SPEAKERS CONTENTS INSERTS
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LETHAL DRUG ABUSE PREVENTION ACT OF 1998
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
JULY 14, 1998
Serial No. 123
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
Page 3 PREV PAGE TOP OF DOCJAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
Page 4 PREV PAGE TOP OF DOCHENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
JOHN H. LADD, Acting Chief Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel
C O N T E N T S
July 14, 1998
TEXT OF BILL
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Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, chairman, Committee on the Judiciary and pro tempore chairman, Subcommittee on the Constitution
Blumenauer, Hon. Earl, a Representative in Congress from the State of Oregon
Coburn, Hon. Tom A., a Representative in Congress from the State of Oklahoma
Coleman, Diane, President, Not Dead Yet
DeFazio, Hon. Peter A., a Representative in Congress from the State of Oregon
Furse, Hon. Elizabeth, a Representative in Congress from the State of Oregon
Hamilton, N. Gregory, M.D., Physicians for Compassionate Care
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Hendin, Herbert, M.D., Professor of Psychiatry, New York Medical College
Hooley, Hon. Darlene, a Representative in Congress from the State of Oregon
Kitzhaber, John A., Governor, State of Oregon
Knowlton, Calvin H., Ph.D., Pharmacist, American Pharmaceutical Association
Marzen, Thomas J., General Counsel, National Legal Center for the Medically Dependent & Disabled, Inc.
Oberstar, Hon. James L., a Representative in Congress from the State of Minnesota
Pellegrino, Edmund D., M.D., Center for Clinical Bioethics, Georgetown University Medical Center
Pisano, Douglas, Ph.D., Associate Professor of Pharmacy Administration, Division of Pharmaceutical Services, Massachusetts College of Pharmacy and Allied Health Science
Pitts, Hon. Joe, a Representative in Congress from the State of Pennsylvania
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Reardon, Thomas R., M.D., President-Elect, American Medical Association
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Coburn, Hon. Tom A., a Representative in Congress from the State of Oklahoma: Prepared statement
Coleman, Diane, President, Not Dead Yet: Prepared statement
Hamilton, N. Gregory, M.D., Physicians for Compassionate Care: Prepared statement
Hendin, Herbert, M.D., Professor of Psychiatry, New York Medical College: Prepared statement
Hooley, Hon. Darlene, a Representative in Congress from the State of Oregon: Prepared statement
Kitzhaber, John A., Governor, State of Oregon: Prepared statement
Knowlton, Calvin H., Ph.D., Pharmacist, American Pharmaceutical Association: Prepared statement
Marzen, Thomas J., General Counsel, National Legal Center for the Medically Dependent & Disabled, Inc.: Prepared statement
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Pellegrino, Edmund D., M.D., Center for Clinical Bioethics, Georgetown University Medical Center: Prepared statement
Pisano, Douglas, Ph.D., Associate Professor of Pharmacy Administration, Division of Pharmaceutical Services, Massachusetts College of Pharmacy and Allied Health Science: Prepared statement
Reardon, Thomas R., M.D., President-Elect, American Medical Association: Prepared statement
LETHAL DRUG ABUSE PREVENTION ACT OF 1998
TUESDAY, JULY 14, 1998
House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 2 p.m., in Room 2237, Rayburn House Office Building, Hon. Henry J. Hyde [chairman pro tempore of the subcommittee] presiding.
Present: Representatives Henry J. Hyde, Charles T. Canady, Robert C. Scott, Asa Hutchinson, and Ed Bryant.
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Staff Present: John Ladd, Acting Chief Counsel; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN HYDE
Mr. HYDE. The committee will come to order. Normally we would wait a little bit for some of the other members to appear, but we have such a large array of panelists and everyone of you has something to do, other than spend your life here, so we will try to move with some dispatch.
I am sitting in temporarily for Charles Canady, the chairman of the Constitution Subcommittee. He is testifying before the Rules Committee on other legislation. He will return and I will happily yield the chair. But until he comes, we will proceed and I will be the chairman pro tempore.
Last year, the Congress and the administration addressed the issue of assisted suicide with an unequivocal voice. The House and the Senate passed an Assisted Suicide Funding Restriction Act of 1997, which ensures that no Federal funds could ever be used to explicitly cause a patient's death. The President signed this bill on April 30, 1997 and made clear his longstanding position against assisted suicide.
Today, however, we are forced to squarely face the reality of what has been called a culture of death. The slippery slopes that some of us warned about back in 1973, when the Supreme Court sanctified abortion as another choice, a legitimate option, indeed a preferred option, now appears before us as a precipitous cliff, where the elderly, the infirm, the sick, the disabled are lined up at the top and invited to do the right thing and relieve their loved ones of their burdensome existence by plunging off this cliff under the care of a physician who will assist them in their suicidal journey.
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The metaphor of the slippery slope is remarkably appropriate when one considers exterminating life in a womb has become a constitutional right; partial birth abortion, the killing of an almost born child is as we speak legal. The unborn child marks the beginning of life. We now move from this tragedy to assisted suicide, at the end of life's continuum. Who is to say the slippery slope won't become steeper and the unwanted, the despised, the useless eaters will soon join the unborn as candidates in this journey to oblivion.
Much to my dismay, the Attorney General on June 5, 1998, in response to my request to her to uphold the decision of Thomas Constantine, the administrator of the Drug Enforcement Administration, instead overruled his decision and opined that assisted suicide does not fall under the jurisdiction of the Controlled Substances Act. She left the task of defining and therefore determining whether the action of a physician in assisting in a patient's suicide is a legitimate medical purpose under the Federal Controlled Substances Act to the States.
I introduced H.R. 4006, the Lethal Drug Abuse Prevention Act of 1998, with the cosponsorship of Representative James Oberstar of Minnesota, to clarify that intentionally dispensing or distributing of a controlled substance with the purpose of causing the suicide or euthanasia of any individual is not a legitimate medical purpose and will subject an applicant or registrant to revocation or suspension of their DEA registration to provide and dispense controlled substances.
I was concerned that doctors not be hindered in their palliative care of patients, because provisions in this bill may present a situation where pain alleviation that results in death is confused with actions that are taken to assist in a patient's suicide.
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In this regard, section 2 of the bill provides for the establishment of an advisory medical review board of pain relief experts to offer the DEA recommendations on revocation and suspension cases where pain relief may have caused the patient's death. This legislation has been carefully crafted to make a clear distinction between medical practice that may risk death in the interest of relieving pain and suffering and a practice that has the ending of the patient's life as its primary goal.
[The bill, H.R. 4006, follows:]
H. R. 4006
To clarify Federal law to prohibit the dispensing or distribution of a controlled substance for the purpose of causing, or assisting in causing, the suicide or euthanasia of any individual.
IN THE HOUSE OF REPRESENTATIVES
JUNE 5, 1998
Mr. HYDE (for himself and Mr. OBERSTAR) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
Page 12 PREV PAGE TOP OF DOCTo clarify Federal law to prohibit the dispensing or distribution of a controlled substance for the purpose of causing, or assisting in causing, the suicide or euthanasia of any individual.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Lethal Drug Abuse Prevention Act of 1998''.
SEC. 2. LETHAL DRUG ABUSE PREVENTION.
(a) DENIAL OF REGISTRATION.Section 303 of the Controlled Substances Act (21 U.S.C. 823) is amended by adding at the end the following:
''(i) DENIAL OF REGISTRATION.The Attorney General shall determine that registration of an applicant under this section is inconsistent with the public interest if
''(1) during the 5-year period immediately preceding the date on which the application is submitted under this section, the registration of the applicant under this section was revoked under section 304(a)(4); or
''(2) the Attorney General determines, based on clear and convincing evidence, that the applicant is applying for the registration with the intention of using the registration to take any action that would constitute a violation of section 304(a)(4).''.
(b) SUSPENSION OR REVOCATION OF REGISTRATION.
(1) IN GENERAL.Section 304(a) of the Controlled Substances Act (21 U.S.C. 824(a)) is amended
Page 13 PREV PAGE TOP OF DOC (A) by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively; and
(B) by inserting after paragraph (3) the following:
''(4) has intentionally dispensed or distributed a controlled substance with a purpose of causing, or assisting in causing, the suicide or euthanasia of any individual, except that this paragraph does not apply to the dispensing or distribution of a controlled substance for the purpose of alleviating pain or discomfort (even if the use of the controlled substance may increase the risk of death), so long as the controlled substance is not also dispensed or distributed for the purpose of causing, or assisting in causing, the death of an individual for any reason;''.
(2) CONFORMING AMENDMENT.Section 304(a)(5) of the Controlled Substances Act (21 U.S.C. 824(a)(5)) (as redesignated by paragraph (1) of this subsection) is amended by inserting ''other'' after ''such''.
(c) PAIN RELIEF.Section 304(c) of the Controlled Substances Act (21 U.S.C. 824(c)) is amended
(1) by striking ''(c) Before'' and inserting the following:
''(1) ORDER TO SHOW CAUSE.After any hearing under paragraph (2), and before''; and
(2) by adding at the end the following:
''(2) MEDICAL REVIEW BOARD ON PAIN RELIEF.
''(A) IN GENERAL.The Attorney General shall by regulation establish a board to be known as the Medical Review Board on Pain Relief (referred to in this subsection as the 'Board').
''(B) MEMBERSHIP.The Attorney General shall appoint the members of the Board
Page 14 PREV PAGE TOP OF DOC ''(i) from among individuals who, by reason of specialized education or substantial relevant experience in pain management, are clinical experts with knowledge regarding standards, practices, and guidelines concerning pain relief; and
''(ii) after consultation with the American Medical Association, the American Academy of Hospice and Palliative Medicine, the National Hospice Organization, the American Geriatrics Society, and such other entities with relevant expertise concerning pain relief, as the Attorney General determines to be appropriate.
''(C) DUTIES OF BOARD.
''(i) HEARING.If an applicant or registrant claims that any action (or, in the case of a proposed denial under section 303(i)(2), any potential action) that is a basis of a proposed denial under section 303(i), or a proposed revocation or suspension under subsection (a)(4) of this section, is an appropriate means to relieve pain that does not constitute a violation of subsection (a)(4) of this section, the applicant or registrant may seek a hearing before the Board on that issue.
''(ii) FINDINGS.Based on a hearing under clause (i), the Board shall make findings regarding whether the action at issue is an appropriate means to relieve pain that does not constitute a violation of subsection (a)(4). The findings of the Board under this clause shall be admissible in any hearing pursuant to an order to show cause under paragraph (1).''.
SEC. 3. CONSTRUCTION.
(a) IN GENERAL.Nothing in this Act or the amendments made by this Act shall be construed to imply that the dispensing or distribution of a controlled substance before the date of enactment of this Act for the purpose of causing, or assisting in causing, the suicide or euthanasia of any individual is not a violation of the Controlled Substances Act (21 U.S.C. 801 et seq.).
Page 15 PREV PAGE TOP OF DOC (b) INCORPORATED DEFINITIONS.In this section, the terms ''controlled substance'', ''dispense'', and ''distribute'' have the meanings given those terms in section 102 of the Controlled Substances Act (21 U.S.C. 802).
Today, we will hear from three panels of witnesses and they will testify about the medical, legal and ethical issues surrounding assisted suicide. I welcome them here and thank them for coming today to help us grapple with this most difficult issue, and I yield to Mr. Scott for the purposes of a statement.
Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the opportunity to participate in the hearing today. The legislation is very troubling as we are again replacing our judgment for the judgment of a physician, and I know that we are also poised to disrupt decisions made by terminally ill patients and their physicians. The bill would create a situation involving second guessing of decisions by doctors, and for that reason it is opposed by major medical associations.
You have pointed out the problem with treatment of terminally ill patients with pain medication. Doctors prescribing pain relief medications to terminally ill patients may be reluctant to prescribe these medications for fear of facing the administrative hearing. The result may be that people are dying an agonizing and painful death without the benefits of care which would be most appropriate for their particular case.
We should also look at the National Medical Practices Board that is established in the committee and whether or not this would be politicized for years. We have gone from time to time without a Surgeon General because of the political nature of that appointment.
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Finally, Mr. Chairman, we want to look at the State of Oregon, and we are delighted to have the governor here testifying today. Sixty percent of the voters in Oregon voted to keep the government out of this personal decision, and our actions today would be a direct affront to that decisionmaking process.
I look forward to hearing the testimony from all of today's witnesses. These are very difficult issues, and I believe the government should be very careful as we intrude in this very personal decision. I yield back the balance of my time.
Mr. HYDE. Thank you, Mr. Scott.
On our first panel this afternoon, our first witness will be Dr. Herbert Hendin, Professor of Psychiatry at New York Medical College. Following him will be the current Governor of Oregon, the Honorable John A. Kitzhaber, who is also a physician and a graduate of the University of Oregon Medical School. We welcome you, Governor. And we welcome you, Doctor, and we welcome you, Doctor. And we welcome you, Ms. Coleman.
The next witnesswe are particularly proud to have the Governor here, but it occurred to me that wasn't politically correct. So the next witness will be Dr. Gregory Hamilton, who joins us from Physicians for Compassionate Care; and the final witness will be Diane Coleman, who is President of the disability organization, Not Dead Yet.
Thank you for being here this afternoon, and I would ask you to please try to summarize your testimony in 5 minutes, if you can, and without any objection, your written statements will be made a part of the permanent hearing record.
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So, Dr. Hendin, you are recognized.
STATEMENT OF HERBERT HENDIN, M.D., PROFESSOR OF PSYCHIATRY, NEW YORK MEDICAL COLLEGE
Mr. HENDIN. Thank you. For the past 7 years, in this country and the Netherlands, I have been studying the experiences of doctors, patients and families with assisted suicide and euthanasia. When I began my work, the apprehensions I had about assisted suicideand euthanasia were rooted in experience with people who became suicidal in response to serious illness.
Medical illness plays an important role in 25 percent of all suicides. This percentage rises with age, from 50 percent of suicides over 50 to over 70 percent in suicides older than 60. The majority suffer from depression that can be treated. Though pain and other factors, such as the lack of family support, contribute to the wish for death, none is as significant as depression, which has been found to be the only predictor of the desire for death.
These patients are not significantly different than patients who react to other crises with the desire to end the crisis by ending their lives. I feared that patients who became suicidal in response to serious or terminal illness would become willing victims if assisted suicide and euthanasia were sanctioned.
What I learned in the Netherlands, and subsequently in this country, indicated that such fears were justified. Assisted suicide and euthanasia which had been proposed as an unfortunate but necessary solution in refractory cases became easy ways of dealing with anxiety and depression as well as pain in patients who become suicidal in response to serious or terminal illness.
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Sanctioning assisted suicideand permitting the use of controlled substances for assisted suicide is sanctioning the practiceshould not be permitted because it would markedly worsen the care we provide to terminally ill patients. Moreover, while suicide is a major public health problem, assisted suicide should not become our solution to it.
In both the United States and the Netherlands, ignorance of how to relieve suffering is probably the most frequent reason for doctors complying with or encouraging patients' assisted suicide and euthanasia requests, although physicians rationalize what they do as respecting patient autonomy.
At a small, international workshop that addressed problems in the care of the terminally ill patients, two American cases were presented in which terminally ill patients requested assisted suicide. In one case, a man making the request was confined to a wheelchair with advanced symptoms of AIDS that included cystic lung infection, severe pain due to inflammation of the nerves in his limbs and marked weight loss.
By the appropriate use of steroids, antidepressants and psychological sensitivity in dealing with his fears of abandonment, he was able to gain weight, be free of his pain and his wheelchair and live an additional 10 months, for which he was grateful.
In another case a woman with great pain due to lung cancer that invaded her chest wall asked for assisted suicide. A nerve block relieved her pain, and she was happy to be able to leave the hospital and live her remaining months at home.
Page 19 PREV PAGE TOP OF DOC I presented these cases to several assisted suicide advocates in the Netherlands and in this country up to the point where the patient requested assisted suicide. They at first agreed that the patient with AIDS had a right to have assisted suicide or euthanasia, but were not so sure after they heard the actual outcome.
In the second case, aware that a nerve block could provide relief, most would not agree to assisted suicide. In other words, doctors felt free to ignore patients' requests for assisted suicide when they knew how to help the patient. Patient autonomy was in essence a rationale for assisted suicide when doctors felt helpless and did not know what else to do. This seems an argument for educating physicians, not for sanctioning assisted suicide.
Studies have shown that the more physicians know about palliative care, the less they favor assisted suicide; the less they know, the more they favor it. Although advances in our knowledge of palliative care is one of the most exciting developments in medicine in the past decade, we have evidence that the majority of physicians are not yet adequately trained to deal with the many factors and symptoms commonly associated with patients' requests for assisted suicide.
Surprisingly and contrary to the expectations of its proponents, sanctions for assisted suicide and euthanasia increases the power and control of doctors, not patients. This happens because the doctor can suggest assisted suicide or euthanasia, which has a powerful impact on patients' decisions, can ignore patient ambivalence, not present suitable alternatives and even end the lives of patients who have not requested it.
Sanction of assisted suicide is, therefore, bad for patients, bad for medicine, and bad for society. The American Medical Association recognized this in the strong amicus curiae brief opposing assisted suicide it submitted to the U.S. Supreme Court. I was pleased to have been consulted by the attorneys preparing that brief and even more pleased that the U.S. Supreme Court cited my work in its decision rejecting a constitutional right to assisted suicide.
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Yet it is difficult for the AMA to be of help to us with the legislation you are considering. Some of the AMA leadership are uncomfortable at supporting government restriction of doctors' privileges to prescribe controlled substances even for a practice that the AMA condemns. This seems to be a case where public interest must prevail over the understandable but nevertheless parochial interests of some in the profession to be free of outside regulation.
It seems to me that it is Congress that must be a wise champion of society's interests while protective of the most vulnerable, those who are elderly, poor, disabled and minorities, groups that will be the most immediate victims if assisted suicide becomes accepted medical practice.
[The prepared statement of Herbert Hendin, M.D. follows:]
PREPARED STATEMENT OF HERBERT HENDIN, M.D., PROFESSOR OF PSYCHIATRY, NEW YORK MEDICAL COLLEGE
For the past seven years I have been studying the experiences of doctors, patients, and families with assisted suicide and euthanasia in this country and the Netherlands. When I began my work, the apprehensions I had about assisted suicide and euthanasia were rooted in experience with people who became suicidal in response to serious illness. Medical illness plays an important role in 25 percent of all suicides. This percentage rises with age: from 50 percent of suicides over fifty to over 70 percent in suicides older than sixty. The majority suffer from depression that can be treated. Though pain and other factors such as the lack of family support contribute to the wish for death, none is as significant as depression, which has been found to be the only predictor of the desire for death. These patients are not significantly different than patients who react to other crises with the desire to end the crisis by ending their lives. I feared that patients who became suicidal in response to serious or terminal illness would become willing victims if assisted suicide and euthanasia were sanctioned. What I learned in the Netherlands and subsequently in this country indicated that such fears were justified.
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Assisted suicide and euthanasia which had been proposed as an unfortunate but necessary solution in refractory cases become easy ways of dealing with anxiety and depression, as well as pain in patients who become suicidal in response to serious or terminal illness. Sanctioning assisted suicideand permitting the use of controlled substances for assisted suicide is sanctioning the practiceshould not be permitted because it would markedly worsen the care we provide to terminally ill patients. Moreover, while suicide is a major public health problem, assisted suicide should not become our solution for it.
In both the United States and the Netherlands, ignorance of how to relieve suffering is probably the most frequent reason for doctors complying with or encouraging patients' assisted suicide and euthanasia requests, although physicians rationalize what they do as respecting patient autonomy. At a small, international workshop that addressed problems in the care of the terminally ill, two American cases were presented in which terminally ill patients requested assisted suicide.
In one case a man requesting assisted suicide was confined to a wheel chair with advanced symptoms of AIDS that included cystic lung infection, severe pain due to inflammation of the nerves in his limbs, and marked weight loss. By the appropriate use of steroids, antidepressants, and psychological sensitivity in dealing with his fears of abandonment, he was able to gain weight, be free of his pain and his wheel chair, and live an additional ten months for which he was grateful.
In another case a woman with great pain due to lung cancer that invaded her chest wall asked for assisted suicide. A nerve block relieved her pain, and she was happy to be able to leave the hospital and live her remaining months at home.
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I presented these cases to several euthanasia advocates in the Netherlands and in this country up to the point where the patient requested assisted suicide They at first agreed that the patient with AIDS had a right to have assisted suicide or euthanasia, but were not so sure after they heard the actual outcome. In the second case, aware that a nerve block could provide relief, most would not agree to assisted suicide.
In other words, doctors felt free to ignore patients' requests for assisted suicide when they knew how to help the patient. ''Patient autonomy'' was in essence a rationale for assisted suicide when doctors felt helpless and did not know what else to do. This seems an argument for educating physicians not for sanctioning assisted suicide.
Studies have shown that the more physicians know about palliative care, the less they favor assisted suicide; the less they know, the more they favor it. Although advances in our knowledge of palliative care is one of the most exciting developments in medicine in the past decade, we have evidence that the majority of physicians are not yet adequately trained to deal with the many factors and symptoms commonly associated with patients' requests for assisted suicide.
Surprisingly, and contrary to the expectations of its proponents, sanction for assisted suicide and euthanasia increases the power and control of doctors, not patients. This happens because the doctor can suggest assisted suicide or euthanasia, which has a powerful impact on patients' decisions, can ignore patient ambivalence, not present suitable alternatives, and even end the lives of patients who have not requested it.
Page 23 PREV PAGE TOP OF DOC Sanction of assisted suicide is therefore bad for patients, bad for medicine, and bad for society. The American Medical Association recognized this in the strong amicus curiae brief opposing assisted suicide it submitted to the U.S. Supreme Court. I was pleased to have been consulted by the attorneys preparing that brief and even more pleased that the U.S.Supreme Court cited my work in its decision rejecting a constitutional right to assisted suicide.
Yet it is difficult for the AMA to be of help to us with the legislation you are considering. Some of the AMA leadership are uncomfortable at supporting government restriction of doctors' privileges to prescribe controlled substances even in response to a practice that the AMA condemns. This seems to be a case where public interest must prevail over the understandable but nevertheless parochial interests of some in the profession to be free of outside regulation.
It seems to me that it is Congress that must be a wise champion of society's interests while protective of the most vulnerablethose who are elderly, poor, disabled, and minoritiesgroups that will be the most immediate victims if assisted suicide becomes accepted medical practice.
Mr. HYDE. Thank you very much, Doctor. And next, the Governor of Oregon, John A. Kitzhaber.
STATEMENT OF JOHN A. KITZHABER, GOVERNOR, STATE OF OREGON
Page 24 PREV PAGE TOP OF DOC Mr. KITZHABER. Chairman Hyde and members of the committee, for the record my name is John Kitzhaber, Governor of the State of Oregon, and I appreciate this opportunity to appear before you today to lend the perspectives of my State on H.R. 4006. The fact is that I believe the bill was introduced and this hearing is being conducted largely in response to statutory initiatives adopted by the voters of the State of Oregon at two separate statewide elections.
First, Mr. Chairman, let me begin with a brief history of physician assisted suicide in the State of Oregon. Oregon's constitution provides that through the initiative process the people can propose laws and amendments to the constitution in an election independent of the legislative assembly. And in November 1994, a statewide general election, such an initiative was placed before the voters of Oregon, known as Ballot Measure 16. The initiative allowed terminally ill adults to obtain prescriptions for lethal drugs, and it was approved with just over 51 percent of the vote. Following a Federal court injunction that stopped the initial implementation of Ballot Measure 16, the Oregon legislature referred to the voters a measure to repeal. In a November 1997 election, the Oregon voters overwhelmingly rejected the repeal of physician assisted suicide by a vote of 60 percent to 40 percent.
I share this with you, Mr. Chairman, to emphasize that Oregon's current law permitting physician suicide is not the result of an administrative action by the Executive branch, it was not the result of a mere statute by the Legislative branch, but rather it was the result of perhaps the most democratic form of lawmaking available to the citizens of Oregon, a direct vote of the people.
At two statewide elections, a clear majority of the Oregon electorate voted to permit assisted suicide as an option for those with terminal illness. Mr. Chairman, it is not my intent to try to change minds on the issue of assisted suicide, although I do support it as an option, but rather to offer a few observations on the consequences of H.R. 4006 if it becomes law.
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Notwithstanding my concerns relating to constitutional questions and questions of federalism, I view with great alarm, both as a governor and as a licensed physician, the policy implications of this bill. With all due respect, I view this legislation as an unprecedented extension of Federal Government into the practice of medicine. And I want to make it clear that I do not object to regulating the medical profession and have done so myself at times. The question is where that regulation should be vested, at the Federal level or the State level, and this clearly moves it to the Federal level, and I think it has serious implications on care available to individual citizens.
Through the creation of the medical review board on pain relief, H.R. 4006 gives the United States Attorney General substantial new powers to deny or revoke a physician's DEA registration, which would prohibit a physician from prescribing controlled substances to control pain for any reason, whether it is a child with a broken leg or hospice care and pain control for the terminally ill based solely on the subjective determination of this medical review board.
These subjective standards for denial or revocation of DEA registration raise serious concerns in my mind about the care available to terminally ill citizens largely because this denial standard is based on evidence of a physician's intentions. And I can tell you as a physician with over 15 years of primary care experience that this intention standard will have a chilling effect on the legitimate use of controlled substances to provide compassionate care to terminally ill individuals, which is not the same as physician assisted suicide.
If H.R. 4006 were law today, and given my own efforts to try to implement the will of the majority of Oregon voters, I would think twice before providing pain management to those who clearly need it for fear that my public views would be used as evidence of an intention to practice euthanasia under another name. Mr. Chairman, I believe this is a blatantly subjective standard. It puts physicians at risk of denial or revocation of their DEA privileges based on the judgment of a federally created medical review board which will second guess their purposes and their intentions in those situations where death is foreseeable and inevitable, but not in fact intended.
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Mr. Chairman, in conclusion, I believe that persons of good will can and do legitimately disagree on the merits of physician assisted suicide as a public policy, but to me the most disturbing aspect of H.R. 4006 is that it achieves its policy objective of prohibiting States through their constitutional processes from permitting physician assisted suicide indirectly. It does not in fact say to the American people, suicide at the end of life, assisted or otherwise, is not legally condoned in this country; rather this bill establishes what I view as a less than benign process of intimidation and threat and significant professional risk to practicing physicians attempting to alleviate pain and suffering of terminally ill patients.
If the actions of the people of Oregon at not one but two statewide elections are deemed by Congress to be unconscionable, and if in its collective wisdom Congress rejects the earnest and profound debate about the morality and legality and practicality of physician assisted suicide that has occurred under Oregon's democratic form of government, then I would urge you to debate an explicit policy on physician assisted suicide and don't use the artifice of an amendment to the Controlled Substances Act to establish a precedent setting intervention by the Federal Government into the practice of medicine, and don't intimate and put at risk physicians when the true objective is in fact altering the choices available to terminally ill patients.
Framing the issue from this perspective would at least engage the American public in a dialogue about the real issue. Whether you agree or disagree with Oregon's current policy, we have had an earnest and profound and very public debate that has, in my opinion, enriched our democratic society, and it is a debate that sooner or later the society is going to have to come to terms with.
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[The prepared statement of Governor Kitzhaber follows:]
PREPARED STATEMENT OF JOHN A. KITZHABER, GOVERNOR, STATE OF OREGON
Chairman Canady, members of the Subcommittee on the Constitution, for the record my name is John Kitzhaber, Governor of the State of Oregon. I appreciate this opportunity to appear before the Subcommittee today to offer the perspectives of the State of Oregon on H.R. 4006, the ''Lethal Drug Abuse Prevention Act of 1998.''
H.R. 4006 was introduced, and this hearing is being conducted, largely in response to statutory initiatives adopted by Oregon voters not once, but at two separate statewide elections. I appear before you today pursuant to the obligation of my office under the Constitution of Oregon that provides that I ''shall take care that the Laws be faithfully executed.'' [Article V, Sec. 10]
The public policy issues surrounding H.R. 4006 are complex, serious and profound. On one level is the controversial and emotional policy debate alternatively referred to as ''death with dignity,'' ''physician assisted suicide'' or ''physician aid in dying.'' Equally complex, serious and profound are the issues of the appropriate role of the federal government in the regulation of the practice of medicine and the fundamental principles on which our federal system of government was established under the United States Constitution.
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My comments today, Mr. Chairman, will focus on three areas: 1. A brief recapitulation of recent history of physician assisted suicide legislation in Oregon; 2. Summary observations on the consequences of H.R. 4006 on the practice of medicine and health policy in the U.S.; and 3. Concluding thoughts on the fundamental policy debate that should occur in light of the introduction of H.R. 4006.
PHYSICIAN ASSISTED SUICIDE LEGISLATION IN OREGON:
The Constitution of the State of Oregon provides that ''[t]he people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.'' [Article IV, Sec. 1]
On November 8, 1994, at a statewide general election, such an initiative, known as Ballot Measure 16, was placed before the Oregon electorate. Ballot Measure 16's title stated: ''Allows Terminally Ill Adults to Obtain Prescription for Lethal Drugs.'' With a general election turn-out of 68%, Ballot Measure 16 was approved by a margin of 51.3% in favor, 48.7% opposed. [627,980 Yes; 596,018 No; 1,223,998 total votes cast on Measure 16.]
