Alaskan court rejects assisted-suicide constitutional challenge
An attempt to make assisted suicide a legal right in Alaska has been thwarted, at least for now. Alaskan Superior Court Judge Eric Sanders has ruled that the state’s law banning assisted suicide does not violate the liberty, equal protection, and right to privacy clauses contained in Alaska’s Constitution, as right-to-die advocates had claimed. Moreover, Judge Sanders found that the state’s obligation to “the preservation of human life and the protection of vulnerable individuals” far outweighs any person’s decision to end his or her life. [Sampson & Doe v. State of Alaska, Case No. 3AN-98-112888CI (3rd Sup Ct Sept 9,1999), at 11. Hereafter cited as Sampson.]
Background
The Alaskan lawsuit was sponsored by the Oregon-based Compassion in Dying Federation (CIDF), under the supervision of its legal director, Kathryn Tucker. Tucker also orchestrated two previous right-to-die lawsuits, arguing that assisted-suicide laws in Washington State and New York State violated the U.S. Constitution. Both cases (Washington v. Glucksberg and Vacco v. Quill, respectively) made it all the way to the U.S. Supreme Court. On 6/26/97, Tucker’s group was dealt a major defeat when the nation’s highest court ruled unanimously that state laws banning assisted-suicide do not violate either the Due Process or Equal Protection Clauses of the U.S. Constitution’s 14th Amendment.
Given the Supreme Court’s rulings, Tucker turned her attention to Alaska, one of only a handful of states with a right to privacy provision included in the state’s constitution. Two of those states, Florida and California, already had court challenges to their assisted-suicide bans. In Florida’s case, McIver v. Krischer (1997) (see Update 6-7/97) , and California’s, Kevorkian & Doe v. Arnett (1996) (see Update 10-11/96), the courts found that those states’ anti-assisted suicide laws are in accord with each state’s constitution and that the right to privacy does not include the right to assisted suicide.
But Tucker and CIDF were banking on the outcome being different in Alaska. Alaska, they speculated, was more like Oregon, a state steeped in independence and individualism, qualities that had made Oregon fertile ground for legalizing assisted suicide.
The arguments
And that was precisely the theme Tucker and Anchorage attorney Bob Wagstaff used when it came time to argue the Alaska case before Judge Sanders. Wagstaff told the court that Alaskans cherish their individuality and that Alaska’s Constitution has a stronger privacy guarantee than most states and the U.S. Constitution. That translates, Wagstaff argued, into a mandate that the state should guard against and eliminate situations “where all that’s left is the suffering and agony.” There is no compelling reason, he added, for the state to ban physicians from prescribing drugs to a dying patient who wishes to voluntarily end his life peacefully. [Anchorage Daily News, 8/10/99]
The plaintiffs in the case were two seriously ill patients. Kevin Sampson, was a 43 year-old retired auditor who was diagnosed with AIDS in January 1992. He took his own life last July, before the arguments in the case were heard. The second plaintiff is alive, a woman doctor in her sixties with metastatic breast cancer, who had practiced medicine for over 20 years. She assumed the fictitious name “Jane Doe” to protect her privacy, and petitioned the court to grant her the “option” of having her doctor prescribe lethal drugs when she can “no longer endure the pain, suffering, loss of bodily function and integrity associated with my cancer.” “I do not know for certain,” she wrote in an affidavit, “if I will come to exercise this option…” “Having this option would be of enormous comfort to me.” [Affidavit of Kevin Sampson and Affidavit of Jane Doe, Sampson, 12/14/98]
Representing the state, Assistant Attorney General Eric Johnson told the court that pain was not the real issue for terminally-ill patients who wished to kill themselves. Rather, it is a fear of being dependent and disabled, and to devalue one’s life because of the “loss of autonomy” or “bodily control” is “simply wrong.” The law, Johnson said, should not be changed based on this wrong view.
Johnson also brought up the likelihood of abuse if the law were changed to allow assisted killing. Tucker dismissed that argument, saying it didn’t happen in Oregon and it won’t happen in Alaska. But Johnson retorted that, even if the abuse issue were debatable, the rule is that it is up to the legislature, not the courts, to determine which way to go — and the Alaska’s Legislature has already approved the existing ban on assisted suicide. [Anchorage Daily News, 8/10/99]
The decision
In his 9/20/99 ruling, Judge Sanders thoughtfully addressed the question of whether “assisted suicide is a fundamental right under Alaska’s Constitution.” After reviewing numerous federal and state cases, the judge concluded, “the common law tradition in this country has disapproved of, if not punished, suicide and assisted suicide.” “At no time,” he explained, “in the history of Alaska (or any other state) has suicide been part of the ‘constitutional heritage.’” “Consequently, although the interests identified by Sampson in this case are certainly important ones, physician assisted suicide is not a fundamental right under the Alaska Constitution.” [Sampson, p. 8]
Furthermore, Judge Sanders wrote, just because an action is private and personal does not necessarily make it “protected” under the constitution.
