SPEAKERS CONTENTS INSERTS
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62–489
2000
PAIN RELIEF PROMOTION ACT OF 1999
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
H.R. 2260
JUNE 24, 1999
Serial No. 32
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Printed for the use of the Committee on the Judiciary
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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 S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
June 24, 1999
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TEXT OF BILL
H.R. 2260
OPENING STATEMENT
Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, and chairman, Committee on the Judiciary
WITNESSES
Beckwith, Samira, President and CEO, Hope Hospice, past Chairman for the National Hospice Organization
Doerflinger, Richard, Associate Director for Policy Development, Secretariat for Pro-Life Activities, National Conference of Catholic Bishops
Hamilton, N. Gregory, M.D., Physicians for Compassionate Care
Hunter, Walter R., M.D., Associate National Medical Director, VistaCare Hospice
Jackson, Ann, Executive Director and CEO, Oregon Hospice Association
Joranson, David E., M.S.S.W., Senior Scientist and Director of the Pain and Policy Studies Group, Comprehensive Cancer Center, The University of Wisconsin Medical Group
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Marzen, Thomas, General Counsel, the National Legal Center for the Medically Dependent and Disabled, Inc.
Orentlicher, David, M.D., J.D., Professor, Indiana University School of Law, Indianapolis Center for Law and Health
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Beckwith, Samira, President and CEO, Hope Hospice, past Chairman for the National Hospice Organization: Prepared statement
Doerflinger, Richard, Associate Director for Policy Development, Secretariat for Pro-Life Activities, National Conference of Catholic Bishops: Prepared statement
Hamilton, N. Gregory, M.D., Physicians for Compassionate Care: Prepared statement
Hunter, Walter R., M.D., Associate National Medical Director, VistaCare Hospice: Prepared statement
Jackson, Ann, Executive Director and CEO, Oregon Hospice Association: Prepared statement
Joranson, David E., M.S.S.W., Senior Scientist and Director of the Pain and Policy Studies Group, Comprehensive Cancer Center, The University of Wisconsin Medical Group: Prepared statement
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Marzen, Thomas, General Counsel, the National Legal Center for the Medically Dependent and Disabled, Inc.: Prepared statement
Orentlicher, David, M.D., J.D., Professor, Indiana University School of Law, Indianapolis Center for Law and Health: Prepared statement
PAIN RELIEF PROMOTION ACT OF 1999
THURSDAY, JUNE 24, 1999
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:14 a.m., in Room 2226, Rayburn House Office Building, Hon. Henry J. Hyde [acting chairman of the subcommittee] presiding.
Present: Representatives Henry J. Hyde, Asa Hutchinson, William L. Jenkins, and Barney Frank.
Staff present: Cathleen Cleaver, Chief Counsel, Subcommittee on the Constitution; Sharee Freeman, Counsel, Judiciary Committee; Susana Gutierrez, Clerk, Subcommittee on the Constitution, and Sampak P. Garg, Minority Counsel.
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OPENING STATEMENT OF CHAIRMAN HYDE
Mr. HYDE [presiding]. The committee will come to order.
I welcome this esteemed panel of doctors, hospice care providers, and professors who have joined us today to offer their views on the Pain Relief Promotion Act of 1999. I am extremely grateful to Chairman Canady for his efforts in convening this hearing of the Subcommittee on the Constitution.
This hearing presents an opportunity to carefully study a subject people normally detest talking about and thinking about—euthanasia, physician-assisted suicide—but we must if we are to do our duty. Some of us sworn back in 1973 when the Supreme Court sanctioned abortion as another choice, a legitimate option to life, that abortion would evolve to be America's death chamber for the unborn, and I believe it is just that.
[The text of the bill, H.R. 2260, follows:]
106TH CONGRESS
1ST SESSION
H. R. 2260
To amend the Controlled Substances Act to promote pain management and palliative care without permitting assisted suicide and euthanasia, and for other purposes.
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IN THE HOUSE OF REPRESENTATIVES
JUNE 17, 1999
Mr. HYDE (for himself, Mr. STUPAK, Mr. ADERHOLT, Mr. BAKER, Mr. BALLENGER, Mr. BARCIA, Mr. BARTON of Texas, Mr. BLUNT, Mr. BRYANT, Mr. BURR of North Carolina, Mr. BURTON of Indiana, Mr. CANADY of Florida, Mr. CHABOT, Mr. COBURN, Mr. COLLINS, Mr. CUNNINGHAM, Mr. DICKEY, Mr. DOOLITTLE, Mr. DOYLE, Mrs. EMERSON, Mr. EVERETT, Mr. FOSSELLA, Mr. GRAHAM, Mr. GOODE, Mr. GOODLATTE, Mr. HALL of Texas, Mr. HAYES, Mr. HERGER, Mr. HOEKSTRA, Mr. HUTCHINSON, Mr. ISTOOK, Mr. JOHN, Mr. KING, Mr. KNOLLENBERG, Mr. LAFALCE, Mr. LAHOOD, Mr. LARGENT, Mr. LEWIS of Kentucky, Mr. LUCAS of Kentucky, Mr. LUCAS of Oklahoma, Mr. MCINTYRE, Mr. MILLER of Florida, Mrs. MYRICK, Mr. NUSSLE, Mr. NETHERCUTT, Mr. PETERSON of Pennsylvania, Mr. PETERSON of Minnesota, Mr. PHELPS, Mr. PICKERING, Mr. PITTS, Mr. PORTMAN, Mr. RAHALL, Mr. ROGAN, Mr. ROGERS, Mr. SALMON, Mr. SCHAFFER, Mr. SENSENBRENNER, Mr. SHIMKUS, Mr. SHOWS, Mr. SKELTON, Mr. SMITH of Texas, Mr. SMITH of New Jersey, Mr. SPENCE, Mr. STEARNS, Mr. TANCREDO, Mr. TERRY, Mr. WALSH, Mr. WAMP, and Mr. WELDON of Florida) introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committee on the Judiciary, 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
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A BILL
To amend the Controlled Substances Act to promote pain management and palliative care without permitting assisted suicide and euthanasia, and for other purposes.
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 ''Pain Relief Promotion Act of 1999''.
TITLE I—USE OF CONTROLLED SUBSTANCES CONSISTENT WITH THE CONTROLLED SUBSTANCES ACT
SEC. 101. REINFORCING EXISTING STANDARD FOR LEGITIMATE USE OF CONTROLLED SUBSTANCES.
Section 303 of the Controlled Substances Act (21 U.S.C. 823) is amended by adding at the end the following:
''(i)(1) For purposes of this Act and any regulations to implement this Act, alleviating pain or discomfort in the usual course of professional practice is a legitimate medical purpose for the dispensing, distributing, or administering of a controlled substance that is consistent with public health and safety, even if the use of such a substance may increase the risk of death. Nothing in this section authorizes intentionally dispensing, distributing, or administering a controlled substance for the purpose of causing death or assisting another person in causing death.
''(2) Notwithstanding any other provision of this Act, in determining whether a registration is consistent with the public interest under this Act, the Attorney General shall give no force and effect to State law authorizing or permitting assisted suicide or euthanasia.
''(3) Paragraph (2) applies only to conduct occurring after the date of enactment of this subsection.''.
SEC. 102. EDUCATION AND TRAINING PROGRAMS.
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Section 502(a) of the Controlled Substances Act (21 U.S.C. 872(a)) is amended—
(1) by striking ''and'' at the end of paragraph (5);
(2) by striking the period at the end of paragraph (6) and inserting ''; and''; and
(3) by adding at the end the following:
''(7) educational and training programs for local, State, and Federal personnel, incorporating recommendations by the Secretary of Health and Human Services, on the necessary and legitimate use of controlled substances in pain management and palliative care, and means by which investigation and enforcement actions by law enforcement personnel may accommodate such use.''.
TITLE II—PROMOTING PALLIATIVE CARE
SEC. 201. ACTIVITIES OF AGENCY FOR HEALTH CARE POLICY AND RESEARCH.
Part A of title IX of the Public Health Service Act (42 U.S.C. 299 et seq.) is amended by adding at the end the following section:
''SEC. 906. PROGRAM FOR PALLIATIVE CARE RESEARCH AND QUALITY.
''(a) IN GENERAL.—The Administrator shall carry out a program to accomplish the following:
''(1) Develop and advance scientific understanding of palliative care.
''(2) Collect and disseminate protocols and evidence-based practices regarding palliative care, with priority given to pain management for terminally ill patients, and make such information available to public and private health care programs and providers, health professions schools, and hospices, and to the general public.
''(b) DEFINITION.—For purposes of this section, the term 'palliative care' means the active total care of patients whose prognosis is limited due to progressive, far-advanced disease. The purpose of such care is to alleviate pain and other distressing symptoms and to enhance the quality of life, not to hasten or postpone death.''.
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SEC. 202. ACTIVITIES OF HEALTH RESOURCES AND SERVICES ADMINISTRATION.
(a) IN GENERAL.—Part D of title VII of the Public Health Service Act (42 U.S.C. 294 et seq.), as amended by section 103 of Public Law 105–392 (112 Stat. 3541), is amended—
(1) by redesignating sections 754 through 757 as sections 755 through 758, respectively; and
(2) by inserting after section 753 the following section:
''SEC. 754. PROGRAM FOR EDUCATION AND TRAINING IN PALLIATIVE CARE.
''(a) IN GENERAL.—The Secretary, in consultation with the Administrator for Health Care Policy and Research, may make awards of grants, cooperative agreements, and contracts to health professions schools, hospices, and other public and private entities for the development and implementation of programs to provide education and training to health care professionals in palliative care.
''(b) PRIORITIES.—In making awards under subsection (a), the Secretary shall give priority to awards for the implementation of programs under such subsection.
''(c) CERTAIN TOPICS.—An award may be made under subsection (a) only if the applicant for the award agrees that the program carried out with the award will include information and education on—
''(1) means for alleviating pain and discomfort of patients, especially terminally ill patients, including the medically appropriate use of controlled substances;
''(2) applicable laws on controlled substances, including laws permitting health care professionals to dispense or administer controlled substances as needed to relieve pain even in cases where such efforts may unintentionally increase the risk of death; and
''(3) recent findings, developments, and improvements in the provision of palliative care.
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''(d) PROGRAM SITES.—Education and training under subsection (a) may be provided at or through health professions schools, residency training programs and other graduate programs in the health professions, entities that provide continuing medical education, hospices, and such other programs or sites as the Secretary determines to be appropriate.
''(e) EVALUATION OF PROGRAMS.—The Secretary shall (directly or through grants or contracts) provide for the evaluation of programs implemented under subsection (a) in order to determine the effect of such programs on knowledge and practice regarding palliative care.
''(f) PEER REVIEW GROUPS.—In carrying out section 799(f) with respect to this section, the Secretary shall ensure that the membership of each peer review group involved includes one or more individuals with expertise and experience in palliative care.
''(g) DEFINITION.—For purposes of this section, the term 'palliative care' means the active total care of patients whose prognosis is limited due to progressive, far-advanced disease. The purpose of such care is to alleviate pain and other distressing symptoms and to enhance the quality of life, not to hasten or postpone death.''.
(b) AUTHORIZATION OF APPROPRIATIONS; ALLOCATION.—
(1) IN GENERAL.—Section 758 of the Public Health Service Act (as redesignated by subsection (a)(1) of this section) is amended in subsection (b)(1)(C) by striking ''sections 753, 754, and 755'' and inserting ''section 753, 754, 755, and 756''.
(2) AMOUNT.—With respect to section 758 of the Public Health Service Act (as redesignated by subsection (a)(1) of this section), the dollar amount specified in subsection (b)(1)(C) of such section is deemed to be increased by $5,000,000.
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SEC. 203. EFFECTIVE DATE.
The amendments made by this title take effect October 1, 1999, or upon the date of the enactment of this Act, whichever occurs later.
Mr. HYDE With this new concept of death with dignity, a misnomer, surely this will become the death chamber for the old, the tired, and the infirm. In 1947, William L. Sperry, dean of the Harvard Divinity School asserted in the New England Journal of Medicine that, ''The legal validation of euthanasia seems to cut against the whole basis and practice of medicine. If we forfeit reverence for life, we have slipped our moorings.''
Assisted suicide by a doctor, one who swore an oath as healer, this can only give rise to a ''sea-change'' of lessened care and concern for invalids. It can only release, as with abortion, the selfishness and cruelty toward the helplessness and vulnerable. It can only undermine the care of the grievously sick and dying, but, most of all, if widely accepted, oh, how it must undermine a dying person's sense of worth. In 1873, a Popular Science reader wrote about that lost sense of worth. ''A deathbed, instead of being the scene for calling forth the tenderest emotions and noblest self-sacrifice, will be haunted by a horrid suspicion; the sick man fearing that his departure is earnestly desired.''
We plunge into fascinating questions of whether a patient who is incompetent, suffering from Alzheimer's or has a stroke or is unconscious, whether the autonomy of that person can be divested and vested in the caregiver who can then say, ''Doctor, give my ward the injection; let life end.'' We must come to grips with these critical basic issues of life an death. I await with great interest the testimony.
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On our first panel this morning, our first witness will be Samira Beckwith, who is president and CEO of Hope Hospice and Palliative Care in Fort Myers, Florida. She is the past chairperson of the National Hospice Organization and currently serves on the NHO Public Policy Nursing Home and Public Engagement Committees. Ms. Beckwith is president of Florida Hospices and Palliative Care and a member of the Florida End of Life Study Panel.
Following her is Ann Jackson, who is executive director and chief executive officer of the Oregon Hospice Association. She also serves on various State task forces in Oregon.
The next witness will be Dr. Gregory Hamilton, who is the president of Physicians for Compassionate Care in Portland, Oregon. He also is a Fellow of the American Psychiatric Association and former president of the University Psychiatric Associates.
Our fourth witness will be David Joranson. Mr. Joranson is the senior scientist and director of the Pain and Policy Studies Group at the University of Wisconsin Medical School Comprehensive Cancer Center in Madison, Wisconsin.
Our final witness on this panel is Mr. Richard Doerflinger, who is the associate director for Policy Development at the Secretariat for Pro-Life Activities for the National Conference of Catholic Bishops of the United States Catholic Conference.
I deeply thank all of you for being with us this morning. I would ask that you try to summarize your testimony in 5 minutes, because your full statement will be made a part of the record, and it will be digested carefully by myself and others, but that will help us expedite these always unsatisfactory hearings on profound questions.
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Ms. Beckwith.
STATEMENT OF SAMIRA BECKWITH, PRESIDENT AND CEO, HOPE HOSPICE, PAST CHAIRMAN FOR THE NATIONAL HOSPICE ORGANIZATION
Ms. BECKWITH. Thank you, Mr. Chairman and members of the committee. It is a pleasure to be here today to talk with you about these issues. My name is Samira Beckwith, and I am president and CEO of Hope Hospice and Palliative Care in Fort Myers, Florida. I am here today representing my organization as well as in my role as a loaned executive to the National Hospice Organization and a member of the Public Policy Committee. Again, I appreciate the opportunity to testify in support of the Pain Relief Promotion Act of 1999.
Over the past 20 years, I have both a personal and professional opportunity to care for people during the final stages of life. My interest in how people live and are cared for during this time began in my twenties when I was being treated for Hodgkin's disease. It was my own personal experience as well as my observation of many of the people who had gone through treatment with me that there needed to be a better way to care for people at the end of life.
My observation was that death, like birth, is a natural part of the life cycle, but yet death was not accepted as birth is in our society. The end of life isn't surrounded with the same sense of joy that encompasses the beginning of life, but both require preparation, education, support as well as special attention to the needs of the family. Birthing has changed in our country, and as a Nation, we must be sure that each person has the same loving care and support and the specialized skills at the end of life that they do at the beginning of life.
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Hospices really developed in response to those needs and the need to change the way people were cared for. Hospice is a special program of care that provides the specialized skills and services that people need to meet the very complex physical, psychosocial, spiritual, emotional, and practical issues that confront both the patient and the family at the end of life. Our goal in hospice is to assist the patient in living each day as fully as possible with the pain and symptoms managed as well as to help the family cope with their loss and grief.
In 1982, Congress provided for the Medicare Hospice Benefit in the Tax Equity and Fiscal Responsibility Act. This was a bold move, and it was very positive in terms of meeting the needs of the Nation's most vulnerable population; that is, the people at the end of life.
Last year, over 20 percent of the people who died in America were cared for by hospices. That is over 540,000 people of all ages with various end stages diseases, and they had the benefit of hospice care. Hospice gives the health care community the opportunity to never have to say to a patient, ''There is nothing more that we can do for you.'' The choices at the end of life should not be between living in pain or a suicide. With hospice and appropriate care, the focus of care shifts from cure to comfort, and although we cannot extend a person's life, we can enhance the quality.
Even with all the progress that we have made in end-of-life care, too many Americans still die alone or in pain, and oftentimes endure costly and ineffective treatments and being referred to hospice very late or not at all.
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There is a great crisis that still exists for many people at the end of life in our country. This crisis has been documented by the Institute of Medicine, by the Medicare Pain and Advisory Commission, and many others. There are many reasons for the ongoing crisis. One is that dealing with the final stage of life is still very difficult for people; difficult for health care providers, because their goal is really to help cure people, and far too often they don't have the necessary training that they need in palliative care and pain management. It is also difficult for them to predict prognosis with a certainty that is sometimes required of them by misplaced regulatory efforts.
Dying continues to be one of the most difficult topics in our society for people to discuss. People fear the end of life, because they associate with pain, suffering, a loss of control, or being a burden on their family. In a recent survey conducted by the National Hospice Foundation, they found that more than one out of every four American adults are not likely to discuss issues related to their parent's death with their parent even if the parent was terminally ill and had less than 6 months to live. They stated that they were more likely to talk to their children about such topics like drugs and sex and avoid talking with their parent about end-of-life care.
Since 1982, when the Medicare Hospice Benefit was enacted, we have had great advances in methods and medications for pain control and symptom management. However, much of this great breakthrough has not be widely accepted. The Pain Relief Promotion Act of 1999 will help to increase the awareness of the care that can be provided. It affirms the appropriate use of controlled substances to alleviate pain and symptoms; it provides for education of health care professionals and research that will increase the competencies of those providing the care. Another aspect of the bill that I think is very important is the fact that it recognizes palliative care as being more than a treatment of pain and symptoms, something that we know through hospice that it is also the enhancement of quality of life.
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There are many hospice stories that we could tell here today. There is a story about a teacher that was admitted to our program and because his care was not being adequately managed when he was admitted to our program, he was curled in a fetal position. When the nurse and social worker went to his home to admit him to hospice service, he talked about how much pain he was in, and he asked them for help to end his life. Within hours of being admitted to hospice, we were able to control his pain, and he spent the final months of his life visiting with friends and family. Good pain control is not difficult. What is difficult is to educate the appropriate people, both the professional and the public, about what good pain control is and to make it available to those in need.
Another hospice story: a woman that I was talking to about recently in the community talked to me about the fact that her mother wanted from her a stash of medications that she could keep close by, so that when her time came, when she felt that she was at the end of life, she could end her own life. She feared the agony that she expected to have at the final stages of Parkinson's. After visiting our hospice house and finding out more about hospice care, she told her daughter that she would no longer need the stash after all, because she knew that she would have the pain control and symptom management that she needed at the end of life and that she would be cared for.
We, in hospice, have hundreds of thousands of stories about making people's final days warm and memorable. Helping a couple to celebrate their anniversary; allowing a terminally ill wife and husband together until their deaths, which occurred within days of each other in our program; a woman who wanted to see her granddaughter born before she died and was able to see her in an ultrasound picture that we helped arrange; a young mother who was dying and three small children, we helped her to write letters and had those letters and gifts ready for her children as they grew up.
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We can't make the end of life an easy time, but we can make it less difficult for people; we can make it less lonely, and we can make sure that they have the care that they need on their final journey down the road of life. Hospices can more easily and competently care for people at the end of life, give them good end-of-life care, and we really believe that this increased awareness that would result from this bill would help people to get to hospice earlier. Right now, many patients, in fact, over half the patients referred to hospice are admitted within 3 weeks of the end of their life. Increasing the awareness of health care professionals as well as others, in terms of the needs of people at the end of life, would help people to get the care that they need.
[The prepared statement of Ms. Beckwith follows:]
PREPARED STATEMENT OF SAMIRA BECKWITH, PRESIDENT AND CEO, HOPE HOSPICE, PAST CHAIRMAN FOR THE NATIONAL HOSPICE ORGANIZATION
My name is Samira K. Beckwith and I am President and CEO of Hope Hospice and Palliative Care in Fort Myers, Florida. I am here today representing my organization, and in my role as a loaned executive to the National Hospice Organization, and their Public Policy Committee. I appreciate the opportunity to testify in support of the Pain Relief Promotion Act of 1999.
Over the past 20 years, I have had both personal and professional opportunities to care for people during their final stage of life.
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My interest in how people live and are cared for during this time began when I was in my 20's and being treated for Hodgkin's disease. It was my own personal experience and observation that there needed to be a better way to care for people with serious illnesses and for those at the end of life.
Death, like birth is a natural part of the life cycle. There are similarities and obvious differences. The end of life is usually not surrounded with the same sense of joy that encompasses the beginning of life, but both are more than just medical or physical events. Both require preparation, education, and support as well as special attention to the needs of the family. Birthing has become an intimate family time that is a celebration of life. As a nation, we must be sure that each person has the same loving care, support and specialized skills needed at the end of life as they do at the beginning.
Hospices developed in response to these needs as a program of care that provides the specialized skills and services that people need to meet the complex physical, psychosocial, spiritual, emotional and practical issues that confront a patient and family at the end of life. The goal of hospice care is to assist the patient in living each day as fully as possible, with their pain and symptoms managed, as well as to help the family cope with their grief and loss.
In 1982, Congress provided for the Medicare Hospice Benefit in the Tax Equity and Fiscal Responsibility Act. This was a bold and positive move to meet the needs of our nation's most vulnerable population, the terminally ill.
Last year, over 20% of the people who died in America were cared for by the nations' hospices. Over 540,000 people of all ages, with various end stage diseases had the positive benefit of hospice care.
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Through hospice, the health care community never has to say to a person, ''There is nothing more we can do for you.'' The choices at the end of life should not be between living in pain or suicide. With hospice, the focus of care shifts from cure to comfort and although we cannot extend a person's life, we can enhance the quality.
Even with all the progress we have made in end-of-life care, too many Americans still die alone or in pain, often enduring costly and ineffective treatments and being referred to hospice very late or not at all.
The crisis that exists for many people at the end of life has been documented by numerous groups including the Medicare Payment Advisory Commission. According to the commission, ''the gap between the care now given to dying beneficiaries and ideal care is wider than in probably any other area of medicine. Closing this gap should be one of the highest priorities of the Medicare program. There has been too little thought (given) to how to care for chronically ill individuals and even less about how to provide care when people have reached a terminal point in their life.''
There are many reasons for this ongoing crisis. Dealing with the final stage of life is difficult. Difficult for health care providers because their goal is to cure and far too often they have not received the necessary training in palliative care. It is also difficult for them to predict a prognosis with the certainty that is required by misplaced regulatory efforts.
Dying continues to be one of the most difficult topics to discuss. Most people fear the end of life and associate it with pain, suffering, a loss of control, and being a burden on their family. In fact, a recent survey conducted by the National Hospice Foundation found that more than one out of every four American adults are not likely to discuss issues related to their parent's death with their parent even if the parent were terminally ill and had less than six months to live. Americans are more likely to talk to their children about such sensitive topics as drugs and sex. Additionally, fewer than 25% of Americans have thought about how they would like to be cared for at the end of life and put their thoughts in writing.
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Since 1982, when the Medicare Hospice Benefit was enacted, there have been great advances in the methods and medications available to provide pain management and symptom control. However, this information has not been widely accepted outside of the hospice community.
''The Pain Relief Promotion Act of 1999'' affirms the appropriate use of controlled substances to alleviate pain and symptoms. The bill also provides for education of health care professionals and research that will increase the competencies of those providing care. Another important aspect of this bill is that it recognizes that palliative care includes more than treatment of pain and symptoms, that it also includes the ''enhancement of quality of life.''
This increased awareness will help to break down the barriers that keep people from being able to access hospice care. It will also facilitate earlier referrals to hospice. Patients are too often referred at the brink of death. Currently, over half of our patients are admitted to hospice within 3 weeks of their death. Many of these patients have suffered needlessly and the most common question we hear from the families is ''Why?'' The son of a man who was cared for by our hospice for only 5 hours talked with me about the relief that he and his family experienced once their father was under hospice care. Even with such a short length of stay he was able to see the difference in his father's care.
An additional barrier to people receiving adequate pain management is that of cost. The reimbursement mechanism for hospice has not been reviewed since it was first enacted in 1982 and needs to be updated to account for the real costs associated with compassionate and modern approaches to care for the dying. A recent example in our hospice is a woman who needed 800 mg of an oral pain medication every 12 hours. The cost for this one medication was $95 per day and our total reimbursement rate is only $93 per day. This per diem reimbursement needs to cover all care and services including all physician's services, nursing care, counseling, spiritual support, medical appliances, drugs, home health aides, homemaker services, physical and occupational therapies, dietary advice and volunteer assistance.
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A teacher was curled in a fetal position when the nurse and social worker went to his home to admit him to hospice service. He talked about his pain and asked for help to end his life. Within hours, his pain was controlled. He spent his final months visiting with friends and family. Good pain control is not difficult. What is difficult is to correct the misunderstandings that exist and make it available to those in need.
During a recent conversation, a woman talked with me about her mother who lives in our community. Her mother wanted a stash of pills to keep ''just in case.'' She feared the agony she anticipated having to suffer in the final stage of her Parkinson's. After visiting our Hospice House, she told her daughter that she would not need the ''stash'' after all. She felt safe knowing that she would have the care she needed when her time came.
We, in hospice, have hundreds of thousands of stories about making people's final days warm and memorable. Helping a couple to celebrate their anniversary; allowing a terminally ill wife and husband to live together until their deaths, which occurred within days of each other; a woman who wanted to see her granddaughter born before she died was able to see her in an ultrasound picture; a young mother who was able to write letters for her children to read as they grew up—these are just a few of those stories.
We can not make the end of life an easy time but we can make it less difficult for people as they take their final journey down the road of life. Hospices can easily and competently care for many more people in need of good end-of-life care.
Thank you.
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Mr. HYDE. Thank you very much, Ms. Beckwith.
Ms. BECKWITH. Thank you.
Mr. HYDE. Ms. Jackson.
STATEMENT OF ANN JACKSON, EXECUTIVE DIRECTOR AND CEO, OREGON HOSPICE ASSOCIATION
Ms. JACKSON. Mr. Chair and members of the committee, I, too, thank you for the opportunity to speak before you today. My name is Ann Jackson. I am the CEO of Oregon Hospice Association. Today, I am speaking on behalf of OHA and the Task Force to Improve Care of Terminally Ill Oregonians as well as Oregon's hospice providers and many other hospice workers nationwide who share the views I express today.
We are all very concerned that the Pain Relief Promotion Act of 1999, like the Lethal Drug Abuse Prevention Act of 1998, will have a negative impact on pain and symptom management. In Oregon and throughout the country, we don't believe it possible that a law that will increase regulatory scrutiny and judge intent of doctors, nurses, pharmacists, even family members can promote pain relief. We are also concerned about the potential long-term negative impact that may result from restrictively defining palliative care and drawing too narrowly a line between appropriate and inappropriate use of the controlled substances.