A federal court injunction stopped implementation of Ballot Measure 16 and opened a lengthy series of appeals at various levels of the federal judiciary during 199596. In 1997, the 69th Oregon Legislative Assembly considered several legislative proposals relating to physician assisted suicide, culminating in the passage of H.B. 2954A which repealed the statutes enacted by initiative at the November, 1994 general election. The provisions of H.B. 2954A included that ''[t]his Act shall be submitted to the people for their approval or rejection at a special election held throughout this state on November 4, 1997.'' [H.B. 2954A, Sec. 3].
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At the November, 1997 statewide special election, Ballot Measure 51 was considered by the Oregon electorate. Ballot Measure 51's title stated: ''Repeals Law Allowing Terminally Ill Adults to Obtain Lethal Prescription.'' With a special election turn-out of 60%, Ballot Measure 51 was rejected by a margin of 59.9% opposed to repeal, 40.1% in favor of repeal. [666,275 No; 445,830 Yes; 1,112,105 total votes cast on Measure 51.]
This second Oregon plebiscite prompted passage by Congress and signing by the President of the Assisted Suicide Funding Restriction Act in late 1997. It also led to requests of Attorney General Reno to review ''whether the Department of Justice, through the Drug Enforcement Administration, may invoke the Controlled Substances Act, 21 U.S.C. §801971, to take adverse action against physicians who assist patients in ending their lives by prescribing controlled substances.'' Attorney General Reno's opinion, issued on June 5 of this year and the substance of which I am certain you are familiar, led to the introduction of H.R. 4006 and its companion in the Senate, S. 2151.
My reason for this brief recapitulation of recent history is to emphasize that current Oregon law permitting physician assisted suicide was not promulgated by administrative action of the Executive Branch nor was it a ''mere'' statute originating through action of the Legislative Branch. The process by which physician assisted suicide was determined to be within the ''legitimate practice of medicine'' was the most democratic form of law-making available to the citizens of Oregon, the initiative and referendum. At two statewide elections, a clear majority of the Oregon electorate voted to permit physician assisted suicide. As Governor, responsible under Oregon's Constitution for the Executive Department, it is my obligation to ''take care that the Laws be faithfully executed.''
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CONSEQUENCES OF H.R. 4006:
Mr. Chairman, I would now like to offer a few observations, in summary form, on the consequences if H.R. 4006 becomes law. Notwithstanding my concerns relating to constitutional questionsissues of federalismwhich I will summarize at the end of my testimony, I view with great alarm, as a Governor and a licensed physician, the policy implications of H.R. 4006.
First, this legislation is an unprecendented expansion of federal power over the practice of medicine. The Controlled Substances Act (CSA) was adopted by Congress to ''keep legally available controlled substances within lawful channels of distribution and use.'' Through the power to revoke prescriptive privileges and the review function of the Medical Review Board on Pain Relief, the Attorney General is given substantial power to determine what constitutes legitimate medical practice, especially as it relates to pain management practices generally and those practices in end-of-life care specifically.
Second, the standards for denial or revocation of DEA registration raise several concerns:
A. A denial standard based on evidence of a physician's intentions may substantially chill the exercise of free speech rights. Will the policy opinions of physicians be used as ''clear and convincing evidence'' of their medical intentions?
B. This ''intention'' standard could substantially influence medical practice with respect to aggressive palliative care due to fear that a physician's views will be used as evidence of an intention to practice euthanasia under a different label.
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C. This subjective standard confounds the ''sorting out'' of a prescriber's purposes or intentions when death is unintended but foreseeable; physicians are placed at uncertain risk of denial or revocation by DEA.
D. The proposed standard may substantially restrict the permissibility of the ''double effect'': Death is often the foreseeable, even expected, result of medication sufficient to control excruciating pain. The U.S. Supreme Court observed in Vacco v. Quill that ''painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or maybe, only to ease his patient's pain,'' and that ''the law distinguishes actions taken ''because of'' a given end from actions taken ''in spite of'' their unintended but foreseen consequences.'' Nonetheless, H.R. 4006 establishes a violation if the purpose was to cause or assist in the death of a patient for any reason.
Mr. Chairman, I believe that persons of good will can, and do, legitimately disagree on the merits of physician assisted suicide as a public policy. I further believe that Congress has the right to restrict the use of federal funds pursuant to legislation such as the Assisted Suicide Funding Restriction Act.
Whether intended or not, H.R. 4006, through its amendment of the Controlled Substances Act, ''displaces the states as the primary regulators of the medical profession'' and supercedes ''a state's determination [of] what constitutes legitimate medical practice.'' Furthermore, H.R. 4006 achieves its policy objectiveof prohibiting states, through their constitutional processes, from permitting physician assisted suicideby indirection. It does not say to the American people, ''Suicide at the end of life, assisted or otherwise, is not legally condoned in this country!'' Rather, H.R. 4006 establishes a less-than-benign process of intimidation, threat or significant professional risk to practicing physicians attempting to alleviate the pain and suffering of terminally-ill patients.
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If the actions of the people of Oregon, at two statewide plebiscites, are deemed by Congress to be unconscionable; if, in its collective wisdom, Congress rejects the ''earnest and profound debate about the morality, legality, and practicality of physician assisted suicide'' that has occurred under Oregon's democratic form of government, then adopt an explicit policy on physician assisted suicide. Don't use the artifice of an amendment to the Controlled Substances Act to establish a precedent-setting intervention by the Federal government into the practice of medicine. Don't intimidate and put at risk physicians when your true objective is altering the choices available to terminally ill patients.
Framing the issue from this perspective would, at least, engage the American public in a dialogue about the real issue. Whether you agree or disagree with Oregon's current policy, we've had an ''earnest and profound debate'' that has, in my opinion, enriched our democratic society.
I would be happy to answer any questions the Subcommittee members may have.
Mr. HYDE. Thank you very much, governor.
Our next witness is Dr. Gregory Hamilton, who joins us from Physicians for Compassionate Care. Dr. Hamilton.
STATEMENT OF N. GREGORY HAMILTON, M.D., PHYSICIANS FOR COMPASSIONATE CARE
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Mr. HAMILTON. Thank you, Mr. Chairman and members of the committee. My name is Dr. Gregory Hamilton. I practice medicine in Portland, Oregon. I am the president of Physicians of Compassionate Care. I speak in favor of the Lethal Drug Abuse Prevention Act.
Using controlled substances to kill sick people is not medical; using controlled substances to eliminate the sufferer instead of the alleviating suffering is not medical. It is a threat to public health and safety.
Physicians for Compassionate Care agrees with the American Medical Association that physician assisted suicide is fundamentally incompatible with the physician's role as healer. It is incompatible because it is not medical. Controlled substances are currently regulated; diverting federally regulated drugs for nonmedical purposes is not allowed. If the law is unclear on this issue, as Attorney General Janet Reno seems to think, then it is up to the United States Congress to make it clear that using drugs to kill sick people is not medical, it poses a threat to the public health and safety, and therefore, it is not allowed.
Malpractice claims are forbidden by Oregon suicide law. For this procedure alone doctors only need to demonstrate good faith instead of being required to meet the community medical standard. Setting the standard below that required for medical care is possible because suicide is not medical. The Oregon assisted suicide law forbids any health care provider to even criticize or censure colleagues for unethical acts, according to their own professional standards for this procedure alone. This exception to Oregon's medical practice act is required, because assisted suicide is not medical.
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Oregon, under Governor John Kitzhaber's direction, has created a separate and secret death certificate system for assisted suicides. According to this health division memorandum, funeral directors have been told to bypass regular channels in reporting these deaths and employees have been threatened with dismissal. This separate and secret reporting reflects the fact that assisted suicide is not medical.
Despite the disastrous effect of assisted suicide on pain management and palliative care in the Netherlands, some Oregon doctors and politicians still claim that Oregon's current high morphine use is a victory for legalization of assisted suicide. This claim is deceptive. Actually, during the time Oregon's morphine use increased so dramatically, every doctor knew an injunction forbid assisted suicide yet morphine use increased.
Certainly then, disallowing use of scheduled drugs for assisted suicide does not interfere with prescription of pain medicine. In fact, it prevents the threat to public health and safety posed by the deterioration of good pain management and palliative care that accompanies assisted suicide.
Oregon will now fund assisted suicides for the poor and disabled while cutting needed services. Governor John Kitzhaber's health services commission did this despite the fact that nearly every organization representing the poor and disabled at the hearings objected to funding doctor assisted suicide because it endangers the poor and disabled, thereby posing a threat to public health and safety.
In Oregon's first reported case of doctor assisted suicide, the elderly woman involved didn't have significant pain. In fact, her doctor diagnosed her as depressed, but then her family called the Compassion in Dying Federation's, Dr. Peter Goodwin, an assisted suicide proponent, and he determined over the telephone that he did not consider her depressed but rational. Within 3 weeks of this telephone call, the woman died of a lethal oral overdose.
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Although depression had been diagnosed, this elderly woman did not receive antidepressant medication and psychotherapy. Any other patient who was not stigmatized by the label ''terminally ill'' would have been routinely given a trial of such treatment. This patient did not receive standard medical care, but the doctors involved can never be sued for malpractice, because suicide is not medical and doctors are exempt from malpractice suit. This woman was subjected to lethal abuse of controlled substances obtained, no doubt, by use of a Federal DEA registration number.
Because assisted suicide is not medical, because eliminating the sufferer instead of alleviating suffering is not medical, because killing sick people is not medical, and because allowing the diversion of controlled substances for such nonmedical purposes threatens the public health and safety, Physicians for Compassionate Care urges you to support the Lethal Drug Abuse Prevention Act of 1998.
[The prepared statement of Dr. Hamilton follows:]
PREPARED STATEMENT OF N. GREGORY HAMILTON, M.D., PHYSICIANS FOR COMPASSIONATE CARE
Physicians for Compassionate Care, an organization founded among Oregon doctors with more than 1,000 members, urges each member of the Subcommittee on the Constitution to support legislation clarifying that federal law forbids prescription of scheduled drugs for doctor-assisted suicide or euthanasia. Federal law currently regulates physicians and limits their prescription of controlled substances to those uses intended for medical purposes. This regulation is necessary and appropriate. At this time, however, the public health and safety requires clarification and strengthening of the law. This testimony will demonstrate how Oregon's doctor-assisted suicide law and its implementation highlight the obvious fact that doctor-assisted suicide is not medical. Clearly limiting the prescription of controlled substances to exclude the non-medical procedure of doctor-assisted suicide will protect and make easier improved use of prescription medicines for treatment of pain and suffering in the seriously ill. Experience in the Netherlands, compared to that in Oregon before doctor-assisted suicide was implemented, makes it abundantly clear that acceptance of assisted suicide interferes with the appropriate use of pain medications for palliative care. Furthermore, clarification that the doctor-patient relationship excludes participation of the doctor in the patient's suicide actually provides needed protection for the time-honored relationship of trust between doctor and patient. Without such clarification, the use of controlled substances for doctor-assisted suicides would threaten the public health and safety in many ways, including: allowing states and insurance companies to save millions of dollars by offering patients doctor-assisted suicide instead of medical care; stigmatizing and discriminating against the seriously, perhaps terminally ill; and shrouding this one lethal procedure in an impenetrable cloak of secrecy. Physicians for Compassionate Care urges the members of this committee to vote in favor of the Lethal Drug Abuse Prevention Act of 1998.
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Assisted suicide is not medical, and it threatens the public health and safety.
Because all human life is inherently valuable, physicians prescribe medicines to heal illness, prolong life, and alleviate suffering (American Medical Association Code of Medical Ethics Reports, Vol. 2, No. 2, Report 3334, 1991 & Vol. 5, No. 2, Report 59, 1994). Assisted suicide does not alleviate suffering; it eliminates the sufferer. Neither does it heal illness nor prolong life. Physicians for Compassionate Care agrees with the American Medical Association that ''Physician-assisted suicide is fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal risks'' (American Medical Association Code of Medical Ethics, 1997, p. 56). That is, assisted suicide is not medical, and it threatens public health and safety.
PHYSICIANS ARE ALREADY REGULATED
If I write a morphine prescription for a patient, that is legal under Oregon law, because I am licensed to practice medicine in Oregon. It is also authorized by the United States Drug Enforcement Agency (DEA), because I am registered with the DEA and because the purpose is both legal and medical. But if I were to write a morphine prescription to enhance a healthy patient's euphoria at the Mt. Hood Jazz Festival, which I assure you I would not do, that would not be allowed under the Controlled Substances Act, because it is not a medical purpose. As the law now stands, I could, and very appropriately so, lose my DEA registration, regardless of whether or not Oregon could or would remove my license to practice medicine. No one would be surprised at such a result, because physicians are accustomed to oversight and to having their prescription of controlled substances regulated. Diverting federally regulated prescription drugs for non-medical purposes is not allowed. And it should not be allowed. If the Controlled Substances Act is unclear on the issue of prescribing controlled substances for patient suicides, as Attorney General Janet Reno seems to think it is, then it is up to the United States Congress to make it clear that using these drugs to kill sick people is not medical, it poses a threat to public health and safety, and therefore, it is not allowed.
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OREGON LAW DEMONSTRATES ASSISTED SUICIDE IS NOT MEDICAL
The Oregon assisted suicide law and Oregon's implementation of that law under Governor John Kitzhaber's direction clearly reflects the fact that assisted suicide is not medical. For example, medical malpractice claims are forbidden by Oregon's suicide law. For this procedure and this procedure alone, doctors only need to demonstrate ''good faith,'' instead of being required to provide care which meets the community medical standard, as is the case for medical procedures. This lowering of the legal standard below that required for medical malpractice cases distinguishes assisted suicide from medical care.
The Oregon assisted suicide law does not allow physicians, health care providers or professional groups to criticize (''censure'') colleagues for acts that are unethical according their own professional ethics for this procedure and this procedure alone. This provision constitutes an exception to Oregon's Medical Practice Act. The exception is required, because assisted suicide is not medical.
Oregon, under Governor John Kitzhaber's direction, has created a parallel death certificate system for assisted suicides. This system is different from that used for all other deaths. Funeral directors have been told to by-pass regular channels and to ''direct (sic) report all physicians (sic) assisted death certificates'' to the Center for Health Statistics. ''Only limited staff in this office will be aware of this type of death, as these records will not be handled through regular channels'' (See attached memorandum of Sharon Rice, Oregon Health Division, December 12, 1997). This separate and secret reporting reflects the fact that assisted suicide is different; it is not medical.
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As pointed out by Doctor Kenneth Stevens, Professor and Chairman, Department of Radiation Oncology, Oregon Health Sciences University, ''The goals of medical treatment are to cure disease and relieve symptoms in order to improve quality of life. Doctor-assisted suicide is not a 'medical treatment' '' (Written testimony to the Oregon Health Services Commission, February 26, 1998).
MEDICAL PROCEDURES CAN BE DEFINED BY INTENT
It is possible to use drugs for either medical or non-medical purposes; but physicians may only prescribe drugs for medical purposes. Physicians have long been accustomed to making this distinction. For example, doctors acknowledge that sometimes pain medications appropriately may be prescribed despite some risk to a patient's life, yet it is not appropriate medical practice to prescribe pain medication with the intention of ending the patient's life. This distinction was accepted by the Supreme Court of the United States in 1997 (Dennis C. Vacco, Attorney General of New York, et al., v. Timothy E. Quill et al., No. 951858, June 26, 1998), when it stated that ''. . . in some cases, pain killing drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, 'must necessarily and indubitably, intend primarily that the patient be made dead.' '' The Supreme Court went on to emphasize that ''The law has long used actors' intent or purpose to distinguish between two acts that may have the same result.'' What is a medical use and what is not a medical use can clearly be determined according to the doctor's intent. Using the depressant effects of morphine or barbiturates to create a euphoric state in a drug abuser or using those depressant effects to kill a person are not medical purposes. But using those same medicines to relieve pain or calm anxiety in a seriously ill patient are medical purposes.
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USE OF MEDICINES TO CONTROL PAIN IS PROTECTED BY FORBIDDING THEIR USE FOR DOCTOR-ASSISTED SUICIDE
Some individuals or organizations may argue in a misleading fashion that the Lethal Drug Abuse Prevention Act of 1998 may interfere with the use of appropriate pain medication for the seriously ill. Such an assertion could not be further from the truth. In fact, all evidence points to the opposite conclusion: allowing doctor-assisted suicide has interfered with the appropriate use of prescription drugs for treatment of pain and depression and for palliative care where it has been practiced. Dutch ethicist, Doctor Henk Jochemsen testified to the U.S. House Commerce Subcommittee on Health and the Environment (Assisted Suicide: Legal, Medical, Ethical, and Social Issues, Serial No. 105107, March 7, 1997), ''In the Netherlands there still is a lack of facilities with expertise in the field of integral palliative care (hospice care). It must be concluded that to a significant extent euthanasia is practiced as a substitute for palliative care'' (p. 127). Doctor Herbert Hendin studied the Dutch experience with assisted suicide, which inevitably led to euthanasia and then to non-voluntary medical killing. He recognized that since that country accepted assisted suicide ''. . . studies have demonstrated how inadequately physicians are trained in palliative care in the Netherlands'' (Seduced by Death, New York: Norton, 1998, p. 143). Doctor Zbigniew Zylicz, the Netherlands's leading palliative care expert, and Doctor Chris Rutenfrans from The Hague's Department of Justice, joined Hendin in declaring in the Journal of the American Medical Association (June 4, 1997) that since the acceptance of assisted suicide, ''. . . there has been an erosion of medical standards in the care of terminally ill patients in the Netherlands'' (p. 1722). They went on to explain that once euthanasia or assisted suicide is accepted for the exceptional case, ''In the process, palliative care is one of the casualties.'' Just this past spring, Hendin warned members of Physicians for Compassionate Care in Portland, Oregon, ''. . . the dangerous result of accepting assisted suicide is a medical profession and a general population that has no conceptualization of any other response to the elderly or seriously ill, except assistance in suicide'' (Hamilton, C., Assisted Suicide and Medical Illness, PCC News, May, 1998, p. 2). Clearly, then, acceptance of doctor-assisted suicide interferes with effective pain management for the seriously ill and therefore poses a threat to public health and safety.
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Despite this evidence from the Netherlands that assisted suicide and euthanasia result in inadequate use of pain medication for palliative care, some Oregon doctors and politicians claim that Oregon's current high morphine use is a victory for legalization of assisted suicide in that state. This claim is deceptive, indeed. The truth is that the Oregon Board of Medical Examiners began its campaign for the increased use of narcotics in the treatment of pain before assisted suicide was legalized. In January, 1993, well before the assisted suicide ballot measure in fall, 1994, the Oregon Board of Medical Examiners (BME) issued the following statement: ''Likewise, physicians often prescribe narcotics too sparingly for their terminally ill patients. The BME believes that physicians should make every effort to relieve the pain and suffering of their dying patients. This may require either intermittent or continued administration of large doses of narcotics'' (Oregon Board of Medical Examiners, Pain Management in Acute Conditions and in Terminal Illness, January, 1993). In response to such educational efforts, Oregon doctors increased their use of pain medication. During the time Oregon's morphine use increased so dramatically, the assisted suicide law had an injunction against it and was not in effect. The use of that drug or any other drug for assisted suicide was clearly illegal and every doctor in Oregon knew it. Certainly, then, Oregon's case itself illustrates that even while it is illegal to use controlled substances for assisted suicide or euthanasia, appropriate use of pain medication in the seriously or terminally ill can continue to improve. The Lethal Drug Abuse Prevention Act of 1998 will not interfere with the effective use of pain medication to alleviate discomfort in the seriously ill. In fact, it will help prevent deterioration in the appropriate use of pain medicines like that which has taken place in the Netherlands.
THE DOCTOR-PATIENT RELATIONSHIP IS PROTECTED BY CLARIFICATION
Page 41 PREV PAGE TOP OF DOC Individuals promoting assisted suicide may claim that the Lethal Drug Abuse Prevention Act of 1998 might interfere with the doctor-patient relationship. Nothing could be further from the truth. Actually, ''The doctor-patient relationship is particularly charged emotionally; doctors depend upon role clarity to guide them in their responsibility to act in the best interest of the patient. If physicians alter their ethics to include assisting in suicides as one of their roles, it will alter the physician-patient relationship in complex and potentially dangerous ways'' (Hamilton, N.G. et al., The Doctor-Patient Relationship and Assisted Suicide, American Journal of Forensic Psychiatry 19:5975, 1998, p. 59). In addition, ''In a complex and irrevocable life ending decision such as assisted suicide, both life and liberty would be endangered by changing medical ethics and the physician's role in suicides. Those individuals who are most dependent on the medical profession to care for them would be at greatest risk'' (p. 70). And, ''More generally, if physicians change their ethics and begin to hold the belief that the lives of some patients are no longer worthwhile, it will damage the physician's trusted social role in the context of the doctor-patient relationship'' (p. 70). Physicians for Compassionate Care agrees with the American Medical Association that ''Physician-assisted suicide is fundamentally incompatible with the physician's role as healer'' (American Medical Association Code of Medical Ethics, 1997, p. 56). The best protection for the integrity of the doctor-patient relationship is to clarify the physician's role in that relationshipin this instance, to clarify that participation in a patient's suicide is excluded. The Lethal Drug Abuse Prevention Act of 1998 protects the doctor-patient relationship by clarifying it.
OREGON'S ASSISTED SUICIDE LAW THREATENS HEALTH AND SAFETY
Just after implementation of Oregon's assisted suicide law last fall, that state decided to fund assisted suicides for the poor and disabled on its rationed Oregon Health Plan, while cutting needed services for these same patients. Assisted suicide proponent, Ms. Barbara Coombs Lee, Executive Director of Compassion in Dying, adamantly denied to the U.S. House Commerce Subcommittee on Health and the Environment (Assisted Suicide: Legal, Medical, Ethical, and Social Issues, Serial No. 105107, March 7, 1997, p. 92 & p. 102103) that there were any such plans, claiming that authorities had been ''misrepresented'' in previous testimony. Yet, Oregon immediately approved doctor assisted suicide under the ''comfort care'' section of the Oregon Health Plan upon implementation of the doctor-assisted suicide law. The Oregon Health Services Commission, each member appointed by Governor John Kitzhaber, did this despite the fact that every organization representing the poor and disabled at their hearings objected to funding doctor-assisted suicide, because it endangers the poor and disabled. Governor John Kitzhaber implemented this recommendation in the context of woefully inadequate funding for mental health care, including treatment of depression in the terminally ill. The Oregon Health Plan carves out mental health care and provides what treatment it does through health maintenance organizations (HMO) on a fully capitated basis. That is, contracting mental health clinics or groups are paid in advance per enrolled patient; they can actually profit by failing to deliver care. It is well known that depression, more often than pain, leads to suicidal ideation in the seriously ill.
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Similar to the Oregon Health Plan, many HMOs have announced that they will fund assisted suicides in Oregon. Last fall, I called up one of these HMOs, PACC, and asked them what their benefit was for home palliative care of the terminally ill. I was shocked when I was told the answer: it was a mere $1,000. What is this HMO going to do when that $1,000 is gone in a few weeks? When the seriously ill ask what their options are, will the HMO remind the patient that their assisted suicide benefit has not been used yet? This kind of financial incentive for HMOs will inevitably pressure patients to accept lethal prescriptions instead of good medical care. These incentives to offer suicide instead of medical care clearly pose a serious threat to public health and safety.
STIGMATIZATION OF THE SERIOUSLY ILL
The state of Oregon, through changing its laws, now allows HMOs and Governor John Kitzhaber's Oregon Health Plan to offer suicide instead of medical care for one population and one population alone. By doing so, it stigmatizes and devalues a whole class of Americans, those labeled terminally ill. As a result, the state of Oregon has set up a system which deprives those individuals of equal protection under the law. All other citizens are protected from suicide. But those labeled terminal are offered suicide instead of treatment and hope. No state should be allowed to stigmatize, devalue, and discriminate against a vulnerable group such as the seriously ill.
The U.S. Supreme Court (Washington et al., v. Harold Glucksberg, No. 96110, June 26, 1998) determined that there is no Constitutional right to assisted suicide. The Justices discovered, that ''. . . it turns out that what is couched as a limited right to 'physician assisted suicide' is likely, in effect, a much broader license, which could prove extremely difficult to police and contain.'' This fact has been clearly documented in ''A Report of Chairman Charles T. Canady'' to this Subcommittee on the Constitution (September, 1996). Already, in Oregon, this progression has taken place. For example, a Corvallis, Oregon doctor has already caused his comatose patient to be killed with a lethal injection he prescribedwithout her consent. And right-to-die activists mounted a media campaign to protect him from prosecution. State officials ultimately declared that, given public sentiment in Oregon, there would be no point in trying to prosecute him. Such a discriminatory campaign and decision would not be tolerated if it were directed against any group other than the seriously, perhaps terminally ill or a similarly vulnerable group. Non-consensual killing in the medical setting happens routinely where government rules and regulations codify consensual killing, because such codification, by its very existence, stigmatizes the seriously ill as having lives less worth living.
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SHROUDED IN SECRECY
The people of Oregon and of America were promised that a doctor-assisted suicide law would bring the practice out in the open. Instead, this law has shrouded assisted suicide in an impenetrable cloak of secrecy. Doctors may voluntarily report cases or may make medical records available for review. But there is no punishment for failure to report. Indeed, there is no effective oversight to make sure that abuses are not taking place.
FIRST REPORTED DOCTOR-ASSISTED SUICIDE
The first reported case of doctor-assisted suicide in Oregon was itself shrouded in secrecy. Although a media event was staged, dramatizing this case, all that is known about the woman's suicide are bits and pieces funneled to the media by the assisted suicide advocacy group that moved to Oregon just weeks after implementation of the law began. This group, the Compassion in Dying Federation, announced to the world media the doctor-assisted suicide of a woman in her mid-80's who had breast cancer. There is no evidence that she was in significant pain. But there is considerable evidence that she was depressed. Her regular doctor did not think that assisted suicide was appropriate and declined to provide her a lethal prescription. Her second doctor was open to the philosophical notion of assisted suicide, but he considered her depressed and not eligible under the law. It was then that the elderly woman's family called the Compassion in
Dying Federation. The medical director from this group, Doctor Peter Goodwin, one of the chief petitioners for Oregon's assisted suicide law and a committed proponent of doctor-assisted suicide, determined over the telephone that he did not consider her depressed but ''rational'' (Gianelli, American Medical News, April 13, 1998, p. 62). It was then, we are told, the woman was referred to yet another doctor, whose name has been kept secret, but who undoubtedly shared Goodwin's political views favoring suicide within the doctor-patient relationship. It is said the patient eventually saw a psychiatrist for a single consultation (Gianelli, 1998), presumably to confirm her competence. This psychiatrist, most certainly hand picked by the suicide doctors, rendered the expected opinion. He did so in just one session, despite the fact that 94% of Oregon psychiatrists agree they are not very confident that they can determine in a single visit when depression is affecting decisions about assisted suicide (Ganzini, L. et al., Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide, American Journal of Psychiatry, 156:14691475, 1996). Once the elderly woman's family had contacted Goodwin, she was given a lethal oral overdose in barely more than the minimum waiting period of two and a half weeks the law requires. Although her second physician determined the patient was suffering from depression, this elderly woman did not receive antidepressant medication in a therapeutic trial to see if treatment of her mood would eliminate her suicidal ideation. Any other patient, who was not stigmatized by the label ''terminally ill,'' would have routinely been given a trial of such treatment.
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This case, promoted by assisted suicide advocates as ideal, illustrates that assisted suicide is not medical, because it does not follow standard medical procedures; and it demonstrates that doctor-assisted suicide poses a grave threat to the public health and safety. This patient did not receive the medical standard of care for individuals with suicidal ideation and a medical diagnosis of depression. But, the doctors involved in her suicide can never be sued for malpractice, because suicide is not a medical procedure and, unlike all medical procedures, the doctors are exempt from suit, if the standard of ''good faith'' is met. This patient's death was handled through a political rather than a medical process; she was used as a political pawn. She was subjected to lethal abuse of controlled substances, obtained, no doubt, by use of a federal DEA registration number.
This case illustrates how controlled substances can be abused and diverted to the non-medical purpose of intentionally causing someone's death. The option of contributing to her suicide interfered with legitimate medical care. This care might have included antidepressant medications, psychotherapy, pain treatment, and other elements of interdisciplinary palliative care, all of which could have alleviated the woman's symptoms without eliminating the woman who had the symptoms. And yet, the reporting processes set up by Governor John Kitzhaber cloak the procedure in secrecy and do not allow even the simplest clinical questions about lack of treatment to be answered. The complacent acceptance of such practice diminishes all persons with a serious, perhaps terminal illness. It stigmatizes them and treats their lives as if they were not as valuable as your life and mine. ''Such devaluation can adversely affect both the psychological and physical well-being of the seriously, possibly terminally, ill, whether or not they might ever consider suicide for themselves'' (Hamilton et al, 1998, p. 70). To contribute to the suicide of even one person in the medical setting rather than offering them treatment and hope threatens the public health and safety in that it diminishes all seriously ill individuals and treats them as lesser citizens. To complacently accept such a practice, in any state, threatens to create a medical profession and a society which knows no response to the elderly and seriously ill other than assisted suicide (Hendin, 1998).
