NY A02694 “Medical Aid in Dying Act” Analysis (2019-2020)

A02692 (Identical to S03947)

The New York bill, if passed, would permit a doctor to prescribe “medication” to end the life of a patient if certain conditions are met. 

Under the New York “Medical Aid in Dying Act”: 

New York could easily become a national suicide destination for individuals who are 18 years old or older.

Nothing in the proposal requires that an individual be a resident of New York to qualify for doctor-prescribed suicide in the state.  And, although an 18-year-old would be too young to purchase alcohol, that same person could qualify for a deadly overdose of drugs in New York.[1]

The New York “Medical Aid in Dying Act” would permit individuals to self-administer a lethal injection.

The “Medical Aid in Dying Act” requires that the prescribed drugs be self-administered.  It does not specify the type of self-administration.

Thus, it would permit prescriptions for a deadly overdose that could be taken by mouth, by drinking drugs that have been mixed into liquid.[2]  It would also permit mixing the drugs into a liquid which the patient could inject into a feeding tube as reported in the death of a patient in compliance with Washington State’s assisted-suicide law.[3]

Furthermore, it would permit a person to self-administer the lethal drugs by injection in the same way that a diabetic gives oneself an insulin injection.

Doctors in the same medical practice could diagnose a patient as having a terminal illness or condition and then confirm the diagnosis on the same day.

Under the bill, one doctor called the “attending physician,”[4] could diagnose (or misdiagnose) a person having a terminal illness or condition.  On the same day, a second doctor, called the “consulting physician,”[5] could confirm that diagnosis.  Nothing prevents the two physicians from being in the same medical practice.

What if the terminal illness or condition is controllable?  There is no requirement that the illness or condition be uncontrollable.

Examples of eligibility due to having a “terminal disease” in Oregon:

Oregon’s official reports states that the “terminal diseases” that qualified some patients for the lethal overdose included diabetes and arthritis.[6]

 Also, in Oregon, patients who refuse treatment are 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.[7]   Blanke has written about 15% of prescriptions for the lethal drug overdose in Oregon.[8] 

The required oral and written requests make it possible for the patient to receive the lethal overdose within a day after the diagnosis of a terminal illness or condition is confirmed. 

The individual is required to make one oral request and one written request.[9]  Both requests could be made on the same day.

The consulting physician could confirm the diagnosis on the same day and the prescription could also be written on that day.  There are no required waiting periods.                                                                                              

Severely depressed or mentally ill patients could receive doctor-prescribed suicide drugs 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 to a mental health professional unless the physician believes that the patient lacks the “capacity to make an informed decision.”[10]    Such “capacity” means the ability to understand and appreciate the nature and consequences of health care decisions.[11]

This provision is similar to that contained in Oregon’s law where, according to an official report released in February 2019, fewer than 2 % of the patients who received lethal prescriptions in the previous year were referred for counseling.[12] 

The written request for doctor-prescribed suicide could be witnessed by someone who would gain financially from the patient’s death.

The written request, which could be signed in the patient’s residence or the doctor’s office, must be witnessed by two individuals.[13]  Only one of those witnesses may not be a relative or someone entitled to any portion of the patient’s estate.[14]  One witness could be an abusive relative or an heir. The second witness could be the “best friend” of the relative or potential heir – and no one would ever know.

Why can a potential heir, who would gain from the patient’s death, be allowed to witness the written request?

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 lethal drug overdose prescription.

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.”[15]

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.[16]

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.”[17]

California pays for assisted-suicide drugs obtained by MediCal patients under the state’s doctor-prescribed suicide law.[18]

If the New York bill becomes law, will insurance programs do the right thing – or the cheap thing?

Death certificates would contain inaccurate information.

“If thought corrupts language, language can also corrupt thought” was recognized many years ago.[19]

The attending physician who wrote the prescription (who would not need to be present when the patient takes the drugs) may sign the death certificate.[20]  The cause is to be listed as the “underlying terminal illness or condition,”[21] instead of the true cause: self-administration of a lethal dose of drugs.

This 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.[22]

The State’s “Instructions for Physicians and other Medical Certifiers”[23] are explicit:

“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 promote them hiding what they are really about? If one calls suicide or assisted suicide by other names, does that change what they are?

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 ensure that the patient is competent at the time the lethal drug overdose is administered 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 aren’t there any safeguards at the most important stage of the process – at the time the patient takes the drugs that will cause death?

……………………………
(September 2019)

[1]  Section 2899-d.1 defines an “adult” as being an individual who is 18 years old or older.

[2] Many people assume that the “medication” would be “a pill” the patient could take and then “slip peacefully away.”  But this is false. Where doctor-prescribed suicide is legal, the vast majority of prescriptions for what is referred to in the New York bill as “medical aid in dying” are for secobarbital (a sedative). For use as a sedative, the usual dosage is one capsule.  The usual prescription under existing state doctor-prescribed suicide laws is for 90 to 100 capsules.

For a fully documented description of drugs used for doctor-prescribed suicide, see: “Drugs Used for Doctor-Prescribed Suicide.”  Available at: http://www.patientsrightscouncil.org/site/summary-of-drugs-used-for-doctor-prescribed-suicide.  (Last accessed 9/3/19.)

[3] Gene Johnson, “In the face of death, the party of a lifetime,” Associated Press, August 26, 2019.  Available at: https://apnews.com/2ee08672b8c1445ca09e0e09ab262c30.  (Last accessed 9/5/19.)

[4]  Section 2899-d.2.

[5]  Section 2899-d.4.

[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 9/4/19) and 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 9/4/19.)

[7] 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 9/4/19.)

[8]  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 9/4/19.)

[9]  Section 2899-e.1.

[10] Section 2899-f.1 (c).

[11] Section 2899-d.3.

[12] 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 9/4/19.)

[13] Section 2899-e.3 (a).

[14] Section 2899-e.3 (b) (ii).

[15] Oregon Dept. of Human Services, “FAQs about the Death with Dignity Act,” p.4.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/faqs.pdf. (Last accessed 9/4/19.)

[16] 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 9/4/19.)

[17] 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 9/4/19.)

[18] 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 9/4/19.)

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

[20] Section 2899-p. 1.

[21] Section 2899-p. 2.

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

[23]  “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 9/5/19.)

 

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