Before I continue, I would also like to make it clear that organizations I represent today are neutral on the question of physician-assisted dying. In fact, OHA opposed the Oregon's Death with Dignity Act until the time it became law. Only then did we move to a neutral position to assist Oregon's hospices in understanding how to deal with the law. I believe this is an important point to make, because regardless of your opinion on Oregon's law, if you are concerned about improving end-of-life care, you must recognize that the Pain Relief Promotion Act represents a huge step backward. Opposing this bill does not make you a supporter of assisted dying.
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Unrelieved pain is epidemic. Even in Oregon, the recognized national leader in end-of-life care, unrelieved pain is still a serious problem. At every meeting of the Task Force on Pain and Symptom Management, a parade of physicians testified that regulatory scrutiny was the cause. Even the threat of an investigation has a chilling effect on prescribing practices, regardless of whether that threat comes from the DEA, the BME, or the local coroner and regardless of whether that threat is real or perceived. This is not to suggest that no rules should apply to health care workers. It is, however, meant to say that the climate already exists that encourages levels of caution that too frequently result in increased suffering for sick and dying people. This proposed bill would only worsen those conditions.
While others are comforted that a medical advisory board is not included in the proposed legislation, we are still alarmed. We believe this year's provision for education of State, local, and Federal law enforcement personnel in the appropriate use of controlled substances is an even more hazardous substitute. It is unrealistic to think the Secretary of Health and Human Services will be more successful at training law enforcement officials than medical schools or boards of medical examiners have been at training physicians. If this bill is passed, the standard of care for any community will be determined by the investigative judgment or whim of its local law enforcement personnel. Rather than one unified standard across the States, there will be many standards, often conflicting even within each State.
While we applaud efforts to establish that controlled substances should be used for pain control even if death is hastened, the bill's definition of palliative care negates that provision when it codifies into law ambiguous goals. Hastening or postponing the dying process does happen under good palliative care. Palliative care is an evolving specialty, but it is so narrowly defined in the Pain Relief Promotion Act that the effect will be to put its practitioners into a box. A goal of the Pain Relief Promotion Act is to make a clear distinction between an appropriate use of controlled substances to manage pain, even if death is hastened, and an inappropriate use to assist in a suicide. It will encourage pharmacists, nurses, family members to raise questions based solely on what they perceive to be unusually large doses of medication or a death following soon on the heels of a prescription.
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It is safe to say that every hospice in the country has had a request for help to die from at least one of its patients. Will that patient no longer be entitled to have their symptoms relieved because someone may question whether the intent of a prescription may have been to grant their request?
These questions will precipitate an investigation, and even the threat of such investigations will significantly undermine physicians' prescribing practices. And it will be America's rural communities that will suffer most, where physicians are less experienced and less confident of defending their use of a controlled substance.
The Conquering Pain Act and the Advance Planning and Compassionate Care Act are more likely to accomplish much needed improvement in end-of-life care than is the Pain Relief Promotion Act of 1999. These bills more broadly address problems associated with delivering end-of-life care without the negative consequences of amending the Controlled Substances Act.
Thank you.
[The prepared statement of Ms. Jackson follows:]
PREPARED STATEMENT OF ANN JACKSON, EXECUTIVE DIRECTOR AND CEO, OREGON HOSPICE ASSOCIATION
Chairman Canady and Members of the Subcommittee,
My name is Ann Jackson. I am the executive director and chief executive officer of the Oregon Hospice Association (OHA). OHA is a 501(c)(3) public benefit organization dedicated to ensuring that all Oregonians have access to high quality hospice and comfort care. It has established expertise concerning all end-of-life options in Oregon.
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OHA and Oregon's hospice providers are very concerned that the Pain Relief Promotion Act of 1999, like the Lethal Drug Abuse Prevention Act of 1998, will have a negative impact on pain and symptom management throughout the health care continuum in Oregon and throughout the country. OHA opposes the Pain Relief Promotion Act of 1999.
I am a member of the Task Force to Improve Care of Terminally-ill Oregonians, a consortium of 24 individuals who represent state health care professional organizations, state agencies involved with health care, and health systems in the Portland metropolitan area. The task force, which remains neutral on physician-assisted suicide, was convened in December, 1994. Its purpose is to promote excellent care of the dying and to address the ethical and clinical issues posed by the enactment of the Death With Dignity Act. The task force has published two documents: (1) The Final Months of Life: A Guide to Oregon Resources; and (2) The Oregon Death With Dignity Act: A Guidebook for Health Care Providers.
The Task Force to Improve Care of Terminally Ill Oregonians is concerned that the Pain Relief Promotion Act of 1999 will have a negative impact on pain and symptom management at end of life.(see footnote 1)
I am here today representing both OHA and the Task Force to Improve Care of Terminally Ill Oregonians. Neither group believes it possible that a law that will increase regulatory scrutiny and judge the ''intent'' of all health care providers can promote pain relief. Both groups are also concerned about the potential long term negative impact that may result from (3) restrictively defining palliative care, and (4) drawing too narrowly a line between appropriate and inappropriate uses of controlled substances.
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I am also a member of the Physician Orders for Life Sustaining Treatment Task Force (POLST), whose goal is to ensure that Oregonians' end-of-life wishes are respected. The POLST form translates advance directives into doctors' orders.(see footnote 2) I am active, too, in the Health Ethics Network of Oregon.
Finally, OHA is represented on Oregon's Legislative Task Force on Pain and Symptom Management. During the past two years I have both testified on behalf of OHA and represented OHA on the task force at regional meetings identifying barriers to pain management. Unrelieved pain—terminal pain, chronic pain, cancer pain, postsurgical pain—is epidemic throughout the country. Even in Oregon where the Board of Medical Examiners has urged physicians to address pain and other symptoms aggressively. Even in Oregon, which is recognized as the national leader in end-of-life care.(see footnote 3)
Regulatory Scrutiny Causes a Chilling Effect on Physician Prescribing Practices
At every meeting of the Task Force on Pain and Symptom Management, a parade of physicians testified that regulatory scrutiny was the cause of the unrelieved pain problem. Even the threat of an investigation has a chilling effect on prescribing practices, regardless of whether that threat comes from the DEA, the Board of Medical Examiners, or the local coroner, and regardless of whether that threat is real or perceived. This is not an unusual response for law-abiding citizens: when most Americans encounter a police car parked at the side of the highway, they slow down below the posted speed! This is not to suggest that no rules should apply to health care workers. It is, however, meant to say that the climate that already exists in end-of-life care encourages levels of caution which too frequently result in increased pain and suffering for sick and dying people. This proposed bill would only worsen those conditions.
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Attempts to Measure Intent Will Cause a Chilling Effect on Physician Prescribing Practices
While others are comforted that a medical advisory board is not included in the proposed 1999 legislation, we are still alarmed. We believe that this year's provision for the education and training of state, local and federal law enforcement personnel in the appropriate use of controlled substances is an even more hazardous substitute. It is unrealistic to think the Secretary of Health and Human Services will be more successful at effectively training law enforcement officials than medical schools or Boards of Medical Examiners have been at training physicians. If this bill is passed, the standard of care for any community will be determined by the investigative judgement or whim of its local law enforcement personnel. Rather than one unified standard across the states, there will be many, often conflicting standards, even within each state.
A Narrow Definition of Palliative Care Will Cause a Chilling Effect on Physician Prescribing Practices
While we applaud efforts to establish that controlled substances should be used for pain control, even if the use of such substances may increase the likelihood of death, the bill's definition of palliative care negates that provision when it codifies into law ambiguous goals. Palliative care seeks to neither hasten nor postpone death. But it would be inhumane to not palliate inevitable pain and other symptoms of a patient who has asked to be removed from a ventilator, when her intent is to hasten her death. It would be inhumane to deny a patient interventions that may postpone his death just long enough to reach an important milestone, such as the wedding of a cherished daughter. Hastening or postponing the dying process, while not usual, does happen under good palliative care. While palliative care is an evolving specialty, it is so narrowly defined in this bill that the effect will be to put its practitioners into a too rigid box.
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A Narrow Line Drawing the Distinction Between Appropriate and Inappropriate Uses of Controlled Substances Will Cause a Chilling Effect on Physician Prescribing Practices
A goal of the Pain Relief Promotion Act is to make a clear distinction between an appropriate use of controlled substances to manage pain, even if death is hastened inadvertently, and an inappropriate use of controlled substances to assist in a suicide. It attempts to make black and white a very grey area, creating a tightrope, when a balance beam or even a bench would be both more acceptable and defensible. The use of controlled substances is always subject to question, when our society has invested so much time to curb their abuse. Questions will be raised by pharmacists, nurses, health aides, or family members, any of whom may be alarmed by what they perceive to be unusually large doses of narcotics or other drugs—or a death following soon on the heels of a prescription. These questions will precipitate an investigation. These investigations will significantly undermine physicians' prescribing practices.
And it will be America's rural communities that suffer most. Rural physicians are often subject to more scrutiny. Urban physicians have more ready access to the latest information concerning pain management. Urban physicians have better access to pain specialists. Therefore urban physicians are more confident in their ability to defend their use of a controlled substance.
Regardless of its ''intent'', by trying to draw a clear line, the Pain Relief Promotion Act will prompt frequent questioning of the intent to manage pain versus the intent to cause death. It's very safe to say that every hospice in the country has had a request for help to die from at least one of its patients, not just Oregon hospices. Is that patient no longer entitled to have their symptoms relieved because they voiced that desire, because someone may question whether the intent of the physician was to grant their request or to relieve their symptoms?
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Conclusion
When Sen. Nickles introduced the Pain Relief Promotion Act in the Senate, he indicated that a dynamic was created whereby some doctors underutilized controlled substances for pain. Hospices report that such instances were isolated and, most often, readily corrected. It was not until November, 1997, when the DEA issued its letter indicating that it would prosecute physicians who prescribed controlled substances under the Death With Dignity Act, that we saw a downward turn in what had been a steady increase in the use of controlled substances for pain and symptom management in Oregon. While we do not know that the letter from Mr. Constantine was the cause, the timing is suspicious. Copies of the Fall 1998 Oregon BME Newsletter documenting this trend have been made available to the subcommittee.(see footnote 4)
OHA and the Task Force to Improve Care of Terminally Ill Oregonians have grave concerns about the Pain Relief Promotion Act of 1999. We are strongly convinced that this legislation, if passed, will have a profoundly negative impact on physician prescribing practices all across the United States. We are as strongly committed as we were last year that this law be challenged and defeated.
The Conquering Pain Act and the Advance Planning and Compassionate Care Act are more likely to accomplish much needed improvement in end-of-life care, than is the Pain Relief Promotion Act of 1999. Efforts to reduce unwarranted, unnecessary, and excessive regulatory scrutiny of the nations' hospices will accomplish improvement in end-of-life care. Efforts to reduce futile care will accomplish improvement in end-of-life care. The Pain Relief Promotion Act will not.
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Thank you.
Mr. HYDE. Thank you, Ms. Jackson. Dr. Hamilton.
STATEMENT OF N. GREGORY HAMILTON, M.D., PHYSICIANS FOR COMPASSIONATE CARE
Mr. HAMILTON. Thank you, Mr. Chairman and members of the committee. My name is Dr. Gregory Hamilton. As the leader of Physicians for Compassionate Care, an Oregon association providing education about pain relief and palliative care, I speak in favor of the Pain Relief Promotion Act of 1999.
The need for education on state-of-the-art pain medication and pain management is overwhelming. This act goes a long way toward helping doctors and nurses meet the needs of suffering patients. This act also provides education to law enforcement personnel and clarifies that aggressive pain management is a legitimate use of controlled substances even if, in rare circumstances, such treatment may increase the risk of death. This clarification protects doctors and nurses, and it is entirely consistent with the ethics of the American Medical Association and the ethics of other health care organizations.
The act also clarifies that assisted suicide and euthanasia are not legitimate medical purposes. It is easy to tell the difference. The purposeful blurring of this time honored distinction by pro-assisted suicide activists is another factor that requires education and funding for education of health care providers and of law enforcement personnel to reestablish and reclarify this important boundary.
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Assisted suicide poses a public danger, because it expands and cannot be controlled. Just last March, Patrick Matheny, in Oregon, could not swallow the huge dose of barbiturates that his assisted suicide doctor had had sent to him in the mail. With no doctor in attendance, his brother-in-law said he ''helped'' him die on the second unsuccessful attempt. Doctors demanded an investigation, but the body was cremated before the day was out, and the prosecutor dropped the case apparently without interviewing the only witness. Instead, he called for a widening of the assisted suicide law apparently to include lethal injection for those who could not swallow. The assistant State attorney general took the opportunity to claim that the Americans with Disabilities Act could force allowing lethal injections for those who cannot swallow, much to the dismay of the disabled groups in our State. A Eugene prosecutor dropped another case of a doctor who was documented by the Board of Medical Examiners to have ordered an illegal lethal injection for a woman who did not even request it.
This expansion is in contrast to Michigan where clarification of laws forbidding the use of controlled substances for killing in the medical setting allowed conviction of the infamous Jack Kevorkian, many of whose victims were not even physically ill.
The Oregon Health Division report of the first 15 cases provides no safeguards whatsoever. That report claimed pain care was good when it had no direct information about that subject. It claimed that depression played no part when medical literature abundantly documents that at least one of those cases had been diagnosed as depressed and was given assisted suicide anyway. It claimed economic pressures were not a factor when the newspaper even reported financial motivations in the only case we know very much about.
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Assisted suicide substitutes for good pain management and palliative care, and therefore poses a danger to the public health and safety. There are significant barriers to pain and palliative care in Oregon. The Pain and Symptom Management Task Force says the working poor, in particular, have difficulty getting hospice care despite the valiant voluntary efforts of hospice organizations in our State. The Oregon Health Plan does not cover 171 needed services on its rationed health plan yet it fully funds assisted suicide for the poor and disabled. Qual Med, an Oregon HMO, caps in-home palliative care at $1,000 while fully funding assisted suicide, and, at a recent conference, one HMO—Kaiser HMO in Oregon—claimed that four of the cases in the Oregon report were from that HMO alone.
The use of controlled substances for assisted suicide devalues the lives of seriously ill people in the minds of the caregivers and even in the minds of the patients, themselves. One Oregon Health Plan patient, Bill, had to leave hospice care because of perceived shifts in attitudes of hospice personnel. When he went to the hospital to get a procedure to relieve painful pressure from a closed abdominal space caused by cancer, he told me he was shocked and hurt when his hospice nurse saw him and criticized him saying, ''What are you doing here? You are a hospice patient.'' He told me, whether he was accurate or not, his perception was that the hospice care was fully capitated and that the attitude that he picked up was that he was supposed to go home, take morphine, and die or else take assisted suicide instead of expensive hospital procedures to relieve pain. I realize this is not the policy of Oregon hospice, but this is his perception of some of those people in that organization now that hospice has gone neutral on assisted suicide in our State, unlike national hospice. Unfortunately, he felt attitude changes caused by acceptance of assisted suicide were already undermining hospice care in Oregon.
The Pain Relief Promotion Act provides needed education for doctors, nurses, and hospice workers, and therefore—and it protects those same individuals and, therefore, their patients. It protects pain management and palliative care from corrosion by assisted suicide and acceptance of euthanasia. Physicians for Compassionate Care urges you to support the Pain Relief Promotion Act of 1999.
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Thank you.
[The prepared statement of Dr. Hamilton follows:]
PREPARED STATEMENT OF N. GREGORY HAMILTON, M.D., PHYSICIANS FOR COMPASSIONATE CARE
SUMMARY
Physicians for Compassionate Care, an organization providing education about pain relief and palliative care, urges passage of the Pain Relief Promotion Act of 1999. The need for education on state-of-the-art pain management and palliative care is overwhelming. Individual medical organizations cannot do it alone. A nationwide and federally sponsored educational effort is required. This proposed legislation goes a long way toward helping doctors and nurses meet the needs of suffering patients.
The Pain Relief Promotion Act clarifies to law enforcement officers, as well as to physicians, nurses, and state medical boards, that provision of pain medicine is a legitimate medical practice, even if in rare instances there may be an added risk to a patient's life. That clarification will reassure doctors, nurses, and hospice workers that they need not fear while providing patients necessary care. Equally important, this legislation reconfirms that controlled substances may not be used intentionally to kill patients in any of the 50 states, as is currently the case in 49 states.
Assisted suicide and euthanasia inevitably interfere with pain management and palliative care. In Oregon, its rationed health plan for the poor denies payment for 171 needed services while it fully funds assisted suicide. Over 38% of Oregon Health Plan members report barriers to obtaining mental health services, yet assisted suicide costs the state as low as $45, according to its own estimates. Oregon insurance companies and health maintenance organizations (HMOs) generally limit two key elements of palliative care—mental health and hospice care benefits. One Oregon HMO (Qual Med) caps in home palliative care (hospice) at $1,000 while fully funding assisted suicide. Education of professionals and clarification that killing patients is not legitimate medical treatment will go a long way to assure improved care at the end of life.
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Physicians for Compassionate care urges passage of the Pain Relief Promotion Act of 1999 to protect patients and their doctors.
At each of Physicians for Compassionate Care's last two advanced pain and palliative care conferences national experts told our audiences that they could reassure their patients they do not need to die in unrelieved pain. Then, they proceeded to teach cancer doctors and nurses, hospice workers and psychiatrists, anesthesiologists and pain specialists state-of-the-art techniques available to make such a claim supportable.
Treatments for pain and other elements of suffering have improved dramatically over the past twenty years in the United States. Yet many, perhaps most, physicians and other health professionals remain unaware of the high success rate of recent advances in the use of pain-relieving drug regimens and procedures for control of severe pain in the seriously ill.
Conferences by voluntary organizations such as ours, however, cannot, by themselves, fill the gap between available treatments and knowledge of those treatments. Our Compassionate Care Conference will be joined by two additional conferences on palliative care of the seriously ill in the state of Oregon this fall. Yet the few hundred participants in these conferences pale by comparison to the over 8,000 physicians practicing in our small state alone, in addition to the thousands of nurses and hospice workers. Nationwide, the magnitude of the problem is staggering. Even broad ranging educational programs, such as those developed by the American Medical Association, are not enough. There is still woefully inadequate pain care training of most physicians. A national coordinated and funded effort is required to provide clinicians with the needed skills to alleviate the suffering of those ailing in our society. The Pain Relief Promotion Act goes a long way to provide the educational and research resources required to meet the physical, psychological, social, and spiritual needs of suffering individuals.
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AGGRESSIVE PAIN MANAGEMENT IS LEGITIMATE
The Pain Relief Promotion Act wisely emphasizes that aggressive pain management is a legitimate medical use of controlled substances, even if, in rare circumstances, such treatment may increase the risk of death. This reassurance is entirely compatible with the long-standing ethics and practices of virtually all medical organizations, including the American Medical Association. In the vast majority of cases, it is fairly easy, given some degree of prudence, to ascertain that aggressive pain care will not kill the patient. It usually takes many fold the dose of an opioid to suppress respiration that it takes to alleviate pain or cause drowsiness, and there is medication available rapidly to reverse an inadvertent excessive dose of such medicines. Nevertheless, rarely and under extreme circumstances, pain medicines can pose some unwanted risk to life. This bill protects physicians, nurses, and patients in the event of such a circumstance.
Some proponents of assisted suicide have tried to portray this time-honored distinction between a rare, unintended death and intentional euthanasia or assisted suicide as arbitrary or disingenuous. Nothing could be further from the truth. Both doctors and patients historically have relied upon the clarity of the doctor's intention to comfort but never kill as a guiding principle. Religion and the law have adopted the same principle. In 1997, the United States Supreme Court reaffirmed that intent is a valid and verifiable legal concept. It declared in Vacco v. Quill et al. 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.'' The distinction is clear enough. It is not possible to write a prescription for 90 barbiturates to be taken all at once, as has been the case in nearly all Oregon assisted suicides, without intending to kill the patient. In such a case, the intent is clear. Fortunately, most doctors have no such intention and do not prescribe 90 barbiturates to be taken at once or 20 to 50 times the patient's most recent morphine dose to be injected quickly. The intention of the vast majority of doctors in prescribing pain medicine is clear enough, also. It is to alleviate suffering but never to kill. The Pain Relief Prevention Act makes this distinction clearly. It thereby protects doctors from inadvertent prosecution, even investigation, in all 50 states.
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Apparent attempts by some to obscure this distinction make the need to educate law enforcement personnel, as well as health professionals, all the more pressing. The Pain Relief Promotion Act provides for the education of both law enforcement personnel and regulatory bodies.
Some public safety dangers inherent in leaving unclear the distinction between legitimate medical procedures and assisted suicide, as does the June 5, 1998 opinion of U.S. Attorney General Janet Reno, have been outlined in my previous testimony before this Subcommittee, July 14, 1998. Some additional public dangers, which have come to light in the past year, will be mentioned here.
ASSISTED SUICIDE CANNOT BE CONTROLLED
The United States Supreme Court, as discussed in its 1997 decision, Washington et al. v. Glucksberg, 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.'' Once intentional killing using controlled substances is accepted, it becomes nearly impossible to prosecute virtually any killing in the medical setting. That is certainly the case in the Netherlands where non-voluntary killing in the medical setting is common and well documented (Hendin et al., 1997). And a similar inability is already apparent in Oregon.
When Patrick Matheny, received through the mail a huge quantity of barbiturates prescribed by his assisted-suicide doctor and undertook his assisted suicide with no doctor in attendance, just this year, he had difficulty swallowing the large number of bitter pills, because of his medical condition. He could not complete his attempt and tried again the next morning. After he could not complete the second attempt, his brother-in-law said he ''helped'' him die and complained that Oregon's suicide law discriminates against those who cannot swallow (Barnett, 1999a; Filips, 1999; Reinhard, 1999). The body was cremated before the day was out; consequently, no autopsy could ascertain the cause of death. Doctors and other citizens demanded that the prosecutor investigate the death, because illegal suffocation of the patient has been the most frequent method of ''helping'' patients whose attempts fail. The Coos County prosecutor, however, refused to pursue the case, apparently without ever questioning the only witness, and while making comments that individuals who are disabled by being unable to swallow should have the right to assisted suicide, as long as they are otherwise qualified (Barnett, 1999b). It is clear that the assistance the prosecutor had in mind could include either the plastic bag or lethal injection.
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In response to further inquiry about this case from Oregon state Senator Bryant, Oregon's Deputy Attorney General issued an opinion (attached) indicating that lethal injection may need to be accepted once assisted suicide is accepted, because Oregon's assisted suicide law does not provide equal access to its provisions by disabled people who cannot swallow and may violate the Americans with Disabilities Act (American Medical Association, 1999). He issued this opinion much to the dismay of advocates for the disabled in Oregon.
An even more blatant failure to investigate and prosecute illegal killing in the medical setting was the Gallant case, in which a Corvallis doctor was found by the Oregon Board of Medical Examiners clearly to have ordered a lethal injection for an elderly woman who did not even request it (Barnett, 1999c). Nevertheless, the Eugene district attorney declined to prosecute him, because he did not think he could get a conviction in this state with its official sanctioning of assisted suicide. The public danger of this inability to ''police and contain'' assisted suicide, once it becomes an accepted use of controlled substances, is in marked contrast to Michigan. In that state, laws disallowing assisted suicide and euthanasia as legitimate uses of controlled substances were clarified and conviction of Jack Kevorkian became possible, thereby stopping a series of pseudo-medical killings of individuals, some of whom had no evidence of physical disorder whatsoever and many of whom were undoubtedly depressed.
ASSISTED SUICIDE INTERFERES WITH MEDICAL OVERSIGHT
Oregon's assisted suicide law makes it illegal for voluntary medical organizations, such as the American Medical Association and the American Nurses Association, even to criticize or censure their own voluntary members for breaking a code of ethics to which all members have voluntarily subscribed. That is, it is illegal for any medical organization or even individual health care provider in Oregon to censure, even to criticize a colleague for the unethical act of assisted suicide. This attempt forcefully to legitimize assisted suicide by depriving voluntary medical organizations of their essential self-monitoring function undermines the basis of enforcing medical ethics requirements and thereby endangers the public safety. Physicians for Compassionate Care considers this interference to be an abridgment of the free speech rights of our members.
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The void created by removal of the freedom and responsibility of medical organizations to self-monitor in this life and death area of medicine endangers the public health and safety and requires clarification of the Controlled Substances Act, as well as improved education of health care professionals, regulatory bodies, and law enforcement personnel. The Pain Relief Promotion Act goes a long way to meet this need.
FAILURE OF REPORTING
The people of Oregon were told that government reports about assisted suicide were somehow going to function as a safeguard for assisted suicide. They have failed to provide protection.
There is no penalty for doctors who do not report, and it is undoubtedly true in Oregon, as it is in the Netherlands, that the majority of doctors who participate in assisted suicide or euthanasia do not submit reports. Since the state of Oregon has devalued human life by accepting assisted suicide for some citizens (Hamilton et al., 1998), many Oregon doctors have been impressed that the number of illegal and unreported killings in the medical setting are increasing dramatically here as they have in the Netherlands.
What reports there are, such as the Oregon Health Division report of the first 15 cases (Chin et al., 1999), seem to base their claims more on a lack of information than on clear data (Associated Press, 1999; Foley and Hendin, 1999; and Oregonian, 1999). For example, the report claims depression played no part in the first 15 cases when the medical literature (Hendin et al., 1998; Hamilton and Hamilton, 1999—attached) documents that the first publicly reported case was diagnosed as depressed. She was nevertheless given assisted suicide by her Compassion in Dying doctors in less than three weeks. Still, the report claims depression was not a factor. The report also claims economic factors did not influence patients contrary to an Oregonian (Barnett, 1999d) verification that economic factors did motivate at least one of those cases. Clearly, the report provides little useful information and its reassuring conclusions far overreach the data. Dr. Kathleen Foley, Professor at Sloan Kettering, and Dr. Herbert Hendin, Professor at New York Medical College, have contributed a scholarly and up-to-date discussion of this report in the Hastings Center Report (1999).
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ECONOMIC PRESSURES TO COMMIT SUICIDE
The state of Oregon moved swiftly to fund assisted suicide for the poor on its health care plan, despite protests from groups representing the poor and disabled. Oregon's rationed health plan denies payment for 171 needed services (Rojas-Burke, 1999a) while it fully funds assisted suicide and gives it priority over the treatment of psychological adjustment disorders and some curative treatments for cancer. Yet assisted suicide can cost the state as little as $45, according to its own estimates.
Over 38% of Oregon Health Plan members report barriers to obtaining mental health services (Rojas-Burke, 1999b), and within weeks of the assisted suicide law being implemented, Oregon state Senator Jeannette Hamby (1998) complained that the state placed barriers in the way of funding for state-of-the-art psychiatric medicines for the poor. Many private Oregon insurance companies have skirted federal laws forbidding discriminatory dollar limits on mental health benefits by translating those dollar limits directly into number of visits; and Oregon, unlike many states, has failed to provide parity for mental health care (Rojas-Burke, 1999c,d). The treatment of depression is a central aspect of palliative care for the seriously ill. Yet limits on funding for mental health care and poor access to that care, along with the state of Oregon calling suicide a ''dignified'' death and paying for suicide, herds the seriously ill who become discouraged toward suicide. This result of economic policies may not be intended by well intentioned health policy planners, but the result is the same—the poor and disabled are herded toward suicide, instead of toward good palliative care which includes treatment of depression, as well as pain.
