Massachusetts 2017 “End of Life Options Act” (H 1194) Analysis

Patterned on Oregon’s doctor-prescribed suicide law, this bill differs, in part, with that law. It creates additional loopholes that place vulnerable patients at risk and places massive burdens on health care facilities.

Under the bill:

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 “Aid in Dying”[1] as a “medical practice of a physician prescribing lawful medication to a qualified patient, which the patient may choose to self-administer to bring about a peaceful death.” Many individuals erroneously assume that this means a patient would take “a pill” for that purpose.

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 either of two barbiturates (sedatives): secobarbital or pentobarbital.[2]  (In recent years, pentobarbital has been difficult to obtain due to growing opposition to its use in capital punishment.)  This has led to increased use of the more expensive secobarbital for assisted suicide.[3]

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![4]

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.[5]

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.”[6]

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

A third party could request assisted suicide on behalf of a patient without any oversight to determine the accuracy of the request.  

Under the bill, patients are considered capable of requesting assisted suicide not only by communicating the decision on their own but also by “communication through individuals familiar with the patient’s manner of communicating if those persons are available.”[7]

This could include translating various languages as well as facilitated communication[8]  which could lead to a patient’s wishes being misunderstood, misinterpreted, or disregarded. There is no requirement that the accuracy of such communication assistance be verified.

Who will know if the person communicating on behalf of the patient is doing so accurately?  What, if any, professional expertise will be required of those communicating on behalf of the patient?

There are costly, drastic requirements for health care providers who are unwilling or unable to provide lethal drugs to a patient.    

Providers who are unwilling or unable to prescribe and provide doctor-prescribed suicide must maintain and disclose written policies informing anyone that they will not participate in a patient’s suicide.[9]  Furthermore, they must:
… describe the way in which they will refer a patient to a willing provider[10] and …inform consumers that the cost of the transfer will be borne by the transferring provider.[11]

Such requirements could result in excessive costs for providers who are not willing to provide the lethal prescription.  For example, even if a patient has been informed that a particular facility will not provide doctor-prescribed suicide, the patient could choose to be admitted to the facility even though he or she is planning to request the prescription.  The patient could then request the prescription, potentially placing the facility in the position of bearing expenses that could include taxi or ambulance transport to a facility many miles away.

In addition, providers who are not willing to participate must describe internal and external complaint procedures to any person upon request as well as to a patient or the patient’s decision maker upon admission or at the time of initial receipt of health care.

However, the bill does not require any disclosure requirement from those who are willing to provide doctor-prescribed suicide.  Why not?

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 or additional treatment opportunities, including but not limited to palliative care.”[12]  However, discussing all options 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 Massachusetts, 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.

Required “counseling” could be carried out by such individuals as volunteer coordinators.

The bill requires that a patient be referred for counseling to determine that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.[13]

Such counseling means one or more consultations between the patient and a “licensed mental health professional.”  However, “licensed mental health professional” is very broadly defined and includes such individuals as a volunteer coordinator.[14]

Someone who would benefit financially from the person’s death could serve as a witness and claim that the individual is competent, acting voluntarily and not being coerced to sign the request for assisted suicide.

The bill requires that there be two witnesses to the individual’s written request for doctor-prescribed suicide.  Only one of those witnesses shall not be a relative or someone entitled to any portion of the person’s estate upon death.[15]

However, this provides little protection since it permits one of the witnesses to be a relative or someone who is entitled to the patient’s estate.  The second witness could be the best friend of the first witness and no one would know.

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” on an individual to request the lethal prescription.[16]  However, “coercion” and “undue influence” have very narrow legal meanings and do not include suggesting, advising, or encouraging a patient to request doctor-prescribed suicide.[17]

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.  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.

There are no protections for the person once the assisted-suicide prescription is filled. 

Like the Oregon law, the bill only addresses activities taking place up until the individual receives the lethal drugs.  There are no provisions to assure that the person is competent at the time the overdose is taken or that he or she knowingly and willingly takes the drugs.

Due to this lack of protection at the time of their deaths, 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?

An agent appointed pursuant to a health care proxy may be able to request the assisted-suicide prescription on behalf of the principal (patient).

Massachusetts law explicitly provides that a health care agent “shall have the authority to make any and all health care decisions on the principal’s [patient’s] behalf that the principal could make” subject only to any express limitations in the health care proxy.[18]

Death certificates would not reflect the true cause and manner of death.

Even though a drug overdose would be the cause of death, the bill states that the patient’s death certificate “shall list the underlying terminal disease as the cause of death.”[19]   Furthermore, the bill states that the patient’s death “shall not constitute suicide”[20] and that “state regulations, documents and reports shall not refer to the practice of aid in dying under this chapter as ‘suicide’ or ‘assisted suicide.'”[21]  Thus, death certificates for those who died of doctor-prescribed suicide would be falsified.
…………………..

[1]  Section 1, Lines 9-11. Definition of “aid in dying.”

[2]  Oregon Public Health Division: Death with Dignity Act – Year 18, p. 7.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 1/30/17.)

[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 2/2/17.)

[4]  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.)

[5]  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.)

[6]  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.)

[7]  Section 1, Lines 14-17. Definition of “capable.”

[8]  Facilitated communication occurs when a person, called a “facilitator,” supports the hand or arm of a person who is impaired, using a device such as a keyboard to help the individual communicate.

[9]  Section 15 (4) (a) (b) and (c), Lines 275-295.

[10]  Section 15 (4) (b) (iv), Lines 280-282.

[11] Section 15 (4) (b) (vi), Lines 285-286.

[12] Section 4, Lines 125-126 and Section 6 (1) (b) (v), Line 163

[13] Section 8, Lines 201-205.

[14] Section 1, Lines 20-25.  Definition of “counseling” states that a licensed mental health professional is part of an interdisciplinary team defined in 105 CMR 141.203 which states that an interdisciplinary team includes but is not limited to: a medical director, nurse, coordinator of volunteers, social worker, spiritual or other counselor, or bereavement coordinator.  Available at: http://www.mass.gov/courts/docs/lawlib/104-105cmr/105cmr141.pdf. (Last accessed 1/31/17.)

[15] Section 3 (3), Lines 107-110.

[16] Section 16 (2), Lines 298-302.

[17] 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.

[18] Mass. Gen. Laws. Ann. ch. 201D, §5.  Available at: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201D/Section5.  (Last accessed 2/1/17)

[19] Section 6 (2), Lines 189-190.

[20] Section 14 (3), Lines 249-251.

[21] Section 14 (5), Lines 257-258.

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