Colorado Proposition 106 “End of Life Options Act” (2016)

This 2016 proposition is the latest attempt by doctor-prescribed suicide activists to transform a prescription for a lethal dose of drugs into a “medical treatment” in Colorado.
It will appear on the November 2016 ballot.

Under the “Colorado End of Life Options Act” (Proposition 106):

Doctor-prescribed suicide would become a “medical treatment.”

This would cause emotional and financial pressure on patients by giving insurance programs the opportunity to cut costs by denying payment for more expensive treatments while approving payment for the less costly lethal drug prescription.

This has already been documented in Oregon where, for more than 18 years, doctors have had the right to prescribe drugs for the purpose of causing a patient’s premature death.

 Oregon, the Oregon Health Plan (OHP) has notified some patients that the cost of medication they need and want to extend their lives or improve their comfort level would not be covered, but that the OHP would pay for a lethal drug prescription.[1]

 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.”[2]

 If the Colorado proposition is approved, will health insurance programs do the right thing – or the cheap thing?

Family members or health care providers and others could advise, suggest, encourage or exert subtle and not so subtle pressure on vulnerable individuals to request doctor-prescribed suicide.

The proposition states that it is a felony for anyone to knowingly or intentionally coerce or exert undue influence on a person to request the lethal drugs.[3]  However, those words have a narrow legal meaning.  The proposition does not prohibit someone from suggesting, advising, or encouraging a patient to request doctor-prescribed suicide.

Since victims of domestic abuse, including elder abuse are extremely vulnerable to persuasion from their abusers, it takes little imagination to understand how the proposition could put abused individuals at risk of being persuaded to request the lethal prescription.

Severely depressed or mentally ill patients could receive doctor-prescribed suicide, without having any form of counseling or mental evaluation.

Even if the patient is severely depressed or has a mental illness, a physician does not need to refer the patient for a mental health evaluation unless the doctor believes the patient is incapable of making an informed decision.[4]

As long as the patient can make and communicate decisions and understands what he or she is requesting, no counseling is required.

This provision is similar to that contained in Oregon’s law where, in 2015, only 5 of the 132 patients who received lethal prescriptions were referred for a psychological evaluation.[5]  A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”[6]

“Doctor shopping” could take place until an “attending physician” and a “consulting physician” can be found to declare that the patient is qualified for the lethal prescription.

If a patient is found to be incapable of making an informed decision, the proposition does not prohibit a family member or another person from arranging for the patient to be evaluated by other physicians or counselors 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.”[7]

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.[8]

The written request could be witnessed by someone who would gain financially from the patient’s death as well as by the consulting physician.

The written request must be witnessed by two individuals, one of whom may not be entitled to any portion of the individual’s estate upon his or her death.[9] Thus, one witness could be an heir and the second witness could be the best friend of the heir.

Although the proposition prohibits the attending physician from being a witness[10] to the written request, there is no such prohibition on the consulting physician from serving as a witness.

Patients would not have any protection once the doctor-prescribed suicide prescription is filled.

Supporters of the Colorado proposition claim that there are “safeguards” to protect patients.  They point to the fact that a patient must voluntarily request the prescription[11] and is acting voluntarily and not being coerced to sign the written request.[12]

However, there are absolutely no provisions to ensure that the patient is competent at the time the lethal drug overdose is taken or that the patient knowingly and willingly takes the drugs.

Due to this lack of protection, the bill would put patients at enormous risk.  For example, someone who would benefit financially from the individual’s death could trick or even force the person into taking the fatal drugs, and no one would know.

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

There is an illusion of choice.  Yet, the bill would actually constrict choice.

“Choice” is an appealing word, but inequity in health care is the harsh reality.

According to the proposition, before writing a prescription for suicide, the attending physician must inform the patient of “the feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.”[13]  However, informing someone of all options does not mean the patient will have the ability to access those options.  It only means the person must be told about them.

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.  This has already happened in Oregon.[14]

If doctor-prescribed suicide becomes just another treatment 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 Colorado, it could become the only “medical treatment” to which many people have access.  The last to receive health care could be the first to receive doctor-prescribed suicide.