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Most hospice care in Oregon is either capitated or has a total limit. In addition to economic pressures created by these limits, there are other, more subtle barriers to good hospice care. For example, despite the fact that radiation therapy for primary brain tumors or metastases has a greater than 50% chance of decreasing pain and improving function, ''Radiation therapy is considered an active antitumor treatment, and because hospices have a daily capitated rate, most patients must give up the hospice benefit to receive radiation therapy'' (Foley, 1999, p. 1941). Such a barrier can place a patient in an agonizing dilemma, when assisted suicide becomes an allowed use of controlled substances.
A doctor from one Oregon HMO, Kaiser, mentioned in their recent conference titled, ''When the Diagnosis is Terminal,'' that four of the few patients mentioned in the Oregon Health Division report were Kaiser patients. (The Health Division report contained no data on what kind of insurance patients had; so these four Kaiser patients were not previously known). These four early deaths must have saved the Kaiser HMO thousands of dollars; as a conference participant observed, ''It is always cheaper to kill the patient.'' Even more blatantly, one Oregon HMO (Qual Med) caps in home palliative care at $1,000 while fully funding assisted suicide. It was confirmed with an Oregon hospice director, Karen Bell, just a few weeks ago that this cap continues to be enforced despite repeated public complaints by Physicians for Compassionate Care. The vice-president and legal counsel for this same large, Oregon HMO even went so far as to write an opinion piece only a few weeks after implementation of the suicide law titled, ''What Price Dying? The Debate over How to Die Now Can Shift to How Much Money We Think It's Worth'' (Falk, 1998), implying throughout the article that care of the seriously ill, who may be near the end of life, might be an unnecessary extravagance which society can no longer afford.
While most managers of health care dollars probably do not intend to drive people toward suicide to save money, once assisted suicide is allowed as an accepted use of controlled substances, the result is that their decisions do just that. Restrictive economic decisions combined with allowing controlled substances to be used for patient suicides jeopardizes good palliative care, including pain care and treatment of depression, and thereby creates a public danger. The Pain Relief Prevention Act does much to alleviate this danger to the public health.
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CONCLUSION
The need for improved education and research to promote pain and palliative care is overwhelming. As documented by the Oregon Pain and Symptom Management Task Force (1999), lack of education for physicians, nurses, law enforcement personnel and regulatory bodies, along with economic factors, create significant ''barriers'' (pp. 4–5) to provision of good pain care in the state of Oregon, like the vast majority of states. As the leader of an organization providing education about palliative care and pain relief, I can assure you that individual medical organizations cannot do it alone. Even large organizations, such as the American Medical Association with its fine educational project, needs assistance from medical schools, hospitals, hospices, specialty organizations and other medical education establishments. A nationwide and federally sponsored educational effort is required to enlighten practicing health professionals about the wonderful advances in pain and palliative care which lie unutilized. The Pain Relief Promotion Act of 1999 goes a long way toward helping doctors and nurses meet the physical, psychological, social, and spiritual needs of suffering patients.
This Act clarifies to physicians, nurses, and state medical boards, as well as to law enforcement personnel, that provision of pain medicine is a legitimate medical practice, even if in rare instances there may be an added risk to a patient's life. That clarification will reassure doctors, nurses, and hospice workers that they need not fear while providing patients necessary palliative care. Equally important, this legislation clarifies that controlled substances may not be used intentionally to kill patients in any of the 50 states, as is already the case in 49 states. This clarification protects pain and other aspects of palliative care, including treatment of depression. It protects physicians and nurses. And it protects patients. Physicians for Compassionate Care urges you to support the Pain Relief Promotion Act of 1999.
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ATTACHMENTS
1. Schuman, D. (1999). Oregon State Justice Department Letter to Oregon State Senator Bryant, March 15, 1999.
2. Hamilton, N.G. (1999). ''Therapeutic Response to Assisted Suicide Request.'' Bulletin of the Menninger Clinic 63:191–201.
REFERENCES
American Medical Association (1999). ''How Assisted Can Suicide Be? Oregon Controversy.'' American Medical News, April 12, 1999, p. 19.
Associated Press (1999). ''Group Criticizes Oregon's Assisted-Suicide Report.'' Oregonian, February 26, 1999.
Barnett, E.H. (1999a). ''Man with ALS Makes up his Mind to Die.'' Oregonian, March 11, 1999, p. D1.
Barnett, E.H. (1999b) ''Coos County Drops Assisted-Suicide Inquiry.'' Oregonian, March 17, 1999, p. D1.
Barnett, E.H. (1999c). ''Court of Appeals Affirms Decision against Physician: The Case Involves a Corvallis Internist Who Allowed a Nurse to Give a Dying and Comatose Patient a Lethal Drug Injection.'' Oregonian, April 3, 1999, p. B6.
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Barnett. E.H. (1999d). ''Dealing with an Assisted Death in the Family: The Adult Children of a Woman Who Used Oregon's Suicide Law Talk about Conflicted Feelings.'' Oregonian, February 21, 1999, pp.G1&2.
Chin, A.E., Hedberg, K., Higginson, G.K. et al. (1999). Legalized physician-assisted suicide in Oregon—First Year's Experience. New England Journal of Medicine 340:577–583.
Falk, T.C. (1998). ''What Price Dying? The Debate over How to Die Now Can Shift to How Much Money We Think It's Worth.'' Oregonian, December 31, 1997.
Filips, J. (1999). ''Difficult Suicide Magnifies Debate: Death: A Coos Bay Man Needs Help Ingesting Lethal Drugs, which Some See as a Step toward Euthanasia.'' Eugene Register-Guard, March 14, 1999, pp. 9–10D.
Foley, K. (1999). ''A 44-Year-Old Woman with Severe Pain at the End of Life.'' Journal of the American Medical Association 281:1937–1945.
Foley, K. and Hendin, H. (1999). ''The Oregon Report: Don't Ask, Don't Tell,'' Hastings Center Report 29:37–42.
Hamby, J. (1998). ''The Enemy Within: State Bureaucratic Rules Threaten the Spirit of Oregon Health Plan's Founding Principles.'' Oregonian, January 21, 1998.
Hamilton, N.G. and Hamilton, C.A. (1999). ''Therapeutic Response to Assisted Suicide Request,'' Bulletin of the Menninger Clinic 63:191–201.
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Hamilton, N.G., Edwards, P.J., Boehnlein, J.K, and Hamilton, C.A. (1998). ''The Doctor-Patient Relationship and Assisted Suicide: A Contribution from Dynamic Psychiatry.'' American Journal of Forensic Psychiatry 19:59–75.
Hendin H., Rutenfrans C., and Zylicz, Z. (1997). ''Physician-Assisted Suicide and Euthanasia in the Netherlands: Lessons from the Dutch.'' Journal of the American Medical Association 277:1720–1722.
Hendin, H., White, M. and Foley, K. (1998). ''Physician-Assisted Suicide: Reflections on Oregon's First Case.'' Issues in Law & Medicine 14:243–270.
Oregon Pain and Symptom Management Task Force (1999). ''Report to the Seventieth Oregon Legislative Assembly and Governor John Kitzhaber,'' January, 1999.
Oregonian (Editor) (1999). ''Don't Ask, Don't Tell: State Report on the First Year of Assisted Suicide May Be Most Notable for the Things It Doesn't Say.'' Oregonian, February 22, 1999, B6.
Reinhard, D. (1999). ''Measure 16: Compassion in Killing: Despite the Promises of Advocates for Assisted Death and Measure 16, Oregon Skids down Slippery Slope with Latest 'Suicide' in Coos Bay.'' Oregonian, March 14, 1999.
Rojas-Burke, J. (1999a). ''Oregon's Poor Slip from Safety Net of Health Coverage: Although More Money Went to the Oregon Health Plan, the Percentage of Uninsured Poverty-Level Residents Climbed Last Year to 23 Percent.'' Oregonian, March 29, 1999, pp. A1&9.
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Rojas-Burke, J. (1999b). ''Survey Gives Oregon Health Plan High Marks.'' Oregonian February 3, 1999, p. B15.
Rojas-Burke, J. (1999c). ''Insurers Still Unfair with Mentally Ill, Study Says: Despite a Law Meant to Curb Coverage Bias, the Share of Plans Limiting Office Visits and Hospital Stays for Mind Disorders Jumps.'' Oregonian, April 30, 1999, pp. D1&5.
Rojas-Burke, J. (1999d) . ''Senate Bill Proposes Increase in Mental Health Benefits.'' Oregonian, June, 19, 1999, pp. D1&9.
| Oregon State Justice Department, |
| Salem, OR, March 15, 1999. |
Senator NEIL BRYANT,
Salem, OR.
DEAR SENATOR BRYANT: In response to recent assisted suicide in Coos County, last Saturday's Oregonian (March 13) ran a story in which the Sheriff, Paul Burgett, suggested that ''it would be unlawful to say that we're not going to allow disabled people to make the same sorts of decisions and have the same rights as people who have the physical ability to accomplish their objectives.'' The same article reported that I ''said Burgett raised an interesting issue about possible discrimination.'' You have asked me to elaborate.
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Under judicial interpretations of both Oregon Constitutional law and federal statutory law, when a state law or regulation, on its face, does not discriminate against—or even mention—any particular identifiable minority group, but the law will nonetheless have a disproportionally burdensome impact on such group, then that law will be treated as though the discrimination were intentional. Thus, if a state law requires all firefighters to have the ability to bench press 150 pounds, and, in practice, application of that law leads to a disproportionally male firefighting force, then the law will be evaluated by the courts as though it were written in terms specifying a gender preference. Likewise, a state policy requiring student athletes to score above a certain level in standardized academic tests will be treated as a racially discriminatory law if, in fact, it has the effect of disproportionally screening out racial minority athletes. In a recent Oregon case, the Court of Appeals held that a rule denying a benefit to unmarried persons would be treated as though it intentionally denied the benefit to homosexuals, because that would be its inevitable effect.
The Death With Dignity Act does not, on its face and in so many words, discriminate against persons who are unable to self-administer medication. Nonetheless, it would have that effect. The Act specifies that the only lawful method of ''death with dignity'' is ''medication,'' and it refers to the method of taking this medication as ''ingestion.'' It therefore seems logical to conclude that persons who are unable to self-medicate will be denied access to a ''death with dignity'' in disproportionate numbers. Thus, the Act would be treated by courts as though it explicitly denied the ''benefit'' of a ''death with dignity'' to disabled people.
This fact, in turn, makes the Death With Dignity Act vulnerable to challenge under both Article I, section 20 of the Oregon Constitution (under which the state must make privileges and immunities available to all classes of citizens on the same terms), and Title II of the Americans With Disabilities Act (which, with certain exceptions, prohibits government from denying benefits or services to disabled persons). Obviously these challenges would present novel legal issues, and it is by no means clear that the challenges would succeed. Some of the novel legal issues that would arise under the Oregon Constitution would be: is ''death with dignity'' a ''privilege''? are disabled persons a cognizable ''class'' for purposes of the Oregon Constitution? is the discrimination cased by the Act justified by verifiable biological differences between the disabled and others? Similar issues would arise under the ADA, as well as issues regarding the necessity of the state providing ''reasonable accommodation'' that would enable the disabled to avail themselves of the Act's provisions.
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I have not attempted in this brief letter to answer the interesting questions raised by the interplay between the Death With Dignity Act and various anti-discrimination laws. If you would like a more in-depth examination of any of these issues, please let me know and I will make available to you the services of the Department of Justice.
Sincerely,
| David Schuman, Deputy Attorney General. |
THERAPEUTIC RESPONSE TO ASSISTED SUICIDE REQUEST
N. Gregory Hamilton, MD
Catherine A. Hamilton, MA
The authors review the first publicly reported case of legal assisted suicide in the United States and discuss possible clinical responses other than assistance in suicide. Psychiatric observers have noted that acceptance of assisted suicide or euthanasia as a medical option has resulted in loss of knowledge about bow to respond to suicidal ideation in the seriously ill. The authors discuss specific therapeutic interventions that may be appropriate for seriously inpatients requesting suicide. (Bulletin of the Menninger Clinic, 63[2], 191–201)
By late afternoon, March 25, 1998, reporter after reporter had already asked the same question: ''How would you have responded differently to the first patient publicly reported to die legally by doctor-assisted suicide?'' Legalization of assisted suicide in Oregon has forced psychiatrists and other mental health professionals in that state and elsewhere to rethink their clinical responses, taking into account whether they believe offering suicide might ever be a helpful option or whether they share our view that willingness to consider any patient's life as no longer worth living inevitably devalues and harms the patient (Hamilton, Edwards, Boehnlein, & Hamilton, 1998).
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The response to the media was short and simple: Patients who are discouraged and have suicidal ideation should be given hope and treatment, not suicide. Clinically, however, the answer is not so simple. How might a psychiatrist or other clinician respond in a way that offers hope and treatment as an alternative to suicide? In a country where one state has legalized doctor-assisted suicide, this question becomes especially complex and deserving of discussion. Such discourse is particularly important in light of the fact that, once assisted suicide and euthanasia were allowed by the Dutch government, the medical profession and the general population have had little conceptualization of any response to the elderly or seriously ill other than assistance in suicide (Hendin, 1998).
This article will explore some possible clinical responses to an assisted suicide request. As a case illustration, comments attributed to the publicly reported legal assisted suicide case in the United States (Gianelli, 1998; Hendin, Foley, & White, 1998; Hoover & Hill, 1998) will be provided. Proposed clinical interventions will be made in response to these statements of the patient, who died by oral ''lethal overdose, legally prescribed,'' as it will be termed on Oregon death certificates. Of course, these brief remarks will only illustrate the point that there are alternatives to framing suicidal ideation in the medically ill solely in terms of the question of whether the patient is ''competent'' and if and when the request should be implemented. This discussion makes no pretense of providing a comprehensive text on the treatment of hopelessness or suicidal despair. It is merely intended as a needed reminder that there are alternatives to acceding to a request for assisted suicide.
THE CASE
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An 84-year-old woman with a more than 20-year history of breast cancer developed metastases in her lungs (Hoover, 1998). Her physician told her that these metastases might eventually prove fatal. In the context of a state deluged with favorable assisted suicide media exposure, she reportedly requested assisted suicide, but her regular physician declined to participate in any such course of action (Hoover & Hill, 1998). The patient sought the opinion of a second physician, who was philosophically open to the notion of assisted suicide, but who concluded that she was depressed and needed treatment for her depression (Gianelli, 1998); therefore she was not a candidate for lethal overdose under the Oregon law.
Her family then called the Compassion in Dying Federation, a politically active group promoting legalization of assisted suicide, which had just moved to Oregon a few weeks after the assisted suicide law finally became effective in late 1997. The Federation doctor determined over the telephone that the patient was rational. This doctor gave the patient a series of referrals to other doctors, most likely all with similar philosophies and political views about suicide within the doctor-patient relationship. These doctors, including a psychiatrist who saw the patient only once (Gianelli, 1998), apparently deemed her request for suicide reasonable and gave her an overdose in barely more than the minimum waiting period of 2 weeks the law requires.
THE AUDIOTAPES
On March 22,1998, a doctor, apparently from the Compassion in Dying Federation, recorded a conversation with the patient for the purpose of presenting this case as an ideal example of assisted suicide. After the patient's death a few days later, the tape was released at a press conference orchestrated by the Compassion in Dying Federation. The patient began her comments by describing the normal dying process in negative terms, depicting patients helplessly staring at the wall in a hospital. She said, ''I've seen people suffer, they give them artificial feeding and stuff, which is really not doing anything for them in the long run'' (Hoover & Hill, 1998, p. Al). There was no recorded attempt by the doctor to discuss with the patient a more realistic and interpersonally meaningful view of the natural dying process.
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Instead, he went on to ask the patient to explain how she felt about the prospect of dying in a few days. She was living at home and was not anticipated by anyone to be likely to die in a few days, except that she was scheduled for assisted suicide. So her suicidal ideation was no longer being explored and treated but was being dealt with instead as a fait accompli. She responded, ''I am looking forward to it. . . . I will be relieved of all the stress I have'' (Gianelli, 1998, pp. 1, 62). She particularly emphasized difficulty adjusting to decreased mobility as a cause of her suicidal wishes when she said, ''because, being I was always active, I cannot possibly see myself living out two more months like this'' (Hoover & Hill, 1998, p. Al).
After the patient thanked the assisted suicide doctor for helping her feel relaxed about her wish to kill herself, a family member interjected advice to doctors in general that if they are uncertain about assisted suicide, they should inform the patient initially rather than listening with open-mindedness or equivocating in their decision. The patient went on, ''If somebody's saying that I'm sitting in a chair waiting to die, that's not right because I have always been able to get around and do things, and now suddenly I'm in the position I can't even walk very good'' (Hoover & Hill, 1998, p. Al). She next mentioned trouble breathing, although she was able to speak clearly and apparently comfortably on the tape. She concluded by noting that she loved to garden, declaring that this hobby was a major way of coping with stress. She said, 'I didn't sit and cry about any of it. I went out and worked it out'' (Hoover & Hill, 1998, p. Al).
THERAPEUTIC RESPONSES IN PLACE OF ASSISTED SUICIDE
Diminished mobility
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Even this small amount of clinical material allows for the presentation of an alternative style of clinical thinking and interaction, one that would not have been so passive, so ''neutral'' (Hamilton, 1990), or so open to, or encouraging of, suicide.
From the patient's few words, a theme emerges. She said, ''I was always active.'' And later, she again said, ''I have always been able to get around and do things.'' One of her coping mechanisms must have been activity, as evidenced by her statement, ''I didn't sit . . . I went out and worked it out.'' Clearly, seeing herself as active was important to this patient, who had done water aerobics at least until the week before her suicide.
Since problems with movement formed a predominant theme for this patient, the doctor could have empathized with her fears of future immobility. He could have said, ''I guess being active is very important to you. It sounds like it would be terribly hard for you to adjust if you ever become immobile.'' Such a comment, despite its obviousness, could reassure the patient, because it would address her fear of immobility. The patient would thus feel more understood, less alone, and therefore more valued and sustained (Kohut, 1971, 1977) or contained (Bion, 1962; Hamilton, 1990). In addition, from a more supportive therapy viewpoint, it subtly yet clearly implies that adjusting to a new life phase is a type of activity, a good and healthy activity, one that the patient can successfully achieve.
More important, such comments create a shift from the proposed action of committing suicide onto the clinical issue at hand, which the patient and doctor seemed so determined to avoid what might have been causing her suicidal ideation and how to treat it. This shift would change the doctor-patient interaction from a framework in which both were preparing to act on conscious and unconscious fears of infirmity to a framework in which it was the physician's role to understand and treat the patient.
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SELF-IMAGE CHANGE
On closer examination, it was not merely difficulty with the function of movement that troubled this patient. Perhaps even more problematic was her self-image of having difficulty with movement. The difference between a practical, motor dysfunction and being afflicted with a self-image or self-worth problem prompted by diminished mobility is a subtle but potentially important one (Hamilton, 1996). Her self-image problem is illustrated by the fact that after commenting on how active she had previously been, she said, ''I cannot possibly see myself living out two more months like this,'' meaning that she could not see herself as less physically active than she had been. She went on, ''I have always been able to get around and do things, and now suddenly I'm in the position I can't even walk very good.'' This change from seeing herself as being able to ''get around'' to seeing herself as not being able to walk very well was a serious problem for her, although it was clear that she could still walk. It was also known that she did not have significant pain with movement.
Again, empathic paraphrase could have been a useful approach. Furthermore, such a woman might have risen to the challenge of exploring previous changes in life phases and concomitant changes in self-image. What was it like for her as a young girl? How had she coped as she grew up and changed from girlhood into young womanhood? How did she cope with the losses of freedom and of unlimited possibilities for herself that she must have experienced in rearing children, as reports indicate she did? Throughout her more than 20 years of breast cancer, she must have had other episodes of immobility and losses of cherished self-images. How did she cope with those changes? Such a dialogue would have allowed the patient actively to discover within herself her adaptive capacities and her own abilities to cope with adversity and find meaning.
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There are also more direct ways of coping with a shift in self-image and diminished mobility. The doctor or therapist can help the patient explore alternative, substitute, or compromise activities. As an example, one of the first author's patients loved gardening, just as this woman apparently did. With a bit of encouragement, my patient quickly adjusted to the loss of her ability to work in her extensive garden by substituting an equally meaningful endeavor. She planted a smaller, potted garden and had flower baskets hung over her back porch. The challenge for my patient became how to water her hanging flower baskets from a wheelchair. She needed to learn how to accomplish this task without water dripping down her arm. Such a life-giving task as watering hanging baskets and creating a spot of beauty on her porch was just as important at this life phase as at any other (Siegel, 1993).
Instead of being helped to see that smaller creative endeavors can be just as meaningful and worthwhile as previous grander activities, however, the 84-year-old cancer patient received a prescription for a lethal overdose from her doctor.
Images of others
Beyond a change in self-image, this patient may have benefited from a discussion of her views of other people. Even her few comments provide useful information about her views in this regard. Her direct statements about others are in two paired arrangements. In one scenario, she described people in the hospital as passive and staring at the four walls while receiving futile treatment. She was portrayed as the superior self looking down on others for being passive and degraded. In another interaction, the self-image and image of others was reversed. Hypothetical other people were looking down her. She said, ''If somebody's saying that I'm sitting in a chair waiting to die, that's not right. . . .'' Here the patient had imaginary others viewing her as inferior for sitting in a chair waiting to die. She refuted this imagined scenario, as if sitting would somehow be shameful.
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In the first example, she seemed to project her unwanted passive self-images and her disgust with infirmity onto hypothetical hospital patients. She devalued those patients by seeing them as somewhat contemptibly accepting treatment, which she depicted as futile. In the other example, the patient saw her own image of herself as stigmatized and degraded or devalued by others. In both cases, she equated inactivity and helplessness with worthlessness.
From a cognitive (Ponzoha & Warren, 1985) or supportive therapy viewpoint, the clinician could directly challenge this patient's underlying faulty assumption that decreased physical activity implies decreased value or personal worth. Similarly, when the patient spoke of imagined others as critical of her (e.g., ''If somebody's saying that I'm sitting in a chair waiting to die, that's not right''), the doctor could clarify the situation or make an interpretation. The doctor could deal with the patient's projection by commenting that she might think other people would be critical of her for decreased activity, because she was critical of herself for having a disability. In fact, many people, including the doctor, might think there is nothing at all shameful about inactivity.
Containment
As doctors or therapists, we sometimes must sit quietly by the side of the seriously ill patient, hearing and empathically feeling, actually empathically experiencing, the feelings of the patient, letting go of illusions of power and control we so heartily cling to most of our professional lives. This process can be very hard for physicians and therapists alike. For some doctors, it is not sadness or anger or even erotic feelings in relation to patients that are most difficult to tolerate, but feelings of helplessness instead.
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In this case, the patient's way of dealing with her fear of helplessness and inactivity may well have engendered a similar fear in the clinician working with her. The doctor who assisted in her suicide was quoted as saying that talking to her was ''like talking to a locomotive'' (Hoover, 1998, p. Al). Perhaps he felt helpless when faced with the challenge of containing a patient who elicited images of locomotives, or of attempting to make a therapeutic intervention when talking with the patient seemed, as he put it, like ''talking to Superman when he's going after a train'' (p.Al). This feeling of helplessness may have been elicited from the doctor, when in fact, as Hendin has noted (Hamilton, 1998), helping a suicidal seriously ill patient is no more difficult than helping any other suicidal patient who comes into the office.
In terms of projective identification (Gabbard, 1989; Grotstein, 1981; Hamilton, 1988; Kernberg, 1965; Klein, 1946; Ogden, 1982), which has been so well described in psychotherapy, the patient may have behaved in such a way as to engender her unwanted feelings of helplessness in the doctor and then may have tried to control those feelings in him. In this case, the patient evidently disavowed her feelings about, and fears of, her inactivity while she adopted the hyperactive role of a speeding train—or of Superman, even faster and more powerful than a speeding locomotive.
Over the past 20 years, psychotherapists have learned to use their feelings as an effective therapeutic tool. One approach to dealing with such feelings is containment (Bion, 1962; Hamilton, 1990)—that is, accepting the feeling being thrust upon the clinician by the patient, reflecting on what the patient must be experiencing, and offering the projection, now transformed by understanding and meaning, back to the patient in a way that can be tolerated. Such an approach with this patient would have required the physician to tolerate his own and the patient's feelings of helplessness and passivity and to use his therapeutic understanding of those feelings actively to help the patient.
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Sometimes a comment may be in order, such as, ''It seems that you feel it's somehow dangerous for you to slow down a bit and wait. Are you afraid something might happen if you slow down a bit?'' The clinical clue to asking such a question would be in the danger, fear, or urgency the clinician would find within himself or herself when faced with the feeling of being in the presence of a speeding train.
Such a patient would very likely be much relieved by being able to talk about her fear of inactivity, a fear that may have plagued her much of her life, that might have arisen anew as her disease began to feel like a train bearing down on her, especially if the prognosis had been presented in an excessively certain, or perhaps even brutal, fashion. The assisted suicide process, with its political momentum, also could have taken on a life of its own, leading her to feel railroaded herself, as has apparently been the case with other Compassion in Dying patients who were reported to feel pressured by their family and the press (Hendin, 1998).
Empathic listening and questioning might have helped this patient feel understood and accepted in a way she never would have anticipated. By sitting with her and listening, the doctor can demonstrate the value of understanding one's impulses without taking action. However, if the doctor, instead of understanding the fears of such a patient, acts out on his own feelings of helplessness and fear, a therapeutic opportunity is missed and an irrevocable course of action is set in motion. Such ''countertransference enactments'' (Gabbard, 1996, p. 75) usually result not only from the patient's troubling feelings, but also from the doctor's failure to come to terms with his or her own internal struggles. Such a confluence of the patient's issues and the doctor's vulnerability can result in the doctor enacting a scenario that expresses his or her own wished-for or feared denouement to a personal internal drama at the expense of the patient.
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Countertransference enactments are thus the very antithesis of containment. In this case, at least as it was reported, the doctor may have been unable to tolerate his own feelings of limitation as a human being. He may have reasserted his sense of power and control by writing the patient a lethal prescription, which left him calm and in control, and left his patient utterly helpless, inactive, and, in fact, lifeless-all in the name of compassion and choice.
Antidepressant medication
Antidepressant medication can also dramatically help such patients, considered by at least one, perhaps two, doctors as depressed. All psychiatrists and most primary care physicians have heard a patient convincingly and logically describe a grim and seemingly hopeless life circumstance, only to find this perception entirely changed after the patient's depression is treated with antidepressant medication. Although the emphasis in this article is not on medication, such treatment, with its potential to actually cure depression, should certainly be attempted. In this case, it is apparent that no effective therapeutic attempt was even made, and there is evidence from numerous reports that the psychiatric consultants confined their role to determining whether the patient was ''competent'' in a narrowly defined and legalistic fashion.