“…conduct which can be characterized as private and personal is not necessarily protected based on some inherent personal autonomy right. Privacy rights are not monolithic. An important right is not ‘fundamental’ simply because it involves ‘the individual and his body’… Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.” [Sampson, pp. 8-9]
Such a public need is evident with regard to assisted suicide. “The state’s assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy,” the judge wrote, “and that a seriously disabled person’s suicidal impulses should be interrupted and treated the same way as anyone else’s.” Governments have an “unqualified interest” in preserving life, and they can “refuse to make judgments about the quality of a particular life.” [Sampson, p. 10]
After considering the interests of the terminally ill and the competing interests of the state, Judge Sanders ruled, “the prohibition against physician assisted suicide does not violate the liberty, privacy, or equal protection clause of the Alaska Constitution.” [Sampson, p. 15]
Lawyers Tucker and Wagstaff called the ruling “a temporary setback.” An appeal to the Alaska Supreme Court is planned. [Anchorage Daily News, 9/10/99]
Maine PAS measure up for vote in 2000
A campaign known as Mainers for Death with Dignity has submitted 50,000 voter signatures to the Secretary of State’s office in support of an initiative to legalize physician-assisted suicide (PAS).
State officials have yet to verify the validity of those signatures, but proponents needed only 42,101 valid signatures to bring their measure before the state legislature next year. The legislature has the option of approving the measure as written or letting it go before the voters in the November 2000 election. Traditionally, the lawmakers let the voters decide. [AP, 9/27/99]
The assisted-suicide measure, called the “Maine Death with Dignity Act” (MDWDA) is a slightly modified version of the assisted-suicide law which passed in Oregon in 1994, making Oregon the only place in the world where there is a law specifically permitting assisted suicide.
The Maine proposal asks the question, “Should a terminally ill adult of sound mind be allowed to ask for and receive a doctor’s help to die?” Not only is the question deceptively worded, but it is type-set in very large print right under the proposal’s title. Voters would have to take the time to wade through the measure’s small print to find out that what is being called “doctor’s help to die” is not care, concern, and pain control at the end of life, but a prescription for lethal medication to intentionally end life.
Assisted-suicide advocates in Maine have repeatedly tried to get a clone of the Oregon law passed as a bill by the legislature. Last year, after the state’s lawmakers soundly defeated the measure again, proponents set out to get the MDWDA before the voters in 2000. [AP, 7/30/98]
While PAS proponents claim that the MDWDA has strong, improved safeguards, the measure still leaves vulnerable patients open to abuses. For example, the MDWDA covers only the time prior to the writing of the prescription for lethal medication by the doctor. It does not cover conduct after that point, from the time the patient would receive the prescription to the time the patient might opt to take it. The lethal medication could be stored over time, with no concern for public safety or patient protection. There would be no way of knowing, for example, if the patient had been pressured into taking the drugs by greedy relatives or if the patient had been given the deadly drugs against his or her will.
Furthermore, the MDWDA can be used as the ultimate in health care cost containment. According to assisted–suicide advocates, Derek Humphry and Mary Clement, “A rational argument can be made for allowing [assisted suicide] in order to offset the amount society and family spend on the ill….” [Humphry & Clement, Freedom to Die, p. 333] If the MDWDA were to pass, for-profit managed care programs and HMOs would face a serious conflict of interest when it came to inducing the death of patients who need costly treatment to live. A lethal prescription could cost somewhere between $35 to $75 — far less than most curative treatments or comfort care.
The MDWDA, like its Oregon predecessor, does not require that the patient’s family be notified of the patient’s death request. [MDWDA, §5-909] Close family members need not know until after the patient is dead.
Moreover, the MDWDA contains no penalties for doctors who do not comply with its requirements, like reporting all assisted deaths to the state Dept. of Human Services’ Bureau of Health. As has been the case in Oregon, Maine would have no enforcement authority over doctors who did not report assisted deaths, and no way to accurately detect underreporting. [Chin et al., “Legalized Physician-Assisted Suicide in Oregon: The First Year’s Experience,” New England Journal of Medicine, 2/18/99, p. 583]
Even if an assisted death is reported to the state, the MDWDA stipulates, “The information is not a public record and is not available to the public.” [MDWDA, §5-915] In other words, the MDWDA would insure that the practice of ending patients’ lives would be done behind closed doors and under the cloak of secrecy and privacy.
Federal pain relief bill gaining momentum
The Pain Relief Promotion Act of 1999 (PRPA) — introduced by Rep. Henry Hyde (R-Ill) and Rep. Bart Stupak (D-Mi) in the House, and by Sen. Don Nickles (R-Okla) in the Senate — is steadily advancing in Congress. It has also picked up a significant number of bi-partisan co-sponsors, at least 154 for the House version (H.R. 2260) and 26 for the Senate version (S. 1272).