Patients with controllable medical conditions, such as diabetes mellitus, could be eligible for doctor-prescribed suicide.

A patient is considered “qualified” for a suicide prescription, if the patient is considered to have a “terminal illness,” described as a condition which is “incurable and irreversible and will, within reasonable medical judgment result in death”[15] in six months or less.[16]   

There are many conditions (diabetes mellitus, certain types of leukemia, disabilities requiring ventilator support, etc.) that, without medical treatment, would result in death within six months or less.  However, with medical treatment, individuals with those conditions could live for many years.  Yet, they would be considered “qualified” for doctor-prescribed suicide.[17]

Patients with insulin-dependent diabetes mellitus will die within 6 months or less if they stop taking insulin.  Their condition is incurable and irreversible, but controllable.  In Oregon, such patients have received doctor-prescribed suicide drugs.  Furthermore, some patients died from the lethal prescription almost three years after requesting it.[18]

A prognosis is a prediction, not a scientific tool.  How many of those who died believed the doctors predictions?  Taking the drugs based on a prediction makes it a self-fulfilling prophecy.

The qualifications and independence of the “attending physician” and “consulting physician” could be open to question.

According to the proposition, the patient must be determined to be terminally ill with a prognosis of six months or less.[19]  However, the attending physician who makes that diagnosis may not have expertise in making such a diagnosis.  That physician need only be the one who has primary responsibility for care of the patient[20]  and need not have any long-term physician-patient relationship prior to prescribing the deadly overdose.

In Oregon, official reports indicate that the duration of the prescribing doctor-patient relationship has been as short as one week.[21]

In California, where a doctor-prescribed suicide law recently went into effect, a former emergency room doctor who left the practice of medicine to be a photo-journalist has now opened a unique medical practice.  He calls it “Bay Area End of Life Options.”

There, for a set fee, he will serve as the attending physician for individuals seeking prescriptions under the California law.[22] The fact that he holds a medical license makes him eligible to be the attending physician.

The Colorado measure requires a consulting physician to confirm the attending physician’s diagnosis.[23]

However, the consulting physician may not be exercising independent judgment since the proposition does not prohibit the consulting physician from being an associate, partner or even a subordinate employee of the attending physician.

Health care facilities could not prevent doctor-prescribed suicide from taking place on the premises. 

Facilities could only prevent a physician employed or under contract from prescribing the deadly prescription only if the physician believes the patient intends to take it on the premises.[24] However, such physicians could prescribe the drugs with directions to take them at another location.

Any other person, including doctors who are not employed by or under contract to the health care facility, could participate on the premises in facilitating doctor-prescribed suicide.  Physicians who are not directly employed by or under contract to the facility could write prescriptions for use on the premises.

Additionally, on-site pharmacies could fill those prescriptions and nurses could bring those prescriptions to the patient who could then take them on the premises.  The facility could not subject such individuals to any censure, discipline, suspension or other sanction.[25]

The requirement that the drugs be self administered is not limited to taking drugs orally.

“Self administration” is defined in the proposition as the patient’s affirmative, conscious, and physical act of administering the drugs to bring about death.[26]  It would be wrong to assume that patients who die from assisted suicide must take the drugs by mouth.

Oral administration is only one route.

In jurisdictions where doctor-prescribed suicide is permitted, cases of patients using a syringe or IV infusion to administer the lethal dose have been reported.  In California, Sutter Health states that the patient must “be able to take – eat, drink or inject – the aid-in-dying drug by themselves.”[27]

Death certificates would not accurately reflect the cause of death.

Although deaths would result from taking an intentional overdose of drugs, the law requires that the cause of death be listed as the underlying terminal illness.  Furthermore, such deaths would not constitute grounds for post-mortem inquiry.[28]
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Note:   Supporters of the Colorado proposition 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.”[29]

In addition, the most recent official report from the Oregon Health Division acknowledges that the number of unreported assisted suicide deaths is unknown. In the vast majority of reported deaths, it is unknown whether there were complications after the drugs were taken.[30]
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©[1]  Sue Donaldson James, “Death Drugs Cause Uproar in Oregon,” ABC News, August 8, 2008. Available at: http://abcnews.go.com/Health/story?id=5517492&page=1 (last accessed 3/10/16).