Education
Finally, education about palliative treatments could have addressed this patient's fears. It is far more likely that the fear of pain (Emanuel, Fairclough, Daniels, & Clarridge, 1996) or dyspnea or loss of mobility will lead to suicidal ideation than that the actual symptoms themselves would lead to such ideas. It is our job as clinicians to allay those fears through a realistic discussion of available treatment and care. The need for such reassuring and realistic education is especially pressing in the face of political efforts to portray the natural dying process as unbearable and grotesque. Efforts to legalize assisted suicide have served a suggestive function, which has frightened many patients and often needs to be therapeutically countered.
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CONCLUSION
This brief discussion serves as a reminder that suicidal ideation in the seriously ill requires thorough evaluation and treatment, as it does among all patients. The legalization of assisted suicide, even in one state, can create a shift in attitude and focus among clinicians nationwide, which can interfere with the appropriate evaluation and treatment of such cases (Hendin, 1998; Orr & Bishop, 1998). For example, a now widely disseminated manual, The Oregon Death with Dignity Act: A Guidebook for Health Care Providers (Haley & Lee, 1998), calls for the primary care doctor to ''explore the meaning behind the patient's request'' for a lethal prescription (p. 5), yet frames the question to be answered solely in legalistic terms about whether ''health care providers will choose to honor the request'' (p. 5). This conceptualization excludes from consideration the clinical question of how to help the patient overcome suicidal ideation. The same guidebook goes even further in the section on mental health consultation to recommend limiting any psychiatric consultation to ''a competency evaluation, specifically focused on capacity to make the decision'' (p. 30) for assisted suicide. Competency is so narrowly defined that even major depression does not necessarily exclude the patient from being considered competent, and the authors conclude, ''If the mental health professional finds the patient competent, refusal of mental health treatment by the patient does not constitute a legal barrier to receiving a prescription for a lethal dose of medication'' (p. 31).
Legalistic, either-or action decisions, rather than nuanced clinical thinking, can hamper good medical evaluation and treatment. Even the ease discussed in this article, which was promoted as an ''ideal'' assisted suicide case, demonstrates lost opportunities for understanding and helping a patient overcome suicidal ideas and feelings. Clinicians have numerous available interventions, such as those mentioned earlier, as well as other possibilities. In order for such therapeutic activities to be effective, however, the clinician must approach the task with a commitment that the seriously ill patient's life is as valuable as any other suicidal patient's life—that his or her life is worth living, just as any other human life is worth living, and that the therapeutic endeavor is therefore hopeful and meaningful. If the doctor or therapist does not consider the patients life equally valuable, this covert devaluing of the patient under such fragile circumstances could jeopardize his or her life.
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In a country where assisted suicide is now approved by one state government, it is vital to remind ourselves that all suicidal patients deserve equal therapeutic intervention, regardless of their health status.
REFERENCES
Bion, W. R. (1962). Learning from experience. London: Heinemann.
Emanuel, E. J., Fairclough, D. L., Daniels, E. R., & Claffidge, B. R. (1996). Euthanasia and physician-assisted suicide: Attitudes and experiences of oncology patients, oncologists, and the public. Lancet, 347, 1805–1810.
Gabbard, G. O. (1989). Splitting in hospital treatment. American Journal of Psychiatry, 146, 444–451.
Gabbard, G. O. (1996). Love and hate in the analytic setting. Northvale, NJ: Aronson.
Gianelli, D. M. (1988, April 13). Praise, criticism follow Oregon's first reported assisted suicides, American Medical News, 41, 1, 62.
Grotstein, J. S. (1981). Splitting and projective identification. New York: Aronson.
Haley, K., & Lee, M. (1998). The Oregon Death with Dignity Act: A guidebook for healthcare providers. Portland, OR: Center for Ethics in Health Care.
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Hamilton, C. A. (1998). Assisted suicide and medical illness: Herbert Hendin at PCC spring lecture. Physicians for Compassionate Care Newsletter, 1(2), 1–2.
Hamilton, N. G. (1988). Self and others: Object relations theory in practice. Northvale, NJ: Aronson.
Hamilton, N. G. (1990). The containing function and the analyst's projective identification. International Journal of Psycho-Analysis, 71, 445–453.
Hamilton, N. G. (1996). The self and the ego in psychotherapy. Northvale, NJ: Aronson.
Hamilton, N. G., Edwards, P. J., Boehnlein, J. K., & Hamilton, C.A. (1998). The doctor-patient relationship and assisted suicide: A contribution from dynamic psychiatry. American Journal of Forensic Psychiatry, 19, 59–75.
Hendin, H.E. (1998). Seduced by death: Doctors, patients, and assisted suicide (Revised and updated). New York: Norton.
Hendin, H. E., Foley, K., & White, M. (1998). Physician-assisted suicide: Reflections on Oregon's first case. Issues in Law and Medicine, 14, 243–270.
Hoover, E. (1998, March 27). Two deaths add new angle to debate. Oregonian, pp. A1, A18.
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Hoover, E., & Hill, G. K. (1998, March 26). Two die using suicide law. Oregonian, pp. A1, A14.
Kernberg, O.F. (1965). Notes on countertransference. Journal of the American Psychoanalytic Association, 13, 38–56.
Klein, M. (1946). Notes on some schizoid mechanisms. International Journal of Psycho-Analysis, 27, 99–110.
Kohut, H. (1971). The analysis of the self. New York: International Universities Press.
Kohut, H. (1977). The restoration of the self. New York: International Universities Press.
Ogden, T. H. (1982). Projective identification and psychotherapeutic technique. Northvale, NJ: Aronson
Orr, R.D., & Bishop, L. (1998). Why psychiatrists should not participate in euthanasia and physician-assisted suicide. American Journal of Forensic Psychiatry, 19, 35–48.
Ponzoha, C., & Warren, R. (1985). Self-acceptance techniques for structured groups. Journal of Rational Emotive Therapy, 1, 36–43.
Siegel, B. S. (1993). How to live between office visits. New York: HarperCollins.
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Dr. N. Gregory Hamilton is clinical associate professor of psychiatry, Oregon Health Sciences University, and Catherine A. Hamilton is a mental health counselor. Correspondence may be sent to the authors at the Morgan Building, Suite 670, 720 S.W. Washington, Portland, OR 97205; e-mail: Nghamil@aol.com (Copyright 1999 The Menninger Foundation)
Mr. HYDE. Thank you very much, Dr. Hamilton. Next, Mr. Joranson.
STATEMENT OF DAVID E. JORANSON, M.S.S.W., SENIOR SCIENTIST AND DIRECTOR OF THE PAIN AND POLICY STUDIES GROUP, COMPREHENSIVE CANCER CENTER, THE UNIVERSITY OF WISCONSIN MEDICAL GROUP
Mr. JORANSON. Thank you, Mr. Chairman, members of the subcommittee. I appreciate the invitation to testify before you today on this bill. I am testifying for information; and I am not taking a position either for or against the bill. I would like to focus my remarks only on the parts of the bill that amend the Controlled Substances Act.
I think it is clear from everyone's point of view that pain management is not adequately provided in this country. It may be improving but that there are a number of barriers to effective pain relief, and among these are physicians' concerns about being investigated by State, local, or Federal regulatory agencies. My bibliography on the back of my testimony will amply document this point.
Significant progress is being made especially by the Drug Enforcement Administration to clarify that it does not represent a threat to physicians who are treating pain appropriately. I would commend DEA for their efforts in the past several years to clarify policies in the Federal regulations and in the Physician's Manual making it clear that the use of controlled substances for the treatment of pain is a lawful activity.
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But there are aspects of the amendments that are being proposed that are troubling, because I think that they will unbalance what is a balanced act at the present time. The Controlled Substances Act is an anti-drug abuse law enforcement act, but when Congress created it in 1970, it made three special considerations about areas into which the CSA was not to go. One is in the area of medical and scientific affairs; the second is that it should not supersede the Food, Drug, and Cosmetic Act, and the third is its relationship with the State laws that it was not to preempt State laws occupying the same area of interest.
The concerns I have about the bill are that it gives the Attorney General authority which requires medical and scientific interpretations, and it leaves that authority within his or her authority exclusively, contrary to the principle that was previously established by the 1970 Congress. The bill also asserts that the Controlled Substances Act is a way to determine the legality of different drugs. Instead, this is done according to the Food, Drug, and Cosmetic Act, not by the Controlled Substances Act. And, finally, the bill would preempt all of the States in respect to a particular issue even though specifically recommended against in the present Controlled Substances Act.
By unbalancing the CSA in all three of these categories, I fear we will increase the risk of a chilling effect, which, as I say, has been worked on with great progress over the past several years by cooperative efforts between pain management groups and law enforcement and regulatory agencies.
I do think the way in which it is being amended does clear the way for the Attorney General to prosecute, either administratively or criminally, physicians for providing controlled substances for assisted suicide. While our organization does not have a position on assisted suicide, I am concerned that this will reinsert Federal drug law enforcement authority into the sensitive equation of the physician-patient relationship and require the Attorney General to make distinctions between alleviating pain, hastening death, and assisted suicide, which are decisions that should be made by medical authorities and certainly by medical regulatory authorities at the State level.
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Indeed, by referencing hastening death in a Federal criminal statute, it gives life, it gives an institutionalized gloss to what is much more a myth than a fact, and I would offer an article on the Double Effect of Pain Medication: Separating Myth from Reality. It is an excellent review, which shows that hastening death due to the use of opoids is much more myth than fact. It is unfortunate to put that kind of language in a Federal statute.
In general, I think it would be better if the committee pursued its interests in pain management and assisted suicide separately.
[The prepared statement of Mr. Joranson follows:]
PREPARED STATEMENT OF DAVID E. JORANSON, M.S.S.W., SENIOR SCIENTIST AND DIRECTOR OF THE PAIN AND POLICY STUDIES GROUP, COMPREHENSIVE CANCER CENTER, THE UNIVERSITY OF WISCONSIN MEDICAL GROUP
My name is David E. Joranson; I am a Senior Scientist and Director of the Pain & Policy Studies Group at the Comprehensive Cancer Center on the campus of the University of Wisconsin in Madison. I thank Chairman Hyde for inviting me to address the Committee on H.R. 2260, the ''Pain Relief Promotion Act of 1999.'' In the interest of assisting the Committee, I wish to testify for information, and only in relation to the parts of the bill that amend the Controlled Substances Act (CSA). I have enclosed references at the end of my testimony, many of which are available on our website, listed above.
My knowledge of and experience with controlled substances law goes back some thirty years, to the vigorous debate and final adoption in 1970 of the CSA. Since then, I was administrative officer for the State of Wisconsin's Controlled Substances Board, during the administration of Governors Dreyfus, Earl, and Thompson. During this time, I worked with the subcommittees of Congressman Hughes and Congressman Waxman to adopt amendments to the CSA to strengthen DEA's program against diversion of controlled substances. In 1984 I co-founded the National Association of State Controlled Substances Authorities and the first State Cancer Pain Initiative, in Wisconsin. I have studied the Federal and State controlled substances laws, as well as the state professional practice statutes and regulations in great detail; I was privileged to serve for several years on the drafting committee of the National Conference of Commissioners on Uniform State Laws to revise the Uniform Controlled Substances Act for the States. I have worked with the National Conference of State Legislatures, many state regulatory agencies, and the Federation of State Medical Boards of the U.S. All of these efforts have been devoted to achieving a ''balanced'' drug control policy which is envisioned by the United Nations Single Convention on Narcotic Drugs, 1961, i.e., a policy which prevents the abuse of drugs without interfering with their medical use, in particular for the relief of pain and suffering.
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Mr. Chairman, it is essential for all of the parties who are interested in the subject of this hearing to be aware of what the CSA is intended to do, and what it is intended to avoid. The CSA is an anti-drug abuse, law enforcement statute, administered by the Attorney General (AG). On the other hand, the Congress in 1970 spelled out as fundamental principles that define the relation of the CSA to medical and scientific decisions, to the Federal Food, Drug and Cosmetic Act (FFDCA), and to State laws.
(1) Medical and scientific decisions. The Congress decided in 1970 that medical and scientific decisions, such as those relating to the evaluation of drugs being placed in the schedules of the CSA, are the responsibility of the Secretary of the Department of Health and Human Services (DHHS), not the AG (See Section 811.(b) of the CSA). This fundamental principle, referred to as ''balance,'' was established in the course of vigorous and extended debate over a Department of Justice bill that, as proposed, would have given the AG exclusive power to make decisions of a medical and scientific nature.(see footnote 5) Congress appropriately rejected this approach. A variety of medical and scientific organizations were very much involved in helping to ensure that the CSA conveys a balanced policy; this policy has endured to this day.
(2) Relation of the CSA to the Federal Food, Drug and Cosmetic Act. The 1970 Congress determined a second fundamental principle, that the CSA is not to ''be construed as in any way affecting . . . the provisions of the Federal Food, Drug and Cosmetic Act'' (See Section 902). Mr. Chairman, it is extremely important that it is under authority of FFDCA, not the CSA, that drugs are approved as safe and effective for medical use, so that they can be marketed lawfully in interstate commerce. It is under the FFDCA, not the CSA, that drugs are scientifically evaluated and approved for various uses. Many opioids have been approved for treatment of pain, diarrhea, and cough. The fact that opioids are also controlled under the CSA does not affect their status as drugs that are legal to be prescribed by physicians. In addition, agency and court decisions have made it clear that although the Food and Drug Administration (FDA) approves drugs for marketing, it does not regulate medical practice, which is left to the States.(see footnote 6) It is true that there is a difference between legal and illegal drugs in the schedules of the CSA (i.e., the difference between schedule I and schedules II–V), but this difference is determined primarily by whether a drug is approved under the FFDCA as having an accepted medical use. Therefore, we should not expect to use the CSA to achieve recognition of the legal uses of drugs.
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(3) Relation of the CSA to State laws. The third fundamental principle that was adopted by the Congress in 1970 is that the CSA is not intended to occupy areas of State laws which are within the authority of the States. This principle is stated in the CSA:
''No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.'' (CSA, 1970, Section 903).
Without commenting on the matter of physician-assisted suicide itself, I think it is extraordinary to single out States with controversial policies on important societal issues, issues which are nevertheless within their authority, and then, because there is an (albeit tenuous) relation to the use of controlled substances, amend the CSA to contravene the policy of that State. This process would effectively overturn one of the fundamental principles of the relation between the federal government and the States.
Mr. Chairman, against the context of the foregoing fundamental principles which limit the scope of the CSA, I offer a few additional observations:
(1) Opioids are legal, under the FFDCA. H.R. 2260 states that opioids can be used in the treatment of pain. We already know that the use of opioids is legal for pain management under the appropriate federal statute, the FFDCA. If Congress starts using the CSA to state what is illegal, and also legal, we are ignoring one of the fundamental principles, and may set a precedent so that in the future you may be requested to consider legislation from various groups to clarify that controlled substances may also be used for diarrhea and cough, and for anxiety and Attention-Deficit Disorder (ADD).
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(2) DEA has already clarified the use of opioids for pain. The DEA has made it perfectly clear in a 1974 regulation that nothing in the CSA precludes practitioners from providing opioids for intractable pain.(see footnote 7) DEA reemphasized this point again in its 1990 Physicians Manual, encouraging physicians to prescribe opioids when they are needed:(see footnote 8)
''Controlled substances and, in particular, narcotic analgesics, may be used in the treatment of pain experienced by a patient with a terminal illness or chronic disorder. These drugs have a legitimate clinical use and the physician should not hesitate to prescribe, dispense or administer them when they are indicated for a legitimate medical purpose. It is the position of the Drug Enforcement Administration that these controlled substances should be prescribed, dispensed or administered when there is a legitimate medical need.'' (DEA, 1990, p. 21)
Further, DEA representatives are to be commended for their willingness to speak at pain conferences around the U.S.; the DEA, as well as major pain organizations, have also endorsed a new Model Guideline(see footnote 9) on the use of controlled substances for pain which we helped to draft; further, DEA has intimated that it is about to publish in the federal register a new statement that encourages the use of controlled substances for the treatment of pain.
(3) Defining appropriate medical uses in statute is a dangerous precedent. What about other uses of controlled substances—for diarrhea and cough, for ADD, for dyspnea and other symptom control? Will you have to consider legislation proposed by various medical groups to clarify other uses of controlled substances?
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(4) What will the new DEA regulations say? H.R. 2260 at line 9 clearly contemplates that the AG/DEA may promulgate ''regulations to implement this Act.'' Will the regulations (a) specify what is meant by the two conditions under which prescribing for pain management is legal (see lines 11–14), or (b) specify how the agency will decide what is meant by ''even if the use of such a substance may increase the risk of death'' (see lines 14–15) as distinguished from ''intentional dispensing for the purpose of causing death?'' (See lines 15–19). Apart from the inherent difficulty in determining a physician's intention, a recent review showed the notion that opioids hasten death to be more myth than fact.(see footnote 10) Given that H.R. 2260 allows for DEA regulations in connection with new language about pain, hastening death and assisted suicide, it seems likely that the Attorney General and the DEA would be faced with decisions involving medicine and science, in direct conflict with the first fundamental principle.
(5) The potential for a chilling effect. Mr. Chairman, I would like to close with the following point. I make the assumption that this Committee and the other witnesses fully accept that pain is not adequately managed in this country, and further, that this is due, in part, to the under-use of opioid analgesics, especially, but not only, for people at the end of life. There are many reasons for this situation. One of the reasons for inadequate pain management, and what prompted me to accept your invitation to be here today, is that while many physicians still do not have sufficient knowledge about pain management, they also fear being investigated if they prescribe 'too much.' The root causes of these fears are intertwined with how drug control policy has developed in this country. The solution to the problem depends upon achieving and communicating a balanced controlled substances policy that is also understood by regulators and practitioners. I fear that the amendments to the CSA proposed in H.R. 2260 seriously upset a balance the 1970 Congress established, and which many of us have been working to achieve. I could cite a litany of historical treatises and studies to convince you that this fear exists; instead, I will name some of the organizations that have recognized that physicians' fears of regulatory scrutiny affect their use of controlled substances for pain management:
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The American Academy of Pain Medicine
The American Pain Society
The Federation of State Medical Boards of the U.S.
The Medical Board of California
The National Academy of Sciences, Institute of Medicine
The National Conference of Commissioners on Uniform State Laws
The National Conference of State Legislatures
The State Cancer Pain Initiatives
Finally, Section 102 would establish an education and training program for law enforcement officials. I think that such training could be very valuable. Indeed, we have conducted eleven workshops on pain management in a regulated environment for state medical board members with support from the Robert Wood Johnson Foundation and the Advocates for Childrens' Pain Relief. One of the risks however is that such a program might digress into discussion of drug abuse rather than pain management and palliative care, and possibly result in more second-guessing of medical judgements. While it is quite positive that Section 102 specifies that the AG should incorporate the recommendations of the Secretary of the DHHS, I would suggest that the Subcommittee go further to specify that the content of such education and training, in accordance with the fundamental principle, be established by the Secretary, in consultation with the AG.
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Mr. Chairman, I thank you and the members of the Subcommittee for this opportunity to testify. In sum, it appears that H.R. 2260 challenges three fundamental principles that limit the scope of the CSA, thereby unbalancing drug control policy at a time when the opposite is needed. I would urge the Subcommittee to pursue other measures that could more directly address the root causes of inadequate pain management, for all stages of life, without disturbing the sensitive balance that is needed in controlled substances policy. I am happy to take questions or provide further information.
Note: Pursuant to the Committee's instructions to witnesses, I do not have and have not had for two years any involvement with federal grants, and I am not representing any other party at this hearing.
SELECTED BIBLIOGRAPHY
Alpers A. Criminal act or palliative care? Prosecutions involving the care of the dying. The Journal of Law, Medicine & Ethics. 1998; 26:308–331.
Fohr SA. The double effect of pain medication: Separating myth from reality. The Journal of Palliative Medicine. 1998;1(4):315–328.
Joranson DE. Federal and state regulation of opioids. Journal of Pain and Symptom Management. 1990;5(Suppl):12–23.
Joranson DE. A new drug law for the states: An opportunity to affirm the role of opioids in cancer pain relief. Journal of Pain and Symptom Management, 1990;5(5):333–336.
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Joranson DE, Gilson AM. Controlled substances, medical practice, and the law. In: Schwartz HI, ed. Psychiatric Practice Under Fire: The Influence of Government, the Media, and Special Interests on Somatic Therapies. Washington, DC: American Psychiatric Press, 1994:173–194.
Joranson DE, Gilson AM. Improving pain management through policy making and education for medical regulators. The Journal of Law, Medicine & Ethics. 1996;24(4):344–347.
Joranson DE, Gilson AM. Controlled substances and pain management: A new focus for state medical boards. Federation Bulletin: The Journal of Medical Licensure and Discipline. 1998;85(2):78–83.
Martino AM. In search of a new ethic for treating patients with chronic pain: What can medical boards do? The Journal of Law, Medicine & Ethics. 1998;26:332–349.
Musto DF. The American Disease: Origins of Narcotic Control. 3rd ed. New York, NY: Oxford University Press, 1999.
Von Roenn JH, Cleeland CS, Gonin R, Hatfield AK, Pandya KJ. Physician attitudes and practice in cancer pain management: A survey from the Eastern Cooperative Oncology Group. Annals of Internal Medicine. 1993;119:121–126.
Weissman DE. Doctors, opioids, and the law: The effect of controlled substances regulations on cancer pain management. Seminars in Oncology. 1993;20(2 Suppl 1):53–58.
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Mr. HYDE. Thank you, Mr. Joranson. Now, Mr. Doerflinger.
STATEMENT OF RICHARD DOERFLINGER, ASSOCIATE DIRECTOR FOR POLICY DEVELOPMENT, SECRETARIAT FOR PRO-LIFE ACTIVITIES, NATIONAL CONFERENCE OF CATHOLIC BISHOPS
Mr. DOERFLINGER. Thank you, Mr. Chairman. The Catholic Bishops of the United States strongly support the Pain Relief Promotion Act of 1999, because it will serve two important purposes. First, it will correct a seriously flawed 1998 ruling by U.S. Attorney General Janet Reno, which authorizes the use of federally regulated drugs to assist vulnerable patients' suicides wherever the practice is permitted by State law. I think that point is important to make. People are imagining that somehow Congress is moving into an area for the first time. What this bill will do is get the Federal Government out of the business of actively condoning and promoting assisted suicides in Oregon using federally regulated drugs.
The second purpose of this legislation is to promote, and to provide Federal funding for training in, the legitimate use of these same drugs to relieve pain and other distressing symptoms, especially for patients who are terminally ill. And we certainly have a consensus on this panel that more of that is very much needed.
In our view, these two goals are both important, and they are closely related to one another. Terminally ill patients deserve better pain control precisely because they have the same innate worth and dignity as everyone else and are in special need of our love and support. When a society singles out these patients as candidates for physician-assisted suicide, it denies the values of their very lives, and thereby undermines respect for them as human beings, including their need for the best possible palliative care. When we accept assisted suicide as a ''good enough'' solution for these patients' problems, we preach a counsel of despair to all the terminally ill. We tell them we find it easier to kill them than to find ways to kill their pain.
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In our view, then, the two titles of this bill are both important, and they support each other. I would like to comment on title I, because it is most directly under the jurisdiction of this committee and because some statements have been made about it that I think are extremely misplaced. Mr. Joranson has said that this act usurps activities that are most appropriately under the jurisdiction of HHS or of the FDA or of the States. I think that is mistaken on all fronts; let me tell you why.
It is the job of HHS to determine what is medical practice in the United States within the meaning of this Federal law. To quote the Controlled Substances Act, one of the purposes of the act is to ensure that nothing in the international convention on psychotropic substances will interfere with ''ethical medical practice in this country as determined by the Secretary of Health and Human Services on the basis of a consensus of the views of the American medical and scientific community.'' But those judgments have been made. HHS has made its judgment about assisted suicide by forbidding any use of its funds, its employees, or its facilities in Medicaid and Medicare and the VA, anywhere, to accept assisted suicide as medical practice. The judgment has been made, and the judgment of the American medical profession has been made. In their Supreme Court brief 2 years ago, the American Medical Association, the American Nurses Association, the American Psychiatric Association, and dozens of other medical organizations said that assisted suicide simply is not medical practice. Their exact on assisted suicide were that ''to assist in intentionally taking the life of a patient is antithetical to the central mission of healing that guides both medicine and nursing.'' Oregon has said that this practice, which is a crime virtually everywhere else, which is not medicine at all, has somehow become legitimate medical practice, because Oregon has dropped its State penalties for the practices in certain circumstances.
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Which brings me to the relationship with State law. It has certainly never been true since 1984, when the Controlled Substances Act was amended by Congress, that this Federal act slavishly follows what States may view as a practitioner's ability to handle federally regulated drugs. To quote just one case among many—and I cite many others in the documentation attached to my testimony—''The Administrator cannot and will not in all cases rely on State authorities to monitor and regulate a registrant holding a DEA controlled substances registration where there is evidence that the registrant has violated Federal law and has demonstrated conduct which may further threaten the public health and safety. ''Since 1984, the Federal law has been based on its own objective standard of protecting patients' health and safety even in cases where a doctor has not violated State law, and to be clear about this, the penalty in the vast majority of cases is simply to revoke that registrant's Federal DEA registration.'' He or she may still have State medical license, but that is a separate consideration based on separate standards. All that this act does in regard to assisted suicide is to restore the balance that always existed between Federal and State law and to correct an aberration in the law introduced by the Attorney General.
Finally, the FDA. The FDA tells you which drugs may be safe and effective for medical use. But once the FDA has allowed a drug to be used, it is the DEA, that is, the Controlled Substances Act, that determines whether a registrant is using that drug for a legitimate medical purpose or for something which is not a real medical purpose that is a danger to health and safety. And I believe the consensus in Congress, HHS, and the medical profession is that assisted suicide simply is not a support for health and safety but that the legitimate use of these drugs for pain control is. There is a very great need, even at the statutory level, to reaffirm that legitimate use of drugs for pain control, because there is a great deal of misunderstanding which can be responded to by statutory language as well as by new training for law enforcement and for medical personnel.
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In every case where the Federal Government or a State has passed new legislation against assisted suicide but also made the distinction, based on the principle of double effect, between legitimate pain control and deliberately killing your patient, palliative care has improved, and there is a great deal of evidence on that in my testimony as well.
Thank you very much, Mr. Chairman. We strongly support your act. We hope it will be swiftly enacted.
[The prepared statement of Mr. Doerflinger follows:]
PREPARED STATEMENT OF RICHARD DOERFLINGER, ASSOCIATE DIRECTOR FOR POLICY DEVELOPMENT, SECRETARIAT FOR PRO-LIFE ACTIVITIES, NATIONAL CONFERENCE OF CATHOLIC BISHOPS
I am Richard M. Doerflinger, Associate Director for Policy Development at the Secretariat for Pro-Life Activities, National Conference of Catholic Bishops. I am also an Adjunct Fellow in Bioethics and Public Policy at the National Catholic Bioethics Center in Boston.