The PRPA would amend the federal Controlled Substances Act (CSA) to establish pain control as a legitimate medical purpose, promote on-going palliative care education for medical professionals, and encourage aggressive pain management for patients. What has generated the most controversy, however, is the PRPA’s reaffirmation that, under existing law, any use of controlled substances to intentionally cause death or assist another person in causing death is strictly prohibited. This restriction would effectively overturn Oregon’s law allowing physicians to prescribe controlled drugs for the purpose of causing a patient’s death. Any doctor who prescribes controlled drugs for an assisted suicide could loose his or her DEA license. (See Update, 4-7/99)
“The federal government is not going to sanction the use of controlled substances for the purpose of killing people,” explained Rep. Charles Canady (R-Fla), who co-sponsored the PRPA. “If that’s controversial, let the controversy go on.” But Sen. Ron Wyden (D-Ore) strongly disagrees. “Some of those who are so passionate about states’ rights lose their ardor pretty quickly when a state doesn’t happen to agree with them on policy,” Wyden told the media. “What the bill [PRPA] is all about is to laser in on the laws of the state of Oregon and throw the popular will of its voters in the trash can,” he added. Wyden has vowed to filibuster if the measure reaches the Senate floor. [LA Times, 9/14/99]
Thus far, the PRPA has passed the House Commerce and Judiciary Committees, and goes before the full House in mid-October.
Have poison, will travel…
Fugitive Kevorkian aide wanted for New Mexico murder
When a New Mexico grand jury handed down a first-degree murder charge against Michigan psychiatrist Georges Reding, police departments in two states and the FBI soon discovered that he was nowhere to be found.
Reding, Jack Kevorkian’s former sidekick and apprentice, officially became a fugitive on 9/3/99 after he failed to appear before an Albuquerque judge for his arraignment on a four-count indictment. In addition to first-degree murder, the 75-year-old Reding stands charged with drug trafficking, evidence tampering, and practicing medicine in New Mexico without a license. The charges are in connection with the 8/30/98 death of Donna Brennan, 54, a resident of Rio Rancho, a suburb of Albuquerque.
At first it was believed that Brennan, who had multiple sclerosis (MS), had died from natural causes. An autopsy, however, found that her death was the result of a lethal injection of pentobarbitol, a strong sedative frequently used to euthanize animals.
When authorities questioned Bernadette Griego, Brennan’s caregiver, she said she had witnessed Brennan giving Reding $900 for his trip to New Mexico just hours before she died. After searching Reding’s home in Michigan, detectives found telephone and credit-card records as well as assisted-suicide consent forms, all linking Reding to Brennan’s death. Moreover, police obtained records that show that Reding had made purchases at a local animal clinic where pentobarbitol would have been available. They also found evidence connecting him to other possible deaths across the U.S. and Canada.
Michael Schwartz, Reding’s attorney, dismissed the evidence as being circumstantial and called the indictment “absolutely ridiculous.” “There’s no way they’re ever going to show that she didn’t end her own life,” he said. [Albuquerque (ABQ) Journal, 8/20/99]
Schwartz and his partner, former Kevorkian attorney Geoffrey Fieger, claim that they do not know where their fugitive client is. Fieger reportedly told the New Mexico prosecutor’s office that “we have no responsibility for him.” [AP, 9/4/99]
But New Mexico District Attorney Mike Runnels vowed, “We’ll track his carcass down.” While it may be possible that Reding fled to his native country of Belgium, Runnels said, one way or another Reding’s travel plans will include appearing in a New Mexico courtroom. The FBI is also involved and has set up a nationwide dragnet. [ABQ Tribune, 9/5/99; ABQ Journal, 9/4/99; Detroit Free Press, 9/23/99]
The Sandoval County grand jury indicted Reding on first-degree murder rather than on a lesser charge of assisted suicide, a felony punishable by 18 months in prison. If convicted of the murder charge, Reding could face life in prison. [ABQ Tribune, 9/4/99] But this is not the only legal worry Reding has to face. The dead woman’s family has filed a malpractice and wrongful death suit against him as well. [ABQ Journal, 9/28/99]
Kevorkian denied new trial,
ordered to pay room and board
According to his friends, the death doc, Jack Kevorkian, appears to be thriving in prison, despite recent setbacks. On the legal front, the judge who sentenced Kevorkian to 10 to 25 years in prison for the euthanasia death of Thomas Youk (see Update, 4-6/99) also denied his request for a new trial. Judge Jessica Cooper rejected his claim that his legal advisor, David Gorosh, gave him inadequate advice. Kevorkian’s new lawyer, Mayer Morganroth, said he and his client anticipated Cooper’s ruling and indicated that they would appeal. Reportedly, Kevorkian has promised to forego the death trade if freed. [Court TV, 7/16/99; Detroit Free Press, 7/16/99]
Kevorkian has suffered a significant financial setback as well. It seems that Michigan has a long-established law that gives the state the power to seize a prisoner’s assets to offset the cost of imprisonment. According to Morganroth, who brokered a settlement between Kevorkian and Attorney General Jennifer Granholm, the state will get 90% of Kevorkian’s $31,155.54 of personal savings and 90% of his $405 a month pension. Kevorkian gets to keep his artwork and a defense fund he has, worth $77,176.82. [Detroit Free Press, 8/24/99; Detroit News, 8/24/99]
In August, Kevorkian was transferred to a medium-security facility on Michigan’s Upper Peninsula. Those who have visited him have said he is looking very well. One friend, Ruth Holmes, said he has lost his gaunt look, and she reported that prison doctors have controlled his high blood pressure and fixed his teeth. [Boston Globe, 9/19/99]
