2019 Massachusetts H 1926 & S 1208 Analysis
H 1926 & S 1208 are identical bills.
Patterned on Oregon’s doctor-prescribed suicide law, these bills differ, in part, from the Oregon law.They create additional loopholes that put vulnerable patients at risk and place massive burdens on health care facilities.
Under the H 1926 & S 1208:
A doctor would be able to prescribe a massive overdose of drugs for a person to take to end his or her life.
The bills refer 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, 84.5% 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] or for a variety of other drugs.
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]
The Massachusetts bills describe “aid in dying” as a physician’s prescribing “lawful medication” that will bring about a peaceful death. However, deaths resulting from taking the prescribed drugs may be inhumane.
According to a study published in the journal Anaesthesia, an international research team found that euthanasia and assisted-suicide deaths can be inhumane because some patients can be awake and conscious but unable to move or communicate that they are experiencing serious pain or distress.
Researchers compared these situations to “accidental awareness during general anesthesia” cases, which can occur during surgery when doctors fail to notice that the patient is actually awake and in agony but paralyzed by the anesthesia. This has happened during capital punishment, forcing states to stop using certain drugs [including those that are used for assisted suicide].
According to the researchers, lawmakers have the responsibility to make sure that any assisted-dying laws being considered expressly require professional anesthetic expertise and oversight. “Otherwise there is a risk vulnerable citizens may be killed by suboptimal or even cruel means.”[5]
In Oregon, which is used as the model for the Massachusetts proposals, the state’s latest official report lists that, in 53% of deaths, the number of complications is “unknown.”[6]
There are no penalties for non-reporting or for inaccurate or incomplete reporting.
Those who are promoting the Massachusetts bills point to Oregon’s more than twenty-year experience. They claim 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 have acknowledged that the state has no authority and no funding to examine the accuracy of the reports.[7]
Are we really naïve enough to believe that doctors will report that they have broken the law and violated the guidelines?
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.[8]
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.”[9]
If Massachusetts approves doctor-prescribed suicide, will private insurance 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.
Patients would be 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.”[10]
This could include translating various languages as well as facilitated communication[11] 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 extensive 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, upon request, written policies informing anyone that they will not participate in a patient’s suicide.[12] Furthermore, they must describe the way in which they will refer a patient to a willing provider.[13]
There is an illusion of choice. Yet the bills, if passed, would constrict patient choice.
“Choice” is an appealing word, but inequity in health care is a harsh reality.
Before writing a prescription for death, a doctor must discuss “the feasible alternatives and additional treatment opportunities, including comfort care, hospice care and pain control.”[14] 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” – which is actually only an assessment – to determine that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.[15] It is only to determine that the patient is capable of understanding what he or she is requesting.
That 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 volunteer coordinators.[16]
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.[17]
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.[18] 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.[19]
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.
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.[20] A potential heir could encourage the patient to authorize him or her to pick up the drugs for delivery to the patient’s residence.
There are no “safeguards” after the prescription is filled.
The Massachusetts bills contain seven references to the fact that the prescription is to be “voluntarily” requested. However, nothing requires that the drugs be voluntarily taken.
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 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?
It is possible that 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.[21]
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.”[22] Furthermore, the bill states that the patient’s death “shall not constitute suicide”[23] 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.'”[24] Thus, death certificates for those who died of doctor-prescribed suicide would be falsified.
(05/21/19)
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[1] Section 1. Definition of “aid in dying.” Lines 9-11.
[2] Oregon Public Health Division: Death with Dignity Act – Year 21, p. 11. Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf . (Last accessed 5/21/19.)
[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 5/21/19.)
[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 5/21/19.) For more information on drugs used for doctor-prescribed suicide, see: https://www.patientsrightscouncil.org/site/2017-summary-of-drugs-used-for-doctor-prescribed-suicide/. (Last accessed 5/21/19.)
[5] S. Sinmyee et al, “Legal and ethical implications of defining an optimum means of achieving unconsciousness in assisted dying,” Anaesthesia 2019, pp. 630-636. Available at: https://onlinelibrary.wiley.com/doi/pdf/10.1111/anae.14532. (Last accessed 5/21/19.)
[6] 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 5/21/19.)
[7] Statements of Dr. Katrina Hedberg, the lead author of many of Oregon’s official reports on the Death with Dignity Act, made to a delegation of the British House of Lords that visited Oregon to learn about the Oregon law. House of Lords Report, “Assisted Dying for the Terminally Ill Bill,” Vol. II: Evidence, 4/4/05, pp. 259, 262 and 266.
[8] 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 5/21/19.)
[9] Oregon Dept. of Human Services, “Frequently Asked Questions about the Death with Dignity Act.” Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/faqs.pdf. (Last accessed 5/21/19.)
[10] Section 1, Definition of “capable.” Lines 14-17.
[11] 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.
[12] Section 15 (4) (a) (b) and (c), Provider participation. Lines 272-288.
[13] Section 15 (4) (b) (iv). Lines 280-282.
[14] Section 1, Definition of “informed decision,” Lines 40-49. Section 6 (1) (b) (v), Lines 163-164
[15] Section 8, Counseling referral. Lines 201-205.
[16] Section 1, Definition of “counseling” by a licensed mental health professional who is part of an interdisciplinary team. Lines 20-25. A licensed mental health professional who is part of an interdisciplinary team is 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 5/20/19.)
[17] Section 3 (3),”Oral and written requests.” Lines 107-110.
[18] Section 16 (2), “Liabilities.” Lines 294-298.
[19] 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.
[20] Section 6 (1) (l) (ii) (B), Attending physician responsibilities. Lines 185-188.
[21] Mass. Gen. Laws. Ann. ch. 201D, §5. Available at: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201D/Section5. (Last accessed 5/21/19.)
[22] Section 6 (2), “Attending physician responsibilities.” Lines 189-190.
[23] Section 14 (3), “Effect on wills, contracts, insurance, annuities, statutes and regulations.” Lines 249-251.
[24] Section 14 (5), “Effect on wills, contracts, insurance, annuities, statutes and regulations.” Lines 257-258.
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