The Catholic bishops of the United States strongly support the Pain Relief Promotion Act of 1999 (H.R. 2260). We believe that swift enactment of this legislation is needed for two purposes: (1) to correct a seriously flawed 1998 ruling by U.S. Attorney General Janet Reno, which authorizes the use of federally regulated drugs to assist vulnerable patients' suicides wherever the practice is permitted by state law; and (2) to promote the legitimate use of these drugs to relieve pain and other distressing symptoms, especially for patients who are terminally ill.
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In our view, these two goals are both important, and are closely related. Terminally ill patients deserve better pain control precisely because they have the same innate worth and dignity as all other human beings and are in special need of our love and support. When a society singles out these patients as candidates for physician-assisted suicide, it denies the value of their very lives, and thereby undermines respect for their dignity and their legitimate needs—including their need for the best possible palliative care.
When we accept assisted suicide as a ''good enough'' solution for these patients, we preach a counsel of despair to all terminally ill patients. We tell them that we find it easier to kill them than to find ways to kill their pain. By rejecting the ''quick fix'' of assisted suicide, however, we reaffirm to ourselves and to the medical profession that these patients have lives worth living, and that they deserve real solutions for the pain, depression and isolation that they may experience.
In our view, then, the two titles of this bill—one clarifying federal law on the use of controlled substances, the other providing federal support for training in palliative care—serve the same goal of promoting genuine supportive care for some of our most vulnerable citizens. Because the bill's palliative care provisions in Title II will be discussed by experts in medicine and hospice care at this hearing, and receive further attention from the House Commerce Committee, I would like to focus on the urgent need to enact Title I, clarifying the Controlled Substances Act.
THE NEED TO CLARIFY THE CONTROLLED SUBSTANCES ACT
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On June 5, 1998, contradicting an earlier determination by her own Drug Enforcement Administration, U.S. Attorney General Janet Reno ruled that the state of Oregon, by rescinding its own penalties for assisting the suicides of certain patients, had effectively succeeded in unilaterally amending federal drug laws as well. According to the Attorney General, Oregon's law had established assisted suicide as a ''legitimate medical practice'' within Oregon's borders—and the federal government lacked any basis for disagreeing with this judgment. Under this ruling, however, federal intervention by the Drug Enforcement Administration (DEA) ''may well be warranted'' in other states—and is warranted even in Oregon, when a physician ''fails to comply with state procedures'' regarding how and when to assist suicides. Federal law will protect the lives only of those still deemed by the state to deserve suicide prevention, instead of suicide assistance.
Thus Attorney General Reno's ruling requires the federal government to ratify Oregon's assisted suicide policy—and to help implement it, by licensing physicians to prescribe and distribute federally regulated drugs for the required lethal overdoses. This is not only morally wrong—it directly contradicts everything that Congress and federal agencies have ever said about terminally ill patients and assisted suicide:
Current federal policy demands an increased penalty when the victim of a crime is seriously ill or otherwise ''unusually vulnerable.''(see footnote 11) Yet in Oregon, it is now the U.S. Justice Department's policy that the serious illness of the victim transforms a crime into a ''legitimate'' medical procedure, so that it is no crime or offense at all. Oregon's discriminatory policy, which stigmatizes an entire class of patients and denies them the equal protection of the law, has effectively been ratified by federal administrative fiat.(see footnote 12)
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As the U.S. Supreme Court noted in its 1997 rulings on assisted suicide, it is a longstanding policy under the federal drug laws ''to protect the terminally ill, no less than other patients,'' from potentially lethal drugs.(see footnote 13) Yet in Oregon this policy is now turned on its head, so that federal prescribing licenses are used precisely for the purpose of facilitating lethal overdoses for the terminally ill.
In 1997, Congress almost unanimously approved the Assisted Suicide Funding Restriction Act (42 U.S.C. §14401 et seq.) to ensure that federal funds, health facilities and health programs are not used for assisted suicide or euthanasia. Signing this bill into law, President Clinton said it ''will allow the Federal Government to speak with a clear voice in opposing these practices''; he warned that ''to endorse assisted suicide would set us on a disturbing and perhaps dangerous path.'' Yet an important federal statutory scheme, designed to ensure that potentially dangerous drugs are used only to promote patients' health, is now being used to condone and facilitate assisted suicide.
The Attorney General's ruling is especially indefensible as an interpretation of the Controlled Substances Act (CSA). Nothing in that Act indicates that an individual state, by dropping its own state penalties for a form of manslaughter, can convert such killing into a ''legitimate medical purpose'' for the use of federally controlled drugs within the meaning of the federal Act. Indeed, any ''states' rights'' argument on this issue is contradicted by the plain language and intent of the CSA. Provisions to ensure that narcotics and other dangerous drugs are used solely for a ''legitimate medical purpose'' (21 C.F.R. §1306.04), and are never used to endanger ''public health and safety'' (21 U.S.C. §823(b)(5)), have been included in this Act and its implementing regulations precisely to establish a uniform federal standard that would not rely on the vagaries of individual state laws.(see footnote 14)
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A clear and explicit purpose of such provisions was to prevent the use of federally regulated drugs for lethal overdoses, not only their use for addiction. Obviously, using drugs to cause people's deaths is an even greater threat to health and safety than using them to feed an addiction.
Current enforcement of the CSA reflects this understanding. In the past, physicians have had their DEA registrations revoked for giving dangerous drugs to patients who then used them to commit suicide (see, e.g., the case of Dr. Hugh Schade, reported at 60 Fed. Reg. 56354 [Nov. 8, 1995]). Some practitioners have lost their registrations in such cases even for negligently giving these drugs to patients who they should have known might use them for suicide.(see footnote 15)
Such enforcement has often relied on the separate federal policy of protecting patients' health and safety, quite aside from whether a practitioner has violated state criminal laws or even state medical licensing standards. Especially since the CSA was clarified and strengthened in 1984, ''state licensure is a necessary but not sufficient condition for DEA registration'' (63 Fed. Reg. 8479 [Feb. 19, 1998]). By the same token, revoking a DEA registration does not imply that a physician will lose his or her state medical license or has violated state law.(see footnote 16)
To reaffirm this longstanding and consistent federal policy that all citizens, including the terminally ill, deserve protection from the lethal misuse of potentially dangerous drugs, new legislation is needed and long overdue.
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CHOOSING THE MEANS: NEW FEATURES OF H.R. 2260
In 1998 legislation was introduced to correct the Attorney General's legal error. The Lethal Drug Abuse Prevention Act (H.R. 4006, S. 2151) was approved by House and Senate Judiciary Committees, but was opposed by many medical groups who claimed it would have an adverse effect on physicians' ability or willingness to prescribe controlled substances for pain relief. This year's Pain Relief Promotion Act addresses these concerns in the following ways:
1. In order to correct the anomaly the Attorney General has created in the way federal law is enforced in Oregon, last year's legislation established a new substantive policy against the use of controlled substances for assisted suicide throughout the 50 states. Critics feared that this explicit new authority might be taken as giving the DEA a new mandate to question and scrutinize physicians' medical decisions in order to detect assisted suicides.(see footnote 17) H.R. 2260 is based on a recognition that no new authority of this kind is needed. The Attorney General herself has acknowledged that the DEA already has authority to prevent the misuse of controlled substances for assisted suicide in every state except Oregon (and even has that authority in Oregon, when an assisted suicide does not comply with all the state's guidelines). The only new explicit statement on this issue in H.R. 2260 is that a state, by enacting a law permitting assisted suicide, does not succeed in changing the separate federal standard that already applies to all other states—in other words, a law like Oregon's has no ''force and effect'' in determining whether a practitioner has violated separate federal standards for protecting patients' health and safety.
2. Last year's bill gave priority to stating a new policy against assisted suicide, then explained that this policy does not forbid the legitimate use of controlled substances to control pain. In H.R. 2260 the emphasis is reversed: It contains a forthright and explicit declaration on the legitimacy of using controlled substances to control pain, then adds that this and other policy statements in the relevant section of the CSA do not authorize the use of controlled substances for assisted suicide.
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3. H.R. 2260 contains a new mandate that the DEA's continuing education programs for federal, state and local law enforcement personnel include education in how their enforcement procedures can better accommodate the legitimate medical use of controlled substances for pain relief. Combined with the Title II provisions supporting education and training in palliative care for health professionals, this provision underscores the federal policy that pain control is an important and legitimate purpose for the use of federally regulated drugs—a policy that has never before been so explicitly stated in federal statutes.
The Pain Relief Promotion Act is carefully tailored to clarify federal law on assisted suicide only to the minimum degree needed to correct the Attorney General's ruling, so that the federal government will no longer actively facilitate assisted suicide in any state that has legalized the practice. It does not give new enforcement authority to the DEA, and does not change the law at all in the vast majority of states—except to give new emphasis to the legitimate use of federally regulated drugs to control pain.
KILLING PAIN VS. KILLING PATIENTS
Because the relationship between optimal pain management and physician-assisted suicide is central to this legislative debate, the difference—we would say, the contradiction—between the two practices is worth further comment.
The medical profession has long recognized that efforts to control pain using powerful drugs may sometimes have side-effects. Very rarely, controlling pain in dying patients may require the use of such large doses of drugs that the patient's breathing reflex may be suppressed and the dying process hastened. The physician's intent in these cases, however, is to use the minimum dosage needed to control the pain; any risk of hastening death is not intended, but is foreseen as the unavoidable side-effect of a legitimate medical action.(see footnote 18)
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This principle of double effect is not especially obscure. The difference between consequences which are intended, and those which are only foreseen, is part of everyday life. As one federal appellate judge has observed, when General Eisenhower gave the order for D-Day he knew many American soldiers would die as a result—but that does not mean he murdered them.(see footnote 19) Conversely, when King David ordered Uriah the Hittite to the front line of battle, then called back his other men so Uriah would be killed, he murdered him as surely as if he had wielded the weapon himself (2 Sm 11: 15–17).
The important factor here is the agent's intent—what am I trying to achieve by this action? The goal of pain control is a patient who is relieved of pain. The goal of assisted suicide is a world that is relieved of one more patient. And this difference of purpose is reflected in the different ways drugs are used in the two practices. Pain control requires carefully titrating drugs to the point where pain is relieved with a minimum of side-effects; assisted suicide generally requires one sudden and massive dose of drugs, to make sure that the patient does not have time to build up any resistance to the drugs' lethal effects.
The euthanasia movement has tried to obscure this difference for its own narrow purposes. Jack Kevorkian claimed in his assisted suicide and murder trials that he was only trying to end ''suffering,'' though the means he used had no analgesic properties. Assisted suicide supporters filed many briefs with the U.S. Supreme Court two years ago, claiming that pain control and assisted suicide were practically indistinguishable. They lost this debate. As the Supreme Court has said:
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[A] physician who withdraws, or honors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes and ''to cease doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them.'' Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 368 (1996) (testimony of Dr. Leon R. Kass). The same is true when a doctor provides aggressive palliative care; in some cases, painkilling 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.'' Id., at 367. Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. . . .
Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently.(see footnote 20)
Since November 1994, when Oregon first approved its law allowing physician-assisted suicide, all other states discussing the issue have reaffirmed this distinction. No state has followed Oregon's lead; several have passed new laws against assisted suicide, including provisions to emphasize the distinction between assisted suicide and pain control.(see footnote 21)
What has happened to pain control in states enacting new bans, and in states that have rejected proposals to legalize assisted suicide? Time after time, actions to ban assisted suicide or to reaffirm existing bans have been followed by advances and improvements in pain control:
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When Rhode Island considered a new ban on assisted suicide in 1996, the state medical society objected that such a ban would have an adverse effect on physicians' willingness to use drugs like morphine for aggressive pain control.(see footnote 22) But in fact, the opposite happened. In the year following enactment of the ban, according to official figures from the DEA, Rhode Island more than doubled its per capita use of morphine for pain control, rising from 46th among the states to 19th in morphine use. A similar, though less startling, improvement was seen in Iowa after its ban was enacted the same year.
The year after President Clinton signed the Assisted Suicide Funding Restriction Act, banning assisted suicide in all federal health facilities, advocates for palliative care reported that the Veterans Administration health care system had ''made improving the quality of its end-of-life care a top priority'' and implemented many positive changes in this field.(see footnote 23)
After a legalization measure was defeated by popular referendum in 1991, the Washington State Medical Association issued its first handbook ever for rank-and-file physicians on palliative care for dying patients. California's 1992 debate on a legalization measure, also defeated by popular vote, was the catalyst for a 1994 ''Summit on Effective Pain Management'' convened by the governor's office, which led to new policy changes to facilitate the prescribing of controlled substances for pain control (e.g., a new 1998 law ending the practice of triplicate prescription forms). Similarly, after Michigan enacted its ban on assisted suicide in 1998 it proceeded to enact several new laws to encourage physicians to practice effective pain control.
There is ample evidence for the observation, made by the American Medical Association and dozens of other medical groups in their 1997 Supreme Court brief in Quill, that ''the prohibition on physician-assisted suicide provides health care professionals with a tremendous incentive to improve and expand the availability of palliative care.''(see footnote 24)
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By the same token, as the National Hospice Organization noted in its brief in the same case, ''the acceptance of assisted suicide as a way to deal with terminal illness would undercut further efforts to increase the public's awareness of hospice as a life-affirming option.''(see footnote 25) As Supreme Court Justice Breyer noted during oral argument in these cases, we have certainly seen this in the Netherlands, where hospice care is woefully underdeveloped: that country, which permits assisted suicide, had only three palliative care centers, compared with 185 in England which prohibits assisted suicide.(see footnote 26)
Some may claim that Oregon is an exception to this rule, that legalization has actually led to great improvements in hospice and palliative care. But those claims are misleading and exaggerated, for the following reasons:
Oregon was a leader in palliative care long before legalization, and almost all the alleged improvements took place before the new law took effect in the fall of 1997. Many of these improvements were made by Catholic and other organizations seeking to ensure that patients would not be railroaded into assisted suicide once the objectionable law took effect.
Many similar improvements have occurred in states which have passed new bans on the practice, or simply debated and then defeated legalization measures. It is the debate itself that often focuses lawmakers' and physicians' attention on the need to improve palliative care.
Whatever brief incentive this debate may have created for improving care of the dying in Oregon now seems to be giving way to a more ominous trend. The state of Oregon has begun to provide public funding for assisted suicide, while cutting back on access to some pain control drugs and other treatments for terminally ill patients; the same trend has been observed among private health insurers in the state.(see footnote 27)
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The DEA's figures on per capita use of morphine may be instructive in this regard. Oregon has always ranked among the top states in such use, coming in 3rd in 1992 (two years before its legalization proposal was first approved). It rose to 2nd place in 1996, when the measure was still enjoined and assisted suicide was still illegal. Briefly it rose to 1st place in the first quarter of 1998, a time when Oregon physicians publicly said they were ''chilled'' in their ability to assist suicides due to the threat of adverse action from the DEA. But during the three months following Attorney General Reno's announcement that the DEA would allow use of federally regulated drugs for assisted suicides in Oregon, the state declined to 7th place—falling behind West Virginia, Tennessee, Vermont, Nevada, New Hampshire and Missouri.(see footnote 28) Preliminary data for the first quarter of 1999 show Oregon in first place again, but with slightly lower per capita use of morphine than in the final months of 1998 when a federal bill to reassert DEA authority against assisted suicide in Oregon was pending; all the other states in the top seven prohibit assisted suicide, and two of these (Kansas and Louisiana) have enacted or strengthened their statutory bans in recent years. These data do not provide any clear support for the claim that legalizing assisted suicide encourages the use of drugs for pain control; they certainly disprove the claim that prohibiting assisted suicide discourages pain control.
CONCLUSION
H.R. 2260 supports and promotes palliative care as an integral part of good health care. It also helps prevent federal support for a practice that is ultimately the enemy of good palliative care—the deliberate use of medications to pervert the goals of medicine and deliberately help cause patients' deaths. For both these reasons it deserves support and swift enactment.
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LEGISLATIVE HISTORY OF FEDERAL DRUG LAW SUPPORTS AUTHORITY TO ACT AGAINST PHYSICIAN-ASSISTED SUICIDE
The Controlled Substances Act of 1970 was amended in 1984 to strengthen the Drug Enforcement Administration's ability to prevent diversion of federally regulated prescription drugs for illicit purposes. The amendments were approved by the U.S. Senate 91-to-1 on February 2, 1984 as part of a Comprehensive Crime Control Act (S. 1762). Almost identical language was approved by the House 392-to-1 as a free-standing ''Dangerous Drug Diversion Control Act of 1984'' (H.R. 5656) on September 18, 1984. The House and Senate versions were reconciled and ultimately approved as part of H.J. Res. 648, a continuing resolution which became law on October 12, 1984 (P.L. 98–473).
This legislative background helps answer some questions raised about the federal government's authority to apply this federal law against physicians who prescribe controlled substances to assist suicides:
Was the federal law directed primarily against street drugs like heroin and cocaine?
No, the 1984 amendments were directed specifically against the misuse or ''diversion'' of federally regulated prescription drugs which have a legitimate medical use. The prime House sponsor said this had become a more serious problem in some ways than street drugs but had ''failed to get the societal or the enforcement attention that it deserves'' (Rep. Hughes, Cong. Record, 9/18/84, H9679).
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Was the law directed against physicians?
Yes, though not exclusively. ''The bill gives to DEA greater latitude to suspend or revoke the registration of a practitioner who dispenses drugs in a manner that threatens the public health and safety'' (Id.). As the chairman of the House Commerce Subcommittee on Health and the Environment said at the subcommittee hearing on this bill: ''Today's pusher is not always a back alley salesman. He or she may well be a highly educated health professional'' (Rep. Waxman, Hearing of July 31, 1984, Hearing Record No. 98–168, p. 365). There were also provisions directed at manufacturers and pharmacists.
Was the law directed against addiction, or against the use of drugs to cause death?
The chief concern cited was their potential to cause physical harm and death. Sponsors cited a government study indicating that ''prescription drugs are responsible for close to 70 percent of the deaths and injuries due to drug abuse'' (Rep. Hughes, Cong. Record, 9/18/84, H9679). The chairman of the Health subcommittee in the House agreed: ''Drugs legally manufactured for use in medicine are responsible for a substantial majority of drug-related deaths and injuries'' (Rep. Waxman, Hearing Record No. 98–168, op. cit., p. 365) One sponsor used the example of an opiate widely used as a pain-killer, saying: ''Because these pills have an even greater potential for physical injury and danger, they involve more than half of the hospital entries for illegal use and overdose of drugs'' (Rep. Sawyer, Cong. Record, 9/18/84, H9680).
Was the law designed to defer to states' judgments on the proper medical use of drugs?
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On the contrary: It was designed to give the DEA more independent authority to revoke a physician's registration in cases where a state refused to intervene. The 1984 amendments authorized the DEA to revoke a physician's registration if it deems that registration to be ''inconsistent with the public interest'' (in cases where, for example, revoking registration will serve ''public health and safety''). As Rep. Charles Rangel said in support of the amendments: ''Under current law, the DEA must register physicians, pharmacies, or other practitioners if they are authorized to dispense drugs by the law of the State in which they practice. . . . The public interest standard added by H.R. 5656 will provide greater flexibility to deny or revoke registrations in the most egregious cases'' (Cong. Record, 9/18/84, H9682). (When a law is enacted to prevent prescription drugs from being used for lethal overdoses, there is nothing more egregious than a physician who intentionally dispenses drugs for such overdoses.) Prime Senate sponsor Strom Thurmond spoke similarly, saying that this provision ''expands the standards for practitioner registration beyond the current exclusive reliance upon authorization by the practitioner's own jurisdiction'' (Cong. Record, 2/2/84, S758). Sponsors said giving such flexibility to the federal government was necessary because states often did not respond adequately to these abuses: ''State policing of these activities, as well as peer review within the profession, have not been adequate control measures. State laws regarding the dispensing of controlled substances are also inadequate'' (Rep. Fish, Cong. Record, 9/18/84, H9680). At a hearing before the House Commerce Subcommittee on Health and the Environment, the DEA called the expanded federal authority to revoke practitioner registration ''one of the most important sections of the bill,'' not only because states were often ill-equipped to enforce their own drug laws but also because ''many controlled drug violations involving prescription drugs are not felonies under state law and therefore cannot be used in a DEA revocation action'' under then-existing law (Testimony of Gene R. Haislip, Deputy Assistant Administrator, Drug Enforcement Administration, Hearing Record No. 98–168, p. 404). Congress's view was that while the states are the first line of defense against misuse of prescription drugs, the federal government must enforce its own objective standard as to what constitutes such misuse—and it must have the authority to enforce that standard when a state cannot or will not do so.
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In light of this history, it cannot be maintained that the Controlled Substances Act as it exists today was directed only against professional drug traffickers rather than physicians, or only against addiction rather than lethal drug overdoses, or only against physicians who violate state laws. Independent federal authority to enforce federal drug standards was intended to apply to ''Schedule II'' prescription drugs like barbiturates or morphine as much as to ''Schedule I'' drugs like marijuana or cocaine—most especially when such drugs are being used to cause death.
3/10/98
PAST CASES SHOW DEA AUTHORITY TO ACT AGAINST ASSISTED SUICIDE
Currently, practitioners run afoul of the federal Controlled Substances Act if their actions cause or contribute to the use of federally regulated drugs for fatal or near-fatal overdoses. In one recent case, a doctor was denied a DEA registration because he gave potentially lethal drugs to a depressed patient who he should have known might well use them for suicide. The following list of cases from the Federal Register is far from exhaustive:
1. 60 FR 56354 (Nov. 8, 1995): Case of Dr. Hugh Schade: The doctor was negligent because he gave potentially lethal amounts of Darvocet to a depressed patient who used them to commit suicide. Giving these drugs to a patient in this mental state, said one expert witness, was ''like handing him a loaded gun.'' While Dr. Schade was also convicted of negligent homicide under state law because of this case, his DEA application was denied not on the basis that he had violated a state law [21 USC §823(f)(3)], but on the separate basis that his conduct objectively threatened ''public health and safety'' [21 USC §823(f)(5)].
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2. 62 FR 16189 (April 4, 1997): Case of Dr. Jose R. Castro: Here a patient died of a drug overdose using controlled substances which the doctor prescribed ''for no legitimate medical reason.'' The doctor had lost his state license to prescribe controlled substances on this basis, so it was automatic that he lost his federal registration as well; there was no need to apply the ''public health and safety'' standard independently.
3. 49 FR 6577 (February 22, 1984): Case of Dr. Samuel Fertig: A physician was denied a DEA registration because he had prescribed massive quantities of controlled substances to several young people who used them in lethal overdoses. Acknowledging that the physician had been restored to full medical licensure in his state, the DEA Administrator nonetheless ruled that the physician ''was responsible, directly or indirectly, for the deaths of several young people'' (49 FR at 6579) and hence that the application must be denied to protect ''public health and safety.''
4. 63 FR 8477 (February 19, 1998): Case of Townwood Pharmacy: A woman reported to the DEA that her daughter, who had a drug problem, had overdosed several times using drugs from this pharmacy. From the notice it is clear that if this was proved, it would have counted against the pharmacy under the ''public health and safety'' standard; but there was no clear evidence that the woman obtained the drugs from this pharmacy. The pharmacy's registration was revoked on other grounds.
5. 55 FR 5306 (Feb. 14, 1990): Case of Dr. Murray J. Walker, Jr.: This physician prescribed Percodan for non-medical purposes to several people; one woman died of a drug overdose. Her boyfriend then cooperated with investigators because he believed the physician ''was responsible for the woman's death'' (55 FR at 5306). In revoking the physician's registration the DEA noted: ''Substances are controlled because they are potentially dangerous and therefore should be handled with extreme care. Respondent has failed to exercise such care and, as a result, has ignored his duties as a health care professional to protect the public health and safety from the illicit use of these drugs'' (Id. at 5307).
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6. 55 FR 4250 (February 7, 1990): Case of Dr. Rodrigo I. Ramirez: While conducting an unauthorized treatment program for drug addicts, this physician issued a prescription for large quantities of Dolophine and Xanax to a patient who died the next day from an overdose. The Oklahoma Medical Board suspended his state registration to prescribe certain controlled substances, but later reinstated him under supervision. The DEA concluded that he had ''prescribed controlled substances without medical need and in excess of the amount considered good medical practice'' (55 FR at 4252). Despite the physician's argument that he had been sufficiently punished under state law, the DEA revoked his federal registration, saying: ''The Administrator cannot and will not in all cases rely on state authorities to monitor and regulate a registrant holding a DEA controlled substances registration where there is evidence that the registrant has violated Federal law and has demonstrated conduct which may further threaten the public health and safety'' (Id. at 4252).
7. 45 FR 61047 (September 15, 1980): Case of Dr. Joyce E. Millette: This physician supplied controlled substances to many drug addicts, including one man who used the drugs in a lethal overdose and a young man who was rendered unconscious by an overdose. The second young man's father, a dentist, testified that the physician ''had prescribed drugs without adequate knowledge of the condition or medical background of the patient, in strengths and amounts which could have brought about dependency and possible death'' (45 FR at 61048). At least two other potentially fatal drug overdoses were attributable to drugs the physician had prescribed. The DEA noted: ''A DEA registration carries with it enormous potential for harm. Controlled substances, properly administered or prescribed, may be very useful in the course of medical treatment. Improperly used, they have the potential for dependency, addiction and even death'' (Id. at 61048). Revoking the physician's registration, the DEA noted that ''several overdose incidents and at least one death were attributable to the controlled substances she prescribed. The Administrator finds it hard to conceive of a more compelling case for revoking a registration or denying an application'' (Id. at 61049). The Administrator also expressed regret that the law at that time did not allow for effective DEA action prior to a physician's ''prosecution and conviction'' under state law, noting: ''In a case such as this, such a procedure might conceivably have saved lives'' (Id. at 61049). [Four years later the DEA received such authority from Congress to revoke registrations independently of whether state law had been violated.]
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8. 51 FR 5422 (February 13, 1986): Case of Dr. Rex A. Pittenger: This physician ''prescribed numerous controlled substances for no apparent legitimate medical reason.'' After one patient died of a drug overdose, he was convicted of involuntary manslaughter and other felonies in one state and lost his medical license in another; on these grounds both his DEA registrations were revoked.
9. 48 FR 49937 (October 28, 1983); 54 FR 53382 (December 28, 1989); 59 FR 6297 (February 10, 1994): Case of Dr. David W. Bradway: This physician's registration was revoked after he was convicted under state law on various counts, most notably ''one count of manslaughter by unlawfully distributing controlled substances in such a grossly negligent [and] reckless manner as to cause the death of an individual'' (48 FR at 49937). Years later, after allegedly rehabilitating and resuming medical practice, the physician applied for a new DEA registration; citing the fact that ''a death was directly attributable to Respondent's misuse of his DEA Certificate of Registration,'' the DEA denied the application, stating: ''It is the position of the DEA that a Certificate of Registration to handle controlled substances is a privilege, not a right, and it should only be granted to doctors who have demonstrated high standards of ethical conduct and who are completely trustworthy in handling dangerous controlled substances which, as can be seen in this case, can have a devastating impact on individuals who abuse them'' (54 FR at 53384). In 1992, again applying for a DEA registration, the physician ''testified with great sincerity and obvious pain concerning the remorse and regret that he felt about the events leading to the individual's death'' and submitted a psychiatric report and further evidence of rehabilitation (59 FR at 6298). However, due to ''the egregious nature of Respondent's past conduct,'' the DEA ruled in 1994 (15 years after the patient's death) that ''the registration of the Respondent is still not in the public interest'' (Id. at 6299).
