New Mexico “Elizabeth Whitefield End of Life Options Act” (HB 90) 2019 Analysis

This bill would transform New Mexico’s crime of assisted suicide[1] into a medical treatment. If passed, non-physicians could diagnose individuals as eligible for a lethal drug overdose without ever seeing the patients in person. The same non-physicians could prescribe the deadly drugs if they decide that patients are expected to die within an undefined foreseeable future.     

If the bill becomes law:

Non-physicians could diagnose a patient and prescribe drugs to cause that patient’s death.

The bill permits a “health care provider,”[2] defined as a physician, an osteopathic physician, a nurse licensed in advanced practice or physician assistant to diagnose a patient’s terminal disease.  It also authorizes the same health care providers to prescribe the lethal drugs for assisted suicide.[3]

Neither the diagnosis nor the prescribing would need to be done in person.

The bill permits the health care provider who diagnoses and prescribes the lethal drugs to do so without ever having met the patient in person.  Diagnosing and prescribing can be done through telemedicine from a remote location.[4]

Should health care providers be permitted to prescribe drugs to cause death without ever having seen the patient in person?

Non-physicians could prescribe a lethal dose of drugs to patients who could live for many years.

Proponents of the bill emphasize the requirement that a patient must be diagnosed with a terminal illness as if this were some sort of safeguard against abuse.   However, they avoid explaining that “terminal illness” is very broadly defined as a disease or condition that is expected to “result in death within the reasonably foreseeable future.”[5]  The condition could be caused by an accident resulting in a disability.

“Reasonably foreseeable future” is such an elastic term that it could mean virtually any length of time.

A disease or condition can be incurable and irreversible but can be controllable, thus permitting the patient to live for many years.

There is documentation that, under Oregon’s assisted-suicide law, patients who could have lived for years, even decades, have died using legally prescribed lethal drugs.   In official Oregon reports, diabetes is noted as the underlying terminal condition that made the patient eligible for a lethal prescription.[6]  If insulin-dependent diabetics do not take insulin, they will die within six months.  So, they meet the requirements for the Oregon definition of “terminal.”  If they do take insulin, 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, who acknowledges that he has written dozens of prescriptions for assisted suicide.[7]  He explained that one young woman who came to him with a serious illness 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.[8]

 Should health care providers be able to prescribe assisted suicide for patients who could live for many years?

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.

The bill requires that the health care provider discuss “feasible alternatives” with the patient before prescribing drugs to cause death.[9]

However, informing someone of all options does not mean the patient will have the ability or financial resources to access those options.  It only means the person must be told about them.

If prescribed suicide becomes just another treatment option (and a cheap one at that), the standard of care and provision of health care changes.  There will be less focus on extending life and eliminating pain, and more focus on the efficient and inexpensive “treatment option” of death.

Patients may find that their insurance provider will not cover the treatment they needed and wanted but, instead, will pay for prescribed suicide as has happened in states where prescribed suicide is legal.

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 assisted suicide would be covered.[10]

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.”[11]

If the New Mexico bill is approved, will insurance programs do the right thing – or the cheap thing? 

The written request for 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.  One witness may not be someone who is a relative by blood, marriage or adoption (and, thus, be entitled to any portion of the patient’s estate).[12]  But that means the second witness could be the best friend of the potential heir.

This places victims of elder abuse and domestic abuse 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” assisted suicide.

Patients who are severely depressed, mentally ill, or have intellectual disabilities could receive a prescription for suicide, without having any form of counseling.

Even if the patient is severely depressed, has a mental illness, or is intellectually impaired, there is no need to provide counseling to address those conditions.  Such patients are required to be referred to mental health professionals only to determine that they have the “capacity” to understand what they are requesting.[13]

The mental health professional does not need to meet with the patient in person, but can make such a determination using telemedicine.[14]

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

Many families are under tremendous strain.  It would be foolhardy to ignore the role that finances could play when making life and death decisions.

Would some patients feel that they should request 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 others from caring for them.  This has been documented in Oregon as a reason for requesting the prescription for death.

According to an official Oregon report, 48.9 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.  (That number far exceeded those who cited pain or concern about pain as their reason.)[15]

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.

Patients would have no protection once the prescription is filled.

The patient’s health care provider is not required to be present when the patient takes the lethal drugs.  There is no way to know who, if anyone, is present or what actually takes place leading up to the patient’s death.  The patient could be tricked or forced into taking the overdose.  And no one would ever know.

Why aren’t there any protections at the most important part of the process?

Health care providers would be required to facilitate a patient’s death.

Health care providers would be required to inform a terminally ill patient of all options that are legally available to the patient.[16]  Thus, a health care provider would be forced to convey a message that prescribed suicide is equal to other forms of treatment and care.

A health care provider who is unable or unwilling to carry out a request for assisted-suicide drugs would be required to refer the patient to a health care provider who is able and willing to do so.[17]

Reporting of prescribed suicide deaths would be limited to incredibly sparse information.

 According to the bill, reporting would be limited to data related to the patient’s age, race and ethnicity, sex, whether the patient was enrolled in hospice, the underlying medical condition and whether the patient self-administered the drugs and the date of such self-administration.[18]

Unlike other states where prescribed suicide is legal, there would be no reporting to indicate the reasons given by patients for their request, the length of time between the request and the patient’s death, etc.

Like other states where prescribed suicide is considered a “medical treatment,” all reporting is done by the very same individuals who prescribe the lethal dose.  And, like other states where prescribed suicide is considered a “medical treatment,” there is no penalty for those who report inaccurately.

Death certificates would require inaccurate information.

Although deaths of patients who have taken the prescribed deadly drugs would be the result of a drug overdose, the bill requires that the underlying condition with which the patient was diagnosed be listed on the death certificate as the cause of death[19] – not the lethal overdose of drugs.

[1]   N.M. Stat. Ann. § 30-2-4.

[2]   HB 90, Section 2, D, definition of “health care provider.”

[3]   HB 90, Section 2, G, definition of “prescribing health care provider.”

[4]   HB 90, Section 2, J, definition of “telemedicine” and H.B. 90, Section 3, G.

[5]   HB 90, Section 2,K, definition of “terminal illness.”

[6]  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 12/12/17.)

[7]   Lynne Terry, “Oregon’s Death with Dignity: Barriers remain 20 years later,” Oregon Live: The Oregonian, October 27, 2017.  

[8]  Tara Bannow, “Rural Oregonians Still Face Death with Dignity Barriers,” Bend Bulletin, August 14, 2017.

[9]   HB 90, Section 3, C (5) .

[10]  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 2/1/18.)
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 2/1/18.)

[11]  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 2/1/18.)

[12]  HB 90, Section 3, F,(D)  Note following declaration of witnesses.

[13]  HB 90, Section 2, B, definition of “capacity” and HB 90, Section 4, Determining Capacity.

[14]  HB 90, Section 4, B.

[15]  Official report for 2016 deaths under Oregon’s Death with Dignity Act, p. 10.  Released in February 2017. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/   year19.pdf. (Last accessed 1/14/18.)

[16]  HB 90, Section 6.

[17]  HB 90, Section 9, D.

[18]  HB 90, Section 10, A.

[19]  HB 90, Section 7.

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