Update 024: Volume 16, Number 1 (2002)

Courts to determine if assisted suicide is “legitimate” under federal law

On November 6, 2001, U.S. Attorney General John Ashcroft issued a ruling that would profoundly affect the practice of assisted suicide in Oregon. The ruling, which currently faces legal challenge, came in the form of a memorandum to Asa Hutchinson, administrator of the Drug Enforcement Administration (DEA), entitled “Dispensing of Controlled Substances to Assist Suicide.”

Basing his ruling on legal precedent and an analysis by the Office of Legal Counsel, Ashcroft wrote, “I hereby determine that assisting suicide is not a ‘legitimate medical purpose’” under the federal Controlled Substances Act (CSA) and “that prescribing, dispensing, or administering federally controlled substances to assisted suicide violates the CSA.” Physicians who engage in this activity risk losing their federally issued prescribing licenses. [Ashcroft, “Dispensing of Controlled Substances to Assist Suicide,” 11/6/01, p. 1. Hereafter cited as Memo.]

Essentially, the Ashcroft ruling reaffirms a 1997 determination by then DEA Administrator Thomas Constantine, which was issued just prior to the enactment of Oregon’s assisted-suicide law. The determination was in response to an inquiry by Rep. Henry Hyde and Sen. Orrin Hatch, seeking clarification about the apparent conflict between the Oregon law and the CSA’s federal drug regulations. Constantine made it clear that narcotics and other dangerous drugs controlled by federal law could not be dispensed to assist suicide anywhere in the United States. [Constantine, Letter to Rep. Hyde, 11/5/97. See also, Update, 11-12/97:4]

Since barbiturates, the drugs of choice for inducing death, are controlled substances under federal law, assisted-suicide supporters objected to Constantine’s determination and called upon Attorney General Janet Reno to review the matter. Reno issued her ruling on 6/5/98, and, much to the delight of the proponents of Oregon’s law, found that doctors in that state who write lethal drug prescriptions do not violate federal law.

Furthermore, according to Reno, the CSA does not authorize the U.S. Department of Justice, through the U.S. Drug Enforcement Administration (DEA), to take any “adverse action” against physicians who intentionally prescribe fatal doses of controlled drugs under the provisions of the Oregon law. “Adverse action under the CSA,” Reno opined, “may well be warranted in other circumstances: for example, where a physician assists in a suicide in a state that has not authorized the practice under any conditions, or where a physician fails to comply with the state procedures in doing so. However, the federal government’s pursuit of adverse actions against Oregon physicians who fully comply with that state’s Death with Dignity Act would be beyond the purpose of the CSA.” [Reno, Letter to Rep. Hyde, 6/5/98, pp.1,3. See also, Update, 4-6/98:1]

According to Reno, passage of Oregon’s law had made the use of controlled substances for assisted suicide a “legitimate medical purpose” in that state. In effect, then, each state would hold the trump card when it comes to interpreting and applying federal laws regulating controlled substances. This rationale would permit voters to bestow legitimacy on virtually any use of controlled substances as long as it was couched in terms of having a medical purpose.

States cannot nullify federal law

But Ashcroft specifically rejected Reno’s rationale. He wrote that his conclusion, that “controlled substances may not be dispensed to assist suicide,” “applies regardless of whether state law authorizes or permits such conduct….” Ashcroft based this conclusion on the fact that, last term, the U.S. Supreme Court reaffirmed that the application of the controlled substances law is “uniform throughout the U.S. and may not be nullified by the legislative decisions of individual States.” [Memo, p. 1]

The precedent setting case he cited was United States v. Oakland Cannabis Buyers’ Coop. In 1996, California voters passed the “Compassionate Use Act of 1996” to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” [Cal. Health & Safety Code Ann. §11362.5] In its wake, several groups organized buyers clubs to provide marijuana to patients, a practice that was permitted under the new California law.

However, the federal government contended that, while activities of the buyers clubs did not violate state law, they violated the federal controlled substances law. On May 14, 2001, the U.S. Supreme Court agreed. In a unanimous decision, the Court reaffirmed that federal law regulating controlled substances applies to all the states, and cannot be erased by state action.

What Ashcroft’s ruling means: The facts

Ashcroft’s ruling does not interfere with doctors’ rights to practice medicine. States license doctors to practice medicine. The federal government licenses doctors to prescribe controlled substances. Ashcroft’s ruling merely tells Oregon that doctors in that state are no different than doctors in all other states when it comes to prescribing federally controlled substances.

Furthermore, in a letter to Oregon Medical Association President Hugh C. Stelson, Ashcroft reassured Oregon physicians that they should not be deterred from prescribing controlled substances for pain relief:

I want Oregon’s doctors to know that under this decision, they will have no reason to fear that prescriptions of controlled substances to control pain will lead to increased scrutiny by the DEA, even when high doses of painkilling drugs are necessary and even when dosages needed to control pain may increase the risk of death.

Ashcroft’s determination does not overturn Oregon’s assisted-suicide law. It simply means that federally controlled substances cannot be used for assisted suicide. Oregon’s assisted suicide law is still on the books. Other drugs and medications that are not controlled substances, could be used for assisted suicide.

It does not interfere with states’ rights. Under the Controlled Substances Act (which has been in effect since 1970), it is the federal government, not state government, that has the authority to determine what is and what is not a proper medical use of federally controlled substances.

