Update 041: Volume 21, Number 2 (2007)

Assisted-suicide advocates fail to advance bill in California

Despite all the hyped and often deceptive language, proponents of California’s most recent physician-assisted suicide (PAS) bill failed to muster the 41 votes needed to pass the measure out of the Assembly. On June 7th, after much political strong-arming and calling in of favors during last minute caucuses, the bill’s primary authors, Assembly members Patty Berg and Lloyd Levine, shelved the measure before the full Assembly could even vote on it. They still have the option of making it a 2-year bill, but 2008 is an election year and not a very favorable time for a controversial PAS bill.

AB 374

For assisted-suicide advocates, California was their only remaining hope for victory this year after lawmakers in Hawaii and Vermont dealt them resounding defeats by rejecting Oregon-cloned PAS bills. The California bill —AB 374, a.k.a. the “California Compassionate Choices Act”—was also patterned after the Oregon law and was virtually the same California bill which failed in 2005 and 2006. So why did advocates think it had a good chance of passing this time? Simple: Democrats rule in both legislative houses, and the powerful Assembly Speaker Fabian Nuñez and Senate Majority Leader Gloria Romero, for the first time, signed on as co-authors.

AB 374 easily passed the Assembly Judiciary Committee on March 27th and the House Appropriations Committee on May 31st, the same committees that passed previous PAS bills. But the real battle was in the full 80-member Assembly, where all 32 Republicans and about six Democrats opposed the bill, and around ten Democrats were undecided.

Battling for votes

Both the bill’s supporters and opponents battled for each assembly member’s vote. With substantial help from the PAS advocacy group Compassion & Choices (C&C), proponents argued that Oregon’s nine-year experience with legalized physician-assisted “death”—not suicide—should reassure legislators that all the opponent’s predictions of abuses have not occurred in Oregon. As C&C President Barbara Coombs Lee told reporters, “The practice has settled into a nice, safe, conservative practice.” [AP, 3/8/07]

Opponents argued that AB 374 was bad public policy for a state with 6.5 million uninsured, over 225,000 cases of elder abuse per year (2/3 of abusers being family members), and a significant number of large HMO companies that value cost-effectiveness (lethal prescriptions are far cheaper than costly treatment). It should come as no surprise that the California Association of Physicians Groups—the organization representing huge medical conglomerates like Kaiser Permanente, Pacific Care Health Systems, HealthNet of California, and many others—was a leading advocate of the bill. The California Medical Association and the American Medical Association, on the other hand, were staunch opponents.

With regard to the Oregon experience, opponents pointed out that the annual PAS report data is skewed and based only on cases which are reported by the very doctors who prescribe the lethal drugs; that, under the law, the state has no authorization to investigate unreported cases or cases of non-compliance; and that the law contains no penalties for non-reporting and non-compliance by doctors and others. According to Marilyn Golden, policy analyst for Disability Rights Education and Defense Fund and a member of the broad-based coalition Californians Against Assisted Suicide (CAAS), the Oregon data is so empirically questionable that no one really knows the truth about the state’s PAS practice. “Oregon’s law is not a model for California to adopt,” she wrote, “because what you don’t know can kill you,” [Capitol Weekly, 4/26/07; emphasis in original]

Deadly flaws in AB 374

The bill’s backers claimed that AB 374 had more safeguards than the Oregon law because it required doctors to give patients a list of alternative treatment options in writing [§7196(b)(5)], mandated that PAS patients not in hospice programs be sent for a psychological consultation [§7196.2], stipulated that the actual lethal drug prescription may not be written until the doctor verifies that the patient has 3 months or less to live [§7196(g)], and required the disposal of unused lethal drugs [§7197]. There were no penalties, however, if doctors and others did not comply with these provisions. Most of AB 374’s “safeguards” were included to give the illusion of safety in order to get the bill passed rather than provide real patient protection.