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Because assisted suicide is not medical and because allowing the diversion of controlled substances for assisted suicide threatens the public health and safety, Physicians for Compassionate Care urges each and every member of the Subcommittee on the Constitution to lend your support to the lethal Drug Abuse Prevention Act of 1998 (H.R. 4006).
1. Rice, S. Memorandum to County Vital Records Registrars and Deputies. Oregon Health Division, December 12, 1997.
2. Hamilton, N.G., Edwards, P.J., Boehnlein, J.M. and Hamilton, C.A. The Doctor-Patient Relationship and Assisted Suicide. American Journal of Forensic Psychiatry 19:5975, 1998.
3. Curriculum vitae and disclosure statement.
MEMORANDUM TO COUNTY VITAL RECORDS REGISTRARS AND DEPUTIES, OREGON HEALTH DIVISION, DECEMBER 12, 1997
To: County Vital Records Registrars and Deputies
From: Sharon Rice, Manager, Registration Unit Center for Health Statistics
Page 46 PREV PAGE TOP OF DOCSubject: ConfidentialityDeath with Dignity
This memo is to insure your continued support of the Vital Records strict code of confidentiality on all birth and death certificates.
You received a memo dated November 18, 1997 from Edward Johnson, II, State Registrar. In this memo he discussed the necessity of protecting the privacy of all parties when a death occurs by means of Oregon's death with dignity law.
I have received several calls from different counties asking for more information. After discussing these concerns with the Registrar and physicians within the Health Division the following rules will apply to all physician assisted deaths.
You will neither confirm nor deny if a death has occurred in your county. If this question is asked by employees within your own Health Department, those calls should be referred to Edward Johnson, II, State Registrar (503) 7314109 or Katrina Hedberg, M.D. (503) 7314024. If you are asked for information from any other source on this specific topic, those callers will be referred to Katrina Hedberg, M.D., Oregon Health Division, (503) 7314024. Do not refer callers to me as I am not at liberty to discuss this topic, and I would only have to refer the caller again.
We will begin asking funeral directors to direct report all physicians assisted death certificates to this office thus eliminating the registration through the county office. This will assist in maintaining the confidentiality in your office. Only limited staff in this office will be aware of this type of death, as these records will not be handled through regular channels. We will also be controlling the issuance of certified copies making sure the family is aware of the new abbreviated copies and recommending they receive this type of certified copy.
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If the funeral home chooses to forward the death record to your office, you may forward it to this office for registration. You should not maintain a white copy of the death record for six months nor should you issue certified copies.
If you do not register the death locally then you may not maintain a six-month copy of the death record. Before issuing any certified copies of the death record you will need to contact this office for special permission to do so. There are three people in this office that can grant that permission:
Edward Johnson, IIState Registrar
Carol Sanders, Manager, Certification Unit
Sharon Rice, Manager, Registration Unit
Since we do not anticipate a larger number of these cases, the different rules for the handling, these deaths should not adversely affect your work. You may never have this type of death occur within your county.
If you haven't by now determined the seriousness of this, let me add one additional statement so you will know how seriously thismatter is being taken by the State Health Division. Any staff within the Center for Health Statistics that reveals any information they are not authorized to release, will immediately be terminated. Any county vital records staff, releasing information will have their registrar/deputy registrar commissions immediately revoked, thus eliminating you from having any contact with vital records within your county.
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Remember if you are asked if any physician assisted deaths have occurred in your county you may neither confirm nor deny their occurrence. This may put you in a difficult position if you are being asked from Personnel within your own health department. Again, you will need to explain that you have been told you are not to discuss this topic with anyone, and refer the caller as mentioned earlier in this memo.
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Mr. HYDE. Thank you, Dr. Hamilton.
And the final witness of this panel is Diane Coleman, President of the organization Not Dead Yet. Ms. Coleman?
STATEMENT OF DIANE COLEMAN, PRESIDENT, NOT DEAD YET
Ms. COLEMAN. Thank you for the opportunity to speak today. Not Dead Yet is a national disability rights group which oppose the legalization of assisted suicide and euthanasia, because any potential benefit to a few is far outweighed by the lethal danger to this Nation's largest minority group, people with disabilities.
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We support the Lethal Drug Abuse Prevention Act proposed by Congressman Hyde, because it will help to save our lives. Before I directly address the argument raised regarding States rights against the bill, I want to talk about discrimination in the health care system.
In 1989, the U.S. Civil Rights Commission issued a 153-page report entitled ''Medical Discrimination Against Children with Disabilities.'' Among the information considered by the Commission was an experiment conducted in 1977 to 1982 at Children's Hospital of Oklahoma. Doctors there developed a quality of life formula for babies with spina bifida, which took into account the socioeconomic status of the baby's family to determine what to advise them about a simple but life and death procedure. Better off families were provided a realistic and optimistic picture of their child's future while poor families were provided a pessimistic picture. Four out of five poor families accepted the doctor's advice, and 24 babies lost their lives.
The U.S. Civil Rights Commission concluded to accept a projected negative quality of life based on the difficulties society will cause rather than tackling the difficulties themselves is unacceptable. The Commission rejects the view that an acceptable answer to discrimination and prejudice is to assure the right to die to those against whom the discrimination and prejudice exists.
Today, adding to the medical discrimination that existed then, Medicare and Medicaid are facing major budget crises. Medicare already does not pay for prescription medications. On July 6th, the media reported that the Nation's top HMOs are pulling out of state Medicaid programs which serve poor, elderly and disabled people. Meanwhile the AMA and many individual hospitals are developing futility guidelines, which allow doctors to withhold treatment against the expressed wishes of a patient or their family.
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Several research studies demonstrate that physicians constantly and dramatically underestimate the quality of life of people with severe disabilities compared to our own assessments. What can we realistically expect to happen when physicians' subjective bases and financial self interest both discourage a high quality of care and a supposedly objective guideline exists for making those hard decisions.
I am especially concerned about newly injured people. Eight thousand new people are spinal cord injured each year and 99,000 are hospitalized with moderate to severe head injuries. In critical periods after injury, people could easily be swayed to make a so-called choice for death. So many of my colleagues with disabilities who now enjoy their lives have told me that they doubt they would have survived the first stages of their injuries in today's climate.
Of course, disability is not the only basis of health care discrimination. On June 17th this year, the Journal of the American Medical Association reported that people of color are significantly less likely to receive pain medication than whites. This study involved over 13,000 cancer patients and confirmed the racial differences found in previous studies. Now, let's look at the added possibilities for deadly discrimination if our society allows laws like Oregon's to be implemented. Some argue, yes, we have laws governing how society will normally respond to prevent suicide, but we can carve out an exception to those laws for certain people. After all these people may need help to do it.
Sometimes analogies are helpful. According to the Detroit Free Press, four out of five completed suicides are by men, but women try to commit suicide three times as often as men. Should we consider legalizing assisted suicide for women or since people of color are significantly less likely to receive pain medication, should society offer people of color or poor people an easier way out? The Oregon law on its face does not discriminate based on race. Everyone who receives assisted suicide must first be informed of their palliative care options. Of course, the law does not require that treatment alternatives actually be paid for. Isn't there a significant risk of a disparate impact of the Oregon law on people of color?
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Let's look at another possibility. In New Hampshire, the Hemlock Society has lobbied and gained introduction of a bill to legalize assisted suicide which applies to people with terminal or nonterminal but incurable conditions that shorten their overall life span. I would be eligible if it passes. Wouldn't that be a clear violation of my rights under the Americans with Disabilities Act to be treated differently than a nondisabled woman?
It was also well-established that the Americans with Disabilities Act covers persons with cancer and persons with HIV. In fact, people with other terminal illnesses also qualify as people with disabilities. I wish that this civil rights violation was obvious to everyone, as it would be if assisted suicide were legalized based on gender or race. Policymakers have completely ignored the ADA violations inherent in assisted suicide laws.
States rights. That is the argument being made in opposition to Congressman Hyde's bill. With all due respect to the will of the Oregon voters, since when does our country put discrimination up to majority vote? When States rights conflict with anti-discrimination laws, then Federal law must prevail. The Oregon assisted suicide law would create the ultimate form of discrimination, legalizing lethal overdoses based on the health status of the victim. How many more of our minority groups must die wrongfully? How many more murders of people with disabilities will go unpunished because the euthanasia movement is mistakenly seen as a progressive social cause?
Not Dead Yet calls upon all members of this Congress to support the Lethal Drug Abuse Prevention Act to affirm the principles of nondiscrimination which this Nation has struggled so long to establish, to turn back the steam roller of the euthanasia movement before it is too late.
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Thank you, Congressman Hyde, for allowing me to testify.
[The prepared statement of Ms. Coleman follows:]
PREPARED STATEMENT OF DIANE COLEMAN, PRESIDENT, NOT DEAD YET
My name is Diane Coleman. I am the Executive Director of Progress Center for Independent Living serving suburban Cook County, Illinois. The Center is one of our nation's over 400 nonprofit non-residential service and advocacy organizations, unique in that they are directed, staffed and operated by and for people with disabilities. I came to Illinois from Tennessee, where I served on the State Advisory Committee to the U.S. Civil Rights Commission and as an advisor to the Tennessee Human Rights Commission. I currently serve as Vice-Chair of the Illinois Medicaid Advisory Committee. Since 1987, I have been an organizer of ADAPT, the national disability rights group which is working to achieve bipartisan support for significant reforms in our nation's long term care system, which currently forces people into nursing homes without offering appropriate home and community based service options.
And in April 1996, I founded Not Dead Yet, a national disability rights group which opposes the legalization of assisted suicide and euthanasia. We oppose legalization because any potential benefit to a few people is far outweighed by the lethal danger such a law poses to this nation's largest minority group, people with disabilities. We support the Lethal Drug Abuse Prevention Act proposed by Congressman Henry Hyde because it will help to save the lives of people with disabilities from a society which too often wishes that we were dead.
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Before I specifically address the two primary arguments being raised against the bill, I think it's important to consider relevant factors in the larger health care context. I want to talk with you about the many faces of discrimination. Though sometimes masked as benevolent, they are often deadly.
U.S. CIVIL RIGHTS COMMISSION REPORT ON MEDICAL DISCRIMINATION AGAINST CHILDREN WITH DISABILITIES
In 1989, the U.S. Civil Rights Commission examined the passive euthanasia of infants and children with disabilities and issued a 153 page report entitled ''Medical Discrimination Against Children With Disabilities.'' (A copy of the Executive Summary of this report is attached as Appendix A.) The Commission looked closely at the role of negative and ill-informed quality of life judgments about people with disabilities in shaping medical treatment decisions. According to the Commission:
A significantly high incidence of medical discrimination against children with disabilities exists that is part of a much larger pattern of medical care discrimination against people with disabilities. (Executive Summary, page 8.)
Among the information considered by the Commission in reaching its findings was an experiment conducted from 1977 to 1982 by four doctors and a social worker at the Children's Hospital of Oklahoma. The doctors developed a ''quality of life'' formula which took into account the ''natural endowment'' of babies with spina bifida as well as the socioeconomic status of the baby's family. The doctors used the quality of life formula to determine which families they would advise to provide a relatively simple life-saving medical procedure, and which families they would advise to let the baby die. Without being told they were part of a study, better-off families were provided a realistic and optimistic picture of their child's potential, while poor families were provided a pessimistic picture. Four out of five poor families accepted the doctors' advice and 24 babies lost their lives. (See, John Woodward, ''It Can Happen Here,'' The Disability Rag, vol. 15 no. 1 (Jan/Feb 1994), attached as Appendix B.)
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To accept a projected negative quality of life . . . based on the difficulties society will cause . . ., rather than tackling the difficulties themselves, is unacceptable. The Commission rejects the view that an acceptable answer to discrimination and prejudice is to assure the ''right to die'' to those against whom the discrimination and prejudice exists. (U.S. Civil Rights Commission, Medical Discrimination Against Children With Disabilities, Chapter 3, ''The Role of Quality of Life Assessments in the Denial of Medical Treatment,'' p. 33 (September 1989).)
How prophetic the Commission's words seem today! In 1989, there had been several highly publicized court cases involving people with non-terminal disabilities who had been granted a so-called ''right to die,'' a woman with cerebral palsy, several men with spinal cord injuries. Most of them wanted to be freed from confinement in a nursing home, but didn't know how; instead of freedom, most of them got death. But back in 1989, the courts were not considering active measures to cause death, such as lethal medications. Back in 1989, Jack Kevorkian had not begun his killing spree involving well over 50 people with non-terminal disabilities. Back in 1989, what is now the Oregon law was only being proposed by a radical ''right to die'' fringe group called the Hemlock Society.
STRUGGLES IN THE HEALTH CARE SYSTEM
Today, adding to the medical discrimination that existed before ''the health care crisis,'' Medicare and Medicaid are facing major budget cuts. It should be noted that Medicare already does not pay for prescription medications, and that many seniors must choose between food and medication in their daily lives. Many states have already turned to mandatory managed care, shifting to a ''capitated'' system with inherent financial incentives to limit health care to those who need it most.
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People with disabilities are regularly bombarded with messages that we cost too much to be allowed to live. Here are a few examples. Last year, while testifying at a managed care hearing in Illinois, a disabled lawyer reported that he was assisting in a lawsuit against a Texas managed care company which consistently refused to renew provider contracts with specialist physicians who were found to have too many costly patients, including people with disabilities. Several months ago, a durable medical equipment dealer tried to repossess a friend's ventilator, provided initially based on her doctor's orders, because her employer's managed care company would not pay for it. On July 6, 1998, ABC news radio reported that the nation's top five HMOs, including Blue Cross/Blue Shield and Kaiser, are pulling out of state Medicaid programs which serve poor, elderly and disabled people. The next morning, ABC news radio on genetic counseling, stating that many couples choose to have children even after being counseled that their children have a one in four chance of having cystic fibrosis. I have also heard that medical ethicists and insurance companies are beginning to raise questions about whether society should have to pay for people's health-related choices.
Meanwhile, the AMA and many individual hospitals are developing futility guidelines, which allow doctors to withhold medical treatment against the expressed wishes of a patient or their family. I have read one such guideline, proposed by a multi-state hospital system, which would determine futility not simply based on whether the treatment would positively affect the condition it's meant to treat, but also based on quality of life as judged by the physician. While extreme cases of infant anencephaly or end-stage terminal conditions are often used to justify futility guidelines to overrule family decisions, family disagreement with doctors is extremely rare in such cases. However, there is ample evidence that such guidelines would be applied far more broadly than the extreme cases, applied to further justify denial of treatment to people with disabilities and chronic conditions based on well-documented physician biases about quality of life. (See, e.g., U.S. Civil Rights Commission Report, infra.)
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We should not accept without examination the notion that physicians are always knowledgeable, objective and caring healers. Several research studies demonstrate that physicians consistently and dramatically underestimate the quality of life of people with severe disabilities compared to our own assessments. For example, the Annals of Emergency Medicine (1994, vol. 23, 807812) reported that 86% of quadriplegics rated their quality of life as average or better than average. In contrast, only 17% of their emergency room doctors, nurses and technicians thought that their own quality of life would be average or better if they became quadriplegia. (A one-page summary of these studies, with citations, is attached as Appendix C.)
What can we realistically expect to happen when physicians' subjective biases and financial self-interests both discourage a high quality of care, and a supposedly objective process exists for making those ''hard decisions'' to withhold treatment that patient and family want to receive? We can expect that more patients will be killed through passive involuntary euthanasia.
DISCRIMINATION STORIES AND A LITTLE DATA
One friend of mine, an employed ventilator user in her late 20's, was told by an Ohio hospital that she would be subject to a ''do not resuscitate order'' regardless of her wishes to the contrary. Another, a healthy wheelchair user in his 20's who was hospitalized for disk surgery on his lower spine was repeatedly pressured to sign ''do not resuscitate orders.'' A social worker described worst case scenarios, told him that he would not want to live ''like that,'' and even visited him for approximately the tenth time to pressure him to sign while he was in the surgical recovery room. Both of my friends are disability rights activiststhey recognized the bigotry against them for what it is, and they argued, advocated, and lived.
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But for the majority of people with disabilities, whose only information about living with disability comes from health care providers, today's trends do not bode well. I am especially concerned about newly injured people. In those critical early hours, weeks, and months after injury, people could easily be swayed to make a so-called ''choice'' for death. What about the 8,000 people with new spinal cord injuries each year? Such individuals used to get 6 months to a year of physical rehabilitation, now they are lucky to get 6 weeks. What about the 99,000 people hospitalized each year for moderate to severe head injuries? They are being abandoned by a combination of the ignorance and greed that permeates so much of the health care system. So many of my working colleagues with disabilities who now enjoy their lives have told me that they would not have survived the first stages of their injuries in today's climate.
I'm sorry that I can only provide what is primarily anecdotal evidence of disability discrimination in the health care system. I can't tell you how many people are dying from the withholding and withdrawal of medical treatment, what their disabilities were, what their doctors told them, or whether and how well they were insured. So far as I can determine, that data is not being collected, not even as a means of monitoring the publicly funded systems under Medicaid and Medicare.
But it's important to note that disability is not the only basis of discrimination in the provision of health care. On June 17, 1998, the Journal of the American Medical Association reported that, among elderly cancer patients in nursing homes who reported daily pain, people of color were less likely to receive any form of pain relief than whites. This study involved over 13,000 cancer patients, and confirmed the racial differences found in previous studies. (A copy of this study is attached as Appendix D.)
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That's a glimpse of discriminatory denial of medical treatment. Now let's look at the added possibilities for deadly discrimination in the health care system if our society allows the legalization of active measures to hasten death, such as lethal prescriptions, under such state laws as Oregon proposes to implement.
DISCRIMINATORY LAWS TO HASTEN DEATH: STATUTORY CONSIDERATIONS
Why shouldn't the Oregon voters be allowed to legalize assisted suicide for certain individuals if their physicians report that they are terminally ill and acting voluntarily? Some might argue, ''While we have laws governing how various professionals, police and health care practitioners will normally respond to an individual's expressed desire to commit suicide, we can carve out an exception to those laws for certain people, and we can apply that exception in a fair and appropriate way. After all, these people may need help to commit suicide or else risk an unsuccessful attempt.''
Sometimes analogies are helpful in legal analysis. According to the Detroit Free Press, four out of five completed suicides are by men, but women try to commit suicide three times as often as men. Should we consider legalizing assisted suicide for women? This could be done with the Oregon safeguards requiring that the woman make the request for assistance two or three times in a fifteen-day period, is able to make and communicate decisions, and is not being coerced in any way evident to disinterested witnesses who have no financial stake in their demise. Don't we want to make sure that women can exercise their choice for suicide and not risk botching the attempt? Well, I think anyone can see that a law like that would constitute illegal sex discrimination.
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Let's look at another possibility. We know that modern palliative care and pain management, including the option of terminal sedation, are capable of preventing pain for everyone, but providers are far from consistent in providing this type of health care. According to the JAMA study I just mentioned, people of color are significantly less likely to receive these services than white people and more often face daily pain without the help of any analgesics. Things are bound to get worse with larger HMOs pulling out of government health programs serving the poor and elderly. Should society offer people of color, or the poor, an easier way out, again with the same Oregon safeguards? Would we let the Oregon voters decide to legalize assisted suicide for terminally ill people of color? Well, I think anyone can see that a law like that would be a clear violation of the Civil Rights Act of 1964, not to mention a denial of equal protection under the U.S. Constitution.
The Oregon law, on its face, does not discriminate based on race. It provides that everyone who receives assisted suicide must be informed of their palliative care options. Of course, the Oregon law does not require that treatment alternatives actually be provided to anyone who prefers them, it only requires that the alternatives be disclosed. The only form of treatment required under the Oregon law is assisted suicide. If the treatment alternatives are not covered by Medicaid, poor people would be denied access to those alternatives. In view of the study documenting racial discrimination in the provision of pain relief, isn't there a significant risk of a disparate impact of the Oregon law on people of color? Why is it that people who think of themselves as progressive tend to be rightly worried about disparate impact in the application of the death penalty, but don't worry about it in the application of assisted suicide laws?
Page 61 PREV PAGE TOP OF DOC Let's look at yet another possibility. In New Hampshire, the Hemlock Society has lobbied and gained the introduction of a bill to legalize assisted suicide which applies, by its express language, to people with non-terminal but incurable conditions that shorten their overall life span. (A copy is attached as Appendix E.) I would be eligible if it passes because I have spinal muscular atrophy which, statistically, shortens life span. In other words, if I, or any one of you on this Subcommittee, each requested assisted suicide from our physicians, I would be eligible under the New Hampshire bill and you (at least to all appearances) would not be. Even broader is the Harvard Model Act for assisted suicide posted on the Hemlock Society's website, under which any incurable condition is enough to make one eligible for an unnatural death with the help of a physician. In other words, society's behavior toward a suicidal person would be determined by whether the person has an incurable condition. Some people who declare their desire to die would be prevented and dissuaded from suicide, while others would be ensured of a successful suicide attempt. That's discrimination.
Both the New Hampshire bill and the Harvard Model Act, on their face, violate the Americans With Disabilities Act, the ''civil rights act'' for people with disabilities. I wish that this civil rights violation were as obvious to everyone as it would be if someone proposed to legalize assisted suicide based on gender or race. It is obvious to the following national disability organizations which have adopted positions opposing legalization of assisted suicide: the National Council on Independent Living, the National Council on Disability, ADAPT, Justice for All, TASH, the National Spinal Cord Injury Association, the World Association of Persons With Disabilities and, of course, Not Dead Yet.
Now consider the Oregon law. Unlike the New Hampshire proposal or the Harvard Model Act, which are closer to the next steps already being advocated by the Hemlock Society lobbyists, the Oregon law requires an incurable condition that is predicted to cause death within six months. Under the Americans With Disabilities Act, disability is defined, in part, as a ''physical or mental impairment that substantially limits one or more of the major life activities of the individual,'' such as walking, seeing, hearing, learning, working and self-care. Persons with cancer are protected under the ADA. Under last month's U.S. Supreme Court ruling, persons with HIV are protected.
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In fact, people with terminal illnesses generally qualify as people with disabilities, yet policy-makers have completely ignored the ADA violations inherent in assisted suicide laws. Unfortunately, discrimination based on health status is still fundamentally acceptable in this culture, still so deeply ingrained that it's hard for people to recognize it when it stares them in the face. It is being argued by some today that physicians should be able to prescribe lethal overdoses for some people with the pre-meditated intention, not to relieve physical pain and discomfort, but to kill. And let's again be clear that it's the doctor, not the person, who decides who's eligible.
The Oregon law cannot be evaluated in isolation from the social context in which it would be implemented. There is no credible evidence to support a claim that assisted suicide will only be available to conscious, competent, informed persons who are imminently dying and who voluntarily request it without coercion. The first widely reported case involved an 80-year-old woman with breast cancer whose own doctors refused to grant her assisted suicide request because they said she was depressed. She expressed a sense of loss over not being able to walk as well anymore and not being able to get to her garden. I know so many people who garden from wheelchairs that I wonder if anyone really explored the options with her, or just agreed that the obstacles she faced were insurmountable. Compassion in Dying, an organization that spun off from the Hemlock Society in the early 1990's, found her a doctor to hasten her death.
Of course, that first publicized case meets the explicit requirements of the law. Nothing in the law says the individual has to be informed about independent living or social service options, nothing says an individual has to actually be provided any medical or service alternatives he or she might prefer, and nothing says people can't shop around until they find a doctor who will do it.
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DISCRIMINATORY LAWS TO HASTEN DEATH: CONSTITUTIONAL CONSIDERATIONS
I'd also like to suggest that this type of discrimination amounts to a denial of equal protection of the law under the 14th Amendment. While the courts have so far declined to grant ''suspect class'' status to people with disabilities, in last year's landmark assisted suicide cases, the U.S. Supreme Court acknowledged the problem of discrimination:
. . . [T]he state has an interest in protecting vulnerable groupsincluding the poor, the elderly, and disabled personsfrom abuse, neglect, and mistakes . . . The State's interest goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and ''societal indifference.'' . . . [A] seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's.
In addition, Congress incorporated language in the Americans With Disabilities Act (ADA) indicating that disability-based discrimination may deserve a higher level of judicial and legislative scrutiny than it has often received. Specifically, in 1990, the U.S. Congress found that:
. . . [I]ndividuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society . . . (42 USC 12101 (a)(7); emphasis added.)
Page 64 PREV PAGE TOP OF DOCThe language ''discrete and insular minority'' was used to establish that people of color are entitled to the equal protection of the laws. Shouldn't people with disabilities be entitled to such equal protection as well?
As a side note, leading palliative care physicians readily admit that ''death within six months'' is not really predictable. I'm not a constitutional law scholar, but perhaps some of you on the Committee could tell me whether there is a problem with unconstitutional vagueness in the Oregon law.
NO ENFORCEMENT IN CIVIL COURTS
There is no credible evidence that assisted suicide will be limited to imminently dying or terminally ill persons in untreatable pain , regardless of the exceptional case stories often used by proponents to justify a wholesale abandonment of the existing legal distinction between allowing a natural death and hastening an unnatural death.
The civil courts have already established numerous so-called ''right to die'' case precedents for treating people with significant but non-terminal disabilities in the same way that terminally ill people are treated. Courts have already ruled that there is a diminished state interest in preserving our lives. For example, in the often cited California Appeals Court case involving Elizabeth Bouvia, a then 26-year-old woman with cerebral palsy who went to college in a motorized wheelchair, a woman who had faced a recent miscarriage and marriage break-up, the court said:
Petitioner would have to be fed, cleaned, turned, bedded, toileted by others for 15 to 20 years! Although, alert, bright, sensitive, perhaps even brave and feisty, she must lie immobile, unable to exist except through physical acts of others. Her mind and spirit may be free . . . but she herself is imprisoned and must lie physically helpless, subject to . . . humiliation and dehumanizing aspects created by her helplessness. . . . We cannot conceive it to be the policy of this State to inflict such an ordeal upon anyone.
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This is one of many cases in which courts discuss disability with the same degree of ignorance and prejudice that prevails in the majority of society.
NO ENFORCEMENT IN CRIMINAL COURTS
There is no credible evidence that the criminal courts will punish physicians or others who act outside the explicit scope of the alleged safeguards of the Oregon law. The Oregon law grants both civil and criminal immunity to any participant in an assisted suicide who claims ''good faith compliance'' with the law's requirements. A claim of ''good faith'' is virtually impossible to disprove. This renders all of the law's other purported safeguards effectively meaningless in terms of enforceability.
Suppose a woman with a progressive but non-terminal disability like multiple sclerosis felt like a burden on her husband and family, because they couldn't afford her medications or couldn't get enough in-home support services. Even though her needs could be met and her family could be supported, they are often not, and rarely without a fight. Too many tired sighs from her husband, too many looks awaywhat is ''voluntary'' suicide?
Approximately fifteen percent of Jack Kevorkian's victims had non-terminal multiple sclerosis, most of them women. By his own admission, he has presided in the deaths of over 100 individuals, and the Detroit Free Press reports that the overwhelming majority of these were not terminally ill. Can we people with disabilities have faith in the criminal justice system? Kevorkian's acts violate Michigan law according to the state Supreme Court. Why is he still on the streets, still killing people with non-terminal disabilities, and now even harvesting their organs? Because the Oakland County prosecutor was elected on a campaign promise that he would not prosecute Jack Kevorkian.
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We disabled people begin to feel like we are in the South in the 1950's, where a killer could get away with murder based on the minority status of their victim. Why would it be different in Oregon than in Michigan? Who will be left to complain? The primary witness to any wrongdoing is dead. Even if prosecutors paid attention to a few early cases, how long would that continue given the overall inadequacy of law enforcement resources? And would juries convictor ''nullify'' the law as they have done in Michigan? Even if convictions occurred, would the sentences have any deterrent value?
Since the Oregon law immunizes all participants, to what extent might it be interpreted by the public as permission to hasten the deaths of family members without the involvement of health care providers? According to the FBI, 55.9% of all homicides of children ages 011 are committed by family members, and 21.2% of homicides of individuals age 50 and over are committed by family members. Overall, approximately one in seven of all homicides are perpetrated by family members of the victim. [Snyder, Howard N., and Finnegan, Terrence A. (1997) Easy Access to the FBI's Supplementary Homicide Reports: 19801995.]
In 1997, a graduating Harvard law student, Amy Hasbrouck, wrote a paper on the criminal sentencing of family members who killed disabled children, based on cases reported in Lexis. (A copy of the Forward and summary of this study is attached as Appendix F.) According to Ms. Hasbrouck's study, out of 98 such reported cases, 35 contained sentencing information. Of these, 15 convicted killers of disabled children received no jail or prison time, and eight received some jail time ranging from only 3 months to five years. Contrast the infamous case of Susan Smith!
