Florida 2020 “Death with Dignity Act” SB 1800 Analysis

The Florida 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.

Many people assume that this 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]

IN ANY PROPOSED LAW, IT IS NECESSARY TO UNDERSTAND NOT ONLY WHAT IS IN IT BUT ALSO NOT IN IT.

Under the Florida proposal:

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

 The patient must be diagnosed as having a “terminal condition,” defined as a “condition caused by injury, illness or disease, which is incurable and irreversible and which will, within reasonable medical judgment, cause the patient’s death within 6 months.”[2]  This is similar, but even more expansive, than Oregon’s definition of terminal disease which states that the illness or disease will, “within reasonable medical judgment, produce death within six months,”[3] but does not apply to individuals whose condition is the result of an injury.

What if the condition is controllable?  This definition of “terminal condition” 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]

 As in Oregon, patients who refuse treatment would be eligible for the lethal prescription.

Dr. 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.

SB 1800 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 be “competent,” defined as meaning that the patient “has the ability to make and communicate health care decisions to health care providers.”

If there is a question about the patient’s competence, the patient is referred for “counseling” which is only to determine whether the patient has “impaired judgment” — not for treatment of the patient’s mental disorder or depression.[7]   That “counseling” is merely an assessment for the purpose of determining if patients who are depressed or mentally ill have the ability to know what they are requesting.

As noted in the proposal, the prescribing physician is to submit “a report of the outcome and determination made during counseling, if performed.”[8]

In the latest official report on Oregon’s “Death with Dignity Act,” only 1.8% of patients were referred for such an assessment.[9]

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

Those who are promoting SB 1800 point to Oregon’s more than twenty-year experience.

They claim that 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?

If the Florida bill becomes law, actions taken in compliance with it could not be referred to as “assisted suicide.”

As George Orwell wrote, “If thought corrupts language, language can also corrupt thought.”[10]

According to SB 1800, actions taken in accordance with it would “not constitute suicide, assisted suicide, mercy killing or homicide for any purpose under the law.”[11]   Thus, the death certificate of a person who dies from assisted suicide would not reflect the true cause of death. This also provides a mechanism that would allow a beneficiary to collect on a life insurance policy that otherwise excludes coverage for suicide.

The requirement to use 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.[12]

The Washington state “Instructions for Physicians and other Medical Certifiers” are explicit:[13]

“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 write them and 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,”[14] to prescribed suicide.    However, discussing alternatives does not mean the patient will have the resources to access those other options.  The patient may not have insurance coverage or other resources to obtain those alternatives.

Why should the comfortably well off have a choice of treatment options while the poor are left with the only option 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.[15]  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.

Nothing prevents the written request from being 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.

The bill prohibits anyone from coercing or exerting undue influence on the patient to request the drugs[16] however “coercion” and “undue influence” have specific legal meaning.  There is no prohibition on encouraging or subtly pressuring the patient.

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.[17]  A potential heir who encouraged the patient to request the deadly “medication” could persuade the patient to designate him or her to pick up the drugs and deliver them to the patient.

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.”[18]

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.[19]

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.”[20]

California pays for assisted-suicide drugs obtained by MediCal patients under the state’s doctor-prescribed suicide law.[21]

If the Florida 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.[22]  Furthermore, the report indicates complications after the patient took the drugs were unknown in 63% of the deaths.[23]

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,” which includes the “ability to make and communicate health care decisions, including individuals familiar with the patient’s manner of communicating.”[24]

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 interpreter accurately expresses the patient’s decision? 

………………
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.”[25]
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Isn’t it ironic?
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?

2/7/2020

[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 2/7/20.)

[2]   SB 1800, § 764.102 (14).  Definition of “Terminal condition.”  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 2/7/20.) 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 2/7/20.)

[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 2/7/20.)

[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 2/7/20.)

[7]   SB 1800 § 764.102 (2) Definition of “Competent” and § 764.102 (4) Definition of “Counseling.”

[8]   SB 1800 § 764.105 (4) (e).

[9]   In the latest report of Oregon’s “Death with Dignity Act,” only 1.8% of patients were referred for such an assessment.  “Oregon Death with Dignity Data Summary,” Released February 2019, p. 11  Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf. (Last accessed 2/6/20.)

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

[11]   SB 1800 § 764.109 (1).

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

[13]   “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 2/7/20.)

[14] SB 1800 § 764.105 (1) (c).

[15] SB 1800 § 764.104 (4) (b).

[16] SB 1800 § 764.107 (1) (b).

[17] SB 1800 § 764.105 (l) (1) (2) (b).

[18]  Oregon Dept. of Human Services, “FAQs about the Death with Dignity Act,” pg. 4. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/faqs.pdf.  (Last accessed 2/7/20.)

[19]  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 2/7/20.)
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 2/7/20.)

[20]  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 2/7/20.)

[21] 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 2/7/20.)

[22]  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 2/7/20.)

[23]  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 2/7/20.)

[24] SB 1800 § 764.102 (2).   (Emphasis added.)

[25] “The Oregon Experience.”  Available at: http://www.patientsrightscouncil.org/site/the-oregon-experience (last accessed 2/7/20.)

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