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10. 55 FR 37579 (September 12, 1990): Case of Dr. Pompeyo Q. Braga Bonado: The DEA found that granting a registration to this physician would be ''clearly contrary to the public interest.'' 55 FR at 37580. The physician had prescribed controlled substances to several individuals ''for no legitimate medical purpose,'' including one man addicted to Percocet who was hospitalized after a suicide attempt. ''As a health care professional and DEA registrant,'' the DEA noted, ''Respondent bears a heavy responsibility to ensure that the controlled substances he prescribes are not abused.'' Id. at 37580.
11. 59 FR 46063 (September 6, 1994): Case of Dr. John W. Copeland: This physician's registration was revoked because he had prescribed Ritalin and other drugs to many addicted persons without a legitimate medical need. One patient obtained anabolic steroids from the physician after revealing that he had taken them in the past, was depressed and had attempted suicide ten months earlier; a medical expert testified that it is ''medically dangerous'' to give anabolic steroids to a patient with prior depression. The DEA found that the physician's continued registration was contrary to the public interest, in part because his actions endangered public health and safety.
Several of these cases illustrate two points. First, in judging whether continuing a registration will serve the ''public interest,'' the DEA may assess whether the registrant's practice threatens ''public health or safety'' independently of whether he or she can be shown to have violated state law. Second, while the absence of a state license automatically means that the federal government will issue no license, the converse is not true—that is, ''state licensure is a necessary but not sufficient condition for DEA registration'' (63 FR at 8479 [Feb. 19, 1998]). Under current law, DEA registration requirements do not depend upon the policies of individual states.
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—R. Doerflinger, 9/1/98
Mr. HYDE. Thank you, Mr. Doerflinger.
We have reached that point of the hearing for questions. Are you prepared for any?
Mr. FRANK. I would like to defer. I would like to ask questions, but if I could wait about 2 minutes. I would just apologize and also for Mr. Watt. As you know, Mr. Chairman, we have a bill from this committee on the floor that Mr. Watt is managing on the constitutional amendment of the flag, and I was just over debating, so I apologize for not being able to be in two places at one time, but sometimes people wish I wasn't anyplace at one time, so it evens out. [Laughter.]
Mr. HYDE. The gentleman from Tennessee.
Mr. JENKINS. Well, thank you, Mr. Chairman. I am not going to solely inflict any pain on this panel through questioning. I was beginning to think that they were going to be the most fortunate panel of witnesses that I have seen since I have been on Capitol Hill and there would be very little or no questioning.
Rather than ask questions, I would simply like to say thanks to all these witnesses. They have brought very sincere views to this committee about a very delicate subject, and it is one that I am sure we are going to ponder carefully, seriously. It has a lot of import in our society. All of us have—we may, ourselves, be affected at some point in life, but we all have somebody who has been or will be affected in a way that the debate that is taking place here will be applicable to their situation. So, I would say thanks to those of you who have come and expressed your very sincere views.
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Thank you very much.
Mr. HYDE. Thank you, Mr. Jenkins.
I just have a couple of questions. Ms. Jackson, I believe you testified that there would be conflicts in the standards applied in interpreting the Controlled Substances Act, and I am just wondering if you could explain a little bit about that, because now there are—it seems to work pretty well in 49 other States who are interpreting it? Why would that create a real problem if this bill were to become law?
Ms. JACKSON. Right now, many—this bill would provide for education of local and State law enforcement personnel as well as Federal officials as to the appropriate use of the controlled substances, and it defines what it states is appropriate use. It is very difficult to really deal with this. A very diligent county coroner, county sheriff, local police officer may feel that they have a responsibility to check to see how it is controlled substances are being used in their community, and we have seen this in the past. Curry County in Oregon, for instance, where the district attorney decided to investigate all hospice deaths even though it is not called for in Oregon law and Volusia County, which was described in 60 Minutes the other night. Both of these are instances where someone believing they were doing the right thing has reached out and caused great harm, great stress to the family who has just lost a loved one.
Mr. HYDE. Overzealous people exist and——
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Ms. JACKSON. Yes, they do.
Mr. HYDE [continuing]. Given half the chance they will exercise their zealotry, but the fact is the administration of the Controlled Substances Act is working pretty well, and I just don't see why Oregon would suddenly be flooded with eccentrics and——
Ms. JACKSON. I don't think it is just Oregon. I think that is one of the misnomers in this bill. I think that even though Oregon is clearly a target because of its law, I think that education in this way when you are actually adding layers of regulatory scrutiny, when you are inviting local and State law enforcement officials to be involved in this in the determination of whether or not something is appropriate or inappropriate, makes it likely that we are going to see this all across the country.
Mr. HYDE. Mr. Doerflinger?
Mr DOERFLINGER. I think that is a rather fundamental misreading of what this act does. The Controlled Substances Act now, without this act, provides for education of Federal, local, and State law enforcement personnel in how to most efficiently and effectively enforce the law to prevent diversion to non-medical uses; how to make sure none of the bad guys get away. What this act does is balance that. It adds new content to the already existing curriculum to say, ''But by the way, you should not be going after the good guys. You should be understanding legitimate needs of physicians to use these drugs for pain control, and Health and Human Services, based on the best state-of-the-art guidelines on the matter, is going to help tell you what the good medical practice is that you should be careful to be sensitive to.'' Everything this act does in this regard is totally positive for medicine.
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Mr. HYDE. All right. I have no more questions. Mr. Frank?
Mr. FRANK. Thank you, Mr. Chairman, and, again, I apologize for not having had a chance to hear the testimony, and I am going to read it all, but, as I said, I did want to be on the floor to speak on Mr. Watt's amendment, and the timing—it is no one's fault, it is just inevitable.
First, my question is what the effect of the bill would be? Let me just ask in the opinion for those who are for the bill—there are three here who are testifying in favor of the bill—do you believe that it is currently illegal for a physician in Oregon to assist in a suicide if controlled substances are involved? That is, if an Oregon physician is complying with Oregon law and uses controlled substances, is he or she currently violating Federal law? Mr. Doerflinger?
Mr DOERFLINGER. I think he is, but the Attorney General disagrees. The Attorney General says that as long as you are complying with Oregon law——
Mr. FRANK. You think that they are violating——
Mr DOERFLINGER [continuing]. Then you can use your DEA prescription pad to use federally regulated drugs to kill that person.
Mr. FRANK. So, your position is that this bill is—that if we pass this bill, that would overrule the Attorney General's position and make it clear that an Oregon physician acting under the Oregon law was guilty of a Federal crime or was violating Federal—?
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Mr DOERFLINGER. Is violating—and it is mainly an administrative law matter—but is violating the standards under which he or she enjoys the privilege of having a DEA registration.
Mr. FRANK. So, the purpose of this law, as you see it, in part—because it has other purposes—to overturn the Attorney General's opinion and to say that a physician in Oregon who is complying with Oregon law would lose his or her right to use controlled substances?
Mr DOERFLINGER. That is correct.
Mr. FRANK. Next, Dr. Hamilton. Do you think it is currently illegal under Oregon law for a physician to do this?
Mr. HAMILTON. Well, it is not currently illegal under Oregon law, but——
Mr. FRANK. I mean, under Federal law—I misspoke.
Mr. HAMILTON [continuing]. The Controlled Substances Act, the way I have read it, it would not be legal or ethical to use controlled substances to kill people. However, the Attorney General didn't agree with that understanding, and so the law needs to be clarified.
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Mr. FRANK. So, again, you agree then—your position is the same as Mr. Doerflinger that you think we should pass this law so that it would then—if you were an Oregon physician complying with the Oregon law, you would lose your right to prescribe controlled substances?
Mr. HAMILTON. Yes, and that is not the only reason to pass the law. There are other——
Mr. FRANK. No, I understand that there are other things, but you can only talk—I talk fast, but even I can only talk about one reason at a time. So, that is a part of it. My sense is that—I will tell, my sense is that is a major part of it. That is all this great desire to ease the whole pain thing. I didn't see it coming forward before Oregon. I think Oregon gets a lot of credit for bringing this up in people's minds even though people here may not want to give it to them. So, it does seem to me that while Oregon—overturning Oregon's law may not be the only reason for this; it seems to me to be—I am not sure of my aristotelian categories—the effective cause of the legislation.
Ms. Beckwith?
Ms. BECKWITH. Yes?
Mr. FRANK. Let me ask, do you think that the law currently—if an Oregon physician uses controlled substances to assist in a suicide, do you think that is currently a violation of the Federal controlled substances law?
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Ms. BECKWITH. I am not an expert in that area.
Mr. FRANK. Okay, that is fair. But you do think that we should make it illegal for an Oregon physician to do this to the extent that it is not already held illegal?
Ms. BECKWITH. Our support of this bill is based on the fact that it would create awareness, education, and research and standards for people to—health care professionals to——
Mr. FRANK. Well, I appreciate that, but so then if we were to strike section 2 of the act, which says, ''Notwithstanding any other provision of this act, the Attorney General shall give no force and effect to State law,'' that wouldn't have any negative effect on the purpose you just stated. That is, part of the law is to do what you said, but part of it very specifically is, as the other two gentleman said, to reverse the Attorney General's position that an Oregon physician could comply with Oregon law and suffer no——
Mr. HYDE. Would the gentleman yield?
Mr. FRANK. Certainly, Mr. Chairman.
Mr. HYDE. I think the purpose is to establish a national standard, not just one for Oregon or Texas, but a national standard.
Mr. FRANK. Right, a national standard, and the reason for it is that Oregon has deviated; I understand that, Mr. Chairman, but the fact is—let me be very clear: if Oregon had not passed that referendum twice, I don't think we would have seen this or we certainly wouldn't have seen——
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Mr. HYDE. We wouldn't have needed to, because——
Mr. FRANK. I understand that.
Mr. HYDE [continuing]. The law wouldn't have been in effect.
Mr. FRANK. Right. So, the effective cause is Oregon, and the purpose of it is to overturn a ruling of the Attorney General that says Oregon physicians can comply with Oregon law without running into that controlled substance problem, and what I am saying to Ms. Beckwith is, I understand the purpose, and those purposes that you talk about wouldn't be diminished if we got rid of section 2.
Let me ask, now, others on the panel—yes, I am sorry?
Ms. BECKWITH. Actually, the National Hospice Organization is opposed to the public policy of assisted suicide and the legalization of assisted suicide. So, we believe that it really is more important to take care of people at the end of life through appropriate means and to give them those choices, then to allow or to have assisted suicide as readily available as it is when we don't even have adequate pain control and symptom management available for people and the care that they need, seems to the National Hospice Organization to be——
Mr. FRANK. Well, I agree completely. Let me say that I voted against the Balanced Budget Act of 1997, the most misnamed piece of legislation I ever saw. That was the Cut Medicare Act of 1997 to pay for capital gains tax cuts; that is what that did. So, I very much agree. Unfortunately, passing this isn't going to do one thing to increase, in my judgment, the resources that are available to give people care. I do agree that it was a terrible thing that we did in 1997. I think denying older people in my State of Massachusetts prescription drugs under Medicare, which they used to get, was outrageous. That is what the 1997 act did; we cut back on home health care. So, I agree with that, but I am focusing on what this law does, because this law—if this is a law to repeal the Medicare cuts of 1997 and do this, I would probably swallow hard and vote for it, but they don't want to do that. So it is a little bit like we create a shortage in the resources, and then we use the existence of the shortage of resources to do other public policy.
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Let me just ask now a basic philosophical question, because this is the section that seems to me to be the nub of this. The rest of it I think would be fairly non-controversial and would get all the support, although if we were to suggest paying for it, I am not sure how far we would get with the current budget caps. But let me ask Mr. Doerflinger, there are two arguments, it seems to me, that I hear against assisted suicide. One is that it is impossible to limit—it is one thing to conceptualize the right, but given the absence of adequate pain, medication, given other pressures, given the impossibility of knowing what a couple people said, even with the safeguards of Oregon, assisted suicide will lead to abuses; it will lead to euthanasia. That is one argument, and I think that is the difficult one that people have to face.
But there is another one that some people argue, which is that even if, in fact, assisted suicide was assisted suicide—there was a person who said, ''Look, I have been through all of this, and the pain is still too much for me with all that you are trying to do. I want to kill myself, and I want you to help me.'' I would like to ask all the witnesses, do you think that is wrong? If someone—let me ask it in two parts. Does an individual have a right, himself or herself, if he or she is physically capable to commit suicide? Let me start with that. Mr. Doerflinger, do you think an individual has a right to commit suicide if he or she is physically capable?
Mr DOERFLINGER. No.
Mr. FRANK. Mr. Joranson?
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Mr. JORANSON. In my testimony earlier, before you got here, Mr. Frank, I was pointing out that I wasn't testifying in the area of assisted suicide.
Mr. FRANK. I understand. If you don't want to answer, that is fine.
Mr. JORANSON. Thanks.
Mr. FRANK. Okay. I apologize for ignoring what you said when I wasn't here, but sometimes we ignore what people say when we are here. So, I wouldn't——[Laughter.]
Mr. HAMILTON. Could you repeat the question, please?
Mr. FRANK. Yes. Do you think an individual has the right to commit suicide if he or she is physically capable of doing unaided?
Mr. HAMILTON. Well, in the State of Oregon, they have a legal——
Mr. FRANK. No, no, I am asking whether you personally think that is a right they should have?
Mr. HAMILTON. Whether they have a moral right?
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Mr. FRANK. Whether society should in any way try to interfere with that right.
Mr. HAMILTON. This law is not about suicide; it is about assisted suicide.
Mr. FRANK. I understand that. I realize that, but I am trying to judge—there are different reasons people have for being against it, so I would like to—do you think——
Mr. HAMILTON. Okay, I would like to tell you why. I would like to tell you——
Mr. FRANK. Are you going to answer my question, I hope?
Mr. HAMILTON. Yes, I am going to answer your question. For doctors to grant patients a prescription for 90 to 100 barbiturates with which to kill themselves, sends a message to the patient that their life is no longer valuable. For a doctor to do that, it is harmful to the individual, and it is harmful to society, and it should not be allowed.
Mr. FRANK. Thanks, but you did not answer my question, Dr. Hamilton. Do you think an individual, unaided, if he or she is capable of doing that, has a right to commit suicide? Is that a right that society should recognize?
Mr. HAMILTON. That right has been legally recognized.
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Mr. FRANK. No, but I didn't ask—try to use the active voice, not the passive voice. What do you think? That shouldn't be a hard question; it is not a trick question.
Mr. HAMILTON. I am not going to answer that question, because it is not germane, and I don't know why you are asking.
Mr. FRANK. I will tell you why I am asking, Dr. Hamilton: because I think it is relevant to this bill. There were two different arguments that aren't mutually contradictory, but they are relevant. By the way, we don't have germaneness rules in committee; we do on the floor. There are people who say, ''I am against assisted suicide, because I am against suicide. I don't think an individual has a moral right to take his or her life.'' Mr. Doerflinger—and I appreciate it—quite forthrightly answered the question. No thunder happened; nothing terrible happened to him. He is a very good example of why it seems to me answering a question directly is a good idea. I am trying to find out whether people are opposed to this because they are worried about the possibility of abuse or because they are simply philosophically opposed to it.
Let me ask Ms. Beckwith, because I accept the fact that you are not going to answer it. Ms. Beckwith.
Ms. BECKWITH. Well, I like giving my personal opinion, and thank you for that opportunity, and, yes, I do think people have the right to choose suicide for themselves. I think that having worked in a hospice for a number of years and as a social worker, I think that it is very difficult to judge whether or not that person is choosing, making that choice because they are not getting the care or the services that they need, but I do think that people have that right, and they should have that right.
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Mr. FRANK. Well, that is important, because I think if—there is a difference between people who think suicide is simply always morally wrong and the law ought not to allow it, and——
Mr. HYDE. Would the gentleman yield?
Mr. FRANK. Yes.
Mr. HYDE. One of the overhanging, tough aspects of this whole problem is trying to get inside the mind of somebody who is terminally ill, and the last thing they want to do is be a burden on their family. That doesn't mean they don't love life and wouldn't like to continue; it means they feel terrible that they are consuming resources, and the young kids are there and the new married couple, and they just don't want to be a burden. They would like to go quietly. But that doesn't mean they don't value their own life.
Mr. FRANK. Well, Mr. Chairman, again, I will stress, I am one of those who thinks we should make the resources available; I agree with that. But I am not the one who cut Medicare. I am not the one who prefers a tax cut to extending prescription drugs to older people. I am not the one who is trying to reduce Social Security. So, I very much agree with that, and I just wish people would—well, but this is the point: why do people feel that they are a drain?
But there is a second point, and that assumes implicitly that people who commit suicide are the elderly members of loving families. Sometimes they are people who are entirely alone. Sometimes they are people who have outlived all of their family. I mean, that simply is not all cases.
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But I do think it is important to note that much of the impulse for this bill comes from people who are not just against assisted suicide, they are against suicide. Mr. Doerflinger was very forthright about that. I think, Mr. Chairman, you were suggesting that suicide is—you are skeptical that is ever a rational option. Dr. Hamilton, I am inferring, isn't too crazy acknowledging that people might have the right but doesn't want to say they don't. I am not sure why, but I think that is a relevant factor, because we are not—and I think much of the argument that says assisted suicide leads to abuse comes from people who just think suicide is wrong, and I am reluctant to have us act in Congress on making that judgment for other people.
Mr. HYDE. Mr. Frank, to assume that this is sort of moral interposition by a few zealots who want to make intimate decisions for other people is really not so. There is a problem about controlled substances that the Federal Government is rightfully concerned about. There is a problem with having facilitators of death rather than healing people. What is the purpose of the medical profession? What is the practice of medicine as distinguished from social engineering which some of us feel is inappropriate for a healing profession? But we are trying to establish a national standard where you can know what the law is from State to State, and that is the effort——
Mr. FRANK. I understand, Mr. Chairman, but, first of all, I am struck by your last point, because once again we have the intermittent federalism of my colleagues on the other side.
Mr. HYDE. I would like to stipulate I am not a libertarian. [Laughter.]
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Mr. FRANK. No, I didn't say you were—you can, Mr. Chairman, but it is an irrelevant argument here. I will borrow from Dr. Hamilton. Maybe germaneness is relevant. The question here is not whether you are a libertarian but whether you are for States' rights? The notion that—you just said, Mr. Chairman, we need a national standard.
Mr. HYDE. You are for States' rights when it is convenient——[Laughter.]
—and when it is inconvenient, you think it is awful.
Mr. FRANK. No. I have never pretended that, unlike you, Mr. Chairman. I have never made an argument for States' rights, and I have always said that. You like to ignore it, because it makes it more convenient for you.
I believe—may I finish uninterrupted?
Mr. HYDE. All those who are for cutting Social Security, raise your hands.
Mr. FRANK. Mr. Chairman, may I finish uninterrupted?
Mr. HYDE. I don't see any hand, and you certainly won't get——
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Mr. FRANK. Well, Mr. Chairman, I can see that getting to the root of this bothers you some, but the fact is there are people who cut Social Security. You are pretending——
Mr. HYDE. I don't know a single soul who wants to cut Social Security.
Mr. FRANK. Mr. Chairman, may I proceed uninterrupted?
Mr. HYDE. Pardon?
Mr. FRANK. Does my argument bother you so much that I can't proceed uninterrupted?
Mr. HYDE. No, it is just time. We have got a second panel, and——
Mr. FRANK. Well, I yielded to you during my questioning for you to make some philosophical comments, which I am trying to respond to.
Mr. HYDE. Well, take as much time as you want, Mr. Frank. I wouldn't foreclose you for the world. [Laughter.]
Mr. FRANK. And the point about—the suggestion that no one wants to cut Social Security, I don't know where you have been. People want to cut the consumer price index to reduce the cost of living. That is a cut in Social Security. There are people who want to raise the age. These are very serious proposals, but your suggestion that no one is talking about cutting Social Security surprises me.
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Mr. HYDE. Are you talking about saving the Social Security system so it doesn't go bankrupt in the year 2032——
Mr. FRANK. I am talking about trying to get some sentences out——
Mr. HYDE [continuing]. And what the options are?
Mr. FRANK. I am trying to get some sentences out without interruption, and I think you are unwilling——
Mr. HYDE. I have been unfair. Please, go ahead.
Mr. FRANK. Well, I think you are bothered by the argument. The fact is I believe there are ways to save Social Security without cutting the consumer price index. The fact is that the poorest people that we have are the ones for whom the consumer price index is a real problem; the kind of people you talked about who might be worried about being a drain, and cutting the consumer price index because you say that is the way to save Social Security is still a cut in Social Security. Raising the age at which working people get on is a cut in Social Security.
But, secondly, I want to go back to the States' rights argument. I have not argued—I have always argued that I think you can decide this at the appropriate level—sometimes it is Federal; sometimes it is State. Your statement that we need a national standard belies what is often the rhetoric on your side about the need for respecting the rights of States. I think you need a national standard where you are talking about economic issues that cut across State lines.
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But this is a very local issue. The right of the people of Oregon to make their judgments doesn't affect people in Massachusetts; it doesn't affect people in Illinois; it is a very local issue. And the notion that we can't allow the people of Oregon to do it, and it has to have a national standard, I think belies the whole notion of States' rights.
And the final point I would make is, yes, it is a philosophical point to many people. Many of the people who are most strongly for this bill want to ban assisted suicide, because they are opposed to the whole notion of suicide. That is a valid condition; people needn't hide from it. But I do think in judging the legislation that is a relevant factor.
Mr. HYDE. Are you through?
Mr. FRANK. Yes.
Mr. HYDE. Okay, good. I just wanted to make sure I wasn't foreclosing.
Mr. Jenkins, do you have any questions?
Mr. JENKINS. Mr. Chairman, I don't have any questions, but I am tempted to ask some questions, if we are going to go into Social Security to this. [Laughter.]
I am tempted to ask some questions about flag desecration and gun control. [Laughter.]
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Mr. FRANK. Well, if the gentleman would yield, let me say— [laughter] I want to say——
Mr. HYDE. I would advise the gentleman not to yield. [Laughter.]
Mr. FRANK. I would ask the gentleman to yield, as I yielded to the chairman.
Mr. HYDE. I am kidding.
Mr. FRANK. And I think that shows, frankly, the fundamental thinking of a lot of people. On the one hand to say we have to worry about assisted suicide because older, sick people are forced to make that choice because of their circumstances and then to say that discussions of Social Security are irrelevant, seems to me to show those are not seriously meant arguments. You can't talk about the stress of older people worried about their economic problems and ignore the question about what Social Security or Medicare is going to be, because they create those problems.
Mr. HYDE. All right. Thank you very much to this panel. It has been instructive, illuminating, and wide-ranging. Thank you.
Our next panel consists of Dr. Walter Hunter, the associate national medical director and director of Education and Professional Development for VistaCare Hospice in Michigan. He was formerly the medical director of South and North Oakland County for the Hospice of Michigan.
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Following him will be Dr. David Orentlicher, a professor at Indiana University School of Law. He currently is an elected member of the American Law Institute and formerly acted as the director for the Division of Ethics Standards.
And our last witness on this panel is Thomas Marzen who is the general counsel for the National Legal Center for the Medically Dependent and Disabled. He formally served as chief counsel for American's United for Life Legal Defense Fund in Chicago.
Thank you for being with us this morning. I would ask you to please try to summarize your testimony in 5 minutes or so, and, without objection, your written statements will be made a part of the permanent hearing record.
Dr. Hunter.
STATEMENT OF WALTER R. HUNTER, M.D., ASSOCIATE NATIONAL MEDICAL DIRECTOR, VISTACARE HOSPICE
Mr. HUNTER. Thank you. Mr. Chairman, members of the committee, ladies and gentleman, it is a privilege to be here today and to offer you my thoughts on H.R. 2260. I am full-time hospice physician with VistaCare Hospice, the second largest provider of hospice services in the United States.
I use controlled substances with the frequency that an infectious disease practitioner uses antibiotics, and I often use them in doses which exceed the ''recommended'' doses found in the Physician's Desk Reference and other standard medical references. I am frequently involved in cases in which the side effects of these medications may indeed contribute to the death of the patient yet I know I must accept these side effects as undesired effects in the true goal of providing pain and symptom relief. In short, the ethical principle of double effect is with me daily. It guides my actions as a physician, and it keeps me honest in my actions. It is a viable, ethical principle, and it is the basis of this legislation's intent not to interfere with legitimate pain and symptom control.
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Nothing in this bill will change what I do daily in my work as a hospice physician. Nothing in this bill will diminish our work at VistaCare to aggressively and adequately treat pain. Nothing in this bill frightens me that I will become a target of the DEA in a misguided attempt to prevent abuses of these controlled substances. Our patients at VistaCare will continue to receive as much morphine and other controlled substances as is necessary to control their pain and symptoms. On the contrary, this bill has the real potential to enhance our work in the communities we serve to promote palliative care, pain and symptom management, and a vision of end-of-life care which we believe is essential for our Nation.
This bill may be perceived by many in the medical community as a back door effort to thwart the development of assisted suicide and euthanasia for terminally ill patients. Many professionals may complain that it will discourage physicians from providing adequate pain relief for their patients. Many people may believe it to be one more example of an intrusion by the Federal Government into the privacy of the physician-patient relationship. These are unconvincing arguments to me. I believe they ignore relevant aspects of legitimate licensing concerns. All physicians are licensed by various agencies. All licenses carry certain requirements and restrictions. Violations of these provisions carry with them the possibility of forfeiture of license.
It does not seem unreasonable that the Congress would place a prohibition on the use of controlled substances in assisted suicides or euthanasia as a condition for maintaining a DEA license. Such a prohibition sends a clear message in both symbolic and concrete terms that the United States Federal Government does not recognize the very dangerous practices of assisted suicide or euthanasia as legitimate medical practices.
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The Justice Department must ensure that its agents know the difference between appropriate and inappropriate uses of controlled substances, and do not engage in fruitless and counterproductive investigations where there are no abuses. Education is key, and the commitment to provide for such education is critical and has been incorporated into this bill. This should allay fears of the medical community that this law is but one more specter of big brother looking over their shoulders.
We must, likewise, ensure that the medical community understands the differences between legitimate palliative care and the intentional taking of human life. Some say that the lines between the two are just too nebulous and artificial to warrant clear distinction. I vehemently disagree. Physicians can and must learn and understand thoroughly the Principle of Double Effect and how that principle is incorporated into the clinical practice of palliative medicine and the intent of this legislation.
This legislation provides for much needed education in the professional community. We at VistaCare applaud this bill for its commitment of monies for the advancement of understanding of palliative care and for the education of health care professionals in the principles and practice of palliative care. This commitment of time and money through these educational efforts will send a very clear message that the United States Congress has taken up the cause of providing competent, compassionate, and comprehensive palliative care for our citizens who face a life-threatening illness.
This is an extremely important action, both in concrete and symbolic terms. I extend to the sponsors of this bill my deepest gratitude for such a commitment. Passage of this bill will send a clear message that the care of our Nation's most vulnerable citizens, those facing death, is a concern shared by all of us and rises above partisan politics. This bill is good for Americans of all political persuasions. We must educate our Nation and our Nation's health care providers in medical ethics, current law, and the principles and practice of palliative care and the incredible holistic worth of hospice programs. This bill helps achieve this necessary education.