Page 67 PREV PAGE TOP OF DOC We can also begin to see claims of assisted suicide and ''mercy killing'' being raised as defenses in murder cases. George Delury, who later admitted to using a plastic bag to kill his disabled wife, served four months in jail for an alleged assisted suicide. Last year, significant evidence that Delury's wife did not want to die was presented on Dateline NBC. Earlier this year in New York, John Bement was sentenced to two weeks in jail and 400 hours community service for killing his disabled wife, claiming that it was an assisted suicide. Robert Latimer will serve one year for killing his 12-year-old daughter with cerebral palsy, somewhat short of the statutory minimum 10-year prison sentence for a conviction on second degree murder charges in Canada. On June 19th, the Fort Lauderdale Sun-Sentinel reported on a young woman charged with killing her disabled boyfriend: when the physical evidence did not support her initial story that he killed himself, she changed her story to assisted suicide. And we have still not heard whether charges will be brought against the so-called ''Angel of Death'' in the Los Angeles nursing home murder case involving over 40 victims.
Given this track record, people with disabilities have no confidence that either the civil or criminal justice systems will value our lives enough to protect us equally in a society which is more and more open in its certainty that everyone would be better off without us.
THE MOVEMENT TO LEGALIZE INVOLUNTARY EUTHANASIA
Last December 3rd, the Hemlock Society issued a widely ignored press release expressing its next legislative agenda, saying that the Oregon law for which they lobbied does not go far enough. (A copy of this press release is attached as Appendix G.) Hemlock's Executive Director, Faye Girsh, called for two additional changes in law. First, regarding mercy killing cases, she stated:
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We suggest that, if these cases are to be prosecuted, they should be treated as special crimes of compassion and evaluated separately. The criteria might include the person's wishes to die, the person's medical condition, the family's concurrence, the alternatives available, and the motives of the person being tried.
In addition, Ms. Girsh asked that family members and other ''agents'' be allowed to kill incompetent individuals (individuals who could not request assisted suicide). She said:
Some provision should be made for a situation in which life is not being sustained by artificial means but, in the belief of the patient or his agent, is too burdensome to continue. . . . A judicial determination should be made when it is necessary to hasten the death of an individual whether it be a demented parent, a suffering, severely disable (sic) spouse or a child. (Emphasis added.)
Why have the media almost completely ignored this call for the legalization of involuntary euthanasia?
THE DUTY TO DIE
A leading disability rights speaker from Canada, Norm Kunc, wrote a brief description of the history of discrimination against people with disabilities, dedicated to the memory of Tracy Latimer, the 12-year-old with cerebral palsy who was murdered by her father. Kunc reminded us:
Page 69 PREV PAGE TOP OF DOCThroughout history, people with physical and mental disabilities have been abandoned at birth, banished from society, used as court jesters, drowned and burned during the Inquisition, gassed in Nazi Germany, and still continue to be segregated, institutionalized, tortured in the name of behaviour management, abused, raped, euthanized and murdered. (Kunc and Van der Klift, Credo for Support (1995).)
In March/April 1997, a leading bioethics journal, The Hastings Center Report, issued a cover article entitled ''Is There a Duty To Die?'' (A copy is attached as Appendix H.) The article leads off as follows:
Many people were outraged when Richard Lamm claimed that old people had a duty to die. Modern medicine and an individualistic culture have seduced many to feel that they have a right to health care and a right to live, despite the burdens and costs to our families and society. But in fact there are circumstances when we have a duty to die. As modern medicine continues to save more of us from acute illnesses, it also delivers more of us over to chronic illnesses, allowing us to survive far longer than we can take care of ourselves. It may be that our technological sophistication coupled with a commitment to our loved ones generates a fairly widespread duty to die.
These ideas are not new. What's most disturbing is that they are being printed in a highly respected ethics journal. I don't think that could have happened even five years ago.
JIM CROW AND PHYSICIAN PARANOIA
Two primary arguments are being made in opposition to Congressman Hyde's bill, arguments that the federal Controlled Substances Act should be disregarded to make way for the implementation of the Oregon assisted suicide statute: (1) State's rights and the will of the Oregon voters, and (2) the bill's alleged chilling effect on doctors.
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With all due respect to the will of the Oregon voters, since when does our country put discrimination up to majority vote? When states rights conflict with anti-discrimination laws, when they conflict with the equal protection clause of the 14th Amendment, then federal law must prevail. Brown v. Board of Education determined that separate schools are not equal schools, and effectively outlawed Jim Crow. The Oregon assisted suicide law legalizes the ultimate form of discrimination. It legalizes intentional killing based on the health status of the victim. This violates the Americans with Disabilities Act and, under a disparate impact analysis, may also violate the Civil Rights Act of 1964. We people with disabilities demand the equal protection of the law.
The second argument against Congressman Hyde's bill is that it will have a chilling effect on physicians in prescribing pain relief. This bill specifically allows the prescription of narcotics to relieve pain even if they will hasten death as a side effect. To the best of my information, there have been only a few convictions in the United States against doctors for wrongful dispensing of narcotics, and even pro-assisted suicide advocates admit that the convicted doctors in those cases were probably engaged in illegal drug trafficking. Why should the unsubstantiated fears of physicians receive so much weight? Why shouldn't they be more afraid of medical malpractice claims for denying pain relief? And why should their unsubstantiated fears be elevated above the very well-grounded fears of people with disabilities?
How many more of our minority group must die wrongfully, how many more murders of people with disabilities will go unpunished, because the euthanasia movement is mistakenly seen as a progressive social cause?
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Our society is wrestling with what is perhaps the most pivotal issue of our timewhether a cost-benefit analysis will determine the value of a human life, whether people with disabilities, including terminal illnesses, belong in our society as part of humanity's diversity, or whether we will be pushed, subtly and not-so-subtly, toward the Final Exit solution.
Not Dead Yet calls upon all members of this Congress to support the Lethal Drug Abuse Prevention Act of 1998, to affirm the principles of non-discrimination which this nation has struggled so long to establish, to turn back the steamroller of the euthanasia movement before it is too late.
We thank Congressman Hyde and the Constitution Subcommittee for the opportunity to speak to you today.
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Mr. HYDE. Thank you very much, Ms. Coleman.
Mr. SCOTT. Thank you, Mr. Chairman.
Governor, I am intrigued by Ms. Coleman's suggestion that the law requires people to be notified of their alternative treatment but doesn't require that treatment to be paid for. Could you comment on that?
Mr. KITZHABER. I am not sure I understand exactly.
Mr. SCOTT. You can have painthat your alternatives are you can commit suicide or you can have this protocol of pain medication whereby you will feel better, but you can't get it because you can't afford it.
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Mr. KITZHABER. That in fact is blatantly untrue in the State of Oregon. The Oregon health plan, which has dramatically expanded coverage to Oregon citizens, reducing the number of kids without health coverage from 21 to 6 percent, has a list of covered services which include hospice care, coverage care, which is very high on the list, and it covers prescription drugs, including medications prescribed for pain relief.
Mr. SCOTT. What consequences are there for violating the assisted suicide procedures?
Mr. KITZHABER. I am not aware.
Mr. SCOTT. If a doctor, you haveyou have two opinions that have to be given, suppose the doctor assists in a suicide without going through the procedure, without determining that they have 6 months only to live. Are there any consequences if they skip those steps and go right to the suicide?
Mr. KITZHABER. Mr. Chairman, Mr. Scott, I am not aware that that is specifically written into the measure. But let me just expand. This was passed, this was a statute, this isn't a constitutional provision, it was a statute passed by the Oregon voters. And I believe, and I had objection to it the first time it was on the ballots because there are a number of questions, valid questions, about the application, implementation of it. It was taken by the Oregon legislature in the 1997 legislative session, and a number of us worked to try to get the legislature to pass statutory, implementing legislation that would address these questions. Instead of having the will to implement the will of the voters and instead of having the courage to repeal it themselves, they referred it back to the voters, who overwhelming said we believe this is an option we want. There remained legitimate issues about the implementation, and I would be disingenuous if I didn't acknowledge that.
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But the appropriate place to resolve those is in the Oregon legislature in the next regular session, including the issues of malpractice. Those can all be taken up by the legislature. That is not a debate we have had in the legislature.
Mr. SCOTT. Dr. Hendin, I think you indicated that depression was a major cause of willingness to obtain an assisted suicide. The legislation, as I understand it, in Oregon prohibits assisted suicide in cases of depression. Is that an insufficient safeguard?
Mr. HENDIN. Yes, because the physician has to determine that or believe that the patient is depressed in Oregon to make a referral. Now, studies show the average general physician is not qualified to determine whether a patient is depressed. Many statutes proposed in other States mandate a psychiatric referral to somebody who is qualified to determine whether the patient is depressed. Oregon has no such mandated provision. So you are left with the question as to whether or not the particular physician is able to recognize depression, and studies have shown that in general, physicians are not.
Mr. SCOTT. The Oregon law does not require a psychiatric consult?
Mr. HENDIN. No, no. Many of the States do and if in Oregonthere is a health sciences group in Oregon that recommended that it should be mandatory, but it is not mandatory.
Page 80 PREV PAGE TOP OF DOC And if I could say one word about the question you asked Governor Kitzhaber. I have spent quite a bit of time looking at the Oregon law and legislation and the governor touched mildly on the fact that there are no enforcement provisions under this law with regard to reporting cases. In Oregon you don't have to be suffering to have assisted suicide, as you do in the Netherlands. All you need is a physician who says you have 6 months to live. The physician dosen't have to ask you why you want to die, you don't have to demonstrate suffering.
And when doctors do report their cases, the standard form provided allows only one half line for the diagnosis, no place to indicate how physicians came to that diagnosis, whether they used X-rays, laboratory tests, or hospital records. Similarly, there is only one half line for the prognosis. So we will never know the answer to the question you are raising. We won't know whether the law's procedures were followed correctly, because there is no reporting mechanism for doing so.
I suspect just from listening to Governor Kitzhaber that he would have done things differently, but that isn't what happened.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. HYDE. If you wish more time.
Mr. SCOTT. I am fine.
Mr. HYDE. Mr. Hutchinson?
Page 81 PREV PAGE TOP OF DOC Mr. HUTCHINSON. Mr. Chairman, I want to express my thanks for conducting this hearing. My apology, my flight was delayed and I was not able to get back here sooner. But this time I want to waive my questions and hope to join in a little bit later.
Thank you, Mr. Chairman.
Mr. HYDE. Well, when you have to come all the way from Arkansas, we understand. Well, I will withhold my questions, because we have a lot more witnesses. But I want to thank this distinguished panel. All four of you have made a great contribution to one of the toughest issues there is. So I want to thank all of you.
Ms. COLEMAN. I would like an opportunity to make a comment on the enforcement issue. I realize we are being excused, but I think it is important to note that the onlythere is really not likely to be anybody left to complain if someone is killed in this way, and the primary witness to any wrongdoing or type of coercion, subtle or not so subtle, is dead. When you look at what the civil courts and the criminal courts have been doing in the area of right-to-die cases, you see virtuallyI mean there is nothing happening that would indicate protection would occur.
The civil courts have already ruled that people with nonterminal disabilities should be treated the same as people with terminal conditions, and I just push that off to the side. And the criminal system is very much influenced by politics, Kevorkian is not being prosecuted because of a campaign promise by the prosecutor that he would not be, not because he isn't violating the law. And even when he was, juries nullified the law because they believed that it would be better to be dead than be like that. And most of Kevorkian's victims were people with nonterminal disabilities. It is already out of control in the situation we are already in, and the Oregon law does nothing to change that; it just makes it easier.
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Mr. KITZHABER. I don't want to belabor this.
Mr. HYDE. Governor, go right ahead.
Mr. KITZHABER. I just want to put this in perspective. There's two issues here. One is the question of whether we believe that physician assisted suicide should be condoned in society. As I said, I think honest people can disagree about that. There is a difference between that and using shortcomings of the Oregon law as an excuse to repeal the law.
My question, you know, we can address virtually every one of these things in the statute, and I doubt if anyone on this panel would support the bill even if we did. And on behalf of the voters of Oregon, you have to remember that one of the shortcomings of the initiative process is that you don't have that open dialogue that you have in the hearing process. We haven't had a legislative session since the voters repealed the rejection. And I believe the legislature will work to address these kinds of statutory questions.
Mr. HYDE. I think your point is well taken, and I don't think that this issue should rise or fall on the benefits or shortcomings of Oregon's particular legal situation. I think it all boils down to what do you think a human life is worth. If it is the ultimate value, we ought to really not be too concerned about cost-benefit analysis. We ought to protect it and say that if it has that intrinsic value, if, however, it is one element on the scale along with convenience, economics, a burden on the family, then you have a different view, and it is more easily dispensed with.
Page 83 PREV PAGE TOP OF DOC I make no analogy with Hitler's Germany, but I have in the back of my mind a fear that when people are on the outside of the ring of those for whom society welcomes, it is pretty easy to get rid of them unless life, human life, no matter how wretched, has an intrinsic value. And so it is a philosophical question, really, at its base. And if one thinks life is not thatis just but one element and can be trumped by others, as the Supreme Court has held, why, then you have one view of this problem.
If on the other hand, life is the ultimate value as perhaps the drafters of the Declaration named it first, the right to life, liberty and the pursuit of happiness, then you have another view. But it is good that we talk about these things. I want to thank this panel.
Mr. KITZHABER. I appreciate not being compared with the Third Reich. Thank you.
Mr. HYDE. Thank you. And we will ask the next panel to step forward. We have been blessed with the appearance of our chairman, and so I will yield the chair.
Mr. CANADY [Presiding.] The subcommittee will be in order, and we will now proceed with the second panel. I apologize to the members of the first panel for my absence, but a matter was before the Rules Committee which required a representative from the subcommittee to be there. So please accept my apology. I regret that I was not able to hear your testimony.
On our second panel, our first witness will be Douglas Pisano, Associate Professor of Pharmacy Administration, Division of Pharmaceutical Services at the Massachusetts College of Pharmacy and Allied Health Science. The next to testify on this panel will be Calvin H. Knowlton, an Associate Professor of Pharmacy of the Philadelphia College of Pharmacy and Science. He is appearing today on behalf of the American Pharmaceutical Association, the national society of pharmacists.
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Our third witness will be Dr. Thomas R. Reardon, who is the President elect of the American Medical Association Board of Trustees. Our fourth witness this afternoon will be Thomas J. Marzen, General Counsel for the National Legal Center for the Medically Dependent and Disabled, Inc.
And our last witness on this panel, and the last witness of the hearing before we move to our final panel of Members of Congress, will be Dr. Edmund D. Pellegrino. Dr. Pellegrino is a Professor of Medicine and Medical Ethics at Georgetown University. He is also the former Director of the Kennedy Institute of Ethics, Center for the Advanced Study of Ethics, and the Center for Clinical Bioethics at Georgetown. Dr. Pellegrino is the author of over 500 published items in medical science, philosophy and ethics.
I want to thank you all for being with us today. We would ask, in accordance with our custom, that you do your best to summarize your testimony in 5 minutes or less. I don't think we will be strictly enforcing the 5-minute rule, however. And, of course, your full written statements, without objection, will be made a part of the permanent hearing report record.
Mr. PisanoDr. I am sorry?
STATEMENT OF DOUGLAS PISANO, PH.D., ASSOCIATE PROFESSOR OF PHARMACY ADMINISTRATION, DIVISION OF PHARMACEUTICAL SERVICES, MASSACHUSETTS COLLEGE OF PHARMACY AND ALLIED HEALTH SCIENCE
Page 85 PREV PAGE TOP OF DOC Mr. PISANO. That is fine. Thank you very much, it is my honor to testify in front of this committee. Coming down from Boston, it is as hot up there as it is down here.
Members of the committee, I am here today to speak in favor of the Lethal Drug Abuse Prevention Act of 1998, H.R. 4006. I have had a chance to review the content and purpose of the legislation and, in my opinion, feel that it would not hinder the efforts of any health care worker who is trying to provide appropriate pain control to patients who are terminally ill.
My comments today center on various aspects of the Controlled Substances Act of 1970. As I am sure you are aware, the Controlled Substances Act sets uniform Federal standards for control of potentially dangerous drugs in conformity with international covenants on drug control and in recognition of the extent to which traffic in legal and illegal drugs involves interstate commerce.
One of these standards applies to the registration of practitioners who prescribe federally controlled substances to treat patients. This registration, issued by the Drug Enforcement Administration, allows these practitioners to prescribe federally controlled substances for legitimate medical purpose. It is this concept of legitimate medical purpose that I wish to address. And I quote, ''The phrase, 'legitimate medical purpose' implies that there must be a corresponding 'illegitimate medical purpose.' The phrase 'illegitimate medical purpose' lacks meaning, however, because medicine is by definition legitimate.''
Therefore, the notion that a law or a statute or a ruling that permits a registrant to write prescriptions for an illegitimate medical purpose is moot. My point is, DEA registrants would, in my opinion, be practicing outside the boundaries of their prescriptive authority illegally, illegitimately, when and if they prescribe medications not deemed by the medical community as being legitimate.
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Clearly, DEA regulations state, and again I quote, ''A prescription for a controlled substance to be effective must be issued for legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon a prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills a prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate or authorized research is not a prescription under the meaning and intent of the act, and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.''
The November 5th interpretation by Mr. Constantine of the DEA in response to an inquiry from Representative Hyde and Senator Hatch, chairmen of the House and Senate Judiciary Committees, is both sensible and proper. The Federal Controlled Substances Act supports the notion that physicians are forbidden from prescribing controlled substances for other than legitimate medical purpose. To my knowledge, assisted suicide is not considered to be a legitimate medical purpose for prescription in the vast majority of our States or by the medical community.
Further, each State has the authority or right to enact laws and regulations as a counterpart to the Federal for the purpose of controlling the manufacture, distribution and sale of drugs within the State and the regulation of the practice of health care professionals. Since one State's drug control laws may vary greatly from the Federal, certain basic principles must be followed by health professionals in order to comply.
Page 87 PREV PAGE TOP OF DOC For example, health professionals are responsible to the same degree of compliance with both Federal and State laws and regulations that govern their practice. Two, a State drug control law or regulation may be more stringent than its Federal counterpart. Health professionals must comply with the State drug control law or regulation, whether it is more strict or when there is no similar prohibition or requirement of Federal law. If a Federal drug control law or regulation is more stringent than a comparable State law and regulation, the Federal regulation must be followed.
These points suggest that while States rights regarding DEA registrants are important, the CSA, the Controlled Substances Act, provides for a stricter, uniform national standard of behavior to control dangerous drugs and enforce regulations independent of State law.
In deference to the Attorney General's statement on Oregon's Death with Dignity Act on June 5th, 1998, the Attorney General states, ''The CSA is essentially silent with regard to regulating the practice of medicine that involves legally available drugs except for certain specific regulations dealing with the treatment of addicts.''
My view is diametrically opposed. As I have explained, the CSA speaks to the regulation of medical practice with regard to legal available drugs when it refers to legitimate medical purpose. States are also within their statutory purview when regulating medical practice with regard to legally available drugs so long as they consider the national concept of legitimate medical purpose.
I therefore support the Lethal Drug Abuse and Prevention Act of 1998, H.R. 4006. I am in agreement that the act would serve to strengthen and clarify the CSA. Its longstanding limits on the prescribing of controlled substances benefit those in the American medical and scientific community who are in the service of their patients.
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I thank you.
[The prepared statement of Dr. Pisano follows:]
PREPARED STATEMENT OF DOUGLAS PISANO, PH.D., ASSOCIATE PROFESSOR OF PHARMACY ADMINISTRATION, DIVISION OF PHARMACEUTICAL SERVICES, MASSACHUSETTS COLLEGE OF PHARMACY AND ALLIED HEALTH SCIENCE
Mr. Hyde and Members of the Committee,
I'm here today to speak in favor of the ''Lethal Drug Abuse and Prevention Act of 1998'' (H.R. 4006). I have had a chance to review the content and purpose of the legislation and in my opinion, feel that it would not hinder the efforts of any healthcare worker who is trying to provide appropriate pain control to patients who are terminally ill.
My comments today center on various aspects of the Controlled Substances Act of 1970 (CSA). As I'm sure you are aware, the CSA sets uniform federal standards for control of potentially dangerous drugs, in conformity with international covenants on drug control and in recognition of the extent to which traffic in legal and illegal drugs involves interstate commerce.(see footnote 1)
One of these standards applies to the registration of practitioners who prescribe federally controlled substances to treat patients. This registration, issued by the Drug Enforcement Administration (DEA), allows these practitioners to prescribe federally controlled substances for ''legitimate medical purpose.'' It is this concept of ''legitimate medical purpose'' that I wish to address.
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''The phrase ''legitimate medical purpose'' implies that there must be a corresponding ''illegitimate medical purpose.'' The phrase illegitimate medical purpose'' lacks meaning, however, because medicine is by definition legitimate.''(see footnote 2)
Therefore, the notion that a law or statute or ruling that permits a registrant to write prescriptions for an ''illegitimate medical purpose '' is moot. My point is, DEA registrants, would in my opinion be practicing outside the boundaries of their prescriptive authority illegitimatelywhen and if they prescribed medications not deemed by the medical community as being legitimate.
Clearly, DEA regulations state,
''A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate or authorized research is not a prescription under the meaning and intent of the Act and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.''(see footnote 3)
Page 90 PREV PAGE TOP OF DOC The November 5th interpretation by Mr. Constantine of the DEA in response to an inquiry from Representative Hyde and Senator Hatch, Chairmen of the House and Senate Judiciary Committees, is both sensible and proper. The federal Controlled Substances Act supports the notion that physicians are forbidden from prescribing controlled substances for other than legitimate medical purpose. To my knowledge, assisted suicide, is not considered to be a legitimate medical purpose for prescription in the vast majority of our states or by the medical community.
Further, each state has the authority or ''right'' to enact laws and regulations as a counterpart to the federal for the purpose of controlling the manufacture, distribution and sale of drugs within the state and the regulation of the practice of healthcare professionals. Since one state's drug control laws may vary greatly from the federal, certain basic principles must be followed by health professionals in order to comply.
For example:(see footnote 4)
1) Health professionals are responsible to the same degree for compliance with both federal and state laws and regulations that govern their practice.
2) A state drug control law or regulation may be more stringent than its federal counterpart.
3) Health professionals must comply with a state drug control law or regulation when it is more strict or when there is no similar prohibition or requirement under federal law.
Page 91 PREV PAGE TOP OF DOC4) If a federal drug control law or regulation is more stringent than the comparable state law or regulation, the federal regulation must be followed.
These points suggest that while ''states rights'' regarding DEA registrants are important, the CSA provides for a stricter, uniform national standard for behavior to control dangerous drugs and enforce regulations independent of state law.
In deference to the Attorney General's statement on Oregon's ''Death with Dignity Act'' of June 5th, 1998, the Attorney General states,
''The CSA is essentially silent with regard to regulating the practice of medicine that involves legally available drugs except for certain specific regulations dealing with the treatment of addicts.''
My view is diametrically opposed. As I have explained, the CSA speaks to the regulation of medical practice with regard to legally available drugs when it refers to ''legitimate medical purpose.'' States are also within their statutory purview when regulating medical practice with regard to legally available drugs so long as they consider the national concept of ''legitimate medical purpose.''
I therefore support the ''Lethal Drug Abuse and Prevention Act of 1998'' (H.R. 4006). I am in agreement that the Act would serve to strengthen and clarify the CSA. Its longstanding limits on the prescribing and dispensing of controlled substances benefit those in the American medical and scientific community who are in the service of their patients.
Page 92 PREV PAGE TOP OF DOC Mr. CANADY. Thank you, Dr. Pisano.
Next, Dr. Knowlton?
STATEMENT OF CALVIN H. KNOWLTON, PH.D., PHARMACIST, AMERICAN PHARMACEUTICAL ASSOCIATION
Mr. KNOWLTON. Thank you very much. Good afternoon, Mr. Chairman and members of the committee. Thank you for the opportunity to present the views of American pharmacists. I am Calvin Knowlton, past president of the American Pharmaceutical Association, the national professional society of pharmacists. I am also the chief executive officer of a national company, called Hospice Pharmacia. We provide comprehensive pharmaceutical care services right now to over 7,000 patients a day on hospice programs. Eighty percent of our people are in need of pain management.
We consult and facilitate the appropriate pain management for these people. I understand that H.R. 4006, the Lethal Drug Abuse Prevention Act, was developed to eliminate health care professional involvement in suicide. The impact of this law, however, will not be in the realm of assisted suicide or voluntary termination of life by terminally ill patients. The impact rather will be felt by every pharmacist, every physician, every health care provider and the patients that they serve. Each of us will feel the impact of these regulations and see the physical and emotional impact of further degradation of our own most abysmal management of chronic pain in the United States.
Unrelieved pain is a public health crisis in this country. And I am not exaggerating. A consensus statement from the National Cancer Institute workshop on cancer pain indicated that, ''undertreatment of pain and other symptoms of cancer is a serious and neglected public health problem.'' A recent study that was alluded to by the woman in the first panel reported that 26 percent of nursing home residents who were cancer patients received zero pain medication, and they were all in pain.
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The pain in our patients, when we service in the hospices, is substantial. For substantial chronic pain the medications of choice are opioids and other narcotics, drugs classified as controlled substances by the DEA. Your legislation will directly affect and unquestionably hinder access to these best treatments that we have available. The problem of unrelieved pain is complex, and there's a number of factors involved. One of the most important factors is the current regulatory environment.
The use of controlled substances is already closely monitored by the DEA and the states. And this monitoring is appropriate in many situations, but it also creates substantial barriers to patient care. Health care professionals fear review and possibly disciplinary action from CDS and DEA. In a survey conducted by New York's public health council, 71 percent of the responding physicians reported they do not prescribe effective medication for cancer pain if such prescriptions would require them to use a special statement monitored prescription form for controlled substances. Seventy-one percent!
Even when the medication is legal and the people need it, given this chilling effect by nearly three-fourths of one of the largest states, the added fear of a DEA inspector's review of appropriate prescribing can only worsen this problem.
Let's look at the scale of the problem that you are trying to correct. 150,000 people a day in the United States are on hospice programs. Another 300,000 ought to be. Another 500,000 have malignant, nonmalignant chronic pain, nonterminal, yet only a few people have used the assisted suicide mechanism in Oregon, since the law went into effect. We don't know or I don't know how many of them suffered uncontrolled pain, or how many would have opted for life if they had had their pain adequately controlled.
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But we do know that hundreds of thousands of Americans will suffer from poorly controlled cancer pain and all of the doctors and pharmacists will be more reluctant to fully treat them with the appropriate medicine if H.R. 4006 is enacted. And you may think this is far fetched, it is not.
In the state of Texas, for example, they put up a barrier to access to these controlled substances, specifically by instituting the triplicate prescription law, a study of prescriptions for a 1200 bed teaching hospital found that the total number of prescriptions for class II and schedule II drugs decreased 60 percent in 1 year. We know that this is simply increased recordkeeping requirements that discourage the use of medication.
It is strange to think that 60 percent of these prescriptions were unnecessary, someone was literally hurt by this rule, someone in pain. Concerns of physicians and pharmacists about regulatory requirements were brought to light in May of this year. In Volusia County, Florida, a medical examiner questioned the death of hospice patients, accusing health care workers of administering lethal doses of pain relievers. The medical director was subsequently suspended and the health care workers were exonerated.
Let me give you an example, this red light came on already, from our practice, just to give you a sense of this. The American Hospital Formulary Service Drug Information says that the normal dose for morphine for pain is 10 to 30 milligrams every 4 hours or potentially about 150 milligrams a day. This is not a maximum dose. It is a typical dose, and we would expect to have a higher dose with someone with substantial pain.
Page 95 PREV PAGE TOP OF DOC One of our patients today, in the southeast region of the country, is on 6130 milligrams a day. She is active. She is alert. Her quality of life is enhanced, she is with her family. She is walking around. She is suffering from a terminal illness. Another patient in the northeast receives 4200 milligrams of morphine a day, with 280 milligrams every 3 to 4 hours additionally for breakthrough. These peoples' dose will go up as their disease progresses, and these doses will look to strangers engaged in Monday morning quarterbacking as though they were dispensed with the intent of hastening death. In fact, they were used to enhance the quality of life for these people.
You can bet that one thing effectively will happen when managing pain, doses of pain medicine will increase and parallel with the increase will be an increase in quality of life.
The other point I would like to make very quickly, and you may not realize this, is the way the bill is written. The DEA does not register pharmacists, it registers pharmacies. So if a pharmacy facility is found in violation, the revocation will be of the pharmacy to prohibit them from dispensing controlled substances. This will cause hospitals, pharmacy owners to discourage their pharmacists employees from access to these drugs, to have them in stock, and I don't think that is the intent.
Fundamentally this act has good intentions, but it will wind up being neither about drug abuse nor assisted suicide; it will create additional regulatory barriers. The American Pharmaceutical Association strongly supports improvements in pain management and encourages incentives for such, but strongly opposes this bill in the way it is written because of the tragic consequences it definitely will have for patients.
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[The prepared statement of Mr. Knowlton follows:]
PREPARED STATEMENT OF CALVIN H. KNOWLTON, PH.D., PHARMACIST, AMERICAN PHARMACEUTICAL ASSOCIATION
Good morning. Mr. Chairman and Members of the Committee, thank you for the opportunity to present the views of pharmacist caregivers in hospitals, long term care facilities, community pharmacies and other practice settings across the country. I am Calvin H. Knowlton; I am a pharmacist and a past President of the American Pharmaceutical Association (APhA), the national professional society of pharmacists. I am the Chief Executive Officer of Hospice Pharmacia, a national company providing comprehensive pharmaceutical care services to hospice organizations.