Right-to-diers react to Ashcroft’s ruling

Yet, despite the facts and DEA assurances, supporters of Oregon’s assisted-suicide law immediately went into spin mode to express their outrage—often using vulnerable patients to draw attention to their cause. Assisted-suicide advocacy group, Compassion in Dying Federation, held press conferences to encourage local and national articles featuring Richard Holmes, Karl Stansell, and Jim Romney—all presented as being terminally ill and deeply disturbed by Ashcroft’s move to take away their “right to die the way [they] want to.” [compassionindying.org; Washington Post, 1/1/02]

Oregon Governor John Kitzhaber, a former emergency room doctor and assisted-suicide proponent, issued this comment to counter Ashcroft’s ruling: “Oregonians are satisfied that we can responsibly implement physician aid in dying and this [ruling] is an unprecedented federal intrusion on Oregon’s ability to regulate the practice of medicine.” [OR Dept. of Justice, Press Release, 11/6/01]

The Hemlock Society, after launching a national campaign to overturn Ashcroft’s ruling, took out an ad in the NY Times claiming, “If his action stands, no hopelessly ill American in any state will be able to get physician help for a dignified death.” [NY Times, 11/23/01, p. A33]

Oregon Death with Dignity even created a web site entitled “Back Off John!” (www.backoffjohn.com). The group states, “We’ve had enough of him saying he’s for the people’s rights, but undermining us every step of the way. Ashcroft needs to leave American voters and our rights alone. Tell John Ashcroft it’s time to BACK OFF!” [Emphasis in original.]

Oregon goes to court

Oregon Attorney General Hardy Myers had anticipated Ashcroft’s ruling. On the very day Ashcroft released his memorandum, Myers announced his intention “to take legal action in federal district court to protect Oregon’s physician assisted suicide law.” [OR Dept. of Justice, Press Release, 11/6/01]

On November 8, 2001, U.S. District Court Judge Robert Jones issued a temporary restraining order requested by the State of Oregon, blocking implementation of Ashcroft’s directive. He later extended that order until mid-April when he anticipates issuing his ruling. Whatever the outcome, this case will likely be appealed all the way to the U.S. Supreme Court.

Noteworthy comment

Of all the national commentaries on Ashcroft’s ruling, one that appeared in the St. Petersburg Times is particularly noteworthy. The author, Howard Troxler, wrote:

Let’s try a little intellectual honesty here.

There is a plain fact at work. Federal law is supreme over state law, unless there is a specific loophole that says otherwise.

No state can just pass a law saying, “Federal law does not count in this state.” Some of the states tried that sort of thing before, you know.

There was a little thing called the Civil War. A century later, states of the South tried to keep their schools segregated. They tried to keep their black citizens from voting, no matter what the feds said.

States have wrongly claimed the power to “nullify” federal laws. They have tried to pass state acts of “interposition.”

You know how all that turned out….

[Troxler, “Don’t blame government for upholding federal law,” St. Petersburg Times, 12/3/01]

Power over Pain
New book on pain control

An outstanding new book on pain and its treatment is now available from the International Task Force, on-line, and in bookstores. Power over Pain: How to Get the Pain Control You Need (2002, 236 pages), by Eric M. Chevlen, M.D., and Wesley J. Smith, is an understandable, down-to-earth book on a very complex and important subject.

“This is a timely book,” explained Kit Costello, R.N., former president of the California Nurses Association. “Patients will find hope in the pages of this book.”

“Dr. Eric Chevlen and attorney Wesley Smith have teamed up to write this fast moving and fascinating book,” said N. Gregory Hamilton, M.D., president of Physicians for Compassionate Care. “From cancer pain to headaches, from fibromyalgia to sickle cell crisis, from shingles to multiple sclerosis, Power over Pain covers it,” he added. “This is a book about the wonderful help available and how to go about getting it.”

Power over Pain’s authors bring a wealth of expertise and compassion to this book. Dr. Chevlen is one of only a few U.S. physicians to be board certified by five specialty boards: internal medicine, medical oncology, hematology, pain medicine, and hospice and palliative medicine. He is an assistant professor of internal medicine at Northeastern Ohio Universities, College of Medicine. Dr. Chevlen is the director of Palliative Care at St. Elizabeth Hospital Health Center and medical director for Hospice of the Valley, both in Youngstown, Ohio, where he is also in private practice.

Wesley J. Smith is an attorney, author, consumer/patient advocate, hospice volunteer, and an international lecturer and public speaker on such topics as assisted suicide, bioethics, legal ethics, and public affairs. He is the author of numerous books, including, Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder (1997) and Culture of Death: The Assault on Medical Ethics in America (2001).

“This important collaboration between a renowned pain management physician and a longtime consumer advocate provides critical information for pain patients and their families,” said City of Hope Physician Director H. Rex Greene, M.D.

“In today’s world, information is power,” explained Ira Byock, M.D., past president of the American Academy of Hospice and Palliative Medicine. “Power over Pain is aptly named, for Chevlen and Smith provide readers with the information they need to take control over their pain—and regain control of their lives.”

Power over Pain is published by the International Task Force as part of it’s continuing commitment to helping vulnerable patients throughout the world. Those interested in obtaining this remarkable book can get more information at the Power over Pain web site. The single copy price is $12.95, and bulk rates are available. The book can also be ordered through amazon.com, barnesandnoble.com, and bookstores everywhere.

ABC News Poll: Most Americans don’t favor physician-assisted suicide

A recent ABC News/Beliefnet poll found that, overall, most Americans don’t want physicians to help people kill themselves.

The telephone survey was conducted on March 13-17, 2002, among a random national sample of 1,021 adults. The poll has a three-point margin of error.

When half of the poll’s respondents were asked simply “if it should be legal for doctors to help terminally ill patients commit suicide with fatal drugs,” 48% said no, while 40% said yes. When the other half of respondents were asked the same question after the provisions of the Oregon law were described, 48% still said no, and 46% said yes.

According to ABC News analyst Gary Langer, “Public opinion looks to be based mainly on fundamental views of life and death—not the specifics of this law.” Opposition remained stable, he said, while support “ticked up only slightly in the latter version.”