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It is imperative that we develop a strong national response to oppose efforts to legalize assisted suicide and euthanasia, and this bill sends a strong message that our Government does not endorse the deliberate killing of patients. Passage of this legislation strengthens hospice and palliative care and says that our citizens, patients, and physicians need not resort to suicide and killing to achieve comfort and relief from distressing pain and symptoms.
I would urge you, Mr. Chairman, members of this committee, and the entire Congress of the United States to continue to work with the hospice and palliative care communities to revolutionize the practice of hospice and palliative care in our Nation. Let us commit to creating a comprehensive hospice and palliative program for our citizens. Let us forge a new path with the Health Care Financing Administration and private insurance companies to ensure that all patients receive the finest in end-of-life care. Let us say to our citizens that no one must ever turn intentionally and deliberately to causing death because of pain, symptoms, or the effects of a terminal illness.
House Resolution 2260 is an excellent step in the direction of forging a system of care which embraces with true compassion those who face terminal illness. Let this bill become not an end unto itself but the beginning of a national commitment to caring for our citizens in the final stages of their lives. As a hospice and palliative care physician, I endorse House Resolution 2260. VistaCare Hospice endorses H.R. 2260. It is an excellent beginning to providing the long, overdue, and too often neglected component of hospice and palliative care in our health care system as we enter a new century.
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Thank you for allowing me to be here today.
[The prepared statement of Dr. Hunter follows:]
PREPARED STATEMENT OF WALTER R. HUNTER, M.D., ASSOCIATE NATIONAL MEDICAL DIRECTOR, VISTACARE HOSPICE
Mr. Chairman, members of the Committee, ladies and gentlemen, it is a privilege to be here today and to offer you my thoughts on House Resolution 2260.
I am a full time hospice physician certified both in Internal Medicine and Hospice and Palliative Medicine. I use controlled substances with the frequency that an infectious disease practitioner uses antibiotics and I often use them in doses which exceed the recommended doses found in the Physician's Desk Reference and other standard medical references.(see footnote 29) I am frequently involved in cases in which the side effects of these medications may indeed contribute to the death of the patient. Yet I know I must accept these side effects as undesired effects in the true goal of providing pain and symptom relief.
In short, the ethical Principle of Double Effect(see footnote 30) is with me daily. It guides my actions as a physician and it keeps me honest in my actions. It is a viable ethical principle and it is the foundation of one of the intentions of this legislation: not to interfere with legitimate pain and symptom control.
THE RULE OF DOUBLE EFFECT
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As an example of the work I am called to do daily, let me describe a case of a young AIDS patient I cared for a few years ago. On a Monday morning the hospice for whom I worked received a phone call from his family that he was having difficulty breathing. His nurse and I made a house call. When we entered the room we could hear his laborious and moist respirations across the room. His respiratory rate was 44 and he was unconscious. We immediately set to work. I gave him 40 mg of Lasix (furosemide)(see footnote 31) intravenously. There was no effect. I then gave him 10 mg of morphine(see footnote 32) intravenously. There was no effect after several minutes. I repeated the dose of 10 mg of morphine and waited several minutes. Again, there was no effect. I gave 5 mg of morphine. There was still no effect. I then gave 5 mg of Valium (diazepam) in an attempt to sedate him and ease the work of breathing. There was no effect. I repeated the Valium dose and there was still no effect. I gave 5 mg of morphine, waited, saw no effect and gave another 10 mg of morphine. After a few minutes, his respirations decreased to about 20. This was a reasonable goal. However, instead of stabilizing at 20, they continued to diminish and he stopped breathing several minutes later.
Did the fact that a respiratory rate of over 40 is terribly inefficient and allows toxins to build up in the body that can suppress respirations cause his death? Was he actively dying no matter what I did? Did the medications play a role in hastening the moment of death? Did I kill him? The answer is that the disease, his respiratory rate and the medications all may have combined to cause his death to occur a moment in time sooner than it would have occurred without my intervention. But I did not intend his death. I was using everything in my medical powers to ease the distress of his breathing. Had I deliberately wished his death, I would have given the Lasix, 40 mg of morphine and 10 mg of Valium as one immediate injection. Instead, I titrated the medicine against the clinical response I saw over the period of an hour. To apply the oft-quoted principle of Double Effect and apply it to this case would be useful in this example.
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The Rule of Double Effect makes the following assertions:
1. The Nature of the Act. The act must be good, or at least morally neutral (independent of its consequences.)
2. The Agent's Intention. The agent intends only the good effect. The bad effect can be foreseen, tolerated, and permitted, but it must not be intended.(see footnote 33)
3. The Distinction Between Means and Effects. The bad effect must not be a means to the good effect. If the good effect were the direct causal result of the bad effect, the agent would intend the bad effect in pursuit of the good effect.
4. Proportionality Between the Good Effect and the Bad Effect. The good effect must outweigh the bad effect. The bad effect is permissible only if a proportionate reason is present that compensates for permitting the foreseen bad effect.(see footnote 34)
Using the above, let us analyze my patient utilizing each criterion from each perspective:
1. The Nature of the Act. The act (giving the patient the Lasix, morphine and Valium for the purpose of alleviating his respiratory distress) must be good, or at least morally neutral.
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I would propose that his respiratory rate was too fast for any effective air exchange. This alone increased his risk of death not to mention how much discomfort it may have been causing him even though he appeared to be unconscious.(see footnote 35) Certainly, his family was present and to watch him gasp and labor for air was very difficult for them. Therefore, the act of giving him the medicine was good from the clinical perspective.
2. The Agent's Intention. The agent (the physician—I, in this case) intends only the good effect. (The alleviation of his labored breathing.) The bad effect (possibly depressing his respirations or even causing his breathing to stop as a result of side effects of the medications) can be foreseen, tolerated, and permitted, but it must not be intended.
I knew that there was a slight risk of lethal side effects to the medications. But I knew that I might have to risk them, tolerate them in part or in totality if I were to attempt to ease his breathing. I did not intend for him to die, but I did intend to make his breathing easier. Had I intended the side effect of cessation of breathing, I would not have given incremental doses of medicine over time and observed his clinical response with each dose. I would have given a very large dose all at once to stop the breathing.(see footnote 36)
3. The Distinction Between Means and Effects. The bad effect (the cessation of breathing) must not be a means to the good effect (ease in breathing.) If the good effect (ease in breathing) were the direct causal result of the bad effect, the agent would intend the bad effect in pursuit of the good effect.
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Clearly, not breathing is not merely easier breathing. I intended only the effect of easing his breathing, not totally stopping his breathing. I, therefore, did not intend the bad effect in order to get the good effect.
4. Proportionality Between the Good Effect and the Bad Effect. The good effect (ease of breathing) must outweigh the bad effect (possible cessation of breathing as a side effect of medication.) The bad effect is permissible only if a proportionate reason is present that compensates for permitting the foreseen bad effect.
Unrelieved breathing at 44 times per minute without relief can become fatal in and of itself. It can is certainly uncomfortable for any conscious individual as it is literally a sense of suffocation. The risk of side effects of the medicine would be permissible to alleviate the certainty of the discomfort and danger of his uncontrolled respiratory rate of 44.
In short, the Principle of Double Effect guided me through the decision making process and the actions I performed in this case. H.R. 2260 recognizes what I did in this case as legitimate palliative care, does not view my actions as assisting a suicide or committing euthanasia, and therefore protects me from prosecution for committing those acts.
HOUSE RESOLUTION 2260 AND HOSPICE PRACTICE
Nothing in this bill will change what I do daily in my work as a hospice physician. Nothing in this bill frightens me that I will become a ''target'' of the DEA in a misguided attempt to prevent abuses of these medications. My patients will continue to receive as much morphine and other controlled substances as is necessary to control their pain and symptoms. I do not fear the scrutiny of my peers in my daily work. In fact, I welcome such scrutiny. It is a tool to ensure that I am maintaining the highest competency in my work.
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As in the case cited above, I know the ethical principles that provide the foundation for the work I do. I know that I am permitted, even obligated, to provide pain and symptom relief even if doing so hastens the moment of death for the patient. This, however, is a far cry from my acting to cause deliberately and willfully the patient's death by my actions.
I did not come to my understanding of the practice of hospice/palliative medicine and the ethical and legal underpinnings of it through my formal medical education curriculum in medical school and residency.(see footnote 37) I was in the practice of general internal medicine when I became painfully aware of my own deficiencies in these areas. I took the time and paid the monies over several years to attend formal classes in ethics and hospice and palliative medicine offered by the Kennedy Institute of Ethics (Georgetown University), the National Hospice Organization, and the American Academy of Hospice and Palliative Medicine.
Every practicing physician in the United States needs formal education in the ethical, legal, and medical principles of hospice and palliative care. This is critical for them to understand the intent of this bill and the intent of sophisticated palliative medicine. I shall return to this topic later as we look at this Bill's provision for monies earmarked for education and development of palliative care.
OTHERS' CONCERNS REGARDING HOUSE RESOLUTION 2260
This bill, like predecessors last year, may be perceived by some in the medical community as a back door effort to thwart the development of assisted suicide and euthanasia for terminally ill patients. Many professionals may complain that it will discourage physicians from providing adequate pain relief for their patients. Some may believe it to be one more example of an intrusion by the Federal Government into the privacy of the physician-patient relationship. I think they are mistaken in these conclusions.
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Certainly, the United States Supreme Court has ruled that there is no constitutional right to die. However, that Court has left open to individual states the right to create laws for or against assisted suicide. However, the Congress of the United States has every right to say that assisted suicide/euthanasia are not areas which the Congress will support. You have already passed legislation which prohibits the use of federal dollars to pay for assisted suicide/euthanasia. House Resolution 2260, as a mechanism for necessary reform of the Controlled Substances Act in regards to assisted suicide/euthanasia, is a meaningful action that the Federal Government will not participate in deliberate and direct killing of patients via the use of these federally controlled substances. I applaud this action. While assisted suicide has been debated extensively in this country, I continue to aver that it is dangerous public policy. It cannot and will not be contained to a very small group of ''terminally ill'' patients as proponents have us believe. The ''safeguards'' touted in all debates are paper tigers which have no real meaning in the real world of clinical practice.(see footnote 38) Additionally, I am of the firm belief that legalization of physician assisted suicide and euthanasia will radically change the nature of the medical profession itself.(see footnote 39)
Proponents of assisted suicide and euthanasia in the United States are vociferous in their condemnation of comparisons to Nazi physicians. They assert that what happened in Germany could never happen here. However, I believe the comparisons are fair on a different level—a level much closer to what we see happening here and which ultimately provided the basis for the German horrors. It is perhaps prophetic to consider the following observation:
''At its heart (the role of physicians in the atrocities of the Nazi regime) is the transformation of the physician—of the medical enterprise itself—from healer to killer.''—Lifton, Robert Jay. The Nazi Doctors—Medical Killing and the Psychology of Genocide, Basic Books, New York, 1986.
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As for any concerns that this bill might prevent physicians from adequately treating pain, I am afraid that the bill may be used as just one more excuse for poor pain management. However, the bill will not be the cause of poor pain management. We know that pain management without this bill is abysmal in the United States.(see footnote 40)(see footnote 41) Unfortunately, because of many factors at work today in the practice of medicine, I believe undertreatment of pain is a path of lesser resistance in today's medical environment.(see footnote 42) We cannot simply remain paralyzed and fail to do the right thing simply because we are afraid our actions will be misconstrued by those who have not bothered to learn the truth of our actions. HR 2260 is a principled and practical bill to protect and promote legitimate pain management.
Author's Note: One of the most disturbing discoveries of this oft-cited study of approximately 10,000 patients is that over 50% of patients who were conscious rated their pain as moderate to severe at least half the time before they died.
Author's Note: In her important and well-documented book about death and dying in America, Webb devotes a substantial amount of time to the problem of pain and its treatment. It is worth quoting from her book to elaborate on the abominable state of pain management in the United States even without this legislation. Ms. Webb writes:
''In 1992 . . . researchers conducted a nationwide survey of 322 members of state medical boards—the organizations that oversee physician licensing and medical practice in each state. The physicians on these boards have the power to censure other physicians—even take away their licenses to practice—for what they consider to be inappropriate treatment decisions. Researchers wanted to know whether these boards were a factor in the undertreatment of pain.
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''Their findings revealed an astounding information gap:
''To treat prolonged moderate to severe cancer pain, most board members recommended medications that pain experts consider grossly inadequate . . . These board members also had imprecise knowledge of the law. When asked about the legality and medical acceptability of prescribing opioids for more than several months in four patient scenarios involving cancer and nonmalignant pain, with and without a history of narcotic drug abuse, their answers were not only wrong, but often shocking . . . only 12 percent realized that using narcotics is lawful and good medical practice for chronic, serious noncancer pain—for example, pain that comes with AIDS or other illnesses . . .
''Of . . . 897 doctors surveyed, 86 percent felt the majority of American patients in pain were undertreated; 49 percent of them also rated pain control for patients in their own medical practice as either fair, poor, or very poor.'' (Italics in the original.)
The language of this bill contains provisions to ensure that aggressive pain and symptom management, even at the risk of shortening a patient's life, is not the target of this legislation. This is very reassuring to me, particularly in light of my having to oppose Michigan State Senate Bill #200 which outlawed assisted suicide without adequate protections for appropriate palliative care.(see footnote 43) The incorporation of the Principle of Double Effect in HR2260 sends both an important symbolic and concrete message that the government of the United States recognizes the legitimate practice of pain and symptom management and the inherent dilemmas faced by professionals in providing excellent care to patients. However, this legislation does not proscribe me or any other knowledgeable health care practitioner from doing the right thing for the right reasons. If anything, this legislation stands as a clarion call to all health care professionals in this country to provide state-of-the-art pain and symptom management to our patients who need it, who deserve it, and who can benefit from it. This is government leading citizens in the development of public policy which provides a much needed service to the dying while protecting vulnerable persons from the real and dangerous effects of the acceptance and practice of assisted suicide/euthanasia as public policy.
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INTERPRETATION AND IMPLEMENTATION OF THE LAW
As a hospice physician I have no fears about this bill. I know the ethical principles that gird the practice of hospice and palliative care. I am thoroughly familiar with the uses of the controlled substances covered by this Act. I know the clinical application of the Principle of Double Effect. I am surrounded by dedicated hospice and palliative care colleagues who are ready to help me, to consult with me, to give me guidance in difficult cases. This law will make it illegal to use controlled substances covered by the federal Drug Enforcement Administration in the commission of assisted suicide or euthanasia. Even more importantly this law will proactively seek to provide much needed education at several levels to ensure that our citizens have access to appropriate palliative care.
The Justice Department must ensure that its agents know the difference between appropriate and inappropriate uses of controlled substances and do not engage in fruitless and counterproductive investigations where there are no abuses.
Education of the agents of the Executive branch of government is essential if this bill is to work as intended. A commitment made to provide for such education is critical and has been made within the context of this legislation. I applaud the efforts to include education of ''local, State, and Federal personnel'' in this regard. Education must occur also in the medical community. The medical community must understand the law established by this Act, its intent and be prepared to understand the differences between appropriate and inappropriate uses of controlled substances. Again, House Resolution 2260 makes provisions for education within the professional community in regards to pain and symptom management, the intent of this legislation, and promoting palliative care. This should alleviate any fears of the medical community that this law is but one more specter of ''Big Brother'' looking over their shoulders.
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THE ROLE OF LICENSING AGENCIES
For all the objections opponents may offer to this legislation, I believe they ignore relevant aspects of legitimate licensing concerns. All physicians are licensed by various agencies. All licenses carry certain requirements and restrictions. Violations of these provisions carry with them the possibility of forfeiture of the license.
Certainly, as a physician with a valid DEA license, I am aware that I could lose that license if I engage in deliberate diversion of controlled substances to anyone other than my patient. I know that I would face serious consequences if I willfully prescribed controlled substances to a known substance abuser who had no legitimate medical reason for receiving pain medications. These are ''givens'' with the license and I accept them when I accept the license. A license is granted by some one or some agency with the authority to grant it. In so doing, that authority attaches certain restrictions and conditions upon working under that license.
It does not seem unreasonable that the DEA would place a prohibition on the use of controlled substances in assisted suicides or euthanasia as a condition for maintaining a license. Such a prohibition sends a clear message in both symbolic and concrete terms that the United States Federal Government does not recognize the very dangerous practices of assisted suicide and euthanasia as legitimate medical practices. Perhaps detractors would rather have DEA licensure, state medical licensure, hospital privileges, and any other number of regulatory conditions of medical practice removed so that physicians can simply do whatever they want, whenever they want.
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EDUCATION OF THE MEDICAL COMMUNITY AND TRANSFORMING END-OF-LIFE CARE IN THE UNITED STATES: A MAJOR COMMITMENT
Just as the Executive branch of the government must be held accountable for the intent and provisions of the law, we must likewise ensure that the medical community understands the differences between legitimate palliative care and the intentional taking of human life. Some say that the lines between the two are just too nebulous and artificial to warrant clear distinction.(see footnote 44)(see footnote 45) I vehemently disagree. Physicians can and must learn and understand thoroughly the Principle of Double Effect and how that principle is incorporated into the clinical practice of palliative medicine and the intent of this legislation.
Efforts are being mounted to educate American physicians in appropriate pain and symptom management and in hospice and palliative care. The American Medical Association has launched one such effort. Those of us who work in hospice and palliative medicine work with our representative professional associations and offer continuing education many times throughout the year on these topics. But attendance is woefully inadequate based upon the needs identified.
I am delighted that the House of Representatives, with this Resolution, recognizes the need to educate medical professionals in the principles and practice of palliative care. This bill contributes to current efforts at education by providing mechanisms and monies for these educational efforts. Again, you are proving to this country that it is time to get very serious about the need for improving how we care for our terminally ill and dying citizens. Professional education is expensive, to be sure. But if every physician, nurse and other health professional in this country truly understood the indications for palliative care, would we find that our citizens receive less aggressive, futile interventions and better symptom control? Would our citizens have a better quality of life, a more comfortable life and consume less expensive medical modalities when they enter the final stages of illness and face death squarely in the face? If our citizens truly understood what is available, and what is achievable, would they not welcome monies being spent to build a medical system of palliative care that would become the envy of the world? Would our seeming rush to embrace assisted suicide all but vanish if our citizens truly knew what a comprehensive hospice and palliative plan of care entailed and had it as available as any commonly utilized medical procedure in their communities? I urge the Congress to watch the fruits of this legislation closely and commit even more monies to these educational efforts in the future if the appropriate overseers can document that this is money being well spent in the development of palliative care.
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There is much to do in the development of palliative care and I, for one, believe Congress is poised to become part of the solution to the problems facing us. For your future consideration, let us look at just two other issues which must be addressed as we change the face of end-of-life care in our nation.
We must ultimately address barriers which are present in private and governmental insurance programs that insist hospice is for those with only six months or less to live. Prognostication is not an exact science and patients with life-threatening, non-cancer diseases do not die neatly and conveniently within a six month or less time frame. The Medicare Hospice benefit has been of tremendous value to patients with cancer. But as our population ages and our citizens increasingly die of non-cancer diseases, the Medicare Hospice benefit often fails those who most need it because of regulatory barriers that impede patients accessing hospice services. This must be remedied as soon as possible as we re-evaluate the entire Medicare program and the services it will provide in the new century.
We must educate our nation and our nation's health care providers in medical ethics, current law, and the principles and practice of palliative care and the incredible holistic work of hospice programs. It is imperative that we develop a strong national response to oppose all efforts to legalize assisted suicide and euthanasia. I am deeply concerned that when assisted suicide and euthanasia become part of the normative culture, hospice and palliative care may well disappear from the landscape because they require far more resources of time, money, education and commitment than the deliberate hastening of death.(see footnote 46) Hospice is not nearly as developed in the Netherlands as it is in the United States. In the Netherlands, there is de facto assisted suicide and euthanasia. Why has hospice failed to develop over the years? Is it because a holistic, comprehensive hospice program requires far more energy, monies, and dedication than a policy of assisted suicide? What are the factors that may lead human beings to accept an easier path? Can we honestly say that our booming economic times of the last several years in the United States will last forever? What will a serious or severe economic downturn do to providing hospice and palliative care if assisted suicide and euthanasia have had time to settle comfortably into the national conscience?
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I would urge you, Mr. Chairman, members of this committee and the entire Congress of the United States to work with the hospice and palliative care communities to revolutionize the practice of hospice and palliative care in our nation. Let us commit to creating a comprehensive hospice and palliative care program for our citizens. Let us forge a new path with the Health Care Financing Administration and private insurance companies to ensure that all patients receive the finest in end-of-life care. Let us say to our citizens that no one must ever turn intentionally and deliberately to causing death because of pain, symptoms or the effects of a terminal illness.
CONCLUSION
I reiterate: Nothing in this bill will change what I do daily in my work as a hospice physician. This bill will in no way deter me from my commitment to my patients, their families, and to the professionals who consult me and utilize my services. I want to assure all health care professionals who hear or read my testimony that they have nothing to fear from this bill for doing the right thing for the right reasons. However, the right thing requires that we all arm ourselves with the appropriate knowledge, skill, attitudes, and commitment to provide the very best palliative care has to offer our patients. Additionally, this bill starts a noteworthy phase of proactive work by Congress in helping develop palliative care for our citizens. This is a laudable development and says to our nation that our elected representatives will stand shoulder to shoulder with all of us to become a caring community intent on providing care, comfort, and compassion without deliberately and intentionally killing citizens through assisted suicide and euthanasia.
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Let this bill become not an end unto itself, but the beginning of a national commitment to caring for our citizens in the final stages of their lives. Let the legacy of this Congress be that it heard the cries of those in pain and those who are dying and answered their cries. Let the response be: Not one of you must perish at your own hands or at the hands of your physician simply because we failed to understand your physical and mental anguish.
Thank you for allowing me to be here today.
Mr. HYDE. Thank you, Doctor. Dr.——
Mr. ORENTLICHER. Orentlicher.
Mr. HYDE. Orentlicher?
Mr. ORENTLICHER. Orentlicher.
Mr. HYDE. Orentlicher. Thank you.
STATEMENT OF DAVID ORENTLICHER, M.D., J.D., PROFESSOR, INDIANA UNIVERSITY SCHOOL OF LAW, INDIANAPOLIS CENTER FOR LAW AND HEALTH
Mr. ORENTLICHER. Mr. Chairman, members of the subcommittee, thank you for inviting me to appear and testify at this hearing. My name is David Orentlicher, and I am a professor of law and co-director of the Center for Law and Health at Indiana University School of Law in Indianapolis. I was formerly at the American Medical Association where I directed the Division of Medical Ethics, and I received my medical and law degrees at Harvard.
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I come to this issue, both as a legal scholar who specializes in bioethical issues and as a physician who formerly treated patients at the end of life. The Pain Relief Promotion Act of 1999 is admirable in its effort to promote better palliative care of dying patients. However, the act should not be passed for two important reasons. It would in fact end up compromising the quality of palliative care, and Congress has other bills before it in this session that would better promote the highest quality of palliative care in this country.
In my testimony, I will elaborate on these two points by discussing them and three related points at greater length. First, the act will compromise the quality of palliative care in this country. Physicians are very sensitive to the possibility of criminal prosecution, and this act's emphasis on enforcement action will discourage the aggressive and appropriate treatment of pain at the end of life. The act will discourage good care because there are no clear lines between acceptable and unacceptable end-of-life care. What might be too much pain medication for one person would not even begin to treat the pain of another person with the same symptoms.
The absence of clear lines in this area is well illustrated by the act. If you look at the prohibition in section 101 and the narrow definition of palliative care in section 906, the line between acceptable palliative care and unacceptable assisted suicide rests solely on the physician's intent, and when intent is the critical issue, physicians must worry, and they will worry that law enforcement officers will see a criminal intent even when none existed. Moreover, with this act, physicians are at risk not merely for revocation of their DEA license; they are also subject to jail time.
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The reality is that legal concerns already make physicians overly cautious about prescribing the medications necessary to relieve the pain of their patients. Given the seriously disruptive and traumatic nature of criminal prosecution, this act will make physicians err even more on the side of caution. Often, extra caution is good, but in this case it means that tens of thousands of patients will continue to die without adequate treatment of their pain.
Concern about the chilling effect of this act takes us to my second problem. This act subjects medical care to the oversight of officials with no expertise in medical care. By empowering officials of the Drug Enforcement Administration and other Federal, State, and local law enforcement personnel to prosecute physicians, this act subjects physicians who care for dying patients to the oversight of people with no expertise in the provision of medical care. As the Department of Justice observed last year, the Controlled Substances Act was not designed to address difficult medical and social issues, and the DEA was not constituted to regulate medical practitioners.
Doctors must now worry even more about Federal, State, and local law enforcement personnel roaming the halls of hospitals and nursing homes and looking over their shoulders when they try to meet the needs of their dying patients. Moreover, second guessing of treatments by nurses, hospice workers, or pharmacists could create enough suspicion to provoke a police investigation. This will inevitably distract physicians from their primary goal—the treatment of their patients by the most effective means available to them.
Let me discuss a third way in which the act would chill good patient care. This act interferes with the ability of States to engage in experimentation and innovation in the care of dying patients. Congress and the courts have long recognized the importance of the laboratory of State experimentation on complicated matters of social policy. Because the optimal approach is often not clear, our Federal system encourages States to try different approaches. With local variations, the country can discover the best course of action.
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This act most obviously frustrates State experimentation and innovation by overriding Oregon's Death with Dignity Act. When the U.S. Supreme Court declined to recognize a constitutional right to physician-assisted suicide 2 years ago, it acknowledged the uncertainty regarding the value of assisted suicide, and it invited States to explore different responses to requests for assisted suicide. As Justice Souter wrote, ''State experimentation is highly desirable on emerging issues like end-of-life care. State legislatures,'' he wrote, ''have the power to experiment moving forward and pulling back as facts emerge within their own jurisdiction.''
Mindful of its difficulty navigating other areas of complex social policy, the Court indicated its desire to see issues relating to end-of-life care resolved through the local and democratic processes of State legislatures.
Equally important, this act frustrates State experimentation and innovation in palliative care. The nature of palliative care is very much in evolution as physicians try to determine the best way to relieve their patients' suffering. What has become clear is that some patients need unusually aggressive medical treatment, and the most aggressive of these treatments can look very much like assisted suicide. Doctors who care for patients at the end of life need to be free to try different approaches in their efforts to relieve suffering. The threat of prosecution under this act will discourage physicians from pursuing promising treatments that are closest to the border between lawful palliative care and unlawful assisted suicide, and this chilling effect will occur in all 50 States.
The act is not only harmful to patient care, it is also harmful to our constitutional structure, and this brings me to my fourth point: the act usurps the States' rightful authority over medical practice. By imposing a national mandate, this act contravenes the principle of federalism, a basic tenet of American law and democracy. Traditionally, the regulation of medical practice has been left to the States and their medical boards, not to the Federal Government and its law enforcement agencies. Indeed, the preamble to the Medicare law expressly prohibits any Federal ''supervision or control over the practice of medicine or the manner in which medical services are provided,'' and the Controlled Substances Act, which this act would amend, also requires the Attorney General to defer to State judgments on whether physicians can dispense controlled substances. Rather than defer to State law, this act before you specifically directs that State law be ignored.
