication that a patient may self-administer “to bring about a peaceful death.”[1]   Many individuals erroneously assume that this means a patient would take “a pill” and slip peacefully away.

According to Oregon’s February 2017 official report, 93.7 % of deaths occurring during the first 19 years under the state’s “Death with Dignity Act” took place after patients took a massive overdose of secobarbital (Seconal) or pentobarbital (Nembutal).[2]  Both are sedatives.  In recent years, pentobarbital has been difficult to obtain due to growing opposition for its use in capital punishment.[3] This has led to increased use of the more expensive secobarbital for assisted suicide.

The usual therapeutic dosage of secobarbital is one to three 100 mg. capsules.[4]  The usual lethal dose prescribed for doctor-assisted suicide is 90 to 100 capsules![5]

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.[6]

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.”[7]

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

An individual with a controllable medical condition could be considered to have a terminal illness, making him or her eligible for doctor-prescribed suicide.

To be eligible for a suicide prescription, a patient is considered to have a terminal illness if the condition is “an incurable and irreversible medical condition that an attending physician anticipates, within reasonable medical judgment, will produce a patient’s death within 6 months.”[8]  But this does not state that death will occur with or without treatment.

There are many conditions (diabetes, certain types of leukemia, disabilities requiring ventilator support, etc.) that, without medical treatment, would result in death within six months.  However, with medical treatment, individuals with those conditions could live for many years.  Yet those same individuals would be eligible for doctor-prescribed suicide under the Minnesota bill.

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

Why is the definition of “terminal condition” so broad? 

There is an illusion of choice.  Yet the bill, if passed, would constrict patient choice.

“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 and health care treatment options including, but not limited to hospice and palliative care.”[10]  However, discussing such alternatives does not mean that the patient will have the ability to access those options.

Patients may find that their insurance will not cover the “feasible alternatives” their doctors informed them about but, instead, will pay for doctor-prescribed suicide.

If doctor-prescribed suicide becomes just another end-of-life option, and a cheap option at that, the standard of care and provision of health care changes.  There will be less and less focus on extending life and eliminating pain, and more and more focus on the “efficient and inexpensive treatment option” of death.

If doctor-prescribed suicide is legalized in Minnesota, it could become the only “medical treatment” to which many people have equal access.  The last to receive health care could be the first to receive doctor-prescribed suicide.

A person “familiar with the patient’s manner of communicating” could inaccurately convey (translate) the patient’s request for the lethal dose to the attending physician and to the counselor, if counseling is performed.

Under the bill, patients are considered capable of requesting doctor-prescribed suicide, not only by stating the decision on their own but also by “communicating through a a translator, interpreter, mechanical device, or a person familiar with the patient’s manner of communicating.”[11]

This could lead to a patient’s wishes being misunderstood, misinterpreted, or disregarded.  There is no requirement that such communication assistance be independently verified.

How would anyone know if the translation is accurate?  How would it be possible to know if the patient is really making an informed decision?

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 counseling unless the physician believes the patient has “impaired judgment”[12] that prevents the patient from making an informed decision.

If the depressed or mentally ill patient understands and acknowledges the relevant facts related to the request for doctor-prescribed suicide, he or she is considered able to make an informed decision and would not be referred for counseling.

This provision is similar to that contained in Oregon’s law where, in the state’s nineteenth official report, only 3.8% of patients who received lethal prescriptions were referred for a psychological evaluation.[13]  A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”[14]

“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 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.”[15]

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.[16]

According to the official Oregon report, released in February 2017, the duration of the patient-physician relationship was, in some cases, less than one week.[17]

Family members, health care providers and others could advise, suggest, or encourage vulnerable individuals to request doctor-prescribed suicide.

The bill would penalize anyone who “coerces or exerts undue influence”[18] on an individual to request the lethal prescription.  However, “coercion” and “undue influence” have very narrow legal meanings[19] and do not include suggesting, advising, or encouraging a patient to request doctor-prescribed suicide.

In fact, the Minnesota Supreme Court has ruled that a law that bans advising or encouraging another’s suicide violates free speech rights.[20]

Since victims of domestic abuse, including elder abuse, are extremely vulnerable to persuasion from their abusers, it takes little imagination to understand how the bill could put abused individuals at risk of being persuaded to request doctor-prescribed suicide.  Furthermore, victims of such abuse are unlikely to share their fears with outsiders or to reveal that they are being pressured by family members to request assisted suicide.

The two required written requests for doctor-prescribed suicide could be witnessed by someone who would gain financially from the patient’s death.