The poll results showed that support for assisted suicide is lowest among those 65 and older. Support among women was also low, with only 34% in favor of the generalized question and 44% in favor of the Oregon-specific proposition.

The survey found that assisted-suicide is favored most often in the West, with 53% support for the general question and 59% in favor of the Oregon model.

“Non-Christians and people who profess no religion overwhelmingly support assisted suicide,” Langer explained. “But it’s opposed by most Christians, who account for eight in 10 Americans, and especially by evangelical Christians, who oppose assisted suicide by a 2-1 margin.” [ABC News.com, “Opposing Assisted Suicide: More Americans Don’t Want Doctors to Help People Kill Themselves,” 3/19/02]

Hawaii: Assisted-suicide bill stalled in Senate

Despite great pressure from the governor’s office and newspaper editorials, the latest attempt to legalize assisted suicide in Hawaii has failed. “The Death with Dignity Act” (HB 2487), patterned after Oregon’s law, and a companion constitutional amendment were introduced by Gov. Ben Cayetano, who proposed a similar bill in 1999 that also failed.

After passing in the House by a vote of 30-20 on 3/7/02, HB 2487 went before the Senate’s Health & Human Services Committee, chaired by Sen. David Matsuura. Calling the measure “emotional” and “hard to deal with,” Matsuura told the committee, “Step back from the emotion, and really look at this bill and look at what we’re really trying to do here.” The bill didn’t pass.

“The fat lady hasn’t sung,” warned Juliet Begley, a researcher in the governor’s office who testified in favor of the measure. “I’m happy we got this far, but I don’t necessarily think it’s over.” [Honolulu Star-Bulletin, 3/24/02, 3/21/02, 2/25/02; Honolulu Advertiser, 3/23/02, 2/26/02] (More about the Hawaii proposal.)

Oregon issues fourth flawed report on assisted suicide

The Oregon Dept. of Human Services (ODHS) has released its fourth annual report on the practice of physician-assisted suicide in 2001, and, once again, flaws in the reporting system as well as incomplete data raise serious doubts about Oregon’s positive assessment of this induced-death practice.

As mandated by the assisted-suicide law, the ODHS must “annually review a sample of the records” and “the information collected shall not be a public record and may not be made available for inspection by the public.” The only information the public is to receive is an “annual statistical report” with limited data. [Oregon Death with Dignity Act, 127.865 §3.11. Emphasis added.]

The ODHS obtains all its information on assisted-suicide deaths after the patient is dead, from physician reports, physician interviews, and periodic reviews of death certificates. The actual patients, their families and caregivers are not interviewed. The law does not penalize doctors who fail to report assisted suicide deaths, and ODHS has no authority to enforce the reporting requirement.

Consequently, there is no way to know the exact number of deaths and the actual circumstances prompting an assisted-suicide request. ODHS has acknowledged that it is “difficult, if not impossible, to detect accurately and comment on underreporting.” “We cannot determine whether physician-assisted suicide is being practiced outside the framework of the [law].” [Chin et al., “Legalized Physician-Assisted Suicide in Oregon—The First Year’s Experience,” NEJM, 2/18/99]

According to this latest report, 44 prescriptions of lethal drugs were written by 33 doctors in 2001. Of those prescription recipients, 19 died from the lethal drugs, 14 died from their disease, and 11 were still alive by year’s end. Two additional assisted deaths occurred in 2001. These patients had obtained their lethal drugs in 2000 but did not take them until 2001. The median age was 68, with a range of 51-87. The overwhelming majority were white, non-Hispanic (95%), and the most common illness was cancer (86%). [ODHS, Fourth Annual Report on Oregon’s Death with Dignity Act, 2/6/02, p. 3]

The lethal drugs used in 2001 differed slightly from previous years. Between 1998 and 2000, the barbiturate secobarbital was prescribed to 67 of the 70 (96%) assisted-suicide patients. But, in May 2001, the pharmaceutical company Eli Lilly stopped production of that drug. As a result, only 16 (76%) of the 2001 lethal prescriptions were for secobarbital, while 5 (24%) were written for the barbiturate pentobarbital. It took anywhere between 5 minutes to 37 hours for patients to die after ingesting the lethal drugs. One prescribing doctor was reported to the state Board of Medical Examiners for submitting an incomplete consent document. [Fourth Report, p. 4]

The actual statistics for physician non-compliance or any other abuse of the assisted-suicide law will never be known. (More about assisted suicide in Oregon.)

Have death—will travel: Minister brings assisted suicide to Ireland

When Irish authorities found the lifeless body of 49-year-old Rosemary Elizabeth Toole Gilhooley on 1/26/02, they also discovered the unmistakable signs that her death had been an assisted suicide—a first for Ireland. Her head was covered with a plastic bag secured tightly around her neck and a tube from a helium canister was inserted so that she could breathe in concentrated levels of the gas.

Rosemary Toole, as she preferred to be called, reportedly had two un- successful marriages, no children, and was very lonely. She was not physically ill, but had a long history of severe depression, which ultimately caused her to leave her job at the local bank.