State Legislative Digest
Arkansas: Earlier this year, the Arkansas Legislature passed a bill designed to strengthen that state’s existing assisted-suicide ban. It specifically addressed the role of the medical professional, stipulating, “It shall be unlawful for any physician or health care provider to commit the offense of physician assisted suicide by assisting in any medical procedure for the express purpose of assisting the patient to intentionally end his or her life.” [Act 394, § 1 (2)]
California: AB 1592, a bill that would make assisted suicide legal in California, is currently in legislative limbo. Earlier this year, the bill’s sponsor, Assemblywoman Dion Aroner (D-Berkeley), placed the California Death with Dignity Act in the inactive file when it became apparent that the bill would not survive a floor vote in the Assembly. The bill, a clone of the Oregon assisted-suicide law, passed both the Judiciary and Appropriations Committees, but not without some strong-arm political manipulating on the part of Aroner and friends. The full Assembly, however, would have buried the measure if it had come to a floor vote. Aroner still has the option of resurrecting the bill in January 2000, and would have until January 31 to present it for an Assembly floor vote. (See Update, 4-6/99.) Meanwhile, a group called Friends of Dying Patients has set up a website enabling bill supporters to communicate their endorsements to the Assembly members
Maryland: After an emotional debate in both houses, Maryland’s legislature passed a bill outlawing assisted suicide. The bill was signed by Governor Parris Glendening, making Maryland the 38th state to explicitly make assisted suicide a crime. “In this state, we don’t want Dr. Kevorkian,” explained the measure’s sponsor, Sen. Norman R. Stone, Jr. Under the new law, assisting or attempting to assist a suicide is a felony punishable by up to one year in prison and/or a fine up to $10,000. [Maryland SunSpot, 4/9/99; AP, 4/7/99]
North Dakota: A bill to strengthen the state’s existing anti-assisted suicide law easily passed both legislative houses and was signed by the governor on 4/1/99. The measure allows compensatory and punitive damages against any person who assists a suicide. If the person assisting the suicide is a “licensed, certified, or otherwise authorized” health care professional, the agency which issued the license and authorization “may suspend or revoke the license or certification.” [SB 2362]
Oregon: The Oregon Legislature passed a bill (S. 491) which amends the state’s permissive assisted-suicide law. The PAS law, known as the Oregon Death with Dignity Act, was intentionally written in vague and ambiguous language for the broadest possible application. It wasn’t until after the PAS measure became law that lawmakers began to realize that it was riddled with loopholes. One such loophole was the requirement that, in order to qualify for an induced death, the patient had to be an Oregon resident. As enacted, the PAS law did not define “resident” and did not require the patient to provide any proof of residency. S. 491 attempts to plug the hole by requiring that the patient prove Oregon residency by presenting some official document, such as a driver’s license, voter registration, property deed or lease, or an Oregon tax return. [S. 491, § 8] The bill also lets pharmacists follow their consciences and not fill lethal prescriptions, and it bans assisted suicides for those who are elderly or disabled and not technically terminally ill. But, for many observers, S. 491 is just a band-aid on a malignant sore. “I don’t think the bill provides sufficient protections to doctors and religious hospitals to really immunize them against participation in assisted suicide,” said Rep. Bill Witt (R-Cedar Mill). The PAS law, Witt added, is just too seriously flawed. [Oregonian, 5/25/99]
Wisconsin: AB 297, was the latest effort on the part of Rep. Frank Boyle (D-Superior) to make Wisconsin the next state to legalize patient killing. Boyle and co-sponsor Senate President Fred Risser (D-Madison) told reporters that their bill won’t pass this year or even next year, but that it is needed to stop any Kevorkian wanna-be from ending patients’ lives. [Milwaukee Journal Sentinel, 4/15/99] While AB 297 is often referred to as a physician-assisted suicide bill, the measure would actually allow active euthanasia. Unlike the Oregon law, AB 297 does not contain an explicit prohibition on the lethal injection. Instead, the bill reads, “Nothing in the chapter may be construed to condone, authorize, approve or permit any affirmative or deliberate act to end life other than through taking medication that is prescribed under a request for medication as provided in this chapter.” [AB 297, §156.23 (5); emphasis added] “Taking medication” could include administering the lethal drugs by mouth, tube, or injection. Boyle and Risser have repeatedly placed euthanasia bills before the legislature in the hope of advancing the measure with each legislative session.
Safeguarding health care decisions
by Rita L. Marker
Suppose the unthinkable were to happen. While crossing the street, you’re hit by a car. You’re severely injured and, during the next few days, you can’t communicate.
Who would make decisions about your medical treatment and care?
Who would you want to make those decisions on your behalf?
Like being prepared for a hurricane, a snowstorm, Y2K, or a tornado, it makes good sense to be prepared for a health care crisis.
Nowadays, unless you’ve named someone to make decisions for you, you run the risk that a health care provider or some committee could end up making critical decisions affecting your life and health.
A lot of people think advance planning about health care is only for those who are very sick or very old. But that’s not the case at all. It’s absolutely essential for anyone who is 18 years-old or older.