The written requests, which could be signed in the patient’s residence, must be witnessed by two individuals,[21] only one of whom may not be a person who would be entitled to any portion of the patient’s estate.[22]  Thus, one witness may be a potential heir who is pressuring the patient to sign the request.  The second witness could be the “best friend” of the potential heir.

A person who would benefit financially from the person’s death could pick up and deliver the lethal prescription.

The drugs can be dispensed to “an identified agent” of the patient.[23]  A potential heir could encourage the patient to authorize him or her to pick up the drugs for delivery to the patient’s residence.

Individuals could request doctor-prescribed suicide based on fear of being a burden to others.

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

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 nineteenth official report, 48.9% of patients who died using that state’s assisted suicide law did so to avoid being a burden on their family, friends or caregivers.[24]

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

Patients would have no protection once the assisted-suicide prescription is filled.

Like the Oregon law, the bill only addresses activities taking place up until the prescription is filled.  The bill contains numerous 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. 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 put 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 know.

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

The death certificate would not reflect the actual cause of death.

The bill requires that the cause of death listed on a death certificate be “the underlying terminal illness,”[25] rather than the actual cause of death, a lethal drug overdose.  Furthermore, it enables the attending physician (who does not need to be present at the time of death) to sign the death certificate.
…………………………
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.”[26]

[1]  S.F. 1572, Sec. 1, Subd. 2 (j).

[2]  Oregon Health Authority, Public Health Division, “Oregon Death With Dignity Act Data Summary,” Available at:     http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf, p. 10.  (Last accessed 3/8/17.)

[3] 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 3/30/17.)

[4]  Drugs.com, “Secobarbital Dosage ,” Available at: http://www.drugs.com/dosage/secobarbital.html. (Last accessed 3/8/17.)

[5]  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 3/30/17.)   For more information on drugs used for doctor-prescribed suicide, see: http://www.patients rightscouncil.org/site/2017-summary-of-drugs-used-for-doctor-prescribed-suicide. (Last accessed 3/22/17.)

[6]  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 3/30/17.)
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.)

[7]  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.)

[8]  S.F. 1572, Sec. 1, Subd. 3 (u).

[9]  Oregon Health Authority, Public Health Division, “Oregon Death With Dignity Act Data Summary,” Available at:     http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf, p. 11, fn.2.  (Last accessed 3/8/17.)

[10]  S.F. 1572, Sec. 1, Subd. 2 (i) (4).

[11]  S.F. 1572, Sec. 1, Subd. 2 (d). (See definition of “capable” or capacity.”)

[12]  S.F. 1572, Sec. 1, Subd. 9 (a).

[13]Oregon Health Authority, Public Health Division, “Oregon Death With Dignity Act Data Summary,” Available at:     http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf, p. 9.  (Last accessed 3/8/17.)

[14] 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.

[15] “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.)

[16] Ibid.

[17] Oregon Health Authority, Public Health Division, “Oregon Death With Dignity Act Data Summary,” Available at:     http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf, p. 11.  (Last accessed 3/8/17.)

[18]  S.F. 1572, Sec. 1, Subd. 15 (b).

[19]  For example, “coercion” generally means imposing one’s will on another by means of force or threats and “undue influence” includes such activities as controlling the necessities of life such as medication, access to information, interaction with others or access to sleep.

[20]  Stephan Montemayor, “Trial begins for group accused of assisting Apple Valley woman’s suicide,” Star Tribune, May 3, 2015. Available at: http://www.startribune.com/trial-begins-for-group-accused-of-assisting-apple-valley-woman-s-suicide/302369931 (last accessed 3/31/17). Refers to State v. Melchert-Dinkel, 844 N.W. 2d 13 (Minn 2014).

[21] S.F. 1572, Sec. 1, Subd. 4 (a).

[22] S.F. 1572, Sec. 1, Subd. 4 (b).

[23] S.F. 1572, Sec. 1, Subd. 20 (b).

[24] Oregon Health Authority, Public Health Division, “Oregon Death With Dignity Act Data Summary,” Available at:     http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year19.pdf, p. 10.  (Last accessed 3/8/17.)

[25]  S.F. 1572. Sec. 1, Subd. 17.

[26]  “The Oregon Experience.”  Available at: http://www.patientsrightscouncil.org/site/the-oregon-experience (last accessed 1/30/15).

Copyright © Patients Rights Council 2017

For additional information about state proposals to legalize doctor-prescribed suicide, see the Patients Rights Council website: http://www.patientsrightscouncil.org/site.