Friends told police that she had attempted suicide before and spoke of doing it again. They suspected that two mysterious men, who slipped out of the Dublin airport on the same day Toole died, had been involved in her death. After examining her phone records and computer e-mail messages, police were able to identify the men as Unitarian minister George Exoo and his live-in companion Thomas McGurrin, both Americans. [Irish Independent, 1/31/02; Irish Times, 2/2/02]

Toole, according to Exoo, had been referred to him by an anonymous woman. He and McGurrin run a little known death assistance organization called “Compassionate Chaplaincy” out of their home in Beckley, West Virginia. Last May, while attending a right-to-die conference on death-producing devices, Exoo claimed that he had helped more than 200 people die from as far away as Paris, Singapore, and Zurich. [Seattle Times, 5/20/01] However, after Irish authorties began investigating him, he told reporters that he had helped only about 100 to die. [Charleston Gazette, 2/4/02]

According to Compassionate Chaplaincy’s promotional material, McGurrin assists Exoo “in the delivery of client service.” For Toole, that included supplying some of the equipment needed to cause her death, being with her when she died, and providing “spiritual support” by reading the 23rd Psalm. “I gave her instructions, but that’s what we do,” Exoo explained. He was quick to point out, however, that Toole obtained the pills, the bag, and the helium on her own. [Charleston Gazette, 2/2/02; Register-Herald, 2/6/02; London Times, 2/28/02]

But, by Exoo’s own account of Toole’s last moments, he actively urged her to hurry up the suicide process. “The last thing she did before she pulled down the bag was take one last toke on the cigarette. I said, ‘OK, Rosemary, time to put the cigarette down, if you don’t mind.’” [Guardian Unlimited Observer, 2/3/02]

Reportedly, assisted-suicide guru Derek Humphry had sold Toole a copy of his suicide manual, Final Exit, which recommends the combination bag-pill-helium method. “I never encouraged her to commit suicide,” he said. “[I]t’s a hell of a shock that these people would do it.” [Irish Examiner, 2/1/02]

In an interview on 2/5/02, Exoo, who has had no medical training, admitted that he never keeps records on the deaths he assists. When asked how he determines whether a person is truly terminally or hopelessly ill, he replied, “I have to say it’s intuitive. That doesn’t satisfy a lot of people, but I can tell if a person is a crazy and not logical.” [RTE News, 2/5/02 ]

While the reported dollar amounts vary significantly, all accounts agree that Toole paid Exoo and McGurrin for their travel expenses and hotel accomodations, and made a substantial donation to their organization.

As yet, Irish police have not indicated whether charges will be filed against Exoo and McGurrin. Under Irish law, any person who aids, abets, counsels or procures another’s suicide can face up to 14 years in prison.

Dutch euthanasia law takes effect

After thirty years of side-stepping penal codes that explicitly prohibited both euthanasia and assisted suicide, the Dutch government finally has a new law in place which legalizes both death-inducing practices. The new law, which was passed by the Dutch Parliament last year, officially took effect on 4/1/02.

The law requires that the physician “has terminated a life or assisted suicide with due care.” [Termination of Life on Request and Assisted Suicide Act, Chapter II, Article 2, 1,f.] This requirement—that the procedure be carried out in a medically appropriate fashion—transforms the crimes of euthanasia and assisted suicide into medical treatments.

The law specifically allows euthanasia for incompetent patients. Persons 16 years-old and older can make an advance “written statement containing a request for termination of life” which the physician may carry out. [Chapter II, Article 2, 2.] The written statement need not be made in conjunction with any particular medical condition. It could be a written statement made years before, based upon views that may have changed. The physician could administer euthanasia based on the prior written statement.

Teenagers 16 to 18 years-old may request and receive euthanasia or assisted suicide. A parent or guardian must “have been involved in decision process,” but need not agree or approve. [Chapter II, Article 2, 3] Children 12 to 16 years-old may also request and receive euthanasia or assisted suicide, but a parent or guardian must “agree with the termination of life or the assisted suicide.” [Chapter II, Article 2, 4]

A person may qualify for euthanasia or assisted suicide if the doctor “holds the conviction that the patient’s suffering is lasting and unbearable.” [Chapter II, Article 2, 1b] There is no requirement that the suffering be physical or that the patient be terminally ill.

All oversight of euthanasia and assisted suicide will be done by a “Regional Review Committee for Termination of Life on Request and Assisted Suicide” after the death of the patient. [Chapter III]

Each regional committee is made up of at least 1 legal specialist, 1 physician and 1 expert on ethical or philosophical issues. [Chapter III, Article 3, 2] An expert in “philosophical issues” is one who has expertise regarding the “discussion on the prerequisites for a meaningful life.” [Chapter III, Article 3, 2, fn 1]

Under prior euthanasia practice in the Netherlands, the “burden of proof” was on the physician to justify the termination of life. The new law shifts the burden of proof to the prosecutor who is required to show that the termination of life did not meet the requirements of due care. The prosecutor will not receive information about any euthanasia death unless it is forwarded by a Regional Committee. [Chapter III, Articles 9 and 10]

Last July, the United Nations Human Rights Committee strongly criticized the euthanasia law, as being open to abuse. The committee was particularly concerned that the ending of patients’ lives would become routine and doctors would become insensitive to cases; that there may be “undue influence by third parties”; that any oversight of the practice occurs after the patient is already dead; and the killing of minors, even at their own request, is problematic given their “evolving and maturing capacities.” [U.N., International Covenant on Civil and Political Rights, Concluding Observations of the Human Rights Committee: Netherlands, 7/20/01]

Another concern is over the prospect of “euthanasia tourism.” Although public relations statements about the law have claimed that only Dutch residents will be able to receive euthanasia or assisted suicide, the law does not prohibit doctors from administering euthanasia to non-residents.

Last November, Italian authorities in Turin investigated a pro-euthanasia group for organizing “death trips” to the Netherlands for those seeking a “gentle death.” [Reuters, 11/21/01]

There has already be evidence that the scope of the so-called strict euthanasia law is widening. There have been discussions by officials and the Dutch Voluntary Euthanasia Society over whether elderly people should routinely be given suicide pills so that they could end their own lives when they felt it was the right time. [BBC, 4/1/02] (More on Dutch euthanasia.)

Dutch euthanasia doctors having second thoughts

According to a recent Dutch newspaper article, doctors who were “the vanguard of the euthanasia practice” are now regretting earlier decisions to euthanize patients. These are not just ordinary doctors. These are the specially trained euthanasia consultants who give the second opinions required by law before patients’ lives are terminated.

