NY SB 3685 “New York end of life options act” Analysis (2015)

Under the “New York end of life options act” (S.B. 3685):

Government bureaucrats and profit-driven health insurance programs would be given the opportunity to cut costs by denying payment for more expensive treatments while approving payment for less costly assisted-suicide deaths.

This has already been documented in Oregon – the state with the law upon which the New York proposal is based.  The Oregon Health Plan (OHP) has notified some patients that medications prescribed to extend their lives or improve their comfort level would not be covered, but that the OHP would pay for a lethal drug prescription.[1]

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.”[2]

If the New York bill is approved, will health insurance programs and government health programs do the right thing – or the cheap thing?

New York could easily become a national suicide destination.  

Nothing in S.B. 3685 requires that an individual be a resident of New York to qualify for doctor-prescribed suicide in the state.

Family members or health care providers and others could advise, suggest, encourage or exert subtle and not so subtle pressure on vulnerable individuals to request doctor-prescribed suicide.  

The bill states that witnesses to the written request must attest to the fact that they believe the  patient is of sound mind and “not under duress, fraud, or undue influence” at the time the request was signed.[3]  However, those words have a narrow legal meaning.  The bill does not prohibit someone from suggesting, advising, 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 the bill could put abused individuals at risk of being persuaded to request doctor-prescribed suicide.

A person “familiar with the patient’s manner of communicating” could inaccurately convey (translate) the patient’s request for the lethal dose.

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.”[4]

This could lead to a patient’s wishes being misunderstood, misinterpreted, or disregarded.  There is no requirement that such communication assistance be independently verified.

Who will know if the person communicating on behalf of the patient is doing so accurately?

An individual with a controllable medical condition could be considered to have a terminal illness, making him or her eligible for doctor-prescribed suicide.

An individual is considered to have a terminal illness that makes him or her eligible for a prescription for suicide if the illness is incurable and irreversible and is expected to cause death within 6 months.[5]

However, many conditions that are incurable and irreversible and which would result in death within six months without treatment, can be controlled, resulting in a much longer life span.  For example, some types of diabetes are incurable and irreversible and, without insulin, the patient would die within 6 months. But, with insulin, the individual could live for many years. Yet, under S.B. 3685, an insulin-dependent person would be considered eligible for doctor-prescribed suicide.

There is documentation that this has occurred under Oregon’s assisted-suicide law.  In the latest official report from Oregon, diabetes is noted as the underlying terminal condition that made the patient eligible for a lethal prescription.[6]

The oral and written request process for doctor-prescribed suicide is exceptionally loose, making it possible for the patient to receive the lethal overdose within a day after the diagnosis of a terminal illness is confirmed by a consulting physician.

The individual is required to make one oral request and one written request.[7] Once the attending physician has made the diagnosis and it is confirmed by a consulting physician, the individual could make both requests on the same day.  There is no waiting period required.

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, must be witnessed by two individuals.  Only one of those witnesses may not be a relative or someone entitled to any portion of the patient’s estate.[8]  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.

Individuals could request doctor-prescribed suicide based on fear of being a burden to others.   

In the last official Oregon report, fear of becoming a burden on others was given as a reason for requesting lethal drugs by 40% of those who died using that state’s assisted-suicide law.[9]

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 insure that the patient is competent at the time the lethal drug overdose is taken or that he or she knowingly and willingly took 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.

Severely depressed or mentally ill patients can receive doctor-prescribed suicide, 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 for counseling unless the physician believes that the patient has “impaired judgment.”[10]

This provision is similar to that contained in Oregon’s law where, in 2014, only three of the patients who received lethal prescriptions were referred for counseling.[11]  A study about Oregon’s law found that it “may not adequately protect all mentally ill patients.”[12]

A health care facility could not prevent deaths from doctor-prescribed suicide on its premises.

The bill states that a “healthcare provider may choose whether to participate”[13] in actions under the bill. This would seem to indicate that a health care facility (which is included in the definition of health care provider[14]) could prohibit such actions on the premises if they violate the principles and policies of the facility.  However, the bill does not include any provision for this.  Furthermore, it makes it clear that there cannot be any sanctions for an individual health care provider who does participate in actions under the bill.[15]

There is an illusion of choice.  Yet, the bill would actually constrict patient choice.

Under the bill, before writing a prescription for death, a doctor must inform the patient of “the feasible alternatives or additional treatment opportunities, including but not limited to comfort care, hospice care and pain management.”[16]  However, “informing” someone of all options does not mean the patient will have the ability to access those options.  It only means the person must be told about them.

If doctor-prescribed suicide becomes just another treatment 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.

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 as has already happened in Oregon.[17]
Note:  Supporters of S.B. 3685 point to Oregon in their claim that there are no problems with the law and that safeguards contained in the law are meticulously followed and monitored.  Yet, in closed-door sessions, those supporters acknowledge that this is not true.  For documented information about this contradiction, see “The Oregon Experience.”[18]

[1]  KATU Television, “Letter noting assisted suicide raises questions” (interview about one such case and the response of the Oregon Health Plan). Available at:  http://www.katu.com/news/26119539.html  (last accessed 1/29/15).

[2]  Oregon Dept. of Human Services, “FAQs about the Death with Dignity Act.”  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/faqs. aspx (last accessed 12/30/14).

[3]  Section 2994-JJJ (Declaration of Witnesses).

[4]  Section 2994-AAA (4).

[5]  Section 2994-AAA (13).

[6] Official report for 2014 deaths under Oregon’s Death with Dignity Act, p. 6, fn. 6.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/ year17.pdf (last accessed 4/6/15).

[7] Section 2994-CCC (1).

[8]  Section 2994-CCC (3).

[9]  Official report for 2014 deaths under Oregon’s Death with Dignity Act, pg. 5.  Available at:     http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/ year17.pdf  (last accessed 4/6/15).

[10] Section 2994-HHH.

[11] Official report for 2014 deaths under Oregon’s Death with Dignity Act, p. 5.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/

year17.pdf (last accessed 4/6/15).

[12] 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.

[13] Section 2994-NNN (4).

[14] Section 2994-AAA (7).

[15] Section 2994-NNN (1) and (2).

[16] Section 2994-AAA (8) (E).

[17] KATU Television, “Letter noting assisted suicide raises questions” (interview about one such case and the response of the Oregon Health Plan). Available at:  http://www.katu.com/news/26119539.html (last accessed 1/29/15).

[18] “The Oregon Experience.”  Available at: https://www.patientsrightscouncil.org/site/the-oregon-experience (last accessed 1/30/15).