Analysis of SD Proposed Initiative Measure (2017)

2017 Analysis of Proposed South Dakota Initiated Measure to Permit Doctor-Prescribed Suicide

The South Dakota Initiated Measure would permit a physician to prescribe “medication” for a patient to self-administer “to end the patient’s life in a humane and dignified manner.”[1]

Many people assume that this would be “a pill” that a patient would take and then “slip peacefully away.”  But that is totally false.

In Oregon, the vast majority of prescriptions for “death with dignity” are for secobarbital (a sedative).  For use as a sedative, the usual dosage is one capsule.  The usual prescription under the state’s doctor-prescribed suicide law is for 90 to 100 capsules.[2]

Under the South Dakota initiated measure:

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 South Dakota 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 even if the patients could live for many years.[3]

This is because the South Dakota measure defines “terminal disease” as an incurable or irreversible disease that will “produce death within six months.”[4]   But it does not specify that death will occur with or without appropriate treatment.

There is documentation that this has occurred under Oregon’s assisted suicide law.  In official reports from Oregon, 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 the medication, 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.  He explained that a young woman with Hodgkin lymphoma 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.[6]  

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.”[7]

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.[8]

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.”[9]

California pays for assisted-suicide drugs obtained by MediCal patients under the state’s doctor-prescribed suicide law.[10]

 

If the SD 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,”[11] meaning that either the attending or consulting physician believes that the patient’s mental condition is “causing impaired judgment.”[12]   The patient’s medical record will include a report of any determinations made during counseling, “if performed.”[13]  

This provision is similar to that contained in Oregon’s law where, in 2014, only 3 of the 155 patients who received lethal prescriptions were referred for a psychological evaluation.[14]  A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”[15]

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.”[16]  However, discussing alternatives does not mean the patient will have the resources to access those 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.[17]  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.[18]  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 “competent,” defined as the “ability to make and communicate an informed decision.”  This includes “communication through persons familiar with the patient’s manner of communicating.”[19]

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 “shall list the underlying terminal disease as the cause of death.”[20]

…………………………..

Isn’t it ironic, that 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. ‘”[21]

_______________

[1]  Initiative, Section 1 (11).
[2]  For a full documented description of drugs used for doctor-prescribed suicide, see : “2016 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 9/15/17.)
[3]  See “Comparison of State Laws Permitting Doctor-Prescribed Suicide: Laws as of September 2017,” Available at: http://www.patientsrightscouncil.org/site/comparison-of-state-laws-permitting-doctor-prescribed-suicide.
[4]  Initiative, Section 1 (12).
[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 8/17/17.)
[6] 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 8/17/17.)
[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 8/3/17.)
[8]  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 8/3/17.)
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 8/3/17.)
[9]  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 8/3/17.)
[10] 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 8/3/17.)
[11] Initiative, Section 4.
[12] Initiative, Section 6
[13] Initiative, Section 12 (5).
[14] 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 3/15/17.)
[15] 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.
[16] Initiative, Section 4 (3) (e).
[17] Initiative, Section 3.
[18] Initiative, Section 4 (12) (b).
[19] Initiative, Section 1 (2).
[20] Initiative, Section 4 (12).[21] Wesley J. Smith, “Stop Assisted-Suicide Opioid Abuse,” First Things, August 4, 2017.

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