For example, during the Assembly Judiciary Committee hearing, chairman Dave Jones, a bill supporter, said “[T]his bill explicitly includes existing provisions of law that make it a crime to coerce [patients to choose PAS].” [Assembly Judiciary Hearing, 3/27/07] But, according to ITF Executive Director Rita Marker, a member of the California Bar, that is not the case. While there are references to coercion, fraud, undue influence and duress in AB 374, the bill contained no penalties for those actions. In a legal opinion prepared at the request of CAAS, Marker wrote, “This omission would render the state incapable of prosecuting anyone for violating the Act’s safeguards since such violations would not constitute a crime under California law.” “A penalty is essential for a crime to exist since there must be both prohibited or commanded acts and punishment for the same,” she explained. “Absent punishment, regardless of a statute’s prohibitions, no crime exists. [That] is well established in California law…. Therefore, a violation of the California Compassionate Choices Act would not constitute a crime even if those actions resulted in the death of a vulnerable patient.” [R. Marker, “AB 374 and Coercion of Vulnerable Patients,” 4/4/07]

There was another serious flaw unique to AB 374. Section 7198, titled “Immunities and Liabilities,” appeared to give healthcare facilities the right to prohibit assisted-suicide practice on their premises. But, this “conscience clause” applied only to acute care hospitals, defined in the California Health and Safety Code as a health facility having “an organized medical staff that provides 24-hour inpatient care, including the following basic services: medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services.” [CA Health & Safety Code, §1250(a)] Consequently, AB 374 would have required secular and religious nursing homes, in-patient hospice facilities, skilled nursing facilities, and other health-related facilities without all the above on-site services to allow PAS practice on their premises despite their ethical or professional objections.

The defeat

This year’s shelving of the California bill was a huge blow to proponents nationwide. As C&C’s Barbara Coombs Lee said, “If it doesn’t pass there [CA], that will be a pretty good sign to us that no legislative body will pass it.” [NY Times, 6/2/07] (More about California.)

Vermont legislature kills assisted-suicide bill

It was a defeat the magnitude of which no one really expected—certainly not the physician-assisted suicide (PAS) proponents who had tried to get a bill passed in the liberal Vermont legislature five times since 1995 with no success. But this, their sixth try, was supposed to be different. They hired nine lobbyists, conducted biased polling, aired costly TV ads, and organized letter writing campaigns all designed to pressure legislators to legalize PAS.

This latest attempt to turn assisted suicide into an accepted medical treatment came in the form of two identical, Oregon-style, PAS bills, H. 44 in the House and S. 63 in the Senate. Both bills, deceptively titled “Patient Choice and Control at End of Life,” were introduced in January 2007, with H. 44 taking the lead in the House as a “fast tracked” measure.

For PAS supporters, H. 44 got off to a promising start. The House Human Services Committee began its hearing of the bill on February 23rd, limiting the testimony to only two experts from each side, pro and con. Public testimony was heard later the following week. Former Oregon governor Barbara Roberts traveled to Vermont to lead the expert testimony in support of the bill, while Dr. Robert Orr, a Vermont physician and head of the Vermont Alliance for Ethical Healthcare (VAEH), lead the opposition. But, as expected from the start, the committee passed the bill by a vote of 7 to 4. At the time, one committee member, Rep. Mary Morrissey (R-Bennington), predicted that the bill already had enough votes to pass the full House. [Bennington Banner, 2/24/07, 2/26/07, 2/28/07; Times Argus, 2/28/07, 3/2/07]

The House Judiciary Committee was H. 44’s next stop. Once again, the bill passed without difficulty.

The day of reckoning for H. 44 came on March 21 when, after almost four hours of highly charged debate, the bill was decisively rejected by the full House. The final vote was 82 to 63.

Advocates were shocked and dismayed. Dick Walters, head of Vermont Death with Dignity, vowed that his group “certainly will continue…and at the proper time we’ll be heard from again because the vast majority of Vermonters want this issue. That’s why it’s sad they weren’t heard.” [AP, 3/21/07]

But his “vast majority” support claim didn’t jibe with what legislators said about their constituencies. Rep. Anne Lamy Mook (D-Lincoln), who planned to vote for the bill, changed her vote after most of the constituents who contacted her strongly opposed it. [Bennington Banner, 3/22/07] According to Mary Hahn Beerworth, head of the Vermont Right to Life Committee, “[S]ome legislators reported that their calls were running 4 to 1 in opposition while some members…reported that their constituent contacts were running as high as 10 to 1 against H. 44.” [truenorthradio.com, 5/8/07]

Organizations opposed to the bill included, among others, the VAEH, Vermont Medical Society, Vermont State Nurses Association, Vermont Center for Independent Living, and Vermont Coalition for Disability Rights. (More about Vermont.)

