Analysis MD HB 404 (2016)
Under the “Richard E. Israel and Roger ‘Pip’ Moyer Death with Dignity Act” (HB 404):
Doctor-prescribed suicide would become a “medical treatment.”
This would give insurance programs the opportunity to cut costs by denying payment of more expensive treatments while approving payment for the less costly prescription for a lethal drug overdose. If the Maryland bill is approved, will health insurance programs do the right thing – or the cheap thing?
A third party would be able to communicate the request for the lethal dose 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 another individual familiar with the individual’s manner of communicating if that person is available.”[1]
This could include not only translating various languages but also facilitated communication[2] and could lead to a patient’s wishes being misunderstood, misinterpreted, or disregarded. There is no requirement that 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?
Doctors would be permitted to prescribe death for patients who could live for many years.
Doctors would be permitted to prescribe assisted suicide to patients who have a “terminal illness,” defined as a condition that “involves a prognosis for an individual that likely will result in the individual’s death within six months.”[3]
There is no requirement that the condition be incurable, irreversible or uncontrollable. There are many conditions (diabetes, certain types of leukemia and, even, alcoholism) that could meet the definition of terminal illness contained in the bill.
For example, diabetes can be both incurable and irreversible but it is controllable. An insulin-dependent diabetic patient who stops taking insulin will, within reasonable medical judgment, die within six months. Thus, under the bill, diabetics could be eligible for doctor-prescribed suicide even though they could live virtually normal lives with insulin.
There is documentation that this has occurred under Oregon’s assisted-suicide law. In an official report from Oregon, diabetes is noted as the underlying terminal condition that made the patient eligible for a lethal prescription.[4]
Someone who would benefit financially from the patient’s death could serve as a witness and claim that the patient is mentally fit and eligible to request assisted suicide.
Two witnesses are required to sign the patient’s written request for doctor-prescribed suicide. One of those witnesses may be a relative or a person entitled to benefits upon the patient’s death.[5] The second witness could be the “best friend” of the potential heir – and no one would ever know.
Severely depressed or mentally ill patients could receive doctor-prescribed suicide, without having any form of counseling.
Even if the patient is severely depressed or has a mental illness, a physician does not need to refer the patient for a mental health professional assessment unless the physician believes the patient has “impaired judgment” that prevents the patient from making medical decisions.[6]
If the depressed or mentally ill patient understands the nature and consequences of a health care decision as well as the relevant facts surrounding that decision, he or she is considered able to make an informed decision and would not be referred for counseling.[7]
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.
A health care facility could not prevent deaths from doctor-prescribed suicide on its premises. Furthermore, a facility willing to permit assisted-suicide deaths could require pharmacists, nurses and others to facilitate such deaths.
The proposed bill states that a health care provider may prohibit “participation” on the premises.[9]
It provides that no one can be subjected to a penalty for “participating or refusing to participate;” participation is “voluntary”;[10] and that a “health care facility may not require the physicians on the medical staff to participate in aid in dying.”[11]
However, the word “participate” is very narrowly defined in the bill.[12]
It refers only to performing the duties of the attending physician, consulting
physician or mental health professional. It does not include nurses, pharmacists, etc.
Therefore, facilities could require pharmacists to fill prescriptions and nurses to bring the drugs to a patient since such activities would not constitute participation. Furthermore, facilities would not be able to ban pharmacies on the premises from filling prescriptions for the lethal drugs and would not be able to prohibit nurses from providing them to a patient or resident.
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 would penalize anyone who “coerces or exerts undue influence”[13] on a patient to request the lethal prescription. However, those words have a very narrow legal meaning.
The proposal 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.
A patient could be led to request assisted suicide based on fear of being a burden to others.
Under the bill, the doctor is to inform the patient that he or she may wish to notify the next of kin of his or her request for doctor-prescribed suicide.[14] But such family notification by the patient is not required. If a patient fears becoming a burden and if loved ones are unaware of that concern, they are unable to reassure the patient of their care and love.
In the 2012 official Oregon report, the fear of becoming a burden on others was given as a reason for requesting lethal drugs by more than 57 % of those who died using that state’s assisted-suicide law.[15]
Persons responsible for completing and signing death certificates would be required to falsify the cause and manner of death.
If the patient dies after taking the lethal drugs, the prescribing doctor may sign the patient’s death certificate[16] and the death “shall be deemed to be a death from natural causes, specifically as a result of the terminal illness from which the qualified individual suffered.”[17]
“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 health care provider, 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.”[18]
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.[19]
According to the last official Oregon report, the duration of the patient-physician relationship was, in some cases, less than one week.[20]
All of the purported safeguards in the bill cease the moment the prescription is received.
The bill contains six references to the fact that the prescription is to be “voluntarily” requested. However, nothing in the proposal states that the drugs, once prescribed, must be knowingly or voluntarily taken.
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?
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[1] §5-6A-01 (D) (3).
[2] Facilitated communication can take place 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.
[3] §5-6A-01 (S).
[4] Official report for 2012 deaths under Oregon’s Death with Dignity Act, pg. 6, fn. 6. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year15.pdf.
[5] §5-6A-03 (B) (1).
[6] §5-6A-06 (A).
[7] §5-6A-01(D) (1) & (2) and (H). As noted in the information required in the medical records, the prescribing physician is to include a report of the outcome of and determination made during the mental health professional assessment if the patient was referred for such an assessment. §5-6A-08 (A) (5).
[8] §5-6A-04 (C) (5).
[9] §5-6A-14 (B) (1).
[10] §5-6A-15 (A).
[11] §5-6A-15 (A) (2).
[12] §5-6A-14 (A) (3) (I).
[13] §5-6A-16 (B).
[14] §5-6A-07 (A) (2) (I).
[15] Official report for 2012 deaths under Oregon’s Death with Dignity Act, pg. 5. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year15.pdf.
[16] §5-6A-07 (C).
[17] §5-6A-11 (A).
[18] “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.
[19] Ibid.
[20] Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2014,” pg. 6. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/ year17.pdf.
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