At a recent gathering of these consultants, family doctor Joke Groen-Evers announced, “Look here, I have a statement to make. When I started on euthanasia, I got hold of the wrong end of the stick. So I am going to stop as a euthanasia counselor. I cannot in all conscience accept the responsibility any longer. The law requires us to explore all avenues before we give euthanasia. But I see now that this happens only too infrequently.”

Most of the euthanasia consultants who were present indicated agreement. “Ignorance and lack of awareness have caused people to be flushed into the euthanasia procedure to whom a whole lot of life quality could be offered,” said Dr. Ruben S. Van Coevorden.

“When one has been so intently focused on euthanasia, one develops a blind spot for other possibilities,” commented Dr. Willem Budde. “There are some who died through euthanasia that now make me realize that, with my present knowledge, things would have gone a very different way.”

They all agreed that little was known about pain and symptom control (palliation) in the Netherlands. Euthanasia had become THE solution to patient suffering. As a result, there were very few hospice programs compared to other countries..

But now, family doctors have started working in “palliation peer groups.” There are 25 such groups, each with more than 130 doctors.

“It seems as if among family doctors a counter-movement against euthanasia is forming,” said Dr. Bernardina Wanrooij, who provides all the peer groups with material on palliative care.

“[Euthanasia] is not really necessary any longer at all,” explained Dr. Van Coevorden. “Patients let themselves be influenced far more than their physicians realize. You mention euthanasia, they ask for it. And if you mention palliative care, that’s what is going to be.” She used to perform euthanasia twice a year. “Over the past three years,” she added, “I have had requests for euthanasia, but, thanks to my knowledge of palliative care, I have not had to give euthanasia once.”

These days Dr. Van Coevorden tells patients, “I respect your wish for euthanasia, but would you allow me to alleviate your pain first?” “And very often nothing ever comes of the euthanasia,” she added.

“I do not mean to seem proud, but palliative care gives me back the confidence that had been much on the wane of late.” said Dr. Budde. “It is a way of saying no to a demand for euthanasia. To say no, and yet have something to offer.”

Budde remembers the beginning years of euthanasia. “There you were, out on the streets with your euthanasia bag; it hàd something: a mixture of caring and power. But that vanguard feeling has certainly gone now.” “Maybe it has to do with one’s age,” Budde explained. “I am fifty-three now: Then you begin having other thoughts about death. Would I want euthanasia? No.” [Oostveen, “Regrets: Champions of euthanasia practice are having second thoughts,” NRC Handelsblad, 11/10/01. Translated.]

2 women battle for assisted suicide; 1 reconsiders choice

Australia and Great Britain have more in common than just the English language. Both countries have been embroiled in controversies over two women and their public fight to die.

England’s Diane Pretty, who has motor neuron disease (also called ALS or Lou Gehrig’s disease), wants to have her husband help her die. Because assisted suicide is illegal in Britain, her husband, Brian, could face up to 14 years in prison. Pretty, 43, who is paralyzed from the neck down, has been waging a court battle to obtain legal immunity from prosecution for her husband and to change the law in Britain.

After Britain’s High Court rejected her contention that the law against assisted suicide violated her basic human rights and her right to privacy, she appealed to the House of Lords, the country’s highest court. On 11/29/01, five Law Lords unanimously upheld the lower court ruling. [London Independent, 11/30/01; Reuters, 11/29/01; BBC, 11/29/01]

With all her legal options in Britain exhausted, Pretty took her case to the European Court of Human Rights. On 3/19/02, her lawyers told the seven European Court judges that the British court rulings had violated her rights under the European Convention of Human Rights and that she was being forced to undergo “degrading treatment or punishment.” The court’s ruling is pending. [Sky News, 3/19/02; CNN.com, 3/19/02; BBC, 3/19/02; Ananova, 3/19/02; Reuters, 3/19/02]

BBC health correspondent Karen Allen reported that, shortly before the European Court hearing, Pretty’s husband told her that he has heard about people with motor neuron disease who have lived for 16 years. “I can’t do that,” he said, “and neither can Diane.” [BBC, 4/9/02]

Australia’s Nancy Crick, a 70-year-old grandmother with bowel cancer, wanted to die on April 10 with family and friends present. She even created a web site to chronicle her plight. “I want to die at the time and place of my choosing, with my loved ones around me,” she wrote. “As the pain and indignity worsen, I am frightened of the future.” “Most of my day—and night—is spent leaning over the toilet bowl dealing with chronic vomiting and diarrhea,” Crick explained. “I am also in almost constant pain.” She blames Australian law, which prohibits assisted suicide, for condemning her to end her life alone. [www.nancycrick.com]

With the help of euthanasia advocate Dr. Philip Nitschke, a euthanasia rally was organized. When Crick arrived, she was greeted with a standing ovation by the crowd of 300. Nitschke has been accused of using this fragile woman to promote his agenda, a claim Crick emphatically denies. But Nitschke has been actively involved in garnering the media’s attention. TV stations from as far away as Japan and U.S. were competing for the rights to film her death. Nitschke told the press that selling broadcast rights to her death was “tacky” but necessary to protect those present when Crick dies.