Washington ex-governor pushes plan
for PAS voter initiative in 2008

Washington’s former governor, Booth Gardner, 70, has begun his campaign to spearhead a voter initiative campaign in 2008 to legalize physician-assisted suicide. He needs to get 224,880 voter signatures to put the PAS initiative on the ballot. If successful, it would be the second PAS measure to be placed on a Washington ballot. In 1991, voters defeated a euthanasia/PAS initiative by a vote of 54% to 46%.

Gardner, the millionaire heir to the Weyerhaeuser fortune, has Parkinson’s disease and says he lives in terror over the prospect of losing control over his life. “[If] you don’t control your life, somebody else will,” he said. While he states publicly that the new initiative would be patterned after Oregon’s PAS law, he admits that, in his opinion, the Oregon law has far too many hurdles and restrictions. But, if that’s what it takes to win in Washington, he explained, he’ll push the Oregon model.

His initial attempts to rally support, however, have been met most often with an uneasy silence. During a banquet in Olympia, several people simply walked out. One woman commented, “I don’t need to sit here and listen to this.” [Seattle Post-Intelligencer, 5/17/07]

Oregon issues truncated assisted-suicide report

Adding insult to the injury of questionable data in previous assisted-suicide reports, the Oregon Department of Human Services (ODHS) issued its latest “Ninth Annual Report on Oregon’s Death with Dignity Act” in an abridged format so short that it prompted one Oregon doctors’ group to call it “amazingly brief and incomplete.” [Physicians for Compassionate Care, Press Release, 3/8/07]

The new report, covering physician-assisted suicide (PAS) deaths in 2006, consisted primarily of a one-and-a-half page summary, a chart, and two tables. It was posted on ODHS’ website without the customary press conference allowing for questions and answers.

According to the ODHS’s data—obtained mostly second-hand from lethally prescribing doctors who reported the deaths to the state—65 prescriptions for lethal drugs were written by 40 physicians. Of the 65 patients for whom the prescriptions were written, 35 took the drugs and died, 19 didn’t take the drugs but died of their underlying illness, and 11 were still alive at the end of 2006. Additionally, 11 patients with lethal prescriptions written before 2006 took the drugs in 2006 and died—putting the total number of reported PAS deaths at 46. But, the actual number of PAS deaths is unknown because the ODHS has no way of tracking deaths not reported by doctors and no authority to penalize those doctors for non-compliance.

Data missing in this report included the number of lethal prescriptions written by individual doctors, a statistic included in some previous reports. Also missing were explanations as to why statistic totals for previous years were changed in the 2006 tables (see chart)—making the questionable data even more suspect. Furthermore, doctors were present for only 15 of the 46 PAS deaths, so the exact circumstances of most deaths were not directly observed by reporting doctors. [“Ninth Annual Report on Oregon’s Death with Dignity Act,” ODHS, 3/8/07] (More on Oregon.)

Troubling cases revealed in research examining
PAS & palliative care

Research conducted by British palliative care expert Dr. David Jeffrey into the relationship between hospice/ palliative care and physician-assisted suicide reveals some troubling PAS cases as well as insightful observations.

In 2006, Jeffrey, who is chairman of Britain’s Association for Palliative Medicine’s Ethics Committee, spent six weeks in Portland, Oregon (where PAS is legal) and Seattle, Washington (where it is not) interviewing health care providers, researchers, and ethicists, who were mostly neutral on or supported PAS. He went to examine claims by proponents that the practice is working well in Oregon and that hospice and palliative care can “co-exist comfortably” with PAS. He disclosed in his 46-page report that he is “opposed to the legalization of euthanasia and PAS,” but conducted his investigation “in the hope of having my own views challenged and to study end of life care in the USA.” [D. Jeffrey, “Physician-assisted suicide v. Palliative care: a tale of two cities,” 2006, Executive Summary, 1-3. ]

During the course of his interviews, some previously unreported PAS case histories came to light:

A patient was given the diagnosis of ALS (Lou Gehrig’s disease) and, at the same time, was told by the doctor, “You have ALS…this is awful…you should consider PAS.” The patient was “devastated.” [Section 8, p. 25 Note: page numbering begins with Executive Summary.]