To be certain that a person you trust will be making decisions foryou if you can’t do so yourself, you must have a document that specifically names that person.
The way to do this is to have a document known as an “advance directive” — but not just any type of advance directive. There are many types of advance directives, and some, like the “Living Will” are downright dangerous.
The Living Will is a document in which you give power and authority to an “attending physician” to withhold or withdraw medical interventions under certain circumstances. Because the “attending physician” may be a total stranger who is completely unfamiliar with your values and wishes, that physician may interpret terms in the document in a way you didn’t intend. Your family and others who know your wishes have no legal standing to interpret the meaning of the document.
The most protective and the most flexible type of advance directive is the Durable Power of Attorney for Health Care. With this document, you designate someone else to make health care decisions on your behalf if you’re temporarily or permanently unable to make these decisions for yourself.
There are also some documents that attempt to combine elements of the Living Will with those of the Durable Power of Attorney for Health Care. (Written with the best of intentions, these combination documents often create as many problems as they solve.)
Estimates are that fewer than 5 percent of people 40 years-old and under — and only around 30 percent of those over 40 — have an advance directive. But that number is on the increase.
This is due, in part, to federal requirements, compelling hospitals and other health programs to inform patients about advance directives. These requirements apply to all adults — the woman in labor, the young man undergoing physical therapy for a soccer injury, as well as to a person who has a life-threatening condition.
Many facilities go beyond providing simple information. They actually give patients a Living Will to sign at the time of admission — at the very time they’re under stress and are filling out pages and pages of other required forms. Signing an advance directive under those conditions is very risky.
It’s so important that you have the type of advance directive that will protect you. And it’s vital that you only sign such a document after you’ve been able to review it at your leisure.
That’s why the IAETF formulated the Protective Medical Decisions Document (PMDD).
First drafted in the 1980s and updated this year, the PMDD is a Durable Power of Attorney for Health Care in which you name someone you trust (a family member or a close friend) to make heath care decisions for you if you’re unable to make such decisions for yourself. The person you name is called your “agent.”
The PMDD limits your agent’s authority in one specific way. Unlike the other advance directives, the PMDD clearly states that your agent does not have the authority to approve the direct and intentional ending of your life.
For example, your agent may not authorize that you be given a lethal injection or an intentional drug overdose. Further, your agent may not direct that you be denied food or fluids for the purpose of causing your death by starvation or dehydration.
This limitation not only protects you, but it also protects your agent from being subjected to pressure to authorize such actions or omissions.
The PMDD also has specific directions that are necessary in the current medical climate.
For example, some health providers have taken it upon themselves to put Do Not Resuscitate DNR) orders in place without the patient’s or agent’s authorization. Similarly, some health providers, ethics committees and health facilities are deciding what is “appropriate” or “beneficial” based on institutional cost-containment considerations, not on the basis of what is best for, or wanted by, the patient.
The PMDD makes it clear that DNR orders and decisions about what is “appropriate” or “beneficial” are to be made only by your agent (if you’re not able to do so).
There’s something else. A few states have requirements for a durable power of attorney for health care if it’s distributed in printed form. For example, a particular printed “notice” may be required by the state.
The IAETF distributes state-specific PMDD packets for California, Ohio, Indiana, Michigan, and Minnesota as well as a Multi-State PMDD packet for use in other states.
Each PMDD packet contains detailed questions and answers; a checklist to use when signing your PMDD; three PMDD forms (so that you can provide documents with your original signature to your agent and to any alternate agents); and a wallet card on which you can write the names and phone numbers of your agent and alternate agents so they can be reached in case of an accident or emergency.
The bottom line? A PMDD protects you.
When you have a PMDD, you or someone you’ve selected — not some unknown physician or nameless bureaucrat — will make your health care decisions.
Filling out a PMDD takes only a few minutes — far less time than preparing for a hurricane or for potential Y2K problems. And it can be just as important.
Having a PMDD can mean the difference between life and death.
Rita L. Marker, JD, is the executive director of the IAETF and the author of Deadly Compassion: The Death of Ann Humphry and the Truth About Euthanasia, William Morrow & Co., 1993.
Research in Review
Will to live fluctuates among terminally ill
A recent study published in The Lancet found that, among dying patients, the will to live fluctuates substantially, and the reason for the variations in attitudes change as death approaches. Researchers from the University of Manitoba in Canada measured the desire to keep on living among 168 terminally-ill cancer patients in a palliative care unit. The patients, ages 31 to 89, were asked twice daily to rate their wish to live and record it on a scale. They were also asked to indicate other factors such as depression, a sense of well-being, activity, anxiety, pain, nausea, shortness of breath, appetite, and drowsiness.
“The findings of this study,” researchers wrote, “suggest that will to live is highly unstable among terminally ill cancer patients.” According to lead researcher Dr. Harvey Chockinov, the will to live could fluctuate by more than 30 points out of 100 within a 12-hour period. For all of the data time intervals, the greatest will to live score fluctuation was 100 points “indicating extreme changes within some individuals over even the shortest time period examined.” The four predominant “predictor variables” contributing to the patient’s fluctuating desire to live were “depression, anxiety, shortness of breath, and sense of well-being, with the prominence of these variables changing over time.”
