Nebraska 2016 LB 1056: Points to Consider
Under the “Patient Choice at End of Life Act” (LB 1056):
“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.”
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.
According to the last official Oregon report, the duration of the patient-physician relationship was, in some cases, less than one week.
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 “the feasible alternatives or additional treatment opportunities, including but not limited to, comfort care, hospice care, palliative care, and pain control.” 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.
The lethal drugs could be mailed to a patient.
Nothing in the bill requires the patient to obtain the drugs in person. The bill permits the lethal drugs to be delivered by “personal delivery, or, with a signature required on delivery, by the United States Postal Service or a commercial messenger or mail delivery service.”
However, even with a required signature, the United States Postal Service and commercial messenger or mail delivery services only require the signature of the person accepting the delivery, not the person to whom the package is addressed. There are no protections to prevent unintended individuals from signing for the package of drugs.
In addition, the bill permits the assisted-suicide drugs to be dispensed to “a person expressly designated by the qualified individual.” That designated person could be an abusive family member or heir who persuaded the patient to request the prescription and who was one of the two witnesses to the patient’s written request for doctor-prescribed suicide.
There are no protections for the person once the assisted-suicide prescription is filled and delivered.
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?
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” 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 required to counsel the patient about the importance of notifying the next of kin of his or her request for doctor-prescribed suicide. 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.
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.
The bill requires that there be two witnesses to the patient’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.
However, this provides little protection since it permits one witness 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.
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 a person familiar with the individual’s manner of communicating if that person is available.”
This could include not only translating various languages but also facilitated communication 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.
Under the bill, doctors would be permitted to prescribe assisted suicide to patients who have a “terminal illness,” which is defined as “an incurable and irreversible disease that will, within reasonable medical judgment, result in death within six months.”
However, that definition does not require that the patient is expected to die within six months, even with medical treatment, nor does it require that the condition be uncontrollable. Therefore, it is possible that a patient could be considered “terminal” for the purpose of qualifying for assisted suicide even if, with medical treatment, the patient could live much longer.
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.
The bill would permit assisted-suicide prescriptions for mentally ill or depressed patients.
If a patient is referred for a “mental health specialist assessment,” the psychologist or psychiatrist performing the assessment is to determine “whether the individual has the capacity to make medical decisions and is not suffering from a psychiatric or psychological disorder or depression causing impaired decisionmaking.“ Additionally, if such an assessment is done, it may consist of only one consultation.
Thus, even if the mental health specialist determines that the patient has a mental disorder or disease, the prescription for suicide could still be written as long as the counselor determines that the patient’s judgment is not impaired.
This provision is the same as that contained in Oregon’s law where, in 2011, only one of the reported 141 patients who received lethal prescriptions was referred for counseling. A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”
Persons responsible for completing and signing death certificates would be required to falsify the cause of death.
Even though the patient dies as a result of taking a deadly overdose of drugs, the bill requires that the person signing the death certificate “shall list as the cause of death of the qualified individual’s underlying terminal illness.”
Health care facilities could not prohibit doctors from writing prescriptions on the premises.
A health care facility may only prohibit a physician from writing a prescription for aid-in-dying medication for a patient who is a resident in the provider’s facility and intends to use the medication on the facilities premises.
Therefore, a physician could write the prescription for the death on the premises as long as the patient leaves the property to consume the deadly overdose or as long as the doctor claims the patient said he or she would take the drugs off the premises.
 “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.
 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.
 Section 6 (5) (e).
 Section 9 (4).
 Section 18 (2).
 Section 6 (8) (c).
 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.
 Section 4 (4).
 Section 2 (4), definition of “capacity.”
 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.
 Section 2 (14), definition of “terminal illness.”
 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.
 Section 8 (10). (Emphasis added.)
 Official report for 2011 deaths under Oregon’s Death with Dignity Act, pp. 3 and 5. Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year14.pdf.
 Linda Ganzini, Elizabeth R. Goy, Steven K. Dobscha, “Prevalence of depression and anxiety in patients requesting physicians’ aid in dying: cross sectional survey,” British Medical Journal, Oct. 25, 2008, pp. 973-978.
 Section 13.
 Section 17 (5) (c). (Emphasis added.)