Another patient with cancer was told by a doctor that “it was going to be a painful way to die and advised him to take advantage of the PAS law.” While hospice staff felt that some of the law’s “legal hoops” had been by-passed, the patient took the lethal drugs, but didn’t die quickly. His wife couldn’t handle the situation, so “a pro-PAS organization found two men who knew nothing about nursing care to sit with the patient until he died the next morning. The wife became profoundly depressed and attempted to commit suicide herself.” [Section 7,p. 19; emphasis in original]

One young patient moved to Oregon specifically to die by PAS.[Section 7, p. 19]

In another case, the patient’s competency was in doubt. The family may have actually administered the lethal drugs contrary to the law. [Section 7,p. 22]

For another patient, a PEG feeding tube was inserted into his stomach for the sole purpose of administering the fatal drugs. [Section 7, p. 22]

Since the Oregon PAS law was enacted, one hospice has had 28 PAS cases. In 23 of those cases, the same doctor was involved. [Section 7,p. 22]

At one meeting Jeffrey had with medical staff, a nurse had to leave early to assist a PAS patient to die, a patient she had never met before. [Section 8, p. 25]

Some researchers Jeffrey interviewed in Seattle had previously studied 35 patients who were seriously considering PAS (12 prospectively, 23 retrospectively). They found that patients were looking for more than a prescription. They really wanted “a guide through the dying process.” [p. 28]

Jeffrey concluded, “[H]ospice programs sit uneasy with PAS…[and] want to support patients and families, but do not want to be involved in PAS.” Also, “[T]he primacy of respect for autonomy is carried to an extreme in this region of the USA with less regard to issues of justice in health care.” [p. 5] Further, he wrote, “I remain convinced that there are better ways of helping patients to feel safe rather than legalizing PAS. The problems faced by the tiny group requesting PAS need be addressed in a different way.” [p. 36] (More about Oregon.)

Kevorkian’s back in the limelight, but many aren’t smiling

If it was attention Jack Kevorkian longed for while he sat in his prison cell for the last eight years, he’s got it now. The media frenzy over his June 1, 2007, release from Michigan’s Lakeland Correctional Facility surpassed anything prior to his 1999 second-degree murder conviction for the video-taped killing of ALS patient Thomas Youk.

Waiting for Kevorkian as he walked out of the prison was supporter Mike Wallace, the 60 Minutes reporter who had aired on national TV the 1998 video tape of Kevorkian lethally injecting Youk. Wallace was there to do a follow-up interview of “Dr. Death” for a nostalgic 60 Minutes episode of Wallace’s favorite segments which aired on June 3rd. But Wallace wasn’t the only Kevorkian-supporting TV celebrity to stake out an early interview. CNN’s Larry King conducted his on June 4th. And, according to Kevorkian’s attorney, Mayer Morganroth, there may be many more interviews and speaking engagements in the future for which Kevorkian could command speaking fees of $50,000-$100,000, prompting ITF Executive Director Rita Marker and ITF attorney Wesley J. Smith to write, “Who says crime doesn’t pay?” [Weekly Standard, 6/4/07]

Many in the right-to-die movement, however, are desperately trying to distance themselves and their cause from the ghoulish Kevorkian, who, they say, has done more harm than good for the movement. Compassion & Choices President Barbara Coombs Lee told the LA Times, “He [Kevorkian] was a profound symbol of the covert and clandestine process of dying. But we don’t really need that kind of championship these days. [LA Times, 6/2/07]

Taking their cue from Coombs Lee, supporters of California’s PAS bill, AB 374, were tripping over themselves in their retreat from Dr. Death. “He’s the equivalent of a back-alley abortionist,” said Steve Hopcraft, a lobbyist hired to secure passage of the bill. Assembly member Lloyd Levine, a co-author of AB 374, agreed, “Kevorkian is exactly why we need to pass this law….We cannot distance ourselves from Dr. Jack Kevorkian enough. [Detroit Free Press, 5/29/07] But, nothing in AB 374 would prohibit a Kevorkian from writing lethal prescriptions as long as he or she had a state medical license. “AB 374 and assisted-suicide legalization will create not one, but hundreds of Jack Kevorkians,” said bill opponent Tim Rosales [CAAS Press Release, 5/31/07] (More about Kevorkian.)