Researchers concluded that the highly variable will to live in terminally-ill patients is extremely relevant to the debate over the legalization of euthanasia and physician-assisted suicide (PAS). “For jurisdictions considering legislation enabling physician-assisted suicide or euthanasia,” they wrote, “the likely transience of a request to die is one of the most important considerations.” “Euthanasia and physician-assisted suicide raise critical issues about the psychological underpinnings of death-hastening requests.” [Chockinov et al., “Will to live in the terminally ill,” The Lancet, 9/4/99, 816-819]
According to Oregon psychiatrist Dr. Gregory Hamilton, president of Physicians for Compassionate Care, “This study demonstrates numerically that feelings of suicide ideation or suicidal despair can be influenced through treatment and should not be taken at face value as some kind of abstract philosophical right.” [NY Times, 9/4/99]
Another study published this year also found that attitudes regarding PAS and euthanasia among oncology patients are significantly unstable. “This lack of consistency mandates careful interpretation of referendums and requests for physicial-assisted suicide,” the authors wrote. The study also found that “physicians are becoming increasingly opposed to PAS and euthanasia.” [Wolfe et al., “Stability of Attitudes Regarding Physician-Assisted Suicide and Euthanasia Among Oncology Patients, Physicians, and the General Public,” Journal of Clinical Oncology, April 1999]
Two surveys show problems with HMOs
Two recent surveys found that patients and physicians have become frustrated by battles over getting needed care from HMOs (health maintenance organizations) and other managed care plans.
The Kaiser Family Foundation conducted a nationwide study of almost 1,100 doctors, the most extensive data to date on the experience with managed care. The data revealed that doctors across the country overwhelmingly see managed care plans as lowering the quality of the care those doctors can provide for their patients. Nearly nine out of 10 physicians (87%) said that they had patients over the last two years who had been denied coverage for needed treatment. Of those doctors, 79% said that prescription drugs they felt patients needed had been denied, 69% said diagnostic tests or procedures had not been approved, 60% indicated that hospital stays for their patients had been denied, 52% had referrals to specialists vetoed, and 38% had their patient referrals for mental health and substance abuse problem denied coverage. The Kaiser survey also polled 768 nurses and found that about half (48%) said that HMO denials resulted in a decline in health for their patients. Somewhere between a third and two-thirds of the doctors — depending on the type of denial — said that the result of managed care plans vetoing recommended care was “adverse health consequences for their patients.” [Kaiser Family Foundation, 1999 Survey of Physicians & Nurses, 7/28/99]
The second survey, by the National Committee on Quality Assurance, studied 410 health plans covering almost 70 million Americans. The survey found that 26.5% of the patients had experienced problems getting needed health care. The survey also found huge disparities between managed care plans across the country. [LA Times, 7/29/99; AP, 7/28/99; NY Times, 7/29/99]
World Focus
The Netherlands
Dutch government moves to decriminalize euthanasia
The Dutch government has proposed a bill to decriminalize euthanasia and assisted suicide. The proposal, which has been submitted to the Dutch Parliament’s Lower House, would formalize the way euthanasia has been practiced, giving legal immunity to doctors who end patients’ lives if they follow prescribed guidelines. “It was agreed,” explained Justice Ministry spokesman Wijnand Stevens, “that to decriminalize euthanasia is the logical step of the policy we have had so far.” [AP, 7/12/99]
The bill has the enthusiastic support of the Royal Dutch Medical Association (KNMG), which welcomes the removal of any threat that doctors would be prosecuted for killing patients. In the past, such prosecutions have been rare and calculated to set court precedents to include more types of patients for whom killing would be sanctioned. Both the government and the KNMG emphasize that the strict euthanasia guidelines which doctors must follow are rigorous deterrents to abuse. Among those guidelines is the requirement that death-hastening doctors report all euthanasia cases to authorities, a procedure intended to make sure that doctors are complying with the other guidelines.
But according to a 1996 government-sponsored survey of 405 Dutch doctors, almost two-thirds (59%) of euthanasia cases were never reported to authorities. Even among the cases that were reported, violations of the so-called protective guidelines by doctors were common. (See Update, 1-3/99.)