Nitschke’s national pro-euthanasia group Exit is selling brass keys to Crick’s front door for $20 (Australian) each. More than 200 keys have been made, all part of a plan to make it impossible for authorities to figure out who helped her to die. [The Age, 3/26/02, 3/27/02; AAP, 3/26/02]

But all this planning may have been for nothing. Crick has decided to accept an offer by local palliative care specialists on a trial basis. “I am prepared to try palliative care,” she told reporters. According to Nitschke, “She was talked into it…by the palliative care services.” “She felt guilty then about changing her mind,” he explained. “She felt some obligation to do everything she said she would….” [The Courier-Mail, 3/28/02]

Early indications are that the palliative care is “very positive,” Nitschke told the press. “She’s feeling pretty happy, but she’s also pretty cynical—she’s saying ‘how come I wasn’t getting this a year ago?’” “She wonders why you have to jump up and down and decide to end your life before this sort of treatment is offered.” [The Australian, 4/9/02]

Court finds patient competent to stop treatment

Britain’s High Court has affirmed the long-held right of mentally competent patients to refuse medical treatment.

The case was brought by a 43-year-old woman—referred to as Ms. B—who was left paralyzed from the neck down last year by a ruptured blood vessel in her spine. She is unable to breathe on her own and depends on a ventilator. When she asked her doctors to remove the ventilator, they refused. They said that she could not make a truly informed decision until she tried a rehabilitation program and had special equipment to improve her quality of life. [BBC, 3/6/02]

Statements made by Ms. B indicated that her decision may have be influenced by other factors. According to court transcripts, she said, “I am not Christopher Reeve and I can’t pay for everything.” When asked if having his wealth would have made a difference, she replied, “I think in the early stages it would have made a tremendous difference. I would not have been in an intensive care unit for a year, which is not a good experience in itself.” She also said, “I think, really, the things which would probably make a difference to my decision is if I had children. I would have had a much stronger duty and obligation to stick around. I don’t have that sense of duty to stay” [Ananova, 3/7/02]

The question before the court was not whether she should live or die, but rather whether she had the mental capacity to refuse unwanted treatment. The judge ruled that she did.

The treatment decision is Ms. B’s to make. As one editorial put it, this tragic case was about “justice, not euthanasia.” “This is not a right-to-die case,” agreed Dr. Anthony Cole of the Medical Ethics Alliance. “The judge has upheld the right to refuse treatment.” The media’s use of “right to die” or “death with dignity” is “worrying,” he said. [Ananova, 3/22/02; London Telegraph, 3/23/02]

License to kill: Hospitals reserve the right to pull your plug
By Wesley J. Smith

Imagine visiting your 85-year-old mother in the hospital after she has a debilitating stroke. You find out that, in order to survive, she requires a feeding tube and antibiotics to fight an infection. She once told you that no matter what happened, she wants to live.

But the doctor refuses further life-sustaining treatment. When you ask why, you are told, in effect, “The time has come for your mother to die. All we will provide is comfort care.”

Sound far-fetched? It’s not. It’s already happening.

Just as doctors once hooked people up to machines against their will, now many bioethicists advocate that doctors be permitted to refuse life-sustaining treatment that a patient wants but that they deem “futile” or “inappropriate.”

Alarmingly, hospitals in California and throughout the country have begun to implement these “futile-care” policies that state, in effect: “We reserve the right to refuse service.”

Medical and bioethics journals for several years kept up a drumbeat advocating the implementation of medical futility policies that hospitals—for obvious reasons—don’t publicize. The mainstream news media have generally ignored the threat.

As a consequence, members of the public and their elected representatives remain in the dark as “futilitarians” become empowered to hand down unilateral death sentences.

Indeed, futile-care policies are implemented so quietly that no one knows their extent. No one has made a systematic study of how many patients’ lives have been lost or whether futile-care decisions were reached according to hospital policies or the law.

The idea behind futile care goes like this: The patient wants life-sustaining treatment; the physician does not believe the quality of the patient’s life justifies the costs to the health institution or the physical and emotional burdens of care; therefore, the doctor is entitled to refuse further treatment (other than comfort care) as “futile” or “inappropriate.”

Treatments withheld under this policy might include antibiotics to treat infection, medicines for fever reduction, tube feeding and hydration, kidney dialysis or ventilator support.

Of course, physicians have never been —nor should they be—required to provide medical interventions that provide no medical benefit.

For example, if a patient demands chemotherapy to treat an ulcer, the physician should refuse. Such a “treatment” would have no medical benefit.

But this kind of “physiological futility,” as it is sometimes called, is not what modern futile-care theory is all about. Treatments are not refused because they don’t provide any medical benefit, as in the case of chemotherapy to treat an ulcer. Rather, they are refused because they actually sustain life—such as a feeding tube does for a persistently unconscious patient.

It isn’t the treatment that is deemed futile but, in effect, the patient.

Early attempts to impose futile care decisions upon unwilling patients and families were often ad hoc. For example, a few years ago I received an urgent phone call from a distraught woman who told me that her 92-year-old mother’s doctor was refusing to give the woman antibiotics for an infection. When I asked why, she said, “He told me my mother was going to die of an infection sooner or later, so it might as well be this one.”

I advised the woman to get an attorney and threaten suit. That apparently did the trick. She later called to tell me her mother was being treated and was well on the way to recovery.

In 1994, the parents of a premature infant sued to obtain the so-called futile care for their son, “Baby Ryan” Nguyen, after doctors told them they were ending his kidney dialysis.

Ryan would have died, but the Nguyens’ attorney obtained a temporary court order forcing doctors to provide continued life-sustaining care pending a full trial.

The doctors and hospital did not take the Nguyens’ defiance lying down. They filed an affidavit requesting the right to refuse to provide treatment, claiming that Ryan’s condition was “universally fatal” and that continuing life-sustaining treatment was a violation of their ethics and autonomy.

Astonishingly, a hospital administrator even went so far as to report the Nguyen family to Child Protective Services for “physical abuse and physical neglect” of Ryan based on the parents’ success in obtaining the injunction to keep their child from death.

The case could have had a major legal impact on the entire futile care debate. But the trial judge never decided who had the ultimate right to determine Ryan’s fate. The case ended when Ryan was transferred to a Portland hospital, where a different physician successfully weaned him off dialysis. Ryan lived four years, a happy if sickly child who gave high-fives and was the delight of his parents’ hearts.