New Dutch report shows
terminal sedation deaths on the rise

A new Dutch report, published in the New England Journal of Medicine (NEJM), indicates that there has been “a modest decrease” in the number of euthanasia and physician-assisted suicide (PAS) deaths since the Netherlands formally legalized both practices in 2002. According to the report, the number of euthanasia cases dropped from 2.6% of all deaths in 2001 to 1.7% in 2005. Likewise, the number of PAS cases fell from 0.2% of all deaths in 2001 to 0.1% in 2005. The number of involuntary euthanasia deaths—defined as “the ending of life without an explicit request by the patient”—remained steady at approximately 0.4% of all deaths, four-times the 2005 PAS rate. [van der Heide et al., “End-of-Life Practices in the Netherlands under the Euthanasia Act,” NEJM, 5/10/07, pp. 1957 & 1960. Hereafter cited as Report.]

Much of the international press embraced the data as proof that, once voluntary euthanasia and assisted suicide are legalized, the number of cases diminishes. While media outlets did report another telling statistic, they generally neglected to connect it to the actual number of euthanasia deaths.

According to the report, the number of terminal sedation cases (also called palliative sedation) rose significantly from 5.6% of all deaths in 2001 to 7.1% in 2005. [Report, p. 1960] In the Netherlands, terminal sedation (“a continuous deep sedation”) is usually used in conjunction with the intentional withholding of all food and fluids so that, if unconscious patients do not die from their underlying illnesses first, they surely will from dehydration. These “slow euthanasia” cases were not included in the overall number of euthanasia deaths. But, the authors of the report admitted, “In our study, we found that euthanasia and assisted suicide were to some extent replaced by continuous deep sedation.” [Report, p. 1962]

Regarding the jump in terminal sedation cases, the Dutch newspaper The Volksrant quoted Parliament member Agnes Kant as saying, “Palliative sedation is easier for doctors. There is no control by the euthanasia [review] committee, and it is emotionally easier, too. But doctors should not insist on palliative sedation just to make it easier on themselves.” [DutchNews.nl, 5/10/07]

Other pertinent findings include:

“In 2005, the ending of life was not discussed with patients because they were unconscious (10.4%) or incompetent owing to young age (14.4%) or because of other factors (15.3%).” [Report, p. 1960]

The euthanasia review committees evaluated, post-mortem, only 1933 of the 2410 reported euthanasia/PAS cases in 2005. [Report, p. 1961]

In 2005, doctors neglected to report euthanasia/PAS deaths 20% of the time. [Report, p. 1961]

“[T]he transparency that is envisioned by the Dutch law apparently does not extend to all cases of euthanasia.” [Report, p. 1964] (More about the Netherlands.)

Poll: Americans divided on PAS legalization,
but most would not choose it

An Associated Press telephone poll of 1,000 randomly selected adults found that Americans are almost evenly divided on whether physician-assisted suicide should be legal. The poll—conducted by Ipsos Public Affairs from May 22-24, 2007—asked, “Do you think it should be legal or illegal for doctors to help terminally ill patients end their own life by giving them a prescription for fatal drugs?” Forty-eight percent (48%) said it should be legal, 44% said illegal, 5% had no opinion, and 3% did not answer the question.

However, responses to the next question revealed a larger point spread. When asked, “If you were seriously ill with a terminal disease, would you consider ending your own life, or not?” 55% said no, 35% yes, 3% probably, 2% maybe, and 5% had no answer.

Responses to whether PAS should be legal followed partisan lines, with 57% of Democrats saying yes compared to 39% of Republicans. The split along gender lines revealed that 53% of male respondents thought it should be legal versus 44% of females. Forty-three percent (43%) of men would consider it for themselves while only 28% of women would. The poll had a ±3.1 margin of error. [AP/Ipsos Poll, 5/29/07]

News notes . . .