Those who support decriminalizing euthanasia claim that the new bill, if passed by both houses of the Dutch Parliament, will solve the non-reporting problem. Doctors, they say, will no longer have to fear prosecution. The new law “will offer us the possibility to augment the quality of what we’re doing and see what’s happening among the people who do not report,” said lawyer Eugene Surtorius, a euthanasia advocate who has represented the few doctors who have been prosecuted and then acquitted of inappropriate killings. [Washington Post, 8/15/99]
But critics of the bill argue that Dutch doctors are not prosecuted now, and the government’s own data indicates clearly that they routinely and flagrantly ignore the mandated guidelines. According to researchers Dr. Henk Jockemsen, of Holland’s Lindeboom Institute for Medical Ethics, and Dr. John Keown, from Cambridge University, “The reality is that a clear majority of cases of euthanasia, both with and without [the patient’s] request, go unreported and unchecked.” “Dutch claims,” they wrote, “of effective regulation ring hollow.” [Keown & Jochemsen, “Voluntary Euthanasia under Control? Further Empirical Evidence from the Netherlands,” Journal of Medical Ethics, 2/99]
As originally introduced, the euthanasia bill drew strong criticism from around the world for a provision which would have given children 12 to 16 years of age the right to be euthanized, even if their parents objected. According to a statement from the Dutch Justice Ministry, “in the case of a refusal by one of the parents, the request of a minor may be accepted if the doctor is convinced that this will mean avoiding serious suffering.” [Washington Post, 8/15/99] Dr. Ben Crul, chief editor of the KNMG’s medical journal who has performed euthanasia at least 20 times, said that children with terminal illnesses are “a lot more grown up than many adults” and they deserve the right to have their suffering ended. [Chicago Tribune, 8/26/99]
Because of intense criticism both within and without the country, the Dutch government has removed the section dealing with the killing of minor children without parental consent from the bill. As a result, the bill is expected to sail through both houses of parliament sometime next year.
Assisted suicide for patient with dementia given okay
A Dutch physician, who gave a 71-year-old male patient with vascular dementia a high dose solution of a barbiturate to drink, will not be prosecuted. The case, which was written up in the Dutch medical journal Nederlands Tijdschrift Voor Geneeskunde (1999, 143:17), was assessed by Twents Psychiatric Hospital’s chief psychiatrist, a committee of independent professionals, and an outside consulting psychiatrist. They deemed the patient, who had cerebral atrophy and multiple brain infarction, to be “ill enough not to want to go on anymore, but… not so demented that he could not decide.” A magnetic resonance imaging showed that the patient’s condition was deteriorating, but he did not ingest the fatal dose of barbiturates until 4 months after the assessment was made that his death would be “medically and legally sound.” A public prosecutor gave the legal go-ahead after consulting with the national forum of procurators general.
This case has caused very real concerns that euthanasia or assisted suicide will now become the treatment of choice for elderly patients with dementia. An alarmed Dutch Alzheimer’s Foundation put out the warning, “Dementia itself could never be a reason for assisted suicide because the patient is incapable of making an informed request.” An informed and durable request for death by a patient is required under the supposedly protective euthanasia guidelines. [British Medical Journal, 7/10/99]
South Africa
South African Law Commission pushes bill with euthanasia “options”
South Africa’s Law Commission has drafted a bill which would allow doctors and others to intentionally administer lethal drugs to patients under certain circumstances. If passed, the bill would legalize both active euthanasia and assisted-suicide. It also authorizes doctors to stop medical treatment for patients on artificial life support and specifies that doctors may honor patients’ living wills and other advance directives.
According to the Law Commission, it drafted the bill “to regulate end-of-life decisions and to provide for matters incidental thereto.” The commission began to study these issues in 1991 at the request of The Living Will Society, a group advocating living wills as a means of limiting unwanted treatment. But in 1997, the Law Commission issued a report soliciting public comments on the prospect of legalizing euthanasia. At that time, Trudie Stohr, a spokesperson for The Living Will Society, told reporters that the commission was going too far and that she strongly opposed euthanasia because legalizing it would open the door to many abuses. “Anyone who wanted to get rid of an irritating old relative may use active euthanasia,” she explained.
Others also voiced opposition. Trefor Jenkins, a professor of Human Genetics at Wits University, relayed his assessment of South Africa’s “atrocious” health care system, with only society’s elite getting care while most others rarely saw doctors. “The pattern of practice here,” he said, “is that some people when they are 65 get to see a doctor who they have never seen before. There is no tradition of family doctors, so a trusting relationship required for euthanasia is never set up.” “People have to be seen by different doctors every time and, in some cases, by only nurses, and in others, by Cuban doctors who cannot even speak English,” Jenkins explained. [Independent Online, 4/4/97]
The Law Commission has acknowledged that it is “aware of competing interests and the diversity of social, moral and ethical values involved in the issue of active voluntary euthanasia.” As a result, the commission claims that it has “not formulated final recommendations,” but instead has submitted three “options” for “public debate and discussion.” [South African Law Commission Bulletin, 7/99]
But all three “options” are contained in the bill itself — under the heading “Active voluntary euthanasia” — giving the impression that one could choose whichever option is preferred. Only one of the options would keep euthanasia and assisted suicide illegal. The other two options would allow both euthanasia and assisted suicide, and would offer a choice between giving “medical practitioners” (Option 2) or “a panel or committee” (Option 3) the power to regulate and implement the deadly practices and the authority to decide who should or shouldn’t die. [End of Life Decisions Act 1999, Option 1; Option 2, §§ 5.(1)-(8); Option 3, §§ 5.(1)-(5)]
The commission’s proposed bill has been forwarded to South African Health Minister Manto Tshabalalla-Msimang, who recently told parliament that euthanasia could be seen as a reasonable and justifiable limitation to the constitutionally protected right to life. “When we speak of euthanasia,” she said, “we are speaking of the equal constitutional rights to life and to human dignity.” The question, she concluded, is whether the people should be given the choice of ending their lives.[Independent Online, 9/9/99]
The South African Medical Association (SAMA) has said that the euthanasia section of the proposed bill should be put on hold. Dr. Zoline Mlisana, SAMA’s chairman, explained that there is a significant difference between active euthanasia and stopping unwanted treatment for the terminally ill. Until the public understands that distinction, he said, the community cannot be expected to make an informed decision on whether to legalize euthanasia and assisted suicide. “This is equally applicable to doctors,” he added. [Daily Dispatch (South Africa), 3/6/99]
News Notes
Peter Singer a former Monash University professor and president of the International Association of Bioethics, has officially taken up his new post at Princeton University’s Center for Human Values as the Ira W. DeCamp Professor of Bioethics. But the move has not been without protest.