Cases like Baby Ryan’s led futilitarians to pursue a more sophisticated approach to securing their agenda. Rather than have doctors act on their own accord or file lawsuits seeking permission to refuse wanted care, which had been attempted on several occasions with mixed results, many futilitarians began to argue that hospitals adopt written futile-care policies establishing formal procedures by which wanted life-sustaining treatment could be refused.

Although given little attention in the news media, these policies have been extensively described in medical and bioethical publications, such as the Journal of the American Medical Association, the New England Journal of Medicine and Health Progress.

Most policies set up internal hospital procedures that work like this:

If a patient wants life-sustaining treatment that the physician wishes to refuse, social workers, chaplains and hospital staff attempt to mediate the dispute.

If the patient and physician cannot resolve their differences informally, the matter is referred to the hospital ethics committee for adjudication.

If the ethics committee determines that the treatment is inappropriate, a decision based on the institution’s own futile-care standards, life-sustaining treatments may be terminated even if the patient or family finds another doctor willing to provide the desired care at that hospital.

At that point, the patient or family have three options. Acquiesce, which means the patient probably dies. Find another hospital—not likely in our managed-care environment, since life-sustaining treatment is usually expensive. Seek a court order requiring treatment to continue, as did Baby Ryan’s parents.

Futile-care protocols are designed to thwart legal action by patients or their families. The strategy is to stack the deck by convincing judges that they, mere lawyers, are ill-equipped to gainsay what doctors and bioethicists have decided is best.

In the Cambridge Quarterly of Health Care Ethics, authors urging implementation of futility policies wrote last year: “Hospitals are likely to find the legal system willing (and even eager) to defer to well-defined and procedurally scrupulous processes for internal resolution of futility disputes.”

Considering that California legislators recently enacted a statute that appears to authorize futile-care impositions upon the sickest patients, that may be a winning strategy. Section 4735 of the California Probate Code states that a doctor or hospital “may decline to comply with an individual health care instruction” that runs contrary to “generally accepted health care standards.” This means that once futile care becomes mainstream, the law will permit doctors to refuse wanted treatment that runs contrary to their values—even if such care is necessary to keep the patient alive.

This little-noticed law raises an urgent question: How many California hospitals have already promulgated futile-care policies? Unfortunately, no one knows. But there is little doubt that the number is growing fast.

Authors of the Cambridge Quarterly article surveyed 26 California hospitals, including UCSF, Kaiser Permanente, Stanford, UCLA and Cedars-Sinai. Without identifying the hospitals, they reported 24 had protocols in place that “defined nonobligatory treatment” in terms that were not “physiology based”—in other words, a treatment that has no medical benefit.

Of these, “nine policies assigned the final decision-making authority to the responsible physician.”

Other policies gave the power to hospital committees, the chief of staff or the hospital administration. Tellingly, only seven protocols permitted the patient or patient representative to have the final say.

As if this weren’t enough cause for alarm, Sen. Arlen Specter, R-Pa., has introduced federal legislation to let doctors deny life-sustaining treatment against the will of the patient or the patient’s family.

The Health Care Assurance Act (S24) is a 171-page bill with noble ambitions to expand health coverage for children and disabled people. Buried in the bill’s bowels is a provision that permits hospitals to withhold care that is determined to be “either futile or otherwise not medically indicated.”

The bill would be a disaster for the most vulnerable, disabled and defenseless among us—patients who are too often dehumanized and callously viewed as parasites on limited health care resources.

Then there is the very real potential that bigoted doctors would apply futile-care policies in a discriminatory fashion. Indeed, a 1996 study published by the Mayo Clinic found that “CPR was more likely to be considered futile if the patient was not white.”

Implementing futile care to control health care costs doesn’t add up. Since only about 10 percent of the nation’s entire health care budget goes to end-of- life care, little would actually be saved.

As many futilitarians see it, if the nation were to swallow futile care theory, it would establish the principle that health care can be explicitly “rationed”—a euphemism for discrimination against people who are elderly, disabled, chronically ill, dying or otherwise “expensive to care for.”

Seen in this light, medical futility is the foot in the door that would begin the step-by-step descent from a health care system based on Hippocratic principles—”First, do no harm” —to a system in which access to medical care is restricted to some but open to others.

Futile care is not the finishing line of this important ethical and legal struggle, but merely the starting gate of a far longer race.

Wesley J. Smith is an attorney for the International Task Force and the author of Culture of Death: The Assault on Medical Ethics in America (Encounter Books, 2000). He is the co-author, with Eric Chevlen, M.D., of Power over Pain: How to Get the Pain Control You Need (International Task Force, 2002). His article originally appeared in the San Francisco Chronicle (12/2/01) and is reprinted here with the author’s permission.

News Briefs: 2001 in Retrospect

Alaska Supreme Court upholds law banning assisted suicide

On 9/21/01, the Alaska Supreme Court unanimously ruled that the state’s law banning assisted suicide did not violate the state constitution’s guaranteed rights to privacy, liberty, and equal protection. The justices agreed that assisted suicide would pose grave dangers to vulnerable Alaskans.

The suit was sponsored by the assisted suicide advocacy group Compassion in Dying, the same organization that brought the federal constitutional challenges against assisted-suicide laws in New York and Washington and lost. Another lawsuit, sponsored by the Florida Hemlock Society, challenged that state’s assisted-suicide law, but the Florida Supreme Court ruled that the ban did not violate that state’s constitutional right-to-privacy provision.

The Alaska Supreme Court upheld the 9/9/99 ruling issued by Superior Court Judge Eric Sanders, who found that there was no guaranteed right to assisted suicide in the Alaska constitution.