[2]  Oregon Dept. of Human Services, “Frequently Asked Questions about the Death with Dignity Act.”  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/faqs.aspx#insurance. (last accessed 3/10/16).

[3] 25-48-119 (2).

[4] 25-48-108.

[5] 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 (last accessed 3/10/16).

[6] 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.

[7]  “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 3/10/16).

[8]  Ibid.

[9]  25-48-104 (2) (b) (II).

[10] 25-48-104 (2) (c).

[11] 25-48-103 (1) (c).

[12] 25-48-104 (2) (a) (III) (B) and (C).

[13] 25-48-106 (i) (e) (II).

[14] Sue Donaldson James, “Death Drugs Cause Uproar in Oregon,” ABC News, August 8, 2008. Available at http://abcnews.go.com/Health/story?id=5517492&page=1 (last accessed 3/10/16).

[15] 25-48-102 (16).

[16] 25-48-102 (12) and (13).

[17] 25-48-102 (13).

[18] The underlying illness which “qualified” the patient for doctor-assisted suicide was diabetes mellitus.
Oregon Public Health Division, “Oregon’s Death with Dignity Act, 2015 Data Summary,” p. 7, fn. 2, released February 4, 2016.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf (last accessed 7/26/16).

The range of time from the first request (when the patient became “qualified” to make the request) was as long as 1009 days – almost three years.  Oregon Public Health Division, “Oregon’s Death with Dignity Act, 2015 Data Summary,” p. 7, released February 4, 2016.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf (last accessed 7/26/16).

[19] 25-48-102 (13).

[20] 25-48-102 (2).

[21] 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 (last accessed 7/18/16).

[22] Tracy Seipel, “Bay Area physician opens right-to-die practice,” Mercury News, June 7, 2016. Available at: http://www.mercurynews.com/health/ci_29985455/bay-area-physician-opens-right-die-practice (last accessed 7/18/16);  Wesley J. Smith, “Bottom Feeder Death Doctor ‘Clinic’ in California,” National Review, June 9, 2016. Available at: http://www.nationalreview.com/human-exceptionalism/436396/death-doctor-clinic-california (last accessed 7/18/16); Karim Doumar, “Berkeley physician opens end-of-life practice in city,” The Daily Californian, June 9, 2016. Available at: http://www.dailycal.org/2016/06/09/berkeley-physician-opens-end-of-life-practice-in-city (last accessed 7/18/16).

[23] 25-48-102 (9).

[24] 25-48-118 (1). Emphasis added.

[25] 25-48-118 (2).

[26] 25-48-102 (15).

[27] Molly Harbarger, “Legislator’s promise to a dying friend,” Oregonian, April 30, 2015. Available at: http://www.oregonlive.com/politics/index.ssf/2015/04/legislators_promise_to_a_dying.html (last accessed 4/19/16);  “Zurich doctor fined for not reporting assisted suicide,” Swiss Info, April 11, 2016, explaining, “Death is usually induced through a lethal dose of barbiturates that has been prescribed by a doctor.  Ingestion of the poison, whether by drinking it or through the use of intravenous drips or stomach tubes, must be carried out by the person wanting to die.”  Available at: http://www.swissinfo.ch/eng/legal-challenge_zurich-doctor-fined-for-not-reporting-assisted-suicide/42079276 (last accessed  4/21/16); and Sutter Health, “What Patients Need to Know About California’s End of Life Option Act,” June 2016. Available at: http://www.sutterhealth.org/eloa, pg. 1. Emphasis added (last accessed 6/9/16).

[28] 25-48-109.

[29] “The Oregon Experience.” Available at: http://www.patientsrightscouncil.org/site/the-oregon-experience (last accessed 3/10/16).

[30] Oregon Public Health Division, “Oregon’s Death with Dignity Act, 2015 Data Summary,” released February 4, 2016.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf (last accessed 7/26/16).

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