Maine 2017 LD 347 Analysis

Maine  2017 “An Act to Support Death with Dignity” bill
LD 347
(SP 113)
ANALYSIS

This 2017 bill is the 8th attempt in Maine  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-assisted suicide. 

Under “An Act to Support Death with Dignity”: 

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 a “request for medication to be self-administered for the purpose of hastening the patient’s death.”[1]   Many individuals erroneously assume that this means a patient would take “a pill” and slip peacefully away.

According to the latest official report from Oregon, 97.5% of prescriptions since that state’s “death with dignity” law went into effect were for secobarbital or pentobarbital (sedatives).  In recent years, pentobarbital has been difficult to obtain due to growing opposition for its use in capital punishment. This has led to increased use of the more expensive secobarbital for assisted suicide.[2]

The usual therapeutic dosage of secobarbital is one to three 100 mg. capsules.  The usual lethal dose prescribed for doctor-assisted suicide is 90 to 100 capsules![3]

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.[4]

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.”[5]

If the Maine 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 condition, making him or her eligible for doctor-prescribed suicide.

To be eligible for a suicide prescription, a patient is considered to have a terminal condition if the condition is “an incurable and irreversible disease that will, within reasonable medical judgment, result in death within 6 months.”[6]  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 Maine 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.[7]

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

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 “any feasible alternatives and health care treatment options, including palliative care and hospice.”[8]  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.”

Doctor-prescribed suicide 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 suicide.

Family members or health care providers and others could advise, suggest, encourage or exert subtle and not so subtle pressure on patients to request doctor-prescribed suicide, setting the stage for elder abuse and pressure on vulnerable patients.

The bill states that witnesses to the written request must affirm that they believe the patient to “be free from duress or undue influence at the time of signing the document.”[9]  However, those words have a very narrow legal meaning.  The bill does not prohibit someone from suggesting, advising, pressuring 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 abused patients could be persuaded to request doctor-prescribed suicide.  Furthermore, victims of elder abuse and domestic abuse are in great danger since they are unlikely to share their fears with outsiders or to reveal that they are being pressured or abused by family members.

A patient could be led to request assisted suicide based on fear of being a burden to others.   

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

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

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 eighteenth official report, 48 percent of patients who died using that state’s assisted suicide law did so to avoid being a burden on their family, friends or caregivers.[10]

While we would all like to believe that family means warmth, love and protection, we need to face the reality that dysfunctional families are not rare and elder abuse – much of it at the hands of a family member – is a fact of life.

“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. “[11]

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.[12]

According to the latest official Oregon report, the duration of the patient-physician relationship was, in some cases, less than one week.[13]

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

Even if the patient is severely depressed or has a mental illness, a physician is not required to refer the patient for counseling unless the physician believes that the patient has “impaired judgment.”[14]  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 the state’s eighteenth official report, only 3.8 percent of patients who received lethal prescriptions were referred for a psychological evaluation.[15]  A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”[16]

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.

There are no provisions to insure 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 part of the process – at the time the patient takes the drugs that will cause death?

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

Under the bill, before writing a prescription for death, a doctor must inform the patient of “the range of treatment options” and “all feasible end-of-life services, including palliative care, comfort care, hospice care and pain control.”[17]  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 as has already happened in Oregon.[18]

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.

“Choice” is an appealing word, but inequity in health care is a harsh reality.  If doctor-prescribed suicide is legalized in Maine, 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 health care facility could not prevent doctors from prescribing the lethal dose to residents or inpatients.  

The bill states, “With regard to a patient who is a resident or inpatient in a health care facility, the facility may adopt a policy that prohibits a health care provider from issuing a prescription to a patient for medication or providing medication that the health care provider knows the patient intends to self-administer in a lethal dose while in the health care facility.”[19]

However, the physician could prescribe the deadly overdose or provide the lethal drugs to a resident or inpatient with instructions to carry out the death process outside the facility grounds.  The patient could disregard those instructions.

As long as the health care provider claimed that he or she did not know the resident or inpatient was planning to self-administer the lethal dose on the premises, there would be no recourse for the facility.

Additionally, a physician could prescribe the suicide drugs which could be picked up by a designated agent at a pharmacy off the premises.  The designated agent could bring the drugs to the resident or inpatient who could then the lethal overdose at the facility.

A facility would not be able to ban others from bringing a lethal drug prescription to an inpatient or resident to take on the premises; would not be able to prevent the witnessing of the written requests for doctor-prescribed suicide; and would not be able to prohibit a pharmacy on the premises from dispensing the drugs as long as directions were included to take them off of the premises of the health care facility.
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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.”[20]
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[1]  §2908 (4) A (1).

[2]  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 2/2/17.)

[3]  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 1/31/17.)   For more information on drugs used for doctor-prescribed suicide, see: http://www.patientsrightscouncil.org/site/doctor-prescribed-suicide-drugs. (Last accessed 2/1/17.)

[4]  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 1/27/17.)
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.)

[5]  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.)

[6]  §2908 (1) J.

[7]  Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2015,” p. 7, fn. 2.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/1/17.)

[8]  §2908 (4) B (2) (c) (iii) and (iv).

[9]  §2908 (4) A (3).

[10]  Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary,” February 4, 2016, p. 6.   Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/7/17.)

[11]  “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.)

[12]  Ibid.

[13]  Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary,” February 4, 2016, p. 6.   Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/7/17.)

[14]  §2908 (4) B (2) (f).

[15] Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary,” February 4, 2016, p. 6.   Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/7/17.)

[16]  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.

[17]  §2908 (2) and §2908 (4) B (2) (c) (iii) and (iv).

[18]  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.)

[19]  §2908 (7). (Emphasis added.)

[20]  “The Oregon Experience.” Available at: http://www.patientsrightscouncil.org/site/the-oregon-experience (Last accessed 2/7/17.)
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