“There can be little doubt,” the Supreme Court held, “that substantial state interests underlie the manslaughter statute’s general ban of assisted suicide. Other courts have recognized state interests in preserving human life, protecting vulnerable persons, protecting the integrity of the medical profession, regulating dangerous substances and activities in the state, and preventing suicide. In this case, the state emphasizes its strong interest in protecting potentially vulnerable Alaskans, including terminally ill persons, from undue influence.”

The court further found that, “The manslaughter statute’s assisted suicide prohibition regulates the conduct of the physician who assists in a suicide, not the conduct of the patient who commits the suicide. And a physician who assists in a suicide undeniably causes harm to others.” [Sampson et al. v. State of Alaska, S-9338, sp-5474, 9/21/2001]

Internists take stand against assisted suicide

Last year, the American College of Physicians — American Society of Internal Medicine (ACP-ASIM) issued a policy statement in strong opposition to physician-assisted suicide.

The position paper, which was published in the Annals of Internal Medicine, concluded: “The ACP-ASIM does not support the legalization of physician-assisted suicide. Its practice would raise serious ethical and other concerns….” “[P]hysician-assisted suicide should not become standard medical care. The ramifications are too disturbing for the patient-physician relationship and the trust necessary to sustain it; for the medical profession’s role in society; and for the value our society places on life, especially on the lives of disabled, incompetent, and vulnerable persons.” “We must solve the real and pressing problems of inadequate care, not avoid them through solutions such as physician-assisted suicide.” [Snyder & Sulmasy, “Physician-Assisted Suicide,” Annals of Internal Medicine, 8/7/01]

California Supreme Court upholds high standard in Wendland case

In a 6-0 opinion, the California Supreme Court ruled in favor of protecting vulnerable, conscious conservatees. The Court ruling, issued on 8/9/01, held that food and water cannot be withdrawn from a conscious, disabled conservatee unless there is clear and convincing evidence that withdrawing food and water is what the patient wanted or that doing so would be in the patient’s best interest.

Robert Wendland, the conservatee in this case, was not comatose, “minimally conscious,” in a persistent vegetative state, or terminally ill. He wasn’t even sick. He was cognitively disabled—the result of a truck accident that left him permanently brain damaged.

Rose Wendland, Robert’s wife, wanted to have his tube-supplied food and fluids withheld, thereby causing his death. But, the Court found that Rose had “offered no basis” for her argument that Robert wouldn’t have wanted to live in his condition “other than her own subjective judgment that the conservatee did not enjoy a satisfactory quality of life and legally insufficient evidence to the effect that he would have wished to die.” [Conservatorship of the Person of Robert Wendland, Sup. Ct. No. 65669, 8/9/01. p. 46]

Attorneys for Rose Wendland petitioned the Court to reconsider its decision. The Court denied the request on September 28, 2001.

Sadly, Robert was not alive when the Court issued its ruling. He died of pneumonia three weeks before the decision came down—on 7/17/01. His mother, who fought the legal battle to save Robert’s life, was at his side. Neither his wife nor his children were.

During the last several weeks of her son’s life, Florence Wendland was not permitted to take him out of his room. She was denied all knowledge about the state of his health. She did not know if he was properly turned or how or whether he was treated for pneumonia. She did not even know what ailed him. She was denied access to all medical records and all medical information about his care. Florence Wendland learned of the purported cause of his death via a press release sent out by Lawrence Nelson, Rose Wendland’s attorney, which he issued after her son had died. (More on the Wendland case.)

Michigan Appellate Court rejects Kevorkian’s appeal for new trial

Last November, the Michigan Court of Appeals refused to let Jack Kevorkian off the hook for the death of Thomas Youk in 1998. Kevorkian, who has claimed responsibility for approximately 130 assisted-suicide deaths, was convicted of second degree murder and sentenced to 10 to 25 years in prison. Given good behavior, his earliest release date would be May 2007.

The Court of Appeals upheld Kevorkian’s conviction, rejecting his argument that the lethal injection he gave to Youk on video tape was simply a form of legal euthanasia. “[Kevorkian] asks us to conclude that euthanasia is legal and, therefore, to reverse his conviction on constitutional grounds,” the three Appellate judges said. “We refuse. Such a holding would be the first step down a very steep and very slippery slope.” [Michigan v. Jack Kevorkian, No. 221758 (Mich. Ct. App.), 11/20/01, p. 2]

Kevorkian had orchestrated Youk’s death for his own purposes. He had videotaped himself injecting 52-year-old Youk, who had Lou Gehrig’s disease, with a series of lethal drugs, and then gave the tapes to Mike Wallace of CBS’ 60 Minutes. Youk’s death was then broadcast nationally, complete with Kevorkian’s cold and business-like play-by-play.

The court also rejected Kevorkian’s claim that his “standby” attorney, David Gorosh, failed to provide him with effective representation. But Kevorkian had ignored advice from attorneys and warnings from the judge, and acted as his own attorney. “The defendant chose—almost certainly unwisely but nevertheless knowingly, intelligently, voluntarily, and unequivocally—to represent himself,” the court wrote. “He cannot now assign the blame for his conviction to someone who did not act as his trial counsel.” [p. 2]

In an op-ed article that appeared in the Detroit Free Press, Thomas Szasz, M.D., author of Fatal Freedom: The Ethics and Politics of Suicide (1999), wrote, “Kevorkian remains important largely because many people in the media and in the country see him as a martyr to the cause of physician-assisted suicide: He helped suffering patients end their lives. This is an utterly false image.” “The judges of the Michigan Court of Appeals deserve to be applauded for rejecting [his] latest appeal to regain his freedom….” [Szasz, “Kevorkian warps the value he touts,” Detroit Free Press, 1/10/02] (Background on Kevorkian)