I understand that HR 4006, the Lethal Drug Abuse Prevention Act of 1998, was developed to eliminate health care professional involvement in suicide. The impact of this law, however, will not be in the realm of assisted suicide or the voluntary termination of life by terminally ill patients. The impact, rather, will be felt by every pharmacist, every physician, every health care provider and the patients they serve. Each one of us will feel the impact of these regulationsand see the physical and emotional impact of the further degradation of our already abysmal management of chronic pain.
I speak today to highlight a pressing problem in today's health care systemand the expansion of that problem presented by the Lethal Drug Abuse Prevention Act of 1998. At Hospice Pharmacia, we care for hospice patientspatients with terminal illnesses and a prognosis for imminent death. One of the primary challenges in my practice is working with physicians, nurses, and other health care professionals to ensure that our patients are comfortable, that they are not victims of poorly managed pain.
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This goal is daunting. Unrelieved pain is a public health crisis in the United States. I am not exaggerating. A consensus statement from the National Cancer Institute Workshop on Cancer Pain indicated that the ''undertreatment of pain and other symptoms of cancer is a serious and neglected public health problem'' (National Cancer Institute, 1990). A recent study in the Journal of the American Medical Association reported that 26 percent of nursing home residents who reported being in daily pain received no medication for pain(see footnote 5). None. No aspirin, no acetaminophen, no ibuprofen. These patients are residing in a health care facilityand do not even have access to over-the-counter pain medications. The pain in my patients is substantial, far beyond a level that could be treated by over-the-counter medications. For substantial, chronic pain, the medications of choice are opioids and other narcoticsdrugs classified as controlled substances by the Drug Enforcement Administration. Your legislation will directly affect the best treatments we have available.
REGULATION AND PAIN MANAGEMENT
The problem of unrelieved pain is complex, and the result of a number of factors. One of the more important factors is the current regulatory environment. The use of controlled substances is already closely monitored by the DEA and the States. This monitoring is appropriate in many situations, but also creates barriers to patient care. Physicians, pharmacists, and other health care professionals report reluctance to prescribe sufficient amounts of controlled substances for fear of review and possible disciplinary action. In a survey conducted by New York State's Public Health Council, 71% of responding physicians reported that they do not prescribe effective medication for cancer pain if such prescriptions would require them to use a special state-monitored prescription form for controlled substanceseven when the medication is legal and medically indicated for a patient. Given this chilling effect felt by nearly three-fourths of one large State's prescribers, the added fear of a DEA inspector's review of appropriate prescribing can only worsen this problem.
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Let's look at the scale of the problem you're trying to correct. Only a few people have used the assisted suicide mechanism in Oregon since that law went into effect. We don't know how many of them suffered from uncontrolled pain, nor how many would have opted for life if they had adequate control of their pain. But we do know that thousands of Americans will suffer from poorly-controlled cancer pain, and all of their doctors and pharmacists will be more reluctant to fully treat their pain if HR 4006 is enacted. You may think this is far-fetched. It is not.
In 1982, the State of Texas instituted a triplicate prescription law for controlled substances. A study of prescriptions for a 1200-bed teaching hospital found the total number of prescriptions received for Schedule II drugs decreased by 60.4 percent from 1981 to 1982(see footnote 6). We know from this that simply increasing recordkeeping requirements will discourage use of these medications. It strains credulity to think that 60% of these prescriptions were unnecessary. Someone was literally hurt by this rule.
Concerns of physicians and pharmacists about regulatory requirements were brought to light in May of this year. The Volusia County, Florida, medical examiner questioned the death of hospice patients, accusing the health care workers of administering lethal doses of pain relievers. Health care providers now have first hand experience with law enforcement review of their clinical practice. These health care workers were subsequently cleared of charges of putting patients in jeopardy. The medical examiner has been suspended.
The current barrier created by government regulations will increase if HR 4006 becomes law. In their report ''Approaching Death: Improving Care at the End of Life'', the Institute of Medicine stated that controlled substance laws and regulations may obstruct good care, either by specific provisions or by the fear and misunderstanding surrounding the requirements. Let me quote from the Institute of Medicine Report: ''Pain-prescribing laws stand out in this regard and, in the view of the committee, warrant revisions to minimize discouragement of effective pain management.'' [Emphasis supplied] HR 4006 does the opposite. In 1994, the Management of Cancer Pain Guideline Panel of the Agency for Health Care Policy and Research concluded that laws and regulations aimed at diversion control are an impediment to the management of cancer pain, and recommended that ''laws and regulatory policies aimed at diversion control not hamper the appropriate use of opioid analgesics for cancer pain''.(see footnote 7) HR 4006 does the opposite.
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The way these medications work in the body contributes to the problem of regulatory oversight. Typically, a DEA inspector would be expected to look for abnormally large amounts of medication going to one patient. As pain increases, however, so does tolerance to the medications. For significant pain, the dose required for managing one patient may be lethal in another patient.
To illustrate this phenomenon, here are two examples from our practice. The American Hospital Formulary Service Drug Information lists the typical dose of morphine for pain at 1030mg every 4 hours as needed, or potentially 150mg per day. This is not a maximum dose, but a typical dose, one which we would expect to be much higher in patients with substantial pain. One of our current patients uses 6,130 mg of morphine dailyand she is active, alert, and walking around, although suffering from a terminal illness. Another patient receives 3600 to 4200 mg of morphine daily, with 200280 mg available every 3 to 4 hours for breakthrough pain. These doses may further increase as their diseases progressesuntil they die. These doses will look to strangers engaged in Monday morning quarterbacking as though they were dispensed with the intent of hastening death. In fact, they were used effectively to enhance the quality of life for these persons with terminal pain.
We clinicians are continuing to learn about the appropriate use of these medications, and learning more about patient response to their use. AHCPR and others say health care professionals lack sufficient knowledge in this area. What formal clinical preparation do DEA police have in these nuances of pain management? Are they really qualified to second guess and destroy the career of a physician or pharmacist? Or at least to intimidate health care professionals, effectively turning the clock back on the strides we are making to abate chronic pain?
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With the identification of barriers created by regulatory requirements, DEA will cast an even larger shadow over a field of medicine which experts tell us is already shrouded in ignorance and misunderstanding. The practice of pharmacy and medicine are well regulated at the State levelby State professional licensing boards. Further expansion of the DEA's role into patient care is intrusive, unwarranted and will be seriously counterproductive.
PHARMACISTS AS REGULATORS
The proposed legislation puts the pharmacist in the role of enforcing the Federal Government's decisions about the appropriate use of controlled substances. Regardless of a State's determinations regarding the practice of pharmacy and medicine, a pharmacist who dispenses a controlled substance with the purpose of causing a suicide puts the pharmacy's registration at risk. The DEA registers the pharmacy facility rather than the pharmacist, so a revocation of registration would prohibit the pharmacy from dispensing controlled substances. This may cause hospitals, pharmacy owners, and hospice organizations to discourage their pharmacist employees from participating in medically indicated care. Access to appropriate pain medication will be further restricted.
The proposal requires health care professionals to police each other's activity. Because the bill would revoke the registration of the ''dispenser'' of the controlled substance, the pharmacist is required to determine the physician's intended use of pain medications in order to stay out of trouble. Normally, the pharmacist does not determine the use of the product, but rather, works with the prescriber to ensure that the therapy chosen is appropriate and to assist patients in making the best use of their medications. This places the pharmacist in a conflicted positionbalancing the responsibilities of patient advocate, collaborating health care professional, and now, the policing agent to ensure that controlled substances are not dispensed to terminate life.
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How far will pharmacists be asked to go to ensure that assisted suicide is not the intended use of a prescription for controlled substances? Will one inquiry to the prescriber to document another use be sufficient? Or will the pharmacist be required to second-guess the prescriber and refuse to dispense orders that could be considered to ''cause suicide''? How much documentation will be enough to satisfy a DEA inspector poring over the pharmacy's prescription recordsand questioning every substantial use of controlled substances?
IMPEDING HEALTH CARE PROVIDER COMMUNICATION
Another predictable outcome of the proposed legislation is a substantial decrease in prescriber-pharmacist communication. Doctors and pharmacists will expect a knock on the door from DEA if their patient dies while receiving substantial amounts of controlled substances. If a pharmacist communicates to a prescriber that a certain dose of medication may hasten death and the physician acknowledges that risk but maintains the prescription order based on her judgment, both health care professionals are at risk of DEA action. Both health care providers acknowledged the potential of detrimental effects. Would such a conversation be considered evidence of ''intent'' to commit physician-assisted suicide?
Unfortunately, communication will be compromised when patients most need their health care providers to work together to ensure appropriate pain management and avoid prescribing errors. Breaking down the barriers to effective pain management requires a coordinated effort by all health care providersbut this is virtually impossible when communication is stifled.
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Fundamentally, the Lethal Drug Abuse Prevention Act of 1998, though it has good intentions, will wind up being about neither drug abuse nor assisted suicide. HR 4006 will create additional regulatory barriers for health care practitioners. It will duplicate and intrude upon State responsibilities in our federalist system of government, and, most important, it will further diminish the already poor quality of pain management for dying patients.
The American Pharmaceutical Association strongly supports improvements in pain management, and strongly opposes this bill because of the tragic consequences for patients. Thank you for your consideration of the views of the Nation's pharmacists.
Mr. CANADY. Thank you, Dr. Knowlton.
STATEMENT OF THOMAS R. REARDON, M.D., PRESIDENT-ELECT, AMERICAN MEDICAL ASSOCIATION
Mr. REARDON. Thank you, Mr. Chairman, members of the committee. I thank you for allowing us to appear today to share some of our concerns with you about H.R. 4006. The American Medical Association agrees with the sponsors of this bill that a physician assisted suicide is ethically incompatible with the physician's role as healer, but although we agree with the ends that are being sought, we have a serious disagreement about the means chosen to achieve those ends.
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We feel the real word consequences of this bill will be to discourage exactly the kind of appropriate aggressive palliative care that will dissuade patients in pain from seeking assisted suicide or committing suicide. The last several years have seen a dramatic improvement in our care for persons at the end of life and for those who experience chronic severe pain. We fear that recent improvements in end of life care could suffer a dramatic setback at the expense of patient care.
In 1994, I chaired an AMA task force on assisted suicide, and I was opposing assisted suicide in many of the States in this country. As we adjusted this issue, we realized that one of the things we had to do is do a better job of managing care for terminally ill patients. We, therefore, changed the name of that task force to the quality of care at the end of life and began to pursue that aspect of it. We learned that the best way for medicine to discourage assisted suicide was to promote more aggressive pain management and to champion the need for social, psychological and spiritual support.
Meaningful legislative regulatory and guideline activity across the Nation has sprung from this intensified comprehensive educational effort from both the public and the private sectors addressing these needs. Almost a third of the States have passed laws or implemented regulations that guide physicians who prescribe opiates to treat intractable pain. Medical licensing boards in 25 States have adopted guidelines to approve or establish palliative care intractable pain programs.
And just 2 months ago, the Federation of State Medical Boards approved a model state guideline for the proper use of controlled substances and the treatment of intractable pain. These efforts are absolutely critical because they offer patients an alternative to suicide. This education has helped to change the past reluctance among physicians to prescribe adequate pain medication. Medical boards are educating themselves about aggressive regimens for controlled substances with intractable pain.
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Patients need to feel, as much as possible, a sense of control over their medical condition. Physicians must be able to freely offer their patients the necessary medications for aggressive pain control. Without the assurance that their pain can be managed, patients lose hope. This is when they are most vulnerable to the suggestion of assisted suicide. Add the threat of the DEA second guessing treatment decisions and you should not be surprised that these physicians might think twice about prescribing an aggressive pain management regimen.
If physicians write potentially lethal prescriptions every day, a desperate patient can hoard any medication prescribed legitimately for pain control. Would that physician then be responsible for this patient's death? Prescription drugs other than painkillers and even over-the-counter drugs can be lethal also. And under the terms of H.R. 4006, aggressive drug therapies for pain management could become automatically suspect.
This puts physicians in a difficult situation. We want to aggressively treat our patients' pain and suffering, yet we feel by doing so we would and could invite a Federal investigation. Any individual could initiate such an investigation, threatening a physician with, first, a loss of his or her DEA license, two, exclusions from Medicare and Medicaid programs and, third, even possible criminal prosecution and civil action.
There is no question but that H.R. 4006 would affect physician decisionmaking and have a perverse effect on decisions of palliative care. While our principal concern is the chilling effect on appropriate care for patients, the AMA is also appalled by the Federal Government's proposed intervention into the practice of medicine.
Page 105 PREV PAGE TOP OF DOC My written statement details the AMA's position that expanding DEA authority is an unacceptable Federal intrusion on the States' power to regulate the medical profession through their state licensing boards. Some apparently thought that the AMA's concerns would be assuaged by the creation of a new medical review panel within the Department of Justice, comprised of other physicians and other experts. Not only does this panel fail to mitigate our concerns, it actually increases them. This extra review board within the Justice Department is not only redundant and unnecessary, it would directly usurp the legitimate state authority by the Federal Government.
Let me end by saying that we believe the sponsors of this bill share the same values expressed by the AMA in its unalterable opposition to physician assisted suicide. By testifying here today, we are asking the sponsors to take another look at the means that they have selected to achieve this goal. We express again our grave concern about the potential harm this bill may pose to millions of patients in the management of their pain and suffering.
We thank you for consideration of our views.
[The prepared statement of Dr. Reardon follows:]
PREPARED STATEMENT OF THOMAS R. REARDON, M.D., PRESIDENT-ELECT, AMERICAN MEDICAL ASSOCIATION
The American Medical Association (AMA) appreciates the opportunity to present its views to the Subcommittee on the Constitution of the House Judiciary Committee regarding H.R. 4006, the ''Lethal Drug Abuse Prevention Act of 1998.''
Page 106 PREV PAGE TOP OF DOC The AMA is sympathetic to the concerns that have motivated the introduction of this measure. We agree with the sponsors that physician-assisted suicide is ethically incompatible with the physician's role as healer. Yet the AMA, after considerable internal consideration, has decided that we must oppose the bill before the Subcommittee today. That decision is based on a disagreement over means, rather than ends.
We understand that the sponsors are attempting to assure that no controlled substances are available to persons seeking suicide. In fact, however, we fear the ''real world'' consequences of the bill would be to discourage the kind of appropriate aggressive palliative care that can dissuade patients in pain from seeking just such an early death. Recent promising advancements in the care of people at the end of life could be set back dramatically, to the detriment of patient care. In addition, the AMA believes that expanding the DEA's authority in this matter would be an unacceptable federal intrusion over matters of state law regarding the practice of medicine.
Care for persons at the end of life and for those who experience severe, chronic pain has evolved dramatically in the last decade. Educational efforts within both the public and private sectors have intensified, reflecting a growing appreciation of the need for aggressive palliative treatment that addresses not only the physical suffering, but the psychological, social and spiritual distress that accompany terminal illness and intractable, chronic pain.
The dilemma physicians face when prescribing controlled substances for their patients suffering intractable pain can be better understood through a discussion of what is known as the ''double effect.'' In some instances, administration of adequate pain medication will have the secondary effect of suppressing the patient's respiration, thereby hastening death. The distinction between this action and assisted suicide is crucial. The physician has an obligation to provide for the comfort of the patient. If there are no alternatives but to increase the risk of death in order to provide that comfort, the physician is ethically permitted to exercise that option. In this instance, the physician's clinical decision is guided by the intent to provide pain relief, rather than the intent to cause death. This distinguishes the ethical use of palliative care medications from the unethical application of medical skills to cause death.
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The past failure of many states to expressly permit this practice generated reluctance among physicians to prescribe adequate pain medication. The potential for legal or licensure action against the physician created additional uncertainty when controlled substances were prescribed in large amounts for patients with intractable pain. This uncertainty chilled the physician's ability to effectively evaluate and control their terminally ill patients'' pain and suffering through the appropriate prescription and administration of opiates and other controlled substances. Proponents of assisted suicide cited a fear of prolonged suffering and unmanageable pain as a rationale for their position. Patients need to feelas much as is possiblea sense of control over their medical condition; the availability of controlled substances for aggressive pain control must be among the options we can offer them. Lacking this, patients may easily turn to more desperate measures; adding the specter of DEA authority would only exacerbate their concerns and fears.
These concerns prompted physicians and their patients to demand change and the response was an exciting expansion of educational efforts that appears to be culminating in meaningful legislative, regulatory and guideline activity across the nation. Fifteen states have passed carefully crafted laws that grant immunity from licensure discipline for physicians who prescribe opiates to treat intractable pain.(see footnote 8) Several others have regulations concerning intractable pain.(see footnote 9) According to the Pain and Policy Studies Group at the University of Wisconsin Comprehensive Cancer Center, medical licensing boards in twenty-five states have adopted guidelines to improve or establish palliative care/intractable pain programs.(see footnote 10) In May of this year, the Federation of State Medical Boards approved a model state guideline for the proper use of controlled substances in the treatment of intractable and end-of-life pain.
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In its April, 1998, report, ''Suicide Prevention: Efforts to Increase Research and Education in Palliative Care,'' the U.S. General Accounting Office (GAO) cites several current federal initiatives related to palliative care. The ''Assisted Suicide Funding Restriction Act of 1997'' included an amendment to section 781 of the Public Health Service Act, expanding the program support available through the Department of Health and Human Services' (HHS) Health Professional Educational Research Program to palliative care and suicide prevention topics.
The GAO report also cites several HHS agencies' funding of complementary projects investigating appropriate palliative care techniques and treatment approaches. Such funding includes over $82 million in research conducted at the National Institutes of Health (NIH) to advance biomedical knowledge of pain management and assess patient outcomes regarding pain. The Agency for Health Care Policy Research (AHCPR) issued guidance in 1994 on management of cancer pain that offered recommendations on palliative therapies used to ease or relieve pain. HCFA has supported multiple demonstration projects in the states to address palliative care options among medically vulnerable populations. We commend this GAO report to the Subcommittee's attention.
Outside of government, the AMA's Institute for Ethics, in collaboration with the Robert Wood Johnson Foundation, has helped to lead the way in educating physicians on how to better care for the dying through its nationwide initiative, Education for Physicians on End-of-Life Care (EPIC). Multiple private foundations, professional associations and non-profits have funded an important array of palliative care investigations whose results are just now beginning to change the way such care is rendered.
We cite these many initiatives and educational efforts to demonstrate that the medical and health care community has responded to a need. The horror with which Americans responded to Jack Kervorkian's so-called ''mercy'' killings catapulted us all into action to find ways to improve our care for terminally ill patients in a humane and ethical manner.
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We urge this Subcommittee as strongly as we know how to resist the temptation to undo this hard work by creating a new federal watchdog to second-guess treatment decisions. The sponsors appear to be responding to a specific situation in Oregon and seeking ways to short-circuit what most of us would characterize as an unethical medical practice. But by choosing this route, they may well harm the very people who they are trying to help, not only in Oregon, but in every other state in the Union.
Physicians write potentially lethal prescriptions every day. A hundred tablets of Dilaudid, prescribed legitimately for pain control, can be used by the patient to cause death. This is out of the physician's direct control, but could raise concerns under this bill. Further, under the terms of H.R. 4006, aggressive drug therapies for pain management will become automatically suspect. Physicians are only human and will go to great lengths to avoid a Department of Justice investigation . . . as would anyone. A Department of Justice investigation, which under the terms of this bill could be instigated by any individual, could result in a physician's (1) loss of federal DEA license for prescribing controlled substances; (2) exclusion from participation in the Medicare and Medicaid programs; and (3) possible criminal prosecution. There is no question but that H.R. 4006 would affect physician decision-making and have the perverse effect of chilling appropriate palliative care.
THE PROPER ROLES OF STATE AND FEDERAL GOVERNMENT
It is difficult to reach any other conclusion but that H.R. 4006 is a federal attempt targeted specifically at undermining the will of the people of the state of Oregon. No federal action is needed; the states are addressing the issue of assisted suicide through their legislatures, their medical boards and their courts. According to the National Conference of State Legislatures (NCSL), 36 states currently explicitly criminalize assisted suicide through statute.(see footnote 11) Another nine states criminalize assisted suicide through common law.(see footnote 12) ThreeNorth Carolina, Utah and Wyomingabolished the common law of crimes and do not statutorily criminalize assisted suicide. Ohio's Supreme Court has ruled that assisted suicide is not a crime (October, 1996). Of all the states, only Oregon permits physician-assisted suicide, having legalized the act through a 1994 voter ballot initiative, which was upheld by the U.S. Court of Appeals for the Ninth Circuit on March 3, 1997, after legal challenge. Oregonians had a second chance to vote by referendum on the ''Death With Dignity Act'' on November 4, 1997, which was again supported by almost 60% of ballots cast.
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On November 5, 1997, prompted by concerned legislators and others, the DEA Administrator asserted the authority, under the federal Controlled Substances Act (CSA), to suspend or revoke a physician's DEA license for prescribing controlled substances for the purpose of assisting a suicide, even where, as in Oregon, assisted suicide is permitted by state law. While he acknowledged that this would be a ''new and different application of the CSA,'' he cited his authority as flowing from the provisions of the Act that provide criminal penalties for physicians who dispense controlled substances beyond ''the course of professional practice.''(see footnote 13) The Act also provides for suspension or revocation of a physician's DEA license if he or she has engaged in such criminal conduct or other ''conduct which may threaten the public health or safety.''(see footnote 14) The Administrator deemed any physician's participation in invoking Oregon's assisted suicide law as not constituting ''the legitimate practice of medicine.''
Attorney General Janet Reno issued a Department of Justice Statement on June 5, 1998, disagreeing with the DEA Administrator's conclusion, declaring that ''an adverse action by the DEA against a physician in full compliance with the Oregon statute would not be authorized under the CSA.'' The Department reviewed both the plain language of the statute, as well as its legislative history, and found that neither supports the Act's application to physicians who are in compliance with the state law. The opinion continues:
Even more fundamentally, there is no evidence that Congress, in the CSA, intended to assign DEA the novel role of resolving the ''earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide,'' Washington v. Glucksberg, 117 S. Ct. 2258, 2275 (1997), simply because that procedure involves the use of controlled substances. If Congress had assigned DEA this role under the CSA, it would ultimately be DEA's task to determine whether assistance in the commission of suicide, in compliance with a state law specifically permitting and regulating such assistance, nevertheless falls outside the legitimate practice of medicine and is inconsistent with the public interest. These questions, however, are not susceptible of scientific or factual resolution, but rather are fundamental questions of morality and public policy. Such a mission falls well beyond the purpose of the CSA.
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The AMA concurs with this interpretation. Any other reading makes the DEA an arbiter of the practice of medicine. This is an unacceptable conclusion. It is the state legislatures, through the police powers, that determine the scope of medical practice. State medical boards are universally authorized by their state statutes to investigate reports of improper prescribing as possible evidence supporting suspension or revocation of a physician's license to practice medicine. This is the proper purview of the state.
The creation of a new expert review panel within the Department of Justice does not overcome physicians' objection to this unprecedented intrusion of the federal government into the practice of medicine. In fact, it increases our concerns. At first blush, this ''Review Board,'' comprised of members of our own profession, with the AMA even deferred to regarding membership, would seem to be just the answer to our quandary. The fact is, though, that state medical licensing boards already exist to, in part, oversee the prescribing practices of physicians. They are comprised of ''individuals, who by reason of specialized education'' are clinical experts with knowledge regarding standards, practices, and guidelines concerning pain relief . . . as part of their larger scope of expertise in patient care. The extra review board within the Justice Department is both redundant and unnecessary, and would be a direct usurpation of legitimate state authority by the federal government.
We do not think the sponsors of H.R. 4006 intend for these consequences to flow from their proposal. We believe they share the same values expressed by the AMA in its unalterable opposition to physician-assisted suicide. We ask the sponsors to take another look at the means they have selected and ask if there isn't another way to accomplish our mutual goal that would not endanger that very vulnerable population we are all trying to help.
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The AMA thanks the Subcommittee for its consideration of our views.
Mr. CANADY. Thank you, Dr. Reardon.
STATEMENT OF THOMAS J. MARZEN, GENERAL COUNSEL, NATIONAL LEGAL CENTER FOR THE MEDICALLY DEPENDENT & DISABLED, INC.
Mr. MARZEN. Mr. Chairman, members of the committee, I am the General Counsel of the National Legal Center for the Medically Dependent and Disabled. The National Legal Center supports medical treatment rights of persons with disabilities and serious medical conditions.
I testify in favor of the Lethal Drug Abuse Act of 1998, and I do so for two reasons. First, I believe this is a carefully constructed law that, on one hand, restores the status quo. It says that the Controlled Substance Act cannot be construed to state that controlled substances can be used to kill any more than they can be used to addict.
On the other hand, this act does a second thing and that changes the status quo, and what it does in this regard is it actually promotes rather than chills appropriate pain relief.
Page 113 PREV PAGE TOP OF DOC And I said something controversial in light of the testimony that you have just heard. So I think it is very important that you understand the context in which I am speaking. When Attorney General Reno issued her opinion, she did not state that the Controlled Substance Act has no role in the regulation of assisted suicide or euthanasia. To the contrary, she said that this act will apply to those circumstances when people are not acting in compliance with state laws. If I might quote, she said, ''Adverse action under the Controlled Substances Act may be warranted in other circumstances; for example, where the 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 state procedures in doing so.''
That means that the Controlled Substances Act now can be used in the context of assisted suicide, and it can be used in the context of inappropriate pain relief methods. Let me give you a couple of examples. Suppose in the average state, which has a law against assisted suicide, a physician prescribes drugs for the purpose of assisted suicide and the pharmacist, knowing that the drugs are prescribed for that purpose, dispenses those drugs to a patient. If this becomes known to the DEA, then the Controlled Substances Act can now presently be enforced under Attorney General Reno's ruling against that physician and the pharmacist.
In a State like Oregon, which has at least partially legalized assisted suicide, if the physician fails to comply with that law fully, that law, the Controlled Substances Act then can be enforced against that physician.
For example, one of the questions from a member of the committee had to do with whether or not an Oregon physician prescribed properly the drug or whether or not he sought the opinions properly and so forth could be liable. The Controlled Substances Act would then apply in the circumstances where a physician did not properly follow the law of the State of Oregon.
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But let me go further. Suppose in a State in which assisted suicide is illegal a doctor prescribes barbiturates for the purpose of pain relief at the present time and that patient dies of an overdose for whatever reason takes them inappropriately or whateverthe Controlled Substances Act could potentially apply in those circumstances now, and that physician could be hauled in before the Drug Enforcement Administration and inspected at the present time for whatever his practices are.
However, under this act that is before you now, that physician could do two things that he could not do now. First of all, he could refer to the statutory language that you have before you and claim that he has a right to do pain relief control, a right that he does not presently have acknowledged under Federal statutory law. And he could claim this under the act that he now has this right to do this. The second thing he could do is, if somebody threatens to revoke his license or his registration to prescribe these drugs, he could appeal to a medical review board and have the medical review board sanction what he does. The decision would be made by physicians that are, or others that are expert in pain relief, not bureaucrats, as to whether or not he acted appropriately, which is not the way it would be done at the present time.
Now, first of all, the language in the statute explicitly states and uses language that was enacted by Congress last year in the Assisted Suicide Funding Restriction Act of 1997. This language is already affirmed by Congress and, in fact, the American Medical Association stated that this language assures that the Assisted Suicide Funding Restriction Act of 1997 will not chill appropriate pain relief, palliative care and end of life care. That is what they said last year with regard to this language.
Page 115 PREV PAGE TOP OF DOC I want to point out also that the statutory language here states that registration can only be revoked or denied if a physician or other health care provider intentionally dispenses or distributes controlled substances for the purpose of causing or assisting in causing suicide or euthanasia. Now, with the intentional standard, which is an objective standard, it is not a subjective standard that was suggested earlierand lawyers would recognize this would mean that doctors and pharmacists or other health care providers who are dispensing these kinds of drugs cannot be held for doing something negligent or recklessthey must have purposely prescribed this kind of drug for the intent of allowing for assisted suicide or euthanasia.
Lastly, I just want to point out that this medical review board that is created by this statute has pain specialists and not bureaucrats making these kinds of decisions. And it can only be invoked by a person who is being told that they should have their registration denied or invoked. In other words, that is the only person who can revoke it. It is a shield for physicians and pharmacists, not a sword that can be used by a government agency against the doctor under any circumstance. It provides not a new layer of regulation, but a new layer of protection for the health care provider who wants to do adequate pain relief.
[The prepared statement of Mr. Marzen follows:]
PREPARED STATEMENT OF THOMAS J. MARZEN, GENERAL COUNSEL, NATIONAL LEGAL CENTER FOR THE MEDICALLY DEPENDENT & DISABLED, INC.
Page 116 PREV PAGE TOP OF DOC Mr. Chairman, my name is Thomas J. Marzen. I am General Counsel of the National Legal Center for the Medically Dependent and Disabled. The National Legal Center is a public interest law firm that supports medical treatment rights of persons with disabilities and serious medical conditions. I am here to testify in favor of H.R. 4006, the Lethal Drug Abuse Prevention Act of 1998.
Mr. Chairman, the Lethal Drug Abuse Prevention Act is a carefully crafted piece of legislation.