On 9/21/99, the first day of Singer’s class, members of the disability rights group Not Dead Yet (NDY) were on hand to voice their objection to Singer’s hiring at Princeton. “We’re here at Princeton because Princeton has seen fit to recruit a professor who advocates openly that laws should be changed to allow some people with disabilities to be killed merely because it is convenient to their families or to others,” said Diane Coleman a lawyer and founder of NDY. “[Singer’s] urging that we make policy decisions based on his ethical theories,” commented NDY research analyst Stephen Drake “That means that this isn’t just an academic issue — it’s about real people in the real world. It’s about justice.” [NDY, Press Release, 9/17/99]
Steve Forbes, presidential candidate, billionaire, Princeton alumnus, and Board of Trustees member, wrote a letter of protest to Princeton president Harold T. Shapiro. Subsequently, Forbes, reversed his prior stance and announced that he would withhold financial support to the school until Singer’s appointment is rescinded. So far, university officials have remained solidly behind Singer. [The Washington Times, 9/15/99, 7/23/99]
Derek Humphry, co-founder of the Hemlock Society and current head of the pro-euthanasia and assisted suicide organization ERGO!, has announced that his how-to-commit-suicide manual, Final Exit, is now available on video tape. The 33-minute video tape, Humphry wrote, “summarizes graphically how to arrange to take your own life if you feel that necessary.” Included are instructions on the use of a plastic bag to cause death. [Humphry, Right to die server list, 10/9/99]
U.S. Surgeon General David Satcher has declared suicide a serious public health problem and a national threat. It is the eighth leading cause of death, claiming more than 30,000 lives annually, almost two times the yearly homicide rate. The number of suicides for those in the 10 to 19 age group nearly tripled between 1952 and 1996. The rate for the elderly has also risen. While those over 65 make up 13% of the U.S. population, they account for 20% of all suicide deaths. Satcher offered 15 recommendations for making people more aware about suicide, prompting more research, and encouraging intervention for those at risk. Next year, Satcher hopes to issue a “national strategy” for suicide prevention. [AP, 7/28/99; Newsday, 7/29/99]
Dr. Eugene Turner, the pediatrician in rural Port Angeles, Washington, who had been charged with second-degree murder for the 1/12/98 death of 3-day-old Conor McInnerney, has essentially gotten off scot-free. Turner had admitted that he placed his hand over the baby’s nose and mouth blocking the infant’s airways. Earlier the baby had stopped breathing, but was later seen gasping for breath in the hospital. According to a nurse present, Turner said “I can’t stand it, I can’t have this go on anymore.” He then declared the baby brain dead and suffocated him.
Last February, prosecutors dropped all charges, saying that there was not enough evidence to prove the case, despite the nurse’s eyewitness testimony. [Reuters, 2/2/99; see also Update 1-3/98 and Update 11-12/98]
More recently, the Washington State Medical Quality Assurance Commission found that Turner was incompetent and unprofessional in his handling of the infant, but felt that the baby’s suffocation was an isolated incident in Turner’s 39-year career. Consequently, Turner’s medical license was not revoked. Commission director Bonnie King explained, “He wanted to ease the pain and agony for everyone and chose to do what he did.” Turner was allowed to return to full practice, and told reporters, “We consider this an almost total victory.” The baby’s parents are considering suing the doctor. [AP, 7/22/99]
Dr. Lance Wilson, an Illinois cardiologist who admitted injecting a terminally-ill patient with a large dose of potassium chloride, will not be prosecuted. The patient, 69-year-old Henry Taylor, died on 9/30/98, less than a minute after being injected. Wilson said he was just trying to make Taylor comfortable. According to the Cook County medical examiner, Taylor died from potassium chloride intoxication. The death was ruled a homicide.
But Cook County Assistant State Attorney David Sabatini, said that there was not enough evidence to prove beyond a reasonable doubt that Wilson’s injection caused Taylor’s death. Two doctors, who witnessed the injection being given, told a grand jury that Taylor was already dead when Wilson administered the potassium chloride. According to Sabatini, prosecutors could not prove that Wilson’s intent was to kill the patient.
This decision was disturbing to Not Dead Yet’s research analyst Stephen Drake. “The prosecution here is basically promoting an attitude of decriminalization,” Drake said. “When you fail to prosecute, this sends a message to other people that they can be bolder about how they do this,” he explained. “You have a real potential here for copycat crimes.” [The Daily Southtown, 9/30/99; Chicago Tribune, 9/29/99]