Australia’s Dr. Death, Philip Nitschke—like his American role model Jack Kevorkian—has made a career out of challenging laws prohibiting euthanasia and assisted suicide. His latest target is Australia’s Suicide Related Materials Act which makes it a crime to provide suicide and assisted-suicide promotional materials, how-to information, counseling, drugs or devices over the Internet, email, and telephone—basically Nitschke’s whole operation, except for his face-to-face contacts with people attending his workshops.

It was during such a workshop in Adelaide that Nitschke recently revealed that he’s been using encrypted email messages to circumvent the law and give advice to those who want to end their lives. “If people send me an email that says ‘how many tablets can I take,’ I immediately would be in breach of the [law] if I answered,” he said. He instructed those in attendance how to get their email messages to him coded to avoid being caught by authorities. [The Advertiser, 5/2/07]

Nitschke uses his workshops in Australia and New Zealand to disseminate information on various suicide options, including traveling to Switzerland for a quick death facilitated by the assisted-suicide group Dignitas or trekking to Mexico to buy the barbiturate Nembutal (currently banned for human use in Australia and New Zealand) and then smuggling it into the country, risking at least a 2-year jail term if caught. Or, for a hefty sum of money, one could set up their own “backyard” laboratory to illegally make a barbiturate—what Nitschke calls the “Peaceful Pill“—risking more like a 15-year jail sentence if caught. [Reuters, 5/8/07; New Zealand Herald, 2/13/07]

As for Nitschke’s homemade barbiturate, euthanasia guru Derek Humphry recently warned on his internet Assisted-Suicide Blog that it’s expensive, complicated to make, and no one as yet has used it for “a gentle death.” [Humphry, Assisted-Suicide Blog, 2/14/07]

Since January 2006, 34 Britons have died at the hands of strangers from the Swiss assisted-suicide group Dignitas—a figure more than double the number of deaths between January 2003 and January 2006—bringing the total British body count to 76. [Daily Mail, 5/8/07; Independent, 5/8/07] The most recent death was that of Carol Kates, 55, a multiple sclerosis patient who had a life-expectency of ten years or more and was still able to drive a car and walk with a cane. She choose a premature death because she feared losing the mental capacity to request Dignitas’ death service. Reportedly, she suffered depression for most of her adult life and never recovered from the early deaths of two of her daughters. [London Times, 6/3/07]

According to a Belgian study of 300 deaths involving babies under the age of one, approximately one-half (150) were the result of “active life termination.” The study, conducted by Professor Veerle Provoost from the University of Ghent, found that active termination usually involved stopping treatment or giving the baby a lethal dose of opiates. In 9% of the deaths, “products were explicitly administered to end the child’s life.” In 30% of the cases, the child had “little hope of having an acceptable quality of life.” Parents were consulted regarding the intentional ending of their baby’s life in 84% of the cases. [Expatica.com (Belgium News), 4/11/07]

A Canadian Institutes of Health Research study of 379 palliative care cancer patients—conducted between May 2001 and March 2003—found that 63% of those interviewed thought that euthanasia/assisted suicide should be legal in Canada, but only 40% said they would consider making a death request personally, and then only if faced with their condition’s “worst-case scenario.” Ten percent indicated that, if euthanasia/assisted suicide had been legal, they would have already requested it, mostly due to uncontrolled pain. Researchers, however, found that once pain and symptoms were under control, the patients usually changed their minds. Only 6% (22 patients) said they would request an induced death right away if legal. Of those, 12 explained they would request it because they felt they were a burden on their families or a drain on health care. [Ottawa Sun, 6/6/07; The Star, 6/6/07; Ottawa Citizen, 6/6/07]

A bill, which would have extended the length of time Texas hospitals would be required to provide life-sustaining treatment they deemed futile, has died in the Texas House of Representatives. At issue was Texas’ 1999 “futile care” law that gives hospitals the right to stop treatment, including food and fluids, against families’ wishes if the attending physician and the hospital’s ethics committee feel treatment lacks benefit. The law gives families only 2 days to prepare for the committee hearing and 10 days to find of a facility willing to provide the needed care. The bill, which the Senate passed in May, extended the deadlines to 7 days for the hearing and 21 days to transfer the patient, and prohibited the removal of food and fluids during that time. [AP, 5/4/07; Houston Chronicle, 5/30/07]