It is designed to restore the status quo reversed by Attorney General Renothat substances whose use is generally prohibited by federal law cannot be used deliberately to kill patients.
However, it is also designed to change the status quo in order to promote the appropriate use of drugs for pain relief.
It is important to understand that the Attorney General did not say that the Controlled Substances Act (CSA) poses no bar to the prescription of controlled substances to assist suicide. She said it does not bar their prescription for that purpose when in compliance with state law. Using controlled substances to assist suicide to the extent such conduct violates state law may still result in revocation of the Drug Enforcement Administration (DEA) registration that permits a doctor to dispense federally controlled substances.
Let me quote from the Attorney General's ruling: ''Adverse action under the CSA 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 state procedures in doing so.''(see footnote 15)
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The vast majority of states prohibit assisting suicide in all circumstances. Even in Oregon, assisting suicide remains against the law in circumstances other than those addressed by the referendum. Therefore, throughout most of the country, and even in Oregon in many cases, doctors who prescribe federally controlled substances to assist suicides are today at a very real risk of losing their DEA registrations.
There is no provision in the current statute that expressly protects prescription of controlled substances to control pain even if they carry the risk of death. At present, therefore, some doctors might arguably be chilled from prescribing controlled substances in doses that are adequate to control pain in certain patients for fear that this might put their DEA registrations at risk if those large dose prescriptions are seen as sufficient potentially to kill the patient.
To diminish this danger, the Lethal Drug Abuse Prevention Act amends the Controlled Substances Act (21 U.S.C. 824(a) to insert a new paragraph providing that a DEA registration may be revoked for one who:
(4) has intentionally dispensed or distributed a controlled substance with a purpose of causing, or assisting in causing, the suicide or euthanasia of any individual; except that this paragraph does not apply to the dispensing or distribution of a controlled substance for the purpose of alleviating pain or discomfort (even if the use of the controlled substance may increase the risk of death), so long as the controlled substance is not also dispensed or distributed for the purpose of causing, or assisting in causing, death for any reason.''
Page 118 PREV PAGE TOP OF DOC When virtually identical language was included in the bill that would become the Assisted Suicide Funding Restriction Act of 1997,(see footnote 16) the American Medical Association wrote the Senate sponsor of that bill that ''This provision assures patients and physicians alike that legislation opposing assisted suicide will not chill appropriate palliative and end-of-life care.''(see footnote 17)
Adding to this substantive provision is a procedural protection. Before anyone's DEA registration can be revoked on the basis of an allegation that controlled substances were prescribed to assist suicide, that person has the option of requesting a hearing before a special panel of experts in pain relief to be known as the Medical Review Board on Pain Relief. That board can make findings concerning ''whether the action at issue is an appropriate means to relieve pain that does not constitute a violation.''
It should be emphasized that this Medical Review Board serves as a shield for doctors and other registrants. It can be convened only at the request of the person whose registration the DEA is considering revoking or denying. The physician has no such shield under present law.
Furthermore, the Medical Review Board's members are to be picked in consultation with the American Medical Association, the American Academy of Hospice and Palliative Medicine, the National Hospice Organization, the American Geriatrics Society and other entities with pain relief expertise,
In short, to the extent there is fear that the DEA's authority to revoke registrations for prescribing controlled substances to assist suicide may ''chill'' appropriate prescriptions for pain relief, that fear can only be diminished by the passage of this act. Because the law as interpreted by the Attorney General now allows revocation of DEA registrations for assisting suicide to the full extent that such conduct violates state law, it cannot credibly be argued that passage of the act would increase reluctance to prescribe drugs for pain relief. On the contrary, it is only by passing the Lethal Drug Abuse Prevention Act that explicit substantive and procedural provisions to protect the provision of appropriate pain relief will be added into the Controlled Substances Act.
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It also deserves emphasis that neither physicians nor pharmacists would have a legitimate basis for concern that their dispensing of controlled substances for appropriate pain relief without intent to assist suicide might cause their loss of DEA registration, even if a patient later misused those drugs to commit suicide. In order to take away DEA registration under the proposed bill, the DEA must show that the registrant ''intentionally dispensed or distributed a controlled substance with a purpose of causing, or assisting in causing, the suicide or euthanasia of any individual.'' This creates what in legal terms is known as a ''scienter'' requirement: to revoke a license, the DEA must show that the registrant had the purpose and intent of assisting suicide. Revocation of a registration is not authorized under the act for negligence, only for knowing and purposeful supplying of a federally controlled substance for euthanasia.
Even if a physician intentionally prescribes federally controlled substances to assist suicide, it is a separate question whether the pharmacist who fills the prescription is subject to revocation of DEA registration under the act. To revoke the pharmacist's registration, the DEA must independently show that the pharmacist intentionally dispensed the substance with a purpose of causing or assisting in causing suicide. The current DEA Pharmacist's Manual says that ''the pharmacist who deliberately turns the other way when there is reason to believe that the purported prescription order had not been issued for a legitimate medical purpose may be prosecuted.''(see footnote 18) The key word is ''deliberately.'' Unless the pharmacist acts deliberately and intentionally to assist suicide, the pharmacist's DEA registration may not be revoked.
The challenged instructions given here by the district court required the jury to find that the defendant deliberately and consciously closed his eyes. Moreover, the jury was instructed that if the pharmacist believed in good faith that a prescription was issued and prescribed for a legitimate medical purpose by a physician acting in the usual course of his profession, then the pharmacist is excepted from criminal responsibility.
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In addition the court generally instructed as follows:
The matter of intent is, of course, an essential element which must exist in order for an accused to be criminally liable. Therefore, in order to find the defendant guilty, you must not only believe that he did the acts complained of, and of which he here stands charged, but you must also believe that the acts were intentionally, willfully and knowingly done by the defendant.
. . .
In light of all these instructions, we conclude that the jury was not permitted to convict on an ''objective'' rather than ''subjective'' theory of the knowledge requirement as urged by appellant. Accordingly, the trial court did not err in its instructions to the jury.
Although the Lethal Drug Abuse Prevention Act's provisions will shield physicians, pharmacists and other DEA registrants who provide appropriate pain relief and dispense controlled substances without the intent of assisting suicide or euthanasia, the act will be readily enforceable so as to deter the prescription of federally controlled substances to assist suicide in Oregon.
That is because the DEA has statutory authority to subpoena reports of assisted suicide that the Oregon Death with Dignity Act requires be made to Oregon authorities in order for assisting suicide to be legal under Oregon law. As I shall demonstrate, this ability to subpoena records will, with minimal investment of DEA resources, rapidly and conclusively establish whether any violations of the Lethal Drug Abuse Prevention Act have occurred. As soon as this ability becomes widely known in Oregon, it is likely to deter virtually all violations.
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First, reports and records required by the Oregon Death with Dignity Act will readily reveal whether federally controlled substances have been intentionally dispensed to assist suicide.
Under Oregon Revised Statutes §127.855 (1995):
The following shall be documented or filed in the patient's medical record:
(1) All oral requests by a patient for medication to end his life in a humane and dignified manner;
(2) All written requests by a patient for medication to end his or her life in a humane and dignified manner;
. . .
(7) A note by the attending physician . . . indicating the steps taken to carry out the request, including a notation of the medication prescribed. (Emphasis added.)
Under rules issued November 5, 1997 by the Oregon Department of Human Resources, Health Division:
At the time the attending physician writes a prescription for medication to end life of a qualified patient, the attending physician shall send two documents to the State Registrar. . . : 1) a copy of the patient's written request for medication to end life, as specified in Section 6 of the Act, and 2) a signed and dated report, entitled ''Request for Medication to End Life, Attending Physician's Report and Medical Records Documentation,'' . . . which either is a) fully and accurately completed or b) indicates that the attending physician agrees to make available the relevant portions of the patient's medical record for Division review to determine compliance with the Act. . . .
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Or. Admin. R. 3330090010(1)(a)(1997)
Thus, in order to comply with the Oregon Death with Dignity Act and escape criminal liability that would otherwise exist under Oregon law for assisting a suicide, a physician must note the precise medication used to assist a suicide in the patient's medical record, and must file a form with the State Registrar reporting the provision of that medication. The physician must either list the specific medication in Part G of a two page ''Attending Physician's Compliance Form'' or must file a short form identifying the patient and physician together with a commitment ''to make available to the Health Division the relevant portions of the patient's medical record to determine compliance with the Death with Dignity Act.''(see footnote 19)
Second, the DEA has federal statutory authority to subpoena the reports that must be provided to Oregon authorities, and, if necessary, the corresponding patient's medical record.
Under 21 U.S.C. A. §876 (1981), ''In any investigation . . . with respect to controlled substances, the Attorney General may . . . require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.''
Monthly, or at other appropriate periodic intervals, the DEA could and should subpoena copies of the relevant reports filed with the Oregon State Registrar. These would provide identification of each patient and physician, and might identify the medication used. For those physicians who elect the short form that does not identify the medication used, the DEA should then subpoena the relevant medical records directly from the physician.
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The information required, once obtained in response to subpoena, would indicate unequivocally whether a federally controlled substance had been prescribed. If so, this would be sufficient in itselfwithout need for further investigationto provide adequate evidence for the suspension or revocation of the physician's registration to distribute controlled substances in accordance with 21 U.S.C.A. §824(a) as it would be amended by the Lethal Drug Abuse Prevention Act.(see footnote 20)
Use of this procedure would place doctors seeking to prescribe lethal medications on the horns of a dilemma. Only if they comply with the state's recordkeeping and reporting requirements will they be immune from liability under Oregon law. However, if they do so, they will be providing the evidence that the DEA can use to demonstrate their violation of the federal Controlled Substances Act.
I respectfully urge the subcommittee to include in the committee report accompanying the bill a clear Congressional expectation that the DEA will in fact on a periodic basis subpoena the relevant records from the Oregon authorities, or from authorities in any other state in which a similar statute might be passed.(see footnote 21)
Under section 5679 of that proposal, in order to assist suicide legally a lethal prescription must
(2) . . . . (a) . . . . Be provided on the same official prescription form that is required for the prescription of controlled substances included in schedule 2 under article 7. The attending physician shall . . . enter the name of the medication, dosage, and quantity prescribed and the instructions for use in the patient's medical record in the manner required by section 7334. The attending physician shall retain that part of the medical record for not less than 5 years.
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(B) Be for only a single dose of the quantity of the medication estimated to cause death.
(C) Contain directions that specify only the dose that will hasten or cause death.
(D) Be labeled with a statement that the prescription was issued pursuant to this part.
(E) Be labeled with a prominent cautionary statement that administration of the prescribed dose is likely to cause death.
. . . .
(3) A pharmacist who fills the prescription shall confirm the dose with the prescribing physician before dispensing the medication to the patient. The pharmacist shall sign the official prescription form and forward it or transmit the information on the official prescription form to the [Michigan] Department [of Community Health],
Should this initiative be enacted and the Lethal Drug Abuse Prevention Act passed, clearly the DEA could and should regularly subpoena from the Michigan Department of Community Health copies of the official prescription forms required to be submitted to it under the initiative. These forms, if filled out in compliance with state law, will provide all the information necessary for the DEA to determine whether federally controlled substances were prescribed to assist suicide.
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Hon. JOHN ASHCROFT,
|American Medical Association,|
|Chicago, IL, February 12, 1997.|
170 Russell Office Building,
DEAR SENATOR ASHCROFT: The American Medical Association (AMA) is pleased to support the ''Assisted Suicide Funding Restriction Act of 1997'' which you are introducing in collaboration with Senator Dorgan. We believe that the prohibition of federal funding for any act that supports ''assisted suicide'' sends a strong message from our elected officials that such acts are not to be encouraged or condoned. The power to assist in intentionally taking the life of a patient is antithetical to the central mission of healing that guides physicians. While some patients today regrettably do not receive adequate treatment for pain or depression, the proper response is an increased effort to educate both physicians and their patients as to available palliative measures and multidisciplinary interventions. The AMA is currently designing just such a far-reaching, comprehensive effort in conjunction with the Robert Wood Johnson Foundation.
The AMA is particularly pleased to note that your bill acknowledgesin its ''Rules of Construction'' sectionthe appropriate role for physicians and other caregivers in end-of-life patient care. The Rules properly distinguish the passive intervention of withholding or withdrawing medical treatment or care (including nutrition and hydration) from the active role of providing the direct means to kill someone. Most important to the educational challenge cited above is the Rule of Construction which recognizes the medical principle of ''secondary effect,'' that is, the provision of adequate palliative treatment, even though the palliative agent may also foreseeably hasten death. This provision assures patients and physicians alike that legislation opposing assisted suicide will not chill appropriate palliative and end-of-life care. Such a chilling effect would, in fact, have the perverse result of increasing patients' perceived desire for a ''quick way out.''
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The AMA continues to stand by its ethical principle that physician-assisted suicide is fundamentally incompatible with the physician's role as healer, and that physicians must, instead, aggressively respond to the needs of patients at the end of life. We are pleased to support this carefully crafted legislative effort, and offer our continuing assistance in educating patients, physicians and elected officials alike as to the alternatives available at the end of life.
Mr. CANADY. Thank you.
Page 127 PREV PAGE TOP OF DOC Mr. SCOTT. I thank you, Mr. Chairman.
Dr. Knowlton, can you elaborate on why pain medication will not be given appropriately in light of the specific exception in the bill that provides that pain medication should not be considered assisted suicide?
Mr. KNOWLTON. The point that I was trying to make along those lines is that any regulatory, any additional regulatory encroachment or legal encroachment, will have the effect of sensitizing health care providers, physicians and pharmacists, to using those tools, and it will decrease the use of those tools. And there's a number of studies in my written testimony that we referred to to show that, and that is our concern.
Mr. SCOTT. One of the suggestions in reducing the desire for suicide is appropriate pain relief. So it is your testimony that this would actually be counterproductive?
Mr. KNOWLTON. Yes, thank you.
Mr. SCOTT. Okay. Dr. Reardon, what effective remedies should there be to people that violate the procedure under the Oregon law; that is, they skip a step, they don't get the two opinions, they don't require, you know, they don't really get the 6 months state, they just kind of skip a couple of steps and get right to the suicide?
Mr. REARDON. Well, I think the governor spoke that that hasn't been addressed. My feeling is that should probably be taken up by the state licensing board and appropriate disciplinary action taken out of it if they missed one of those steps.
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Mr. SCOTT. No criminal action?
Mr. REARDON. I think that would be up tothat hasn't been passed in Oregon. And I would have to say the state licensing board would have to make the decision of what the appropriate disciplinary action would be.
Mr. SCOTT. Do you have a problem with political appointees making the decision as to when a physician's license ought to be revoked, the Federal board that would be appointed would be appointedwould essentially be political appointees. Do you have a problem with that board?
Mr. REARDON. I am sorry, Congressman, you are speaking of the board which could be appointed via this act?
Mr. SCOTT. Yes.
Mr. REARDON. I certainly do, not only from the political aspects, but the fact that we would have a part of the Federal Government, the Justice Department involved in that also and second guessing our physician's practices consistently. I think Dr. Knowlton pointed out that sometimes you use rather large doses of pain medications in patients who have terminal illnesses, who live a long period of time because they develop quite a tolerance to medication, yet you can maintain their quality of life by increasing that dosage.
I would hate to see anything that would create an investigation just because a physician was using increasing doses of medication and maintains a patient's quality of life. Our concern is we would do anything to avoid investigation of the Justice Department. Everyone fears the Federal Government and the Justice Department.
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Mr. SCOTT. Well, you don't have a problem with politicians deciding how medical procedures ought to take place?
Mr. REARDON. Yes, I do.
Mr. SCOTT. Did the AMA take a position on the partial birth abortion bill?
Mr. REARDON. Yes, we did, and we did that for a particular reason, but we have also worked
Mr. SCOTT. Let me ask a more detailed question. That did not determine whether or not abortionan abortion would take place, but the procedure by which that abortion would take place, and that was made politically and you supported that.
Mr. REARDON. We supported amendments to the bill to modify the bill to make it more palatable. We did not like the bill, but we were trying to effectively improve the bill. That is the reason why we took a position.
Mr. SCOTT. I thought the AMA supported the legislation which essentially said that, in our political judgment, this is a procedure that should not be used rather than another procedure.
Mr. REARDON. We eventually supported that legislation, that is true, only after there was some modifications to the bill.
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Mr. SCOTT. And so that determination on a procedure was made politically with your support?
Mr. REARDON. I would say so, yes.
Mr. SCOTT. Okay. Now, let's get back tolet me get to where your problem is with politicians deciding how you are going to apply pain medication. Why shouldn't that be a political decision?
Mr. REARDON. I think that the problem with that isI think that is a political decisionis that it would have a very chilling, inhibitory effect on the way physicians treat patients. We nowwe do have oversight of the medical practice by state licensing boards, which is also a political appointment. So we already have that. We feel at the state level would be the appropriate place to do that.
Mr. CANADY. The gentleman's time is expired. The gentleman from Virginia would like two additional minutes.
Mr. SCOTT. Thank you. Do the licensing boards tell you what procedure to use and when to use it?
Mr. REARDON. No, but they oversee the practice of medicine. If a physician is perceived to be practicing inappropriately and in violation of state law, then I think they intervene.
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Mr. SCOTT. Let me get it straight, on your position on supporting legislation by which Congress dictated which procedure would be used and which procedure would not be used, you still support that determination on the Congressional level to tell you how to practice medicine?
Mr. REARDON. Congressman, we did support that particular bill. I would say, in general, we do not support those decisions made by Congress, but we did in that onewe made an exception to that one.
Mr. HYDE. Would the gentleman yield?
Mr. SCOTT. I would yield.
Mr. HYDE. I am trying to think of any law or legislation that tells a doctor what procedure to use. Now, I can think of some that say what you shouldn't use. I don't know that directs the practice of medicine by telling a doctor what they ought to do.
Mr. SCOTT. I stand corrected, Mr. Chairman, you are absolutely right. The legislation told them what not to do.
Mr. HYDE. Thank you.
Mr. SCOTT. Which meant they had to use other procedures. And the AMA supported that bill?
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Mr. REARDON. Eventually we did, yes, sir.
Mr. SCOTT. You indicated that the AMA generally opposes assisted suicide. How can we effect that policy if it is not in this bill?
Mr. REARDON. We at this point in time feellet me come back. We oppose assisted suicide on ethical grounds. We think it is incompatible as role of healer. We have testified before the Supreme Court that we think it should be a States rights issue and should be decided at the States.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CANADY. Mr. Bryant?
Mr. BRYANT. Thank you, Mr. Chairman.
Let me add my welcome to this and previous and following members of these distinguished panels and thank them for their participation.
Dr. Reardon, if I understand, and I think you just said it again, but you might clarify if this is not the case, that you are not arguing against this bill on the grounds that determining the scope of medical practice is a matter for the States. If you are saying that, does this mean that the American Medical Association has abandoned its position that killing a patient is not a part of medical practice?
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Mr. REARDON. No. We have opposed assisted suicide from the beginning and testified as such. Our concern with this bill is that it would create such an inhibitory or chilling effect on physicians prescribing, that it would impact the treatment and care of hundreds of thousands of other patients with terminal illnesses. We have put on an aggressive education campaign with the Robert W. Johnson grant to educate physicians on the appropriate and aggressive use of pain medication as well as psychotropic drugs for their emotional issues as they go through this terminal time in their life. Our main concern is we didn't want to have anything in place that would affect the hundreds of thousands of patients who otherwise might by affected and their quality of care would diminish.
Mr. BRYANT. Along the same lines in terms of this determination of being a State issue, is the AMA then backing off of your position that you would like for Congress to place medical malpractice limitations out there? Is that a Federal issue or should that be left to the States?
Mr. REARDON. We have worked for that at both the State level and we have worked for that at the Federal level, that is correct.
Mr. BRYANT. So you are still for the Federal Government being involved in that aspect of it but less so in this?
Mr. REARDON. Yes, we are. We feel this would have a tremendous inhibitory affect on the treatment of patients and many patients in this instance.
Page 134 PREV PAGE TOP OF DOC Mr. BRYANT. I think this ties in with what Dr. Knowlton says as sort of strikes me as strange, and citing the statistics from the State of Texas that apparently imposed, I guess, a draconian measure that the doctor had to fill out a three-copy prescription that was subject to review and all of a sudden, prescription for a pain medication sorely needed for people apparently in tremendous pain that the doctor saw, nevertheless, because the doctor didn't want to fill out a triplicate form, prescriptions went down 60 percent.
I mean is that the quality of medical care that we are getting out there, that doctors won't even fill out a form for people who apparently really need this pain medication and 60 percent of it goes down? Is that really what is going on here?
Mr. REARDON. Well, I think the issue is when you put in thesethese inhibitory type of procedures with physicians and treatment of their patients, yes, it has an impact. It is not only that, sir, the forms; it is the fact that you now have an agency overlooking and second guessing your use of these medications which then creates investigations and time away from practice. Physicians do anything to avoid a malpractice suit, not only for personal reasons, but because of the impact it has on the investigation.
Mr. BRYANT. But you are telling me that I am a patient and I am in tremendous pain and my doctor is not going to give me medication for that pain, because he might have to fill out a form that might be reviewed and might have to defend that position. That doesn't inspire confidence in the medical field. I don't think I would be talking about that in hearings if that is the case.
Mr. REARDON. I am happy to agree with you on that, and I cannot speak to this issue directly because I don't know about it. But I am concerned as you are.
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Mr. BRYANT. Now, Dr. Knowlton, you mentioned on behalf of the pharmaceutical association that you are concerned about this legislation, because you are going to have your pharmacists put in a position of having to second guess a prescription. I mean that is already in the pharmacy guide, is it not, that the pharmacist has an obligation to look at these things and make some determination. If you have got a doctor out there prescribing drugs to a drug user, and it is apparent to you that this is not right, the pharmacist already is not supposed to just, well, here, you know, continue to fill that prescription. They have an obligation by your own, I guess, code to do that already, do you not?
Mr. KNOWLTON. That is correct.
Mr. BRYANT. Why should that be a burden? It is already there, isn't it?
Mr. KNOWLTON. Yes, it is. The issue is schedule II drugs that are controlled by the DEA. Most medications in the pharmacy are not controlled by the DEA. These are very, very few. Many pharmacies don't even stock the schedule II drugs because they are controlled and forms have to goseparate forms to the government. It is the same thing with the triplicate prescription in Texas or in New York or the new prescription law that just went in in New Jersey, which are all impacting tremendously the access to these types of drugs, these schedule II drugs, which are narcotics. And pharmacists just make a decision, and pharmacies, they are just not going to stock them. It is just too much hassle. I don't want to send a report to the government every time I turn around.
Page 136 PREV PAGE TOP OF DOC The exact same issue with the triplicates with the physicians. Where do those three forms go? The Federal Government gets them. That is the issue, they don't want to sensitize the
Mr. CANADY. The gentleman's time is expired. The gentleman will have two additional minutes.
Mr. BRYANT. Thank you, Mr. Chairman. I have some friends who are pharmacists, and I know they are in business to serve the public. But a part of the fact that they are in business, like we all are, is to make money. And I guess I am surprised to see that you anticipate people would not be willing to stock drugs, to sell drugs, to make a profit off of selling drugs legally in a pharmacy, which is what you do, all because of the paperwork. And I guess I am shocked to hear that doctors perhaps would not prescribe medication to people who need pain medication because you got to fill out a form.
I think perhapsI hope at least that these are maybe exaggerations that tend to come out, you know, when you are trying to make a point. I am not here trying to make fun. I am just saying that some of these positions that are being argued here against this bill seem to be maybe just perhaps overstretching, and because I have enough confidence in our pharmacists and in our doctors that I know this is not the case in most situations, but
Mr. KNOWLTON. That they actually do stock narcotics and these drugs are available to patientsis that what you believe?
Page 137 PREV PAGE TOP OF DOC Mr. BRYANT. What's that, I don't think pharmacists are stocking drugs to sell because they have to fill out some forms.
Mr. KNOWLTON. Sirokay.
Mr. BRYANT. They are there to make money. If they have an empty pharmacy, they are not going to be selling anything, whether it is schedule II drugs or whatever.
Mr. KNOWLTON. We have to differentiate. There's a lot of literature there that I have given you and in your own State you can just check, call 10 pharmacies you know and you can ask them, and I will give you the drugs to ask for, and you will find out it is true. Believe me, it is true, they don't. That is our problem. And this is one more step. We have got enough now.
Mr. BRYANT. Fair enough, I will do that.
Thank you, Mr. Chairman.
Mr. CANADY. The gentleman from Illinois, Mr. Hyde, is recognized.
Mr. HYDE. Thank you.
Dr. Reardon, we are picking on you because you represent the AMA. On November 7th, 1997, in the Oregonian newspaper, there was a quote of yours, and let me read it: Dr. Thomas Reardon, President of the American Medical Association, said he would welcome a DEA move to pull doctors drug prescribing privileges for taking part in an assisted suicide, ''Indeed, we hope it would have such a chilling impact on any physician contemplating physician assisted suicide,'' Reardon said.
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I should be clear the word ''chilling'' is in parentheses, and unlike the rest of the sentence, it is apparently not a direct quote. But if you said that, I just wondered if you have completely changed your mind since last November or were you outvoted and you are presenting an organizational position rather than your own?
Mr. REARDON. Congressman Hyde, I believe at that point in time I was giving a personal view, not a view of the Association.
Mr. HYDE. Okay. I am glad to hear that. Thank you, Doctor.
Mr. CANADY. The gentleman from Arkansas, Mr. Hutchinson.
Mr. HUTCHINSON. I thank the chair, and I want to express my appreciation to each of the panelists for their testimony today. It has been very instructive and helpful and I take what you have said very seriously.
As you were discussing and raising some of these concerns about inhibiting the prescription of pain medication, I went back and reviewed the legislation of H.R. 4006 and I really was comforted to see how carefully this is being drafted. It appeared to me that there is really broader protections for the physician or the pharmacist in this bill than it is presently existing under the Controlled Substances Act because it makes it clear that pain medication is lawful to dispense, even if it hastens death, so long as it is not dispensed for the purpose of causing or assisting the causing of death of any individual.
Page 139 PREV PAGE TOP OF DOC It appeared to me, at least my reaction was, there are some very stringent protections here. And the other comment I would have is that, and I appreciate the concerns that Dr. Reardon expressed, the honesty by which he has testified today on behalf of his association, but I have had both the experience of prosecuting doctors and defending doctors under the Controlled Substances Act. And I think your statement was very, very true, we would do anything possible to avoid investigation by the Department of Justice, and I know that is the sentiment of the medical profession.
But if you look right now under the Controlled Substances Act, you already have the DEA, the Department of Justice reviewing as to what is legitimate medical purpose. Am I correct there? I represented a doctor that dispensed steroids, and he was prosecuted. I defended him, and the whole issue is whether the steroids were dispensed for legitimate medical purpose or not.
And now isn't that the bottom line, that the medical profession does not like any oversight as to what constitutes legitimate medical purpose?
Mr. REARDON. Well, I think you have expressed our concerns that we have another layer of bureaucracy, another layer of the Federal Government overlooking us. We don't object to regulations. We are regulated by state licensing boards regularly. I think our concerns I have tried to express is that of somebody looking over our shoulders second guessing us every time there was a question about a prescription. I have had patients complain to me, patients' families that doctor so-and-so gave the mother too much pain medication in her terminal illness. There is a fine line between what the mother wants and the family wants, so the patient should determine what you need.
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Mr. HUTCHISON. The problem you express in regard to this legislation, though, it is not any different than the problems that the medical profession has in the review of the DEA on whether steroids or other controlled substances, Darvocet, that would be reviewed by the DEA to determine whether there is any legitimate medical purpose. I mean, you have the same problem with the present system for Darvocet as you do under this bill; is that correct?
Mr. REARDON. Well, I believe it is. I just have to come back that I am concerned that there will be inhibitory or chilling effect on the way physicians subscribe, because there will be another oversight body, a body that would begin an investigation that anybody could create a complaint to; there could be anybody involved in the hospice, in the hospital, it can be the patient's family, it could be an outside observer to say, gee, I think that physician prescribed inappropriately, and then somebody would come in and do an investigation. It would have a chilling effect.
Mr. HYDE. Would the gentleman yield?
Mr. HUTCHINSON. I would be glad to.
Mr. HYDE. Doctor, I think we have a case of where the glass is half full or half empty. I look at this board, not as an intrusive Federal camel's nose under the tent, but as medical professionals who have the skill and the training and the experience and the knowledge to evaluate where a question arises. I don't see these questions arising hourly. But when they do arise, I would much rather turn to a board of my peers to make the decision as to whether this had a legitimate medical purpose or was intended to kill. So I see it as a plus, not as a minus.
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But anyway, thank you.
Thank you, Mr. Hutchinson.
Mr. REARDON. May I respond very briefly? I think this is where honest people can differ, Mr. Chair. We have that oversight at the State level, and the State does take action when they think something is inappropriate. But I guess we just have an honest difference of opinion on that.
Mr. HUTCHISON. Again, let me express my appreciation to the panelists and for the chairman for holding this hearing. I yield back.
Mr. CANADY. I now recognize myself for 5 minutes. Let me follow up on this issue. First, to those who are here in opposition to the bill, let me say I appreciate the concerns that you have expressed. I hope you will understand the position that we find ourselves in. As the Congress with responsibility for legislating, we see an interpretation of the law which we think just defies common sense and accepted practice. A judgment has been made that it is a legitimate medical purpose to dispense these drugs for assisted suicide.
That is the crux of the issue. Now, I know, Dr. Reardon, you don't believe that that is a legitimate medical purpose. I don't think you do, based on everything you have said previously. And I appreciate that dilemma that you find yourself in, because I believe that you hold to that very seriously, but you have these competing concerns. And I see the point you are making, but I am not persuaded.
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But let me just ask this on this business about the review board. As Mr. Marzen expressed, it seems to be the way this is structured, it is very much a shield as opposed to a sword. As a matter of fact, it is entirely as a shield.
What triggers this is an applicant or a registrant going to the board and seeking a hearing to get a judgment based on good medicine about whether the conduct was appropriate or inappropriate.
Now, let me ask you this, and I am not sure this is a good idea or not, and I am not advancing it as a proposal that I would necessarily support, but I was looking at the Partial Birth Abortion Act that we discussed briefly. And in there, there is a provision which the American Medical Association advocated which provides that a defendant accused of an offense under this section of the bill may seek a hearing before the state medical board on whether the physician's conduct was necessary to save the life of the mother whose life was in danger by physical disorder, illness or injury.
And I believe that you, if I can reconstruct the sequence of events here, you believe that was really an important provision to give additional comfort to physicians under this law that they weren't going to be subjected to arbitrary treatment, is that correct? Is that your understanding?
Mr. REARDON. Basically that is correct, sir. That was a modification of the bill that we wanted, because we felt that we would like to have the state licensing board, which is a local board and a board of peers, to look at this and do this on a local level. They are there, they are in the local area where this practice took place. Whatever happened, they can investigate it and determine whether it is right or wrong.
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Mr. CANADY. Let me ask you this, and again I am not saying this is an idea that I would actually support, but what if this medical review board that is in the bill, if that provision were constructed in such a way that instead of having the creation of a Federal board, there was a provision to go to the state medical board to get them to make a judgment about this that would then be admissible in proceedings before the Drug Enforcement Administration. Would that change your perspective on that?
Mr. REARDON. That would be much more palatable, yes.
Mr. CANADY. Dr. Knowlton, do you have any reaction to that?
Mr. KNOWLTON. That would be more palatable. If I could just add, particularly in your State, for example, there arein the United States there are 200,000 pharmacists, there are 40,000 pharmacies. With the way this thing is structured now, if I do something that is deemed to be inappropriate, the other four pharmacists that are working in the pharmacy with me are all shut down from the DEA, and that is why we have such limited access because that is the same situation it is now. The pharmacy is licensed, not the pharmacist, and that is why it is difficult with these class I drugs now.
So this will be one more step along those lines, at a same time when, particularly in Florida or areas where we have a lot of hospices, that we are trying our darnedest as we can to aggressively treat terminal ill pain, and that is the issue.
Mr. CANADY. Let me say that I believe all of us here share that goal. As this subcommittee has looked at the issue of assisted suicide in past hearings, one of the things that came to be very clear is that there has not been appropriate palliative care provided, and that is a significant problem. And we certainly don't want to do anything to interfere with the provision of such care. But at the same time, I think we have a responsibility not to just sit here idly while a decision is made, which says that the dispensing of these drugs for the purposes of assisted suicide is legitimate medical care. That is where we find ourselves. I hope you can understand that perspective as well.
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And I see my time is expired. Are there members, any other questions? No other questions. I want to thank each of you for taking the time to be here with us today. Your testimony has been very valuable to us. We appreciate your participation very much.
Our next panel will be composed of members of the House of Representatives, and I would ask that the members of the final panel prepare to come forward and take your seats. I will note thatif we could have a semblance of order here while we are making the transition.
I will note that Dr. Edmund Pellegrino was detained and was unable to be here for the hearing. He may be on his way. I am not sure if we will be able to hear from him. If not, we will, of course, submit his testimony for the record.
[The prepared statement of Dr. Pellegrino follows:]
PREPARED STATEMENT OF EDMUND D. PELLEGRINO, M.D., CENTER FOR CLINICAL BIOETHICS, GEORGETOWN UNIVERSITY MEDICAL CENTER
July 14, 1998 My name is Edmund D. Pellegrino. I am currently Professor of Medicine and Medical Ethics, founding Director of the Center for Clinical Bioethics, and formerly Director of the Kennedy Institute of Ethics at Georgetown University. I have held previous positions as faculty member and administrator at New York University, Yale University, the State University of New York, and the Universities of Tennessee and Kentucky. I have been a physician for 54 years and have attended many patients in need of terminal care and relief of pain and suffering.
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On the strength of these experiences, I believe that it is in the public interest, and individual patients' interests, to urge passage of the Lethal Drug Abuse Prevention Act of 1998. This act clarifies existing provisions of the Controlled Substances Act and the regulatory powers of the Drug Enforcement Administration so as to exclude the use by physicians of lethal doses of controlled substances in assisted suicide, and to encourage and safeguard the proper and adequate use of these substances in the relief of pain and suffering.
This act has become necessary because of two recent events: 1) the State of Oregon, in contravention of medical ethics and already existing CSA and DEA provisions, has legalized the use by physicians of lethal doses of controlled substances in suicide; 2) the Attorney General of the United States ruled on June 5 of this year that such usage is now part of the ordinary practice of medicine in Oregon and, therefore, exempt from CSA and DEA jurisdiction.
These two actions violate the universal condemnation in law and medical ethics of physician assistance in suicide; they sanction unilateral definition by one state of what constitutes ordinary medical practice and medical ethics; they set a precedent which will encourage other states to seek similar exemptions from law and ethics; and they devalue and thus endanger the lives of our vulnerable citizens who are within six months of death.
The Act would counter these gravely deleterious actions in the following ways:
1) It would reaffirm the prohibition in law and ethics against intentionally bringing about the death of any person, and apply brakes to a socially destructive trend toward physician assisted suicide and euthanasia.
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2) It would reaffirm the appropriate use of controlled substances in adequate doses to relieve pain and suffering, even if such use unintentionally hastens death. This reaffirmation clarifies for many physicians, who are ignorant of the provisions of the CSA, the fact that they are free to use controlled substances properly and adequately, and thus encourage better treatment of pain and suffering. Too many physicians mistakenly fear prosecution and hesitate to treat pain and suffering. The Act also provides an extra measure of protection for physicians in doubtful cases. The Act calls for a Medical Review Board on Pain Relief composed of peers to adjudicate questions of medical fact. Any physician who believes that a legitimate effort to relieve pain has been misinterpreted by law enforcement officers can convene the Board. Such a board is essential in providing protection for physicians who use controlled substances judiciously and in doses appropriate to relieve pain and suffering.
3) It would avoid setting a precedent that would in anyway permit unilateral self-exemption by one state from its responsibilities to Federal Law and Regulation.
4) It would avoid setting a precedent that a State may unilaterally define what constitutes ethically proper and ordinary medical practice.
Rather than ''chilling'' the use of controlled substances in relief of pain and suffering as opponents of the Bill speciously argue, it would encourage proper use, empower physicians in the relief of pain and suffering, reassure the general public that such usage is both legally and ethically appropriate and protect the physician who uses controlled substances properly to relieve pain and suffering.
Page 147 PREV PAGE TOP OF DOC In the absence of this legislation, the DEA will have to enforce the standards of individual state laws since the attorney general finds no distinct federal policy against assisted suicide in the Controlled Substances Act. But most state laws do not expressly permit use of sufficient levels of controlled substances to relieve pain where hastening death may be an unintended side-effect. According to Lonnie Bristow, M.D., of the American Medical Association, this deficiency has ''. . . generated reluctance among physicians to prescribe adequate pain medication.'' (Testimony before House Judiciary Committee on the Constitution, April 29, 1996). This legislation is sensitive to the physician's need for support of the proper and legitimate use of controlled substances to provide adequate relief of pain and suffering.
Mr. CANADY. We had requests from a number of members seeking to testify; we have attempted to accommodate members. Some members would have preferred to go at the beginning of the hearing, but in order to accommodate the maximum number of members, we have had this members panel now because some of the members who wish to testify are coming into town as the afternoon goes on. So I do apologize for any inconvenience that that may have constituted for anyone.
But it is really designed to accommodate the members, and we appreciate the interest of the members in this subject. Some of the members who have requested to testify are not here. What I intend to do is proceed with the introduction of all of those who have requested to be here, and then we will go with those who are here.
First in the list of those who have requested to be here is the Honorable James L. Oberstar, who represents the Eighth District of Minnesota. Representative Oberstar is cosponsor of the legislation under consideration here today.
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Also we will be hearing from the Honorable Peter A. DeFazio, who represents the Fourth District of Oregon. We also hope to hear from the Honorable Tom Coburn, who represents the Second District of Oklahoma, who is a family physician, who serves on the both the Science and Commerce Committees.
We will also here from the Honorable Darlene Hooley, who represents the Fifth District of Oregon. We will also hear from the Honorable Joe Pitts, who represents the 16th District of Pennsylvania. We will hear from the Honorable Elizabeth Furse, who represents the First District of Oregon. We also will hope to hear from the Honorable Pete Hoekstra, who represents the Second District of Michigan and, finally, last but not least by any means, we will hear from the Honorable Earl Blumenauer. Mr. Blumenauer represents the Third District of Oregon.
And so with that we will kind of go down the row here for those who are present. And since Mr. Oberstar is not here, we will begin with Mr. DeFazio. And we are going to have the light on and do your best. We have had two hearings today, so it has been quite a first day back from the recess. But I don't think anyone is going to insist on strict enforcement of the 5-minute rule.
STATEMENT OF HON. PETER A. DeFAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON
Mr. DEFAZIO. Thank you, Mr. Chairman. I appreciate the opportunity to testify, and I will try to keep my right eye on that red light. Mr. Chairman, I come before you today as someone who is trained in death and dying counseling, worked with, particularly as my work in gerontology, families and individuals who are at the end of life. And I come as an Oregonian who has had personal experience in his own family with this issue. I come as one who voted for this initiative in Oregon and voted to retain the initiative with a large majority of the people of Oregon just recently.
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This is a very complex and difficult issue for many folks, who bring many different values to the table. But let me just sort of cut to the quick. I have testimony here, and I am presenting that for inclusion in the record, and I will depart from it. This decision which all of us will be confronted with, ultimately, is deeply personal and an individual decision in my opinion. The question becomes, at the end of life, if suffering intractable pain, what are your options?
The Supreme Court has said pretty definitively, you have the option of right to medication, you have the right to palliative medication, even if it might hasten the end of your life; however, they stopped short of the issue of whether or not you can take it in a dosage to end your life. But they said even if it might hasten the end of your life or cause unconsciousness, you have the right to relief of that pain as best as medical science can provide.
And it seems to be that the legislation before us strikes at the heart of that issue, because the legislation before us goes to the intent of a physician. If you are suffering intractable bone cancer, a metastasis to your spine and in extraordinary pain and you are at home with a lot of assistance or in a hospice or in a hospital, and you asked to have your physician come in to find out what can be done about this intractable pain, in Oregon the physician can tell you, well, I can provide you, you know, with this morphine-based opiate or whatever is the best pain relief available, and you can take it even more and more and more frequently because you are developing, very quickly developing a resistance to the drug and its pain relieving capabilities, you know.
Or you may inquire in Oregon as to whether or not it would be possible, given the fact that you are in the terminal days of your life, to foreshorten that process and take a lethal dosage. Now the question becomes if that physician says, well, you are at home here, you have got good assistance, I am going to provide you a week's supply of this medicine, we are going to have to go to the intent of that physician in providing that week's supply, because the week's supply taken all at once would be a lethal dosage, the week's supply taken once every 4 hours would not be a lethal dosage.
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And it seems to be there is no way to avoid the incredible chilling effect that this legislation would have on the end of life care and relief from pain, which is something that I have been intimately involved with and feel very strongly about and most people feel very strongly about toward the end of their lives. And I don't see how you can fix it when the physician is going to be second guessed by the Drug Enforcement Administration, whether or not what that physician's intent was in providing that week's supply which that person then took all at once or even providing a dosage that is less than a week's supply, but the person happened to be hiding the pills and suffering even worse pain because they knew that their physician would get in trouble if they gave them the week's supply all at once.
We have to face it. Today people end their lives and they end their lives sometimes in ways that are even more horrific and more debilitating to their families with guns or other means. We are trying to provide a compassionate method prescribed by a physician taken individually. I have heard some say this has something to do with euthanasia or the Third Reich or things like that. You know, this is an individual decision made with qualification, with consultation, with two physicians, terminal diagnosis, psychological counseling if they feel the person is depressed. But it is ultimately an individual decision and cannot be administered by a physician.
There is no slippery slope here. We have established this principle and no one wants to go beyond that principle, self-determination at the very end of one's life. I think it would be compassionate and best as the Supreme Court recommended in the New York and Washington case, let the States go forward and deal with this issue and then let us review what the individual States have done.
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Mr. CANADY. Thank you, Mr. DeFazio.
STATEMENT OF HON. DARLENE HOOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON
Ms. HOOLEY. Thank you, Mr. Chairman, members of the committee. I, too, agree with what Representative DeFazio has talked about. I am going to take a little different tact, and I guess my only qualifications in talking about this issue is that I live in Oregon and both of my parents are deceased and I went through death with both of them.
I am very proud to be representing the Fifth District in Congress. Oregon, for many of you that don't know the state, is known for its fierce independence and rugged individualism. It has a culture heritage that has blazed many new trails, and some of those we have led the Nation as a whole in. I think this is again a personal issue and it is an issue that challenges a lot of members. But it was in the spirit of independence that over the last period of 3 years Oregon has voted twice on this issue. There was no rush to judgment. It was thoroughly debated by the people in the State.
The whole Death with Dignity Act was in our voters' pamphlet guide, so people had a chance to read it. And again it wasn't just a 30-second television spot, it was a debate that went on in our State for well over 3 years.
Page 152 PREV PAGE TOP OF DOC This issue was takenthere were two rulings both in the Supreme Court. And what the practical implication of that decision was, was that it is to be left up to the States.
In Oregon, critics of the legislation again got it back on the ballot to repeal it in 1996, and the second time it was affirmed by a much larger portion than the first time. It was really a landslide result. I think the Oregon electorate was wanting to relay a message similar to what John Hancock sent when he signed the Declaration of Independence, a signature so bold that the powers that be would take heed. And I know many of the powers that be have taken heed on this issue. And I understand Members' opposition, and I understand the passion that fuels those Members' efforts, and I did vote against this measure in Oregon.
And while many Members have paid a lot of attention to the controversy surrounding this measure, this legislative intention would undermine and destroy the principles of state centered federalism that lies at the issue here with the Oregon law.
Again, I want to remind you, we have twice exercised the right to gain a sense of comfort and personal control over palliative care and end-of-life issues. The ensuing debates in the Oregon legislature, the courts, the U.S. Justice Department have eventually resulted in bolstering the will of Oregonians' electorate on this issue. This is one more hurdle they now have to jump through.
What the bill before you really amounts to is big government, something that, in theory, should be wholly inconsistent with many of your political philosophies.
Page 153 PREV PAGE TOP OF DOC As all of you know, H.R. 4006 would amend the Controlled Substances Act to allow penalties for physicians who intentionally prescribe or administer controlled substances for the purpose of attempted suicide or euthanasia. But what you may not realize is this, this act, this Lethal Drug Abuse Prevention Act conveys a very clear and present danger to the individual voter who will come to believe that their desires and their opinions don't matter, that once again Washington knows best.
Proponents of the bills, many of whom purport their strong belief in States rights have declared a very different war on the West. This time it is a battle that threatens rights and perhaps the most personal of liberties. This legislation places the concept of state centered federalism in jeopardy. Federal meddling is clearly objectionable to some when it affects their purse or their property but increasingly agreeable when it applies to a person.
The Supreme Court has become a focal point in defining the boundaries of American federalism, and it has clearly defined this one as a state issue. It is my obligation to respect the wishes of Oregon voters because they have spoken unequivocally on this issue and to state my opposition to this bill.
Thank you, Mr. Chair.
[The prepared statement of Ms. Hooley follows:]
PREPARED STATEMENT OF HON. DARLENE HOOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON
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I am so very pyoud to be here today representing Oregon's Fifth District in the United States Congress. Oregon is well-known for its fierce independence and rugged individualism. It is this cultural heritage that has helped us proudly blaze new trails in many areas and provide an example for other statesand indeed for the nation as a whole.
This pioneering spirit of Oregonians has clearly challenged some members of this Congress to use every and all means at their disposal to prevent this state's physician assisted suicide law from being adopted in other areas of the countryand in prohibiting its continued implementation in our state.
It was in our spirit of independence that the citizens of Oregon voted twice over a three-year period to approve a physician-assisted suicide ballot initiative.
This was no rush to judgement. Debate within the State on this issue has been a long, thoughtful, and considerate process, The six-page Oregon Death With Dignity Act, which was printed in our state's Voters' Pamphlet, provides some instruction to physicians on how to handle requests for suicide. It includes informing the patient of options for adequate pain medication and hospice care, and requesting, but not requiring, that the patient notify a relation.
Following the first time the Oregon electorate approved this initiative four years ago, the measure was contested in court on the grounds that the legislation permitting doctors to write prescriptions for lethal doses of drugs to terminally ill persons may not be protective enough of the fights of the disabled and the mentally ill.
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These claims were turned aside by the Supreme Court. The Court held that state bans on physician-assisted suicide did not violate either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. The practical implication is that the decision to either prohibit or legalize physician-assisted suicide is one that will be left up to the states.
In Oregon, critics of the legislation got the issue back on the ballot in an attempt to repeal it. In 1994, physician-assisted suicide was legalized by a narrow margin52 percent in support and 48 percent in opposition. The second time, after a vocal campaign by medical societies, religious groups and others to kill the legislation, physician-assisted suicide was reaffirmed by the voters of Oregon in a landslide60 percent for and 40 percent against.
I'd like to think that landslide was a result of the Oregon electorate's wanting to relay a message similar to the one John Hancock sent when he signed the Declaration of Independencea signature so bold and serious that the powers that be would take heed.
Today, it's clear that the respected Chairman of the Judiciary Committee, Representative Henry Hyde of Illinois, and the honorable senior Senator from Oklahoma, Don Nickles, have taken noticeand they're clearly in opposition to what has been upheld by Oregon's electorate, the courts, and the U.S. Department of Justice.
I certainly understand the passion that fuels some of these Members' efforts. After all, I voted against the Measure in Oregon.
Page 156 PREV PAGE TOP OF DOC But while these leaders have paid notice to the controversy surrounding the measure, their legislative intentions will undermine and destroy the principles of state-centered federalism that is at the issue here with the Oregon law. Oregonians have twice exercised their rights to gain a sense of comfort and personal control over palliative care and end of life issues. The ensuing debates in the Oregon legislature, the courts, and the U.S. Justice Department have eventually resulted in supporting the will of the Oregonian electorate on this issue.
This is one more hurdle the voters of Oregon are going to jump. What the bill before you today really amounts to is ''big government''something that should, in theory, be wholly inconsistent with the political philosophy espoused by the Republican Leadership of this Congress.
As all of you well know, H.R. 4006 would amend the Controlled Substances Act to allow penalties for physicians who intentionally prescribe or administer controlled substances for the purposes of assisted suicide or euthanasia.
But what you may not realize is this: The Lethal Drug Abuse Prevention Act conveys a clear and present danger to the individual voter who will come to believe that their desires and opinions really don't matter''Washington knows better.''
Proponents of the billmany of whom purport their strong support of ''states rights''have declared their own ''War on the West,'' this time a battle that threatens states' rights regarding perhaps the most personal of liberties.
Page 157 PREV PAGE TOP OF DOC This legislation places the concept of state-centered federalism in jeopardy, a concept so eagerly embraced by the Majority during the last two Congresses. Federal meddling is clearly objectionable to some when it affects purse or property, but increasingly agreeable when it applies to persons.
The Supreme Court has become a focal point in defining the boundaries of American federalism, and it has clearly defined this as a state issue. It is my obligation to respect the wishes of Oregon's voters because they have spoken unequivocally on this issue, and to state my vehement opposition to this bill.
Mr. CANADY. Thank you, Representative Hooley. Mr. Pitts.
STATEMENT OF HON. JOE PITTS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. PITTS. Thank you, Mr. Chairman, members of the committee. Thank you for the opportunity to speak in support of H.R. 4006, the Lethal Drug Abuse Prevention Act of 1998. This bill will prohibit the dispensing and distribution of a controlled substance in order to cause or assist suicide or euthanasia.
Mr. Chairman, I strongly believe that we can and must do better for our disabled and ill citizens than to kill them. You cannot solve problems by getting rid of people to whom the problems happen. When a teenager says her life is not worth living because she has lost her boyfriend, we don't say, well, that is her choice. We recognize it as a cry for help, as a view that can and will be changed.
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Statistics show that of those who attempt suicide and are stopped, less than 5 percent have gone on to kill themselves 5 years later. What a tragedy it would be for the more than 95 percent who survived if we had turned our backs and not tried to stop them from taking their lives. Sadly, that is exactly what opponents of H.R. 4006 seek to do.
I know that it will be said it is different for those that are terminally ill. But a study published in the American Journal of Psychiatry found that of the 24 percent who are terminally ill who said they wanted to die, all were suffering from clinically diagnosable depression. Depression is an illness, and it distorts judgment. We should treat it in the terminally ill individuals as much as in others.
Let no one suppose, however, that this is an issue that applies only to the terminally ill. Authorizing assisted suicide for those with terminal illness is only the tip of the iceberg. We can see what happened in the Netherlands. In 1981, a Dutch court said that under certain conditions a doctor could assist a terminally ill person's suicide.
In 1982, another court extended that to elderly people who were not terminally ill but in chronic bad health, a decision upheld by the Dutch Supreme Court in 1984.
In 1986, the Dutch Supreme Court said that people with disabilities could be killed. In 1989, Holland moved from voluntary assisted suicide to nonvoluntary euthanasia when the Supreme Court said that doctors could give lethal injections to children born with Down's Syndrome.
Page 159 PREV PAGE TOP OF DOC In 1991, a Dutch court legitimized killing a 25-year-old woman with mental illness. And in 1994, the Supreme Court said that a woman with no physical illness or disability but who was depressed because of the death of her last remaining child could be killed.
Once you accept the view that death is a solution to human problems, it becomes very hard to draw lines. Gradually, it will be seen as an answer to more and more problems for less and less weighty reasons. We in America must not start down that road.
My colleagues from Oregon argue that Congress has no business in this area, that it should be left entirely up to the State of Oregon. They missed the point that we are talking about Federally controlled drugs. Under existing Federal law, it is generally illegal to dispense or distribute these drugs unless you have a special license or registration from the Federal Government.
If you are a medical practitioner or pharmacist, you are granted that Federal registration to prescribe certain of these Federally controlled substances for a legitimate medical purpose. Congress passed the Controlled Substances Act in the first place because drug abuse is a national problem. A state cannot nullify the Federal law if it chooses, as a matter of state law, to legalize the use of heroin or LSD.
The same Attorney General who overturned the ruling of the professionals at the Federal Drug Enforcement Administration on this matter has successfully gotten injunctions to close cannabis clubs in California that were selling marijuana for supposed medicinal purposes as authorized by a California referendum.
Page 160 PREV PAGE TOP OF DOC Mr. Chairman, you can't have it both ways. If my distinguished colleagues from Oregon really want to assert States rights, they should be pushing for the complete repeal of the Federal Controlled Substances Act. But while it is in effect, for the Federal Government to permit the dispensing of otherwise prohibited Federally controlled drugs to kill patients means the Federal Government is affirmatively facilitating assisted suicide. The American people don't want this to happen. By a margin of more than 2 to 1, a Wirthlin poll in March found that 65 percent opposed allowing the use of Federally controlled drugs for the purpose of assisted suicide and euthanasia.
Mr. Chairman, the Declaration of Independence describes life as something that is inalienable, a right so fundamental that it cannot be given away, even voluntarily. The principal author of the Declaration, Thomas Jefferson, wrote in 1890 that, I quote, ''The care of human life and happiness and not their destruction is the first and only legitimate object of good government.''
Our country stands at a crossroads between the way of death and the way of life. I urge that this subcommittee lead us in the life affirming direction by reporting out the Lethal Drug Abuse Prevention Act of 1998.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Pitts.
Page 161 PREV PAGE TOP OF DOCSTATEMENT OF HON. ELIZABETH FURSE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON
Ms. FURSE. Thank you, Mr. Chairman, and members of the committee. I will be urging my colleagues to oppose H.R. 4006. I think it will have serious implications on my home state, and I think it will have implications on the entire Nation in terms of palliative care and States rights.
In fact, I would say that this bill before us, the issues are three: Palliative care and quality medical practice, two, States rights, and, three, the right of a person to make choices. Now I know that we are divided in this Congress. There are some who believe that they know what is right for everybody else, and there are some who believe that people have inherently the sense to make good decisions for themselves.
H.R. 4006 will undermine the traditional incorporation of state and community medical standards into state medical practice regulations. I think it is inappropriate, I think it is probably unconstitutional for Federal policymakers to reverse a 4-year intensive process which led to the implementation of the Death with Dignity Act in Oregon, simply because those Federal law makers just don't like Oregon's decision.
Now, as you know, the American Medical Association and the Oregon Medical Association opposed this bill. And I will quote one of the things that the Oregon Medical Association has said. Quote, ''This legislation is an unprecedented expansion of Federal power over the practice of medicine, and it raises substantive constitutional issues.''
Page 162 PREV PAGE TOP OF DOC Now, there is another problem with this bill, and that is that it demonstrates a clear lack of understanding about palliative care. In this bill, this bill would allow, no, it would actually dictate that nonmedical personnel would determine the intent of a physician who is practicing in this very, very, very subjective area, the end of life care. It would create a very difficult question when a physician is actually trying to ease the pain of a terminal patient or whether they are assisting in their suicide. It seems misguided to me to have officials from the Justice Department, not themselves medical personnel, the Justice Department rather than the patients themselves determine whether a medical practice is appropriate, and ultimately I believe that the intrusion of Congress into Oregon's public health matters represents a dangerous interference in our state's law making capabilities.
Oregon has conducted a thoughtful, deliberative and a convincing process in the difficult, difficult area of death and dying. That is what we should be doing. We should be talking about that. We should be doing that kind of careful, deliberative discussion, about death and about dying.
But this bill just seeks to say we don't like Oregon's decision, and so we are going to step forward, we are going to put law enforcement people in the doctor's office and determine how they intended the use of this palliative care. It sends a chilling message to my constituents. It says to them, it doesn't matter if you think about these things hard and you go to the polls and then it goes to the courts and then it gets overturned, and then you go back to the polls again and you come up with a decision because there might be some law maker in the United States Congress who thinks that the Federal Government knows better.
I urge that the subcommittee reconsider this, what I would term very ill-advised legislation, and I thank you, Mr. Chairman.
Page 163 PREV PAGE TOP OF DOC Mr. CANADY. Thank you representative Furse. Mr. Blumenauer.
STATEMENT OF HON. EARL BLUMENAUER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON
Mr. BLUMENAUER. Thank you, Mr. Chairman. One of the most difficult decisions we face at the Federal level is choosing where to act or interfere in decisions reached elsewhere. Some are easy decisions for most Americans in cases of active discrimination or failure to protect the environment that goes across state boundaries. Many, however, are decisions that sometimes are in the gray area, whichand there are some that people legitimately choose to use for their own political reasons.
Of these, the end of life decision is perhaps the most difficult. I take umbrage with my colleague that this. I would suggest this is not the tip of the iceberg for some sort of nefarious plot. Oregonians are very much like other Americans, and in fact they are often used for test marketing purposes. They have struggled and debated, and you have heard from my colleagues over this issue for the last 4 years in the most public of ways. These end of life decisions are complex, varying significantly with each individual. And with the advent of new medical technologies and with a rapidly aging population it is getting complex for moremore and more complex for more and more of us.
There are, in fact, some very technical problems of a serious nature with this legislation. It would, as you have heard already, interfere with the practice of medicine, of pharmacy, of pain management, of hospice management in ways it would have profound effects on the rights that most Americans have taken for granted. The flip side is that many Americans can actually have an end of life decision terminated by withholding certain medications.
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The Oregon Death with Dignity law is still very much a work in progress. But the preliminary evidence suggests that this option may actually reduce the incidence of suicide while easing the burden for both patient and the family, rather than having a flood of people come to Oregon after the procedure was deemed legal. In fact, we have seen evidence that suggests that the mere knowledge that we have empowered individuals, their families, and their decisions to control the situation suggests that it gives strength and heart to people and makes them less likely to use this option.
There is no doubt in my mind and I think every member of this subcommittee knows that every day in America, probably right this minute, there is an individual in great pain and a family that is struggling with this very issue, and virtually every day people make decisions, sometimes without the benefit of the framework that the Oregon law has, without the benefit of the counseling and the protections to end their life sometimes in very unpleasant ways.
As we age as a society, as I mentioned with the increase in the elderly population, with medical science continuing its advancement, the difficult decision points are going to be made more difficult and more complex. I sincerely hope that this committee will reflect on the reality that most Americans face, on what is going to happen in terms of actual extension of care or in some cases withholding of it. And I would hope that you would see it in your hearts and souls to give, cut a little slack for what is happening for our state, look at the evidence, give some degree of respect to the hundreds of thousands of people who in a very public way made ain a political arena made a decision that I think if we allow it to work can have positive affects for people throughout this country.
Page 165 PREV PAGE TOP OF DOC I appreciate the opportunity for testifying here before you today and look forward if at some point it is useful to share some other observations personally on an individual basis both in terms of what has happened as it relates to both suicide and this law, and I will be happy to talk with you later.
Mr. CANADY. Thank you, Mr. Blumenauer.
STATEMENT OF HON. TOM A. COBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA
Mr. COBURN. Well, I want to thank the committee, subcommittee.
Mr. CANADY. You were properly introduced before you arrived.
Mr. COBURN. Thank you. Thank you, and I would hope that my entire written statement would be made a part of the
Mr. CANADY. It will be.
Page 166 PREV PAGE TOP OF DOC Mr. COBURN. I thank the subcommittee for the opportunity to talk before you on these subjects. As a practicing physician, I know firsthand a lot about palliative care, and I am somewhat distressed at the fact that my own medical organization does not have the courage nor the faith to believe in their own members that we know the difference between palliative care and giving palliative care to comfort someone when they are dying versus actively pursuing someone's death.
What has been said here that this will interfere with the practice of medicine, I would remind this committee that bringing about death is not the practice of medicine. Preserving life is the practice of medicine, and that we are confused on what the practice of medicine is is beyond me. For 25 centuries, we have taken the Hippocratic Oath that says we will preserve life, that we will do all in our power to preserve life. And the fact that we are now using a States rights issue to say that the Congress should not be involved in the very foundation, underpinnings of the documents that we deem so valuable to our society as a whole and say that States rights are being run over as we preserve life boggles my mind. We wouldn't have the 1964 Civil Rights Voting Act if we had the same argument that was put forward today in terms of what this bill is trying to accomplish, using that argument.
Palliative care has been launched. Great strides have been made in terms of American medical practice, in terms of teaching, learning more about palliative care. We do a great job with it today, and we do it in such a way that people do have dignity as they die. It is very much different, a very much different topic in terms of talking about whether or not you are assisting with someone's pain, which may have a risk of shortening their life versus actively taking their life. And I would again reemphasize the active taking of life is not the practice of medicine. It is the practice of death.
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I would remind you what Alexander Hamilton said in 1775, the sacred rights of mankind are not to be rummaged for among old parchments or rusty records. They are written with the sun beam and the whole volume of human nature, by the hand of divinity itself and can never be erased or obscured by moral power.
Well, the sacred rights are the inalienable life right to life. There are no rights to death in our society. It is a right to life. As we had testimony before the Commerce Committee, the Dutch have experienced over the last 7 years 5,000 people whose lives have been taken without their permission through their euthanasia law. This is not something we do not know what is going to happen. We do know what is going to happen. The fact that we have a Federal law and we have the right of a Federal law to not allow the use of drugs to take someone's life is something that will preserve our society. To do so in any other manner and to allow the Oregon law to continue to take effect and to continue to ignore the controlled substance of that would mean that we do not believe in the founding documents. It is not a matter of what I believe or don't believe personally; it is a matter of what the profession of medicine is to be about. And as soon as we have cornered the profession of medicine to a position to where its object is solely to marginalize and rationalize to end a situation, then we no longer have medicine. We no longer have an art of healing, an art of preserving life.
So I would say that I would beg that you look at this issue with a very clear understanding that this is the beginning of a very, very slippery slope downward and that we will see very many negatives to come. I am also convinced that the Oregon voters were not informed accurately about the capability of palliation. And I am convinced that the vast majority of American physicians, disregarding what the American Medical Association might say, feel very comfortable in their ability to palliate someone in severe pain.
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I would relate to you an experience that I had within the last year. I had a gentleman who was dying, dying of lung cancer, had tremendous pain. We did a great job palliating his pain. Our palliation did hasten his death, but that was not our intention. And we can continue to help people with pain, and yes, at times that will hasten their death but that is not our intent, and the intent is the very clear difference. The Oregon law says that you are intending to take someone's life. That is how it is spelled out. That is not the practice of medicine. That is not what controlled substances are for. That is not the basis of the controlled Substances Act. And I would beg that you send this from your subcommittee to the whole committee and come to the House floor in due haste.
[The prepared statement of Mr. Coburn follows:]
PREPARED STATEMENT OF HON. TOM A. COBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA
Mr. Chairman, I wish to thank you and the members of the subcommittee for bringing forward this important legislation and for giving me this opportunity to offer testimony on it. I speak in strong support of this legislation, both as a Member of Congress and as a practicing physician.
I speak first as a legislator. The genesis of this legislation clearly lies in the unfortunate decision of a majority of the voters in last year's referendum in the State of Oregon to authorize the practice of so-called ''physician-assisted suicide.'' In doing so, they legally extended to physicians a right to administer to certain patients lethal doses of drugs with the specific intention of ending the patient's life.
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Ordinarily, I am very reluctant to contradict the expressed will of a majority of voters in any jurisdiction on any subject. Our entire system of government rests on the principle of the sovereignty of the people and on a trust that, in the long run and most of the time, the people will do the right thing. I believe that. But sometimes the voters can be wrong. And on some occasions when voters make mistakes, they jeopardize the rights of the larger community, and especially those who are most vulnerable. This, I fear, is what the voters in Oregon did last November.
If physician-assisted suicide is unleashed in Oregon, it will become extremely dangerous for a person to become seriously ill in that state. The human person is rarely more vulnerable than when gravely ill and confronted with the likelihood of not recovering. For patients who carry that burden, the legalization of physician-assisted suicide adds a new and powerful pressure to allow themselves to be killed. We have seen how, in the Netherlands, a similar policy has led to the elimination of many medically vulnerable patients for the convenience of others.
Physician-assisted suicide is not simply a local Oregon issue. To establish, in even one state, a policy under which the medically vulnerable may be directly killed cheapens life and degrades the medical profession throughout our culture. There are some evils which, perhaps, can be tolerated as long as they are confined to certain localities, but there are others that cannot be allowed to exist at all without poisoning an entire society. Slavery was one such evil; euthanasia is another.
Indeed, the corruption of standards that inevitably accompanies the legalization of physician-assisted suicide is apparent from the chain of circumstances that led to the introduction of the legislation before us today.
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On the day after the election last fall, the Drug Enforcement Administration, in response to inquiries by Representative Henry Hyde and Senator Orrin Hatch, chairmen, respectively, of the House and Senate Judiciary Committees, stated that regardless of the Oregon law, physician- assisted suicide involving lethal doses of controlled substances was a violation of the Controlled Substances Act. Under that Act doctors are licensed to prescribe for their patients drugs that are legal for medical purposes, but not generally available to the public. Those drugs are not banned because they do have great value, when used properly, in controlling or curing illnesses and restoring a patient's health. But they are controlled precisely because, if used improperly, they have the potential for harm, injuring or even, in some cases, killing those to whom they are given. It is the responsibility of physicians to see to it that these drugs are used only for the good of their patientsfor ''legitimate medical purposes,'' as the law puts itbut the law also, quite properly, gives doctors wide latitude in applying their own knowledge and experience in the proper use of these substances. This is not a case of the government trying to practice medicine, but rather of the government overseeing the practice of medicine in a way that proects the health and safety of the public.
Preventing the abuse of these drugs in a way that could lead to the death of a patient was very clearly part of the intent of Congress in adopting the Controlled Substances Act. Testifying on behalf of that legislation in 1984, Members of Congress noted that the abuse of legal drugs was responsible for a substantial majority of the drug-related deaths at that time, and this was precisely one of the risks against which they intended to protect the public. Congress intended to prevent the abuse of drugs not only on account of their potential ''stimulant, depressant, or hallucinogenic'' effects, but also, and more urgently, on account of their potential lethal effects. The DEA Administrator, therefore, was absolutely correct when he told Chairman Hyde and Senator Hatch that the practices authorized by Oregon's assisted suicide law would violate the Controlled Substances Act.
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But his superior was apparently not so certain. A question arose about whether the Attorney General would enforce the federal law restricting controlled substances to ''legitimate medical purposes.'' I joined with a number of my congressional colleagues in writing to Attorney General Reno, expressing our view that the federal law was applicable to this situation and needed to be enforced. But on June 5 of this year she announced that she did not consider the Controlled Substances Act applicable. Hence, the need for the legislation before us, to correct an error of interpretation by the Attorney General.
The Attorney General is too good a lawyer to imagine that the meaning of a federal statute can vary from state to state, or can be determined by the law of a single state that contradicts those of all the other states. She knows that the Supremacy Clause in the U. S. Constitution makes laws enacted by Congress the ''supreme law of the land,'' outweighing any state laws that contradict them. Therefore, it must be the belief of the Attorney General that the term ''legitimate medical purpose'' in federal law includes the practice of administering a lethal dose to a patient. And to this point I must speak not only as a legislator, but as a doctor.
I am, as you know, a practicing physician and I believe I am competent to address the question of what constitutes a ''legitimate medical purpose.'' And I would note, to begin with, that the practice of administering a lethal dose to a patient is explicitly repudiated by the Hippocratic Oath, the foundation of medical practice in Western civilization. I find it hard to imagine that a practice that for twenty-five centuries doctors swore they would never commit, can suddenly become a ''legitimate medical purpose'' in federal law because of a referendum in a single state. Since the time of the ancient Greeks, ''legitimate medical purposes'' have included only measures intended to save and protect life, not to cause death.
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The medical profession still overwhelmingly supports the principles of good medical practice enunciated in the Hippocratic Oath. In confidential surveys, only a tiny fraction of practicing physicians say they would be willing to cooperate in taking the life of a suicidal patient. And I am very proud that the American Medical Association has not only taken a stand aghainst the practic of ''assisted suicide,'' but has launched an extensive national campaign to educate doctors on pain management. Remarkable new advances have taken place in pain control, and it is now the case that no patient need suffer pain. Many people, including even some doctors, imagine that the only choice for the gravely ill is either to suffer excruciating pain for their remaining days or to end their lives intentionally. This is perhaps the single greatest fear people have about the end of life and it is a major argument used in support of physician assisted suicide. Yet this argument is techologically obsolete. Medical advances have made it possible for the dying to end their lives in genuine dignity, not wracked with agony but in relative comfort and with a clear mind.
I am convinced that if the voters in Oregon had known the truth about contemporary medicine, and had not been frightened by the terrible images of end-of-life pain, they would never have made the mistake of authorizing ''assisted suicide.'' I hope that the American Medical Association's campaign to educate physicians about the new advances in pain management are successful enough to free people of the fears that led them to make such a tragic mistake.
Yet at the same time, I am mystified that this same American Medical Association that has done so much to fight against physician-assisted suicidea practice that will inevitably degrade the medical profession and erode the trust people feel for their doctorsis opposing the legislation before us today. This attitude seems inexplicable. The apparent reason is that the Association seems to see some disadvantage in making doctors liable for violating their professional responsibilities. I think they fail to realize that this legislation before us does not impose new responsibilities on doctors or expose them to new liabilities. It simply reemphasizes the point that killing a patient is not a legitimate medical purpose, a point that has been taken for granted by practiciing physicians, the AMA itself, the DEA Administrator, and just about every other authority, with the regrettable exception of Attorney General Reno.
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The other concern I have heard expressed about this legislation is that it might expose a doctor to the poenalty of losing his federal license to prescibe medicine when, in good faith, he or she gives a patient pain medication that has a side effect of hastening the patient's death. Yet it is very clear from the careful drafting of this bill, using language that the AMA itself recommended in another context, that this danger is purely imaginary. Easing pain is a ''legitimate medical purpose,'' and is clearly differentiated from the direct intention of ending a patient's life. And the Oregon law itself requires a physician to declare in writing the intention to end a life. If a physician complies with the Oregon law, there is no ambiguity about his intention. He would be required to sign a document stating that he is administering a lethal dose pursuant to the patient's request. Doctors who use drugs for pain management do not fill out such a form and evince no such lethal intention.
Mr. Chairman, Members of the Subcommittee, there are only a few occasions when what we do in Congress literally has life or death consequences. This is one of those occasions. I thank you for bringing this bill forward, and I wholeheartedly support its enactment.
Mr. CANADY. Thank you, Dr. Coburn.
Mr. Oberstar, you also were introduced prior to your arrival.
STATEMENT OF HON. JAMES L. OBERSTAR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA
Mr. OBERSTAR. Thank you very much, Mr. Chairman, and thank you and Chairman Hyde for holding this hearing, and thank you, Henry, for initiating the legislation.
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This issue has legal, humanistic, and spiritual dimension. When the legal aspect first arose and I wrote the Justice Department asking whether the Drug Enforcement Administration could use the authority under the Controlled Substances Act to take adverse action against physicians who helped patients to end their lives by prescribing controlled substances to do so. I got a very well thought out, three-page response from the department, which affirmed the decision that the Attorney General came to just about that same time publicly.
But what is interesting is their interpretation of the Controlled Substances Act: Quote, ''It was intended to keep legally available volumed substances within lawful channels of distribution and use.'' Further on, quote, ''There is no evidence that Congress and the CSA intended to assign DEA the novel role of resolving the earnest and profound debate about the morality, legality and practicality of physician assisted suicide.''
Well, fine. Then it is Congress' role to take that law a step further, as the pending bill does, and to resolve that matter. As the letter goes on to say, ''These are fundamental questions of morality in public policy. Such omission falls well beyond the purpose of the CSA.'' Well, that is fine. If the law doesn'tcurrent law doesn't go far enough, then we should take it further.
The letter concludes, saying that ''President Clinton continues to maintain his long-standing position against assisted suicide and any Federal support for that procedure, a position codified when he signed the Assisted Suicide Funding Restriction Act last year.''
Page 175 PREV PAGE TOP OF DOC Well, if the President needs legs to stand on, then we should provide them, and that is why I join Chairman Hyde in sponsoring this legislation, when we said medicine should be a healing force not a killing force.
Fundamentally on a humanistic level, physician assisted suicide is, or any form of euthanasia is wrong. It is also unnecessary. Advances, as Dr. Coburn has already expressed, advances in pain management have been extraordinary. Advances in hospice care have been exceptional just in the last decade.
Mr. Hyde and I have been through this. We both lost beloved spouses. I think we both understand that care givers need to provide physical comfort, to be those who assuage the fear of dying, and strengthen the spiritual and faith and life extending experience in those final sacred moments of life. Ultimately, we have to understand that in the spiritual dimension, neither we, the loved ones, or loving ones, nor physicians decide and control life or death. Spirituality, faith, prayer, love and hope are the most important considerations in those final sacred moments of life.
As I sat day after day holding Jo's hand, even while she lost consciousness, still understanding that hearing is the last sense to leave and read from her favorite passages, scripture, and talked to her, I was constantly reminded by her wish that there be no heroic intervention, but that she be allowed to live her last moments out quietly, at peace, and in prayer. Her words to our children and to her nieces and nephews were at the end of life what is important is faith, family, and friends.
And I just want to be able to concentrate on it, and she was given what was available in pain management to do that. Our object should not be to terminate life but to sustain and make it tolerable. This legislation will give us the means to do so and prevent the medical profession from slipping into one of termination rather than sustaining of life.
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Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Oberstar.
I want to thank all the members who have been here for this panel for your participation. It is our custom not to ask questions of the Members. So we would excuse you.
We are going to continue the hearing to hear from Dr. Pellegrino, who was detained and was unable to appear on the earlier panel when he was announced. But, Dr. Pellegrino, we appreciate you making the effort to be here and we will hear from you now. You have been introduced earlier. And we thank you for being with us, and you will be the final witness of our hearing this afternoon.
STATEMENT OF EDMUND D. PELLEGRINO, M.D., CENTER FOR CLINICAL BIOETHICS, GEORGETOWN UNIVERSITY MEDICAL CENTER
Mr. PELLEGRINO. Thank you very much for this opportunity. My name is Edmund D. Pellegrino. I am currently Professor of Medicine and Medical Ethics, founding Director of the Center for Clinical Bioethics, and formerly Director of the Kennedy Institute of Ethics at Georgetown University. I have held previous positions as faculty member and administrator at New York University, Yale University, the State University of New York, and the Universities of New York and Tennessee and Kentucky. I have been a physician for 54 years and have attended many patients in need of terminal care and relief of pain and suffering.
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On the strength of these experiences, I believe that it is in the public interest and the interest of individual patients to urge passage of the Lethal Drug Abuse Prevention Act of 1998. This act clarifies existing positions of the Controlled Substances Act and the regulatory powers of the Drug Enforcement Administration so as to exclude the use by physicians of lethal doses of controlled substances and assisted suicide and to encourage and safeguard the proper and adequate use of these substances in the relief of pain and suffering.
This act I believe has become necessary because of two recent events. First, the State of Oregon in contravention of medical ethics and already existing Controlled Substances Act and Drug Enforcement Agency provisions, has legalized the use by physicians of lethal doses of controlled substances in assisting suicide. And second, the Attorney General of the United States ruled on June 5th of this year that such usage is now part of the ordinary practice of medicine in Oregon and therefore exempt from CSA and DEA jurisdiction.
These two actions violate the universal condemnation in law and medical ethics of physician assisted suicide. They sanction unilateral definition by one state of what constitutes ordinary medical practice and medical ethics. They set a precedent which will encourage other states to seek similar exemptions from law and ethics; and they devalue and thus endanger the life of our citizens who are within 6 months of death.
The act as drawn would counter these gravely deleterious actions in the following ways: First, it would affirm the prohibition in law and ethics against intentionally bringing about the death of any person and apply brakes to a socially destructive trend toward physician suicide and euthanasia.
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Second, it would reaffirm the appropriate use of controlled substances in adequate doses to relieve pain and suffering even if such use intentionally hastens death. This reaffirmation clarifies for many physicians who are ignorant of the provisions.
Mr. SCOTT. Doctor, did you say intentionally or unintentionally hastens.
Mr. PELLEGRINO. Unintentionally. I am sorry. Thank you. This reaffirmation clarifies for many physicians, who are ignorant of the provisions of the CSA, the fact that they are free to use controlled substances properly and adequately, and thus encourage better treatment of pain and suffering. Too many physicians mistakenly fear prosecution and hesitate to treat pain and suffering.
The act also provides an extra measure of protection for physicians in doubtful cases. The act calls for a medical review board on pain relief composed of peers to adjudicate questions of medical fact. Any physician who believes that a legitimate effort to relieve pain has been misinterpreted by law enforcement officers can convene or ask for a hearing by the board. Such a board is essential in providing protections to physicians who use controlled substances judiciously and in doses appropriate to relieve pain and suffering.
Third, this act would avoid setting a precedent that would in any way permit unilateral self-exemption by one state from its responsibilities to Federal law and regulation. And, fourth, it would avoid setting a precedent that a state may unilaterally define what constitutes ethically proper and ordinary medical practice.
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Rather than chilling the use of controlled substances in relief of pain and suffering as opponents of the bill speciously argue, it would encourage proper use, empower physicians in the relief of pain and suffering, reassure the general public that such uses are both legally and ethically appropriate and protect the physician who uses controlled substances properly to relieve pain and suffering.
In the absence of this legislation, the DEA will have to enforce the standards of individual state laws, since the Attorney General finds no distinct Federal policy against assisted suicide and the Controlled Substances Act. But most state laws do not expressly permit use of sufficient levels of controlled substances to relieve pain where hastening death may be an unintended side effect. According to Lonnie Bristow, M.D., of the American Medical Association, this deficiency has, I quote, ''generated reluctance among physicians to prescribe adequate pain medication,'' testimony before the House Judiciary Subcommittee on the Constitution April 29th, 1996. This statement by Dr. Bristow is in keeping of my own experience as a physician and as an ethicist for some 30 years, consulted by many physicians who have been worried about the appropriate use of adequate doses of medication to relief pain and suffering for fear of prosecution if unintended death should occur. This legislation I believe is sensitive to the physicians' need for support of the proper and legitimate use of controlled substances to provide adequate pain relief and suffering, and therefore I believe this bill should be passed.
Mr. CANADY. Thank you, Doctor. Are there any questions from the members? Mr. Scott, you are recognized.
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Mr. SCOTT. Thank you. Dr. Pellegrino, we heard testimony that some think the legislation may in fact be counterproductive because by setting up the board and the prohibition, even if the death was unintended, that is an after the fact determination, when some may be reluctant, even more reluctant than they are now, to prescribe appropriate pain medication. Do you want to comment on that?
Mr. PELLEGRINO. Yes. As I said in my testimony, I do not believe it would have a chilling effectwere words that have been used in testimony. I think that in my experience many, many physicians hesitate to use appropriate doses. Patients' pain and suffering are not relieved adequately and optimally in fear of litigation, in fear of prosecution, and I believe if it were explicitly stated in an act that such were permissible, that as a matter of fact one could use such doses as long as death were unintended, therefore, I think this would help the physician and empower, as I said, and also if he had recourse or she had recourse to a hearing by peers, because I think it is becoming more and more clear and evident that we have not been treating pain and suffering adequately and that to do so requires doses of controlled substances which may not be routine.
Mr. SCOTT. Well, this issue would only come up after someone had died. And suppose you had someone who had been requesting assistance for suicide. Wouldn't a physician be very reluctant to prescribe possibly lethal doses which may be appropriate because if the patient were to die, someone would look back and say, ah-ha, he obviously intended that result.
Mr. PELLEGRINO. Well, certainly that scenario is a possibility, no question about that, human beings being human beings of course. But it seems to me under those circumstances if we applied that reasoning we would probably not be treating many patients adequately. The request for assisted suicide really is, it seems to me, not relevant to the issue here. It seems to me the question is did we give an appropriate dose to relieve the pain and suffering of this patient. If our intention was to assist in suicide, then I would agree it would be wrong.
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Mr. SCOTT. But that determination has been made after the person is dead and you just look at the doses and if the doses are suspect then the physician is in trouble.
Mr. PELLEGRINO. Yes, but I don't see how you could do it before the patient died either to protect yourself.
Mr. SCOTT. And that is why the physician would not prescribe, would be reluctant to prescribe the maximum dosage?
Mr. PELLEGRINO. Well, again, I would say that if he were doing that I would consider that he was practicing unethically, and as a matter of fact tantamount to malpractice, not to treat pain adequately. If the patient asked for assisted suicide, we need to evaluate that and evaluate the degree of pain and suffering. But our aim is to relieve that and not to deal with the request of the assisted suicide questions.
Mr. CANADY. Mr. Hyde.
Mr. PELLEGRINO. As opposed to any other circumstance, thanks.
Mr. CANADY. Mr. Hyde.
Mr. HYDE. Thank you very much, Mr. Chairman. And, Dr. Pellegrino, thank you especially for making the effort to be here. Regrettably, a lot of those folks who should have heard you are gone, but I don't blame them. They had other things to do too, but thank you for the effort and thank you for your paper which is excellent.
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I am going to exploit my question time with you just to make a few comments about the testimony we have heard. We have heard much ado about the initiative out in Oregon that passed narrowly at first and then comfortably secondly. But I have always believed there are certain fundamental, and I stress fundamental, rights that are not subject to polling or subject tothat is why we have a republic, that is why we have a constitution, so majorities can't take them away or change them. So conceptually I am not troubled by the fact that Oregon had a statewide vote and it came down on one side of this issue.
The States right issue, boy, these people aren't troubled by the fact that abortion is not a States issue. I don't see them marching in anywith any picket signs saying return abortion to the States. It has been federalized by the court, and they are very comfortable with that. So I guess it depends on the issue. But life is a Federal issue. Life in terms of the Declaration of Independence is the first inalienable right we have, and it must have been put first because our Founding Fathers thought it was first. But they didn't leave that out of the Constitution either. The Fifth Amendment and the Fourteenth Amendment provide for life, liberty and the pursuit of happiness, and they also provide that no person shall be deprived of life, liberty or property without due process of law. So life has a Federal aspect to it that Congress has a right to protect.
I take the phrase ''sanctity of life'' seriously. We have sanctity of contract. We don't blanch at that. We don't think that is an overstatement. We have the sanctity of the marriage vows. I think the sanctity of life is a reality and ought to mean something, and while this is very personal to me and I am not one of the testifiers who said some people know what is good for everybody else. I don't know what is good for anybody, and I try to find out what is good for me. But that is not an excuse for abandoning your duty to defend the defenseless. And too many old people say they want to go because they are guilty for the burden they are putting on their family, and they ought to understand their life is precious, too. What do you do with three more months of your life? My God, you could have a change of soul. You could change the direction you are going to spend eternity in 3 weeks, much less 3 months. But I think God gave us our life and I think he ought to decide when he wants to take us home.
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But thank you, Doctor.
Mr. PELLEGRINO. Well, if I might add, I certainly agree with that. I confine my comments simply to the bill rather than making the case against euthanasia and assisted suicide, which I would make most strenuously. So I presume I was limited to 5 minutes. So I made my case to support the bill, which I think will do a lot to change and turn this tide in the other direction.
Mr. HYDE. You and I and Mr. Canady and I even think Mr. Scott are on the same speed of the barricade. Thank you.
Mr. PELLEGRINO. Thank you.
Mr. CANADY. With that, we will conclude. I think that is a very fitting conclusion to today's hearing. We thank you, Dr. Pellegrino.
Mr. Oberstar is not here, but I just wanted to thank him for his very eloquent statement, which I think also is a fitting word to come near the conclusion of our hearing.
Mr. CANADY. The subcommittee stands adjourned.
[Whereupon, at 4:38 p.m., the subcommittee was adjourned.]
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(Footnote 1 return)
21 USC 801(a)
(Footnote 2 return)
Abood, RA, Brushwood, DB, ''Pharmacy Practice and the Law'', Aspen Publishers, Gaithersburg, Md, 1994, pp. 130
(Footnote 3 return)
21CFR1306.04 (a) Purpose of issue of prescriptions.
(Footnote 4 return)
Fink, JL, Marquardt, KW, Simonsmeir, LM, PHARMACY LAW DIGEST, 26th, Facts and Comparisons, Inc, St. Louis, MO, Nov.1995, pp. CS4 p. CS4
(Footnote 5 return)
Bernabei et al. Pain Management in Elderly Patients with Cancer. JAMA. 1998;279:18771882.
(Footnote 6 return)
Sigler K, Guernsey B, et al. Effect of a triplicate prescription law on prescribing of Schedule II drugs. American Journal of Hospital Pharmacy, Vol. 41 Jan 1994.
(Footnote 7 return)
AHCPR Publication No. 940592, March 1994, Clinical Practice Guidelines, Management of Cancer Pain, p. 19.
(Footnote 8 return)
California, Colorado, Florida, Minnesota, Missouri, Nevada, North Dakota, Ohio, Oregon, Rhode Island, Texas, Virginia, Washington, West Virginia and Wisconsin. (National Conference of State Legislatures (NCSL), July 1, 1998)
(Footnote 9 return)
Alabama, Arkansas, Iowa, Louisiana, Nevada, New Jersey, Oregon and Texas. (NCSL, July 1, 1998)
(Footnote 10 return)
Alaska, Arizona, California, Colorado, Florida, Georgia, Idaho, Iowa, Massachusetts, Maryland, Minnesota, Montana, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming. (NCSL, July 1, 1998)
(Footnote 11 return)
Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Virginia, Washington and Wisconsin. (NCSL, July1, 1998)
(Footnote 12 return)
Alabama, Idaho, Maryland, Massachusetts, Michigan, Nevada, South Carolina, Vermont and West Virginia. (NCSL, July 1, 1998)
(Footnote 13 return)
21 U.S.C. 802 (21)
(Footnote 14 return)
21 U.S.C. 823(f)
(Footnote 15 return)
Janet Reno, U.S. Attorney General, letter to Henry J. Hyde, Chairman, House Judiciary Committee, June 5, 1998, p. 4.
(Footnote 16 return)
42 U.S.C.A. §14402(b)(4) (West Supp. July 1997).
(Footnote 17 return)
Letter from F. John Seward, M.D., Executive Vice-President, American Medical Association, to Hon. John Ashcroft, Feb. 12, 1997. A copy of the letter is appended to this testimony.
(Footnote 18 return)
U.S. Department of Justice, Drug Enforcement Administration, Pharmacist's Manual p. 30 (Dec. 1995) (emphasis added). The Pharmacist's Manual cites the case of United States v. Kershman, 555 F.2d 198 (8th Cir. 1977). In that case, the appeals court upheld the conviction of a pharmacist for dispensing controlled substances other than for a legitimate medical purpose. The court noted:
(Footnote 19 return)
Copies of both of these forms are appended to this testimony.
(Footnote 20 return)
See 21 U.S.C.A. §824(c) for the procedure for such a suspension or revocation, and 21 U.S.C.A. §for the authority to ''suspend any registration simultaneously with the institution of proceedings under this section, in cases where [the Attorney General] finds that there is an imminent danger to the public health or safety.''
(Footnote 21 return)
If state authorities determine that a sufficient number of signatures were submitted, a proposal to legalize physician-assisted suicide in certain circumstances will appear on the Michigan ballot this November.