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I will sum up with my fifth point. The act's good intentions can be better served with other pending legislation. Whatever one's views on the role of assisted suicide and end-of-life care, we can all agree on the need for better palliative care, and this act is admirable for its efforts to enhance the quality of palliative care in this country. Nevertheless, those efforts are seriously compromised by the act, itself, and its provisions that would chill aggressive pain relief. Fortunately, there are other bills before Congress that incorporate the good parts of this act without combining them with the counterproductive part. Patients and physicians will be better served if Congress enacts one of those other bills.
Thank you for your interest, and I welcome your questions and comments.
[The prepared statement of Dr. Orentlicher follows:]
PREPARED STATEMENT OF DAVID ORENTLICHER, M.D., J.D., PROFESSOR, INDIANA UNIVERSITY SCHOOL OF LAW, INDIANAPOLIS CENTER FOR LAW AND HEALTH
Thank you very much, Chairman Hyde, for inviting me to appear and testify at this hearing.
My name is David Orentlicher. I am a professor of law and co-director of the Center for Law and Health at the Indiana University School of Law-Indianapolis and was formerly the director of the Division of Medical Ethics at the American Medical Association. I have degrees in both medicine and law from Harvard.
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''The Pain Relief Promotion Act of 1999'' is admirable in its effort to promote better palliative care of dying patients. However, the Act should not be passed for two important reasons: (1) it would end up compromising the quality of palliative care, doing far more harm than good, and (2) Congress has other bills before it that will properly serve the goal of promoting the highest quality palliative care.
In my testimony, I will elaborate on these two points by discussing them and three related points at greater length:
1. The Act will compromise the quality of palliative care in this country. Physicians are very sensitive to the possibility of criminal prosecution, and this Act's emphasis on enforcement actions by federal, state and local law enforcement personnel will discourage the aggressive and appropriate treatment of pain at the end of life.
There are no clear lines between the different kinds of end-of-life care. What might be too much pain medication for one person would not even begin to treat the pain of another person with the very same symptoms. No two of us our exactly alike, and our biological make- up dictates different treatments, doses and tolerance levels to medication.
The absence of clear lines is well illustrated by this Act. As the prohibition in Section 101 and the narrow definition of palliative care in Section 906 of the Act indicate, the line between acceptable palliative care and unacceptable assisted suicide rests solely on the physician's intent. When intent is the critical issue, physicians must—and will—worry that law enforcement officers will see a criminal intent even when none existed. Moreover, with this Act, physicians are at risk not merely for revocation of their license to prescribe controlled substances—as called for in last year's Lethal Drug Abuse Prevention Act—they are also subject to jail time.
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Palliative care is a new and emerging field in medicine, with rapid changes in knowledge and understanding. To freeze the science at this time, as this bill would do by providing a far too narrow definition of palliative care, would be a mistake. As someone with both legal and medical training, I understand the desire of policymakers to use the law to establish clear, black- and-white rules, but I also understand the absolute necessity for medicine to work in fuzzy shades of gray. That gray area makes legislation, regulation and enforcement of medicine at the end of life very difficult and threatens the ability of doctors to improve the quality of palliative care.
As several major studies indicate, the reality is that legal concerns already make physicians overly cautious about prescribing the medications necessary to relieve the pain of their patients. Given the seriously disruptive and traumatic nature of criminal prosecutions, this Act will make physicians err even more on the side of caution. Often extra caution is good, but in this case it means that tens of thousands of patients will continue to die without adequate treatment of their pain. No matter how many words you attempt to write into this Act to define and encourage good pain management and palliative care, the reality of the practice of medicine all over the country is that doctors would rather avoid risk, interrogation and investigation at all costs.
2. The Act subjects medical care to the oversight of officials with no expertise in medical care. By empowering officials of the Drug Enforcement Administration and other federal, state and local law enforcement personnel to prosecute physicians to determine their intent, this Act subjects physicians who care for dying patients to the oversight of police with no expertise in the provision of medical care. The Act does say that it will provide training to law enforcement personnel to help them discern appropriate use of palliative care medications, but health care professionals with years and years of training do not agree on such guidelines. They recognize that the practice of medicine, especially among end-stage terminally ill patients, is best when done on a case-by-case basis, using the patient's best interest as the most appropriate barometer. A weekend seminar in medicine for police officers will not replace years of working with and understanding the practice of medicine for terminally ill patients.
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Instead of being regulated by people sensitive to the nuances of medical treatment and the need for compassionate administration of narcotic drugs to dying patients, physicians will be regulated by people trained in criminal enforcement and instructed to curtail the use of controlled substances. The Controlled Substances Act was not designed to address difficult medical and social policies, and the DEA was not constituted to regulate medical practitioners.
Doctors must now worry about federal, state and local law enforcement personnel roaming the halls of hospitals and nursing homes and looking over their shoulders when they try to meet the needs of their dying patients. Second guessing of treatments by nurses, hospice workers or pharmacists could create just enough suspicion to start a police investigation. This will inevitably distract physicians from their primary goal—the treatment of their patients by the most effective means available to them.
3. The Act interferes with the ability of states to engage in experimentation and innovation in the care of dying patients. Congress and the courts have long recognized the importance of the laboratory of state experimentation on complicated matters of social policy. Because the optimal approach is often not clear, our federal system encourages states to try different approaches. With local variations, the country can discover the best course of action.
This Act most obviously frustrates state experimentation and innovation by overriding Oregon's Death with Dignity Act. When the U.S. Supreme Court declined to recognize a constitutional right to physician-assisted suicide in 1997, it acknowledged the uncertainty regarding the value of assisted suicide, and it invited states to explore different responses to requests for assisted suicide. As Justice Souter wrote, state experimentation is ''highly desirable'' on ''an emerging issue like assisted suicide.'' State legislatures, he wrote, have ''the power to experiment, moving forward and pulling back as facts emerge within their own jurisdiction.'' Similarly, observed Justice Rehnquist in his opinion for the Court, ''public concern and democratic action are . . . sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes those laws reflect.''
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Mindful of its difficultly navigating other areas of complex social policy, the Court indicated its desire to see issues relating to end-of-life care resolved through the local and democratic processes of state legislatures. In a bold departure from the Supreme Court's guidance, this Act would bring an abrupt end of state experimentation and the accompanying efforts to protect dignity and independence at the end of life.
Equally important, this Act also frustrates state experimentation and innovation in palliative care. The nature of palliative care is very much in evolution, as physicians try to determine the best way to relieve their patients' suffering. What has become clear is that some patients need unusually aggressive palliative treatment, and the most aggressive of those treatments can look very much like assisted suicide. Doctors who care for patients at the end of life need to be free and encouraged to try different approaches in their efforts to relieve suffering. The threat of prosecution under this Act will discourage physicians from pursuing promising treatments that are closest to the border between lawful palliative care and unlawful assisted suicide. And, this chilling effect will occur in all 50 states.
4. The Act usurps the states' rightful authority over medical practice. By imposing a federal mandate, this Act contravenes the principle of federalism, a basic tenet of American law and democracy. Traditionally, the regulation of medical practice should be left to the states and their medical boards, not to the federal government and its law enforcement agencies. Indeed, the preamble to the Medicare law expressly prohibits any federal ''supervision or control over the practice of medicine or the manner in which medical services are provided.'' Similarly, the Controlled Substances Act, which this Act would amend, generally requires the Attorney General to grant physicians the authority to prescribe controlled substances ''if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.'' Rather than defer to state law in the regulation of medical practice, this Act specifically directs that state law be ignored. Section 101 directs the Attorney General to ''give no force and effect to state law authorizing or permitting assisted suicide'' in deciding whether to permit physicians to prescribe controlled substances. This departure from the structure of the Controlled Substances Act represents a serious invasion of states' rights.
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5. The Act's good intentions can be better served through other, pending legislation. Whatever one's views on the role of assisted suicide in end-of-life care, we can all agree on the need for better palliative care. This Act is admirable for its efforts to enhance the quality of palliative care in this country. Nevertheless, those efforts are seriously compromised by the Act itself, in its provisions that will chill the provision of aggressive pain relief. Fortunately, there are other bills before Congress that incorporate the good parts of this Act without combining them with the counterproductive parts. Patients and physicians will be better served if Congress enacts one of these other bills, for example, ''The Conquering Pain Act'' or ''The Compassionate Care Act.''
Mr. HYDE. Thank you, Doctor. Mr. Marzen.
STATEMENT OF THOMAS MARZEN, GENERAL COUNSEL, THE NATIONAL LEGAL CENTER FOR THE MEDICALLY DEPENDENT AND DISABLED, INC.
Mr. MARZEN. Thank you, Mr. Chairman, members of the subcommittee. My name is Thomas Marzen, and 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 testify in favor of H.R. 2260, the Pain Relief Promotion Act of 1999, and I would like to particularly focus on the manner in which the Pain Relief Act affects enforcement of the Controlled Substances Act.
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In addition to needed funding authorization provisions the act, the Patient Relief Promotion Act also does two important things. It states that it is never a legitimate medical purpose under the Controlled Substance Act to use controlled substances for assisted suicide or euthanasia, and, second, it provides that pain relief is a legitimate purpose under the Controlled Substance Act, even if this may increase the risk of death.
Now, the first element that assures that use of controlled substances is never a legitimate medical purpose under the Controlled Substance Act was occasioned by a ruling of the Attorney General in which she said that the Controlled Substances Act bans the use of controlled substances for assisted suicide if the State laws ban assisted suicide, but it does not ban their use if the State law does not. In other words, when it comes to controlled substances for the use in assisted suicide only, the State law controls the Federal law. The Federal law has to follow the State law in this regard. As a present practical matter, this means that controlled substances can be safely legally used for assisted suicide under Federal law only in Oregon, which is the only State which explicitly legalized controlled substances for the purpose of assisted suicide. Thirty-eight States have made assisted suicide illegal by statute and in the remainder, except for Oregon, assisted suicide is at least under a legal cloud, so that it could not safely be done there.
Now, it is important to emphasize that in terms of the testimony that has been offered here, because what the Attorney General's opinion says, that the Controlled Substances Act can be used now to prosecute and to remove the registrations of physicians and pharmacists who dispense and prescribe controlled substances for assisted suicide in States that have made that illegal, and that the act can be so used in Oregon to the extent that the doctors there do not abide with the Oregon Death with Dignity law. If they violate some of the provisions—if they don't give a drug in the way that the statute provides, if they don't do recordkeeping and reporting properly and so on—the Attorney General says that the DEA is empowered to go in there and to remove the doctor's registration. So, it is not as though the DEA and the Controlled Substance Act doesn't have a role at the present time already in Oregon and in all the other States in enforcing the Controlled Substance Act against assisted suicide and euthanasia.
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But what we do have as a result of the Attorney General's ruling is essentially the potential for a patchwork crazy quilt in the application of the Controlled Substance Act throughout the country. We know that in Oregon, in so far as the physician and the pharmacist comply with the law that has been passed our there allowing for assisted suicide, the Federal law will not permit revocation of the DEA license or registration from the physician or pharmacist there, but in every other State it would. And, essentially, the DEA would have to run around looking at each State law to determine how far this is a legitimate medical purpose under the Federal law. There would be, potentially, 50 different State standards on what a legitimate medical purpose would be, and that is why there is a need for consistently uniform State and Federal standards in this regard.
In other words, this act doesn't really clear the way for Federal prosecutions. What it does is clarify Federal law. It doesn't clear the way for registrations to be revoked from doctors who don't comply with the law on assisted suicide and euthanasia now. It clarifies when that would happen, and what it says is that under the Federal Controlled Substances Act, it doesn't matter what your State rule is. The fact is that we don't, as a Federal Government, regard this as a legitimate medical purpose, as we do not regard the use of Federal funds under the Assisted Suicide Funding Restriction Act that Congress has already passed a legitimate purpose for assisted suicide or euthanasia. So, it would impose a uniformed standard. And, in Oregon, this would mean that the use of medications that are controlled substances for assisted suicide would violate the Federal Controlled Substance Act regardless of what the State law says about assisted suicide. It would not be a State crime. It does not preempt Oregon's law. It does not reverse their law. It simply says that, under this other layer of Federal law, the use of controlled substances for assisted suicide there remains a Federal crime and also allows a registration to be revoked.
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Now, there is a second important element in the patient Pain Relief Promotion Act, and that is explicit authorization to use controlled substances for pain relief even if this may increase the risk of death. And, as Dr. Hunter indicated, doctors have provided pain relief even if there has been an increased risk of death since they have had the capacity to relieve pain. The classic case has always been where a patient is on a respirator and we give the patient opiates and morphine, and we know that this may cause the patient's respiration to be suppressed. The doctor doesn't intend to cause the patient's death, but he knows of and assumes that risk as the price of relieving the patient's pain. Now, as a practical matter, doctors are not prosecuted for that sort of thing, but they sometimes have the fear that they might be in this nature of their practice.
Well, for the first time in Federal law, this bill would provide an explicit exception allowing the physician to practice this, in effect, the principle of double effect. There is no such principle in the law right now, but it may be that the DEA and the Federal Government have, through the regulatory and administrative process, allowed for that kind of practice. This would provide specific authorization for the use of pain relief medications even if it increased the risk of death that is not there presently at the present time in present law.
In sum, I believe that the patient Pain Relief Promotion Act of 1999 is an important piece of legislation that would strongly encourage the use of better and widespread methods of pain relief, and at the same time, guard against the use of controlled substances for killing purposes, and I strongly recommend its passage.
Thank you.
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[The prepared statement of Mr. Marzen follows:]
PREPARED STATEMENT OF THOMAS MARZEN, GENERAL COUNSEL, THE NATIONAL LEGAL CENTER FOR THE MEDICALLY DEPENDENT AND DISABLED, INC.
Mr. Chairman, my name is Thomas J. Marzen, and 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 the medical treatment rights of persons with disabilities and serious medical conditions. I testify in favor of H.R. 2260, the ''Pain Relief Promotion Act of 1999'' (the ''Act''). In particular, I will address elements in the Act that would clarify existing law by specifically stating that the use of controlled substances to alleviate pain and discomfort is a legitimate medical practice under the federal Controlled Substances Act (''CSA''), while their use to commit euthanasia or to assist in suicide is not. I will also describe enforcement of the CSA in Oregon in the wake of the Pain Relief Promotion Act. Finally, I will address particular concerns that have previously been raised by Subcommittee Representative Frank.
SUBSTANTIVE AMENDMENTS TO THE CONTROLLED SUBSTANCES ACT
In addition to provisions authorizing expenditure of federal funds to improve palliative care, the Pain Relief Promotion Act also contains clarifying amendments to the federal Controlled Substances Act which provide that: 1) there is no exception authorizing use of controlled substances for assisted suicide or euthanasia, and 2) that pain relief is a legitimate medical purpose under the CSA even if the use of controlled substances for this purpose increases the risk of death. The need for these clarifications was occasioned by the determination of the Attorney General that the Controlled Substances Act does not authorize enforcement actions for the use of controlled substances for assisted suicide or euthanasia insofar as these practices are permitted by state law. See June 5, 1998, Correspondence of Attorney General Janet Reno to Hon. Henry Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives, attached as Exhibit A.
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Under this ruling, federal enforcement actions would continue to be appropriate when controlled substances are used in violation of state laws that proscribe assisted suicide. As the Attorney General stated, ''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.'' Id. at 4.
Both at the time of the Attorney General's ruling and at present only one state, Oregon, has explicitly legalized the use of controlled substances for any killing purpose in any circumstances under any state law. ''The Oregon Death with Dignity Act,'' Or. Rev. Stat. §127.800 to 127.995, legalizes physician-assisted suicide by the prescription of lethal ''medications'' for terminally ill persons(see footnote 47) when done in compliance with certain procedural requirements. Thus, as a practical matter, the exception to the CSA recognized by the Attorney General exempts from federal liability those assisted suicides performed in Oregon in accord with the formalities and restrictions of its law authorizing physician-assisted suicide. The use of a controlled substance for euthanasia or assisted suicide in any other state(see footnote 48)—or in Oregon unless done in compliance with the Oregon law authorizing assisted suicide—continues to subject the physician who prescribes or the pharmacist who dispenses such drugs to enforcement action by the federal Drug Enforcement Administration (''DEA'').
The Pain Relief Promotion Act of 1999 closes a loophole created in federal law by the Attorney General's ruling through which a state might effectively overrule federal law banning the use of controlled substances for assisted suicide or euthanasia. Under the Attorney General's ruling, the federal Controlled Substances Act is enforceable against use of controlled substances for assisted suicide or euthanasia to the extent that state law proscribes these practices. However, the practical effect of the ruling is to effectively legalize the use of controlled substances for assisted suicide in one state—Oregon—to the extent that assisted suicide is performed in compliance with the restrictions and formalities of ''The Oregon Death with Dignity Act.''
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The Attorney General's ruling renders federal law on assisted suicide and euthanasia a function of state policy in a manner inconsistent with the principles of federalism and existing federal policy on assisted suicide and euthanasia. The federal ''Assisted Suicide Funding Restriction Act of 1997,'' (''ASFRA'') 42 U.S.C. §14401, for example, provides that no federal funds may be used, directly or indirectly,
(1) to provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing;
(2) to pay (directly, through payment of Federal financial participation or other matching payment, or otherwise) for such an item or service, including payment of expenses relating to such an item or service; or
(3) to pay (in whole or in part) for health benefit coverage that includes any coverage of such an item or service or any expenses relating to such an item or service.
Federal law thus forbids the use of any federal funds for assisted suicide regardless whether a state authorizes the practice—yet, under the Attorney General's ruling, permits the use of controlled substances for assisted suicide if a state authorizes the practice. The Pain Relief Promotion Act would correct this inconsistency in the application of federal policy and would result in a uniform policy on the use of controlled substances nationwide.
Oregon is not singled out by the Act for disparate treatment. To the contrary, the Act would assure that all states are treated equally by assuring that controlled substances should not be used for killing purposes under federal law regardless of state law on the matter. Thus, the Pain Relief Act amends the Controlled Substances Act by providing,
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(2) Notwithstanding any other provision of [the Controlled Substances] Act, in determining whether a registration is consistent with the public interest under [the Controlled Substances] Act, the Attorney General shall give no force and effect to State law authorizing or permitting assisted suicide or euthanasia.
The Pain Relief Promotion Act would thus preclude the Attorney General from finding that the use of controlled substances falls within the ''public interest'' exception of the CSA (21 U.S.C. §823) as grounds for carving out an exception to a general prohibition on the use of controlled substances for assisted suicide or euthanasia when states permit such practices.
At the same time, the Pain Relief Promotion Act specifically states that controlled substances may be used for the purpose of providing palliative care even if there is an indirect risk that the use of the substances may result in death:
For purposes of this Act and any regulations to implement this Act, alleviating pain or discomfort in the usual course of professional practice is a legitimate medical purpose for the dispensing, distributing, or administering of a controlled substance that is consistent with public health and safety, even if the use of such a substance may increase the risk of death. Nothing in this section authorizes intentionally dispensing, distributing, or administering a controlled substance for the purpose of causing death or assisting another person in causing death.
This provision of the Pain Relief Act in effect states the ''principle of the double effect'' in the context of application of the CSA in order to sharply differentiate between encouraged use of controlled substances for palliative care and proscribed use of controlled substances for killing purposes. Following this common sense principle familiar to medical practitioners, use of controlled substances to relieve pain or discomfort is explicitly encouraged, although it is understood that their use may present an increased risk of death as a secondary and undesired consequence of their use. This aspect of the Act mirrors the same principle enshrined in ASFRA (42 U.S.C. §14402):
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(b) CONSTRUCTION AND TREATMENT OF CERTAIN SERVICES.—Nothing in subsection (a), or in any other provision of this Act (or in any amendment made by this Act), shall be construed to apply to or to affect any limitation relating to—. . . .
(4) the use of an item, good, benefit, or service furnished for the purpose of alleviating pain or discomfort, even if such use may increase the risk of death, so long as such item, good, benefit, or service is not also furnished for the purpose of causing, or the purpose of assisting in causing, death, for any reason.
There is no provision in the current CSA that expressly protects prescribing or dispensing of controlled substances to control pain even if they carry the risk of death. At present, therefore, some physicians might arguably be chilled from prescribing controlled substances in doses sufficient to control pain for certain patients for fear that this might put their DEA registration at risk if large-dose prescriptions are seen as sufficient potentially to kill the patient. To the extent that there is fear that DEA's authority to revoke registrations prescribing controlled substances to assist suicide may chill appropriate prescriptions for pain relief, this 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 be credibly argued that passage of the Act would increase reluctance to prescribe drugs for pain relief. On the contrary, it is only by passing the Pain Relief Promotion Act that an explicit provision ratifying provision of appropriate pain relief measures will be added to 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 revoke DEA registration under the proposed Act, the DEA must show that the registrant ''intentionally'' dispensed or distributed a controlled substance ''for the purpose of causing death or assisting another person in causing death.'' This creates a scienter requirement: to revoke a license, the DEA must show that the registrant had the knowing purpose of assisting suicide or committing euthanasia. Revocation of a registration is not authorized under the Act for negligence, but only for knowing and purposeful supplying of a federally controlled substance for a forbidden purpose.
Even if a physician intentionally prescribes federally controlled substances to assist suicide or commit euthanasia, it 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 assisting in suicide or committing euthanasia. The current DEA Pharmacist's Manual states that ''the pharmacist who deliberately turns the other way when there is reason to believe that a purported prescription order had not been issued for a legitimate medical purpose may be prosecuted.'' U.S. Department of Justice, Drug Enforcement Administration, Pharmacist's Manual at 30 (Dec. 1995), citing United States v. Kershman, 555 F.2d 198 (8th Cir. 1977). The key word is ''deliberately.'' Unless the pharmacist acts deliberately and intentionally to assist suicide or commit euthanasia, the pharmacist's DEA registration may not be revoked.
ENFORCEMENT OF THE ACT IN OREGON
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Special consideration to the manner in which the Pain Relief Promotion Act would operate in Oregon is appropriate because only Oregon has specifically legalized what the Act would forbid: Oregon explicitly permits the use of ''medication'' prescribed by physicians under certain conditions and certain patients for use in assisted suicide. Or. Rev. Stat. §127.805.
The Act would cause the use of a controlled substance to assist in suicide to violate federal law—the Controlled Substances Act—regardless whether or not this violates any Oregon state prohibition.(see footnote 49) In the wake of the Act, use of a controlled substance for this purpose would offend federal law in Oregon just as it now does in the other states. In effect, therefore, the Act would create a uniform national standard under which it is never legitimate to use controlled substances to assist in suicide or commit euthanasia.
Although the Pain Relief Promotion Act will shield physicians, pharmacists, and other DEA registrants who provide appropriate pain relief and who prescribe or dispense controlled substances without the intent of assisting suicide or euthanasia, the Act will be readily enforceable so as to deter the prescribing or dispensing federally controlled substances to assist suicide in Oregon. This is so because the DEA has statutory authority to subpoena reports of assisted suicide that The Oregon Death with Dignity Act requires to be made to Oregon authorities in order for assisted suicide to be legal under Oregon law. This ability to subpoena records will, with minimal investment of DEA resources, rapidly and conclusively establish whether any violations of the Controlled Substances Act, as modified by the Pain Relief Promotion Act, have occurred. As soon as this becomes widely known in Oregon, it is likely to deter virtually all violations.
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First, reports and recorded required by The Oregon Death with Dignity Act will readily reveal whether federally controlled substances have been intentionally dispensed to assist suicide. Under the Oregon law,
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. [Or. Rev. Stat. §127.855.]
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 . . . [Or. Admin. R. 333–009–0010(1)(a)(1997)].
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Thus, in order to comply with The Oregon Death with Dignity Act and to escape criminal liability that would otherwise exist under Oregon law for assisting a suicide, a physician must note the medication used to assist a suicide in the patient's medical record, and the physician 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 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 copies of form attached as Exhibit B.
Recent amendments to The Oregon Death with Dignity Act further clarify the process. Oregon Senate Bill 491(see footnote 50) amends Or. Rev. Stat. §127.865 by adding a new subsection 1(b): ''The [Oregon Health] division shall require any health care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the division.'' Oregon Senate Bill 491 at p. 4, lines 9–10.(see footnote 51)
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. §876 (1981),
In any investigation . . . with respect to controlled substances, the Attorney General may . . . require the production of any records (including books, papers, document, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation.
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Monthly, or at other appropriate periodic intervals, the DEA could and should subpoena copies of the relevant reports filed with the Oregon authorities. These would provide identification of each patient and physician, and they would identify the medication used. This information, once obtained in response to subpoena, would indicate unequivocally whether a federally controlled substance had been prescribed. If so, then this would be sufficient in itself—without need for further investigation—to provide adequate evidence for the suspension or revocation of the physician's registration to distribute controlled substances in accordance with 21 U.S.C. §824(a) construed in light of the amendments of the Pain Relief Promotion Act.(see footnote 52)
Use of this procedure would result in an efficient enforcement procedure against use of controlled substances in Oregon. Only physicians who comply with Oregon's record keeping and reporting requirements are immune from liability under Oregon law when they assist in suicide. However, when they comply with these requirements, they will be providing the evidence that the DEA can use to demonstrate their violation of the federal Controlled Substances Act.
ACTIVE KILLING V. WITHHOLDING/WITHDRAWING TREATMENT
As amended by the Pain Relief Promotion Act, the Controlled Substances Act would prohibit the use of scheduled drugs for the purpose of assisting suicide or committing euthanasia: the use of active means to cause death. The Act does not affect the authority of the patient—or, under circumstances described by state law, the patient's surrogate—to order withholding or withdrawing of treatment necessary to sustain life.
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The distinction between the use of active means that cause death and the foregoing of means that sustain life is well-acknowledged in state law and is already embodied in federal law. Thus, ASFRA denies the use of federal funds ''to use for items and services (including assistance) the purpose of which is cause (or assist in causing) the suicide, euthanasia, or mercy killing of any individual. 42 U.S.C. §14401(b). At the same time, ASFRA specifically states that ''[n]othing in . . . [the Assisted Suicide Funding Restriction Act] . . . shall be construed to apply to or to affect any limitation relating to—(1) the withholding or withdrawing of medical treatment or medical care; (2) the withholding or withdrawing of nutrition or hydration . . .''
Nevertheless, the validity of the distinction between active means to cause death and forgoing treatment necessary to sustain life continues to be questioned. For example, at the April 1996 hearing before this Subcommittee, Representative Frank appeared to maintain that there is no difference in intention between a doctor who fails to provide life-saving medical treatment to a patient, knowing that this will result in the patient's death, and a doctor who gives the patient a lethal prescription or a lethal prescription. As Rep. Frank stated, ''[A]s between the means of standing idly by when you have the ability easily to prevent something and helping it happen, that is not a significant difference . . . Doctors have acquiesced that you are as a doctor, under the law and by ethics, to allow someone to die even though you can prevent it because that individual wishes to die. [Here, Rep. Frank was referring to withholding or withdrawing life-saving medical treatment.] . . . I don't understand the moral distinction between acquiescing by giving someone the extra pills or simply saying, okay, we are going to let you die, when I could stop it.'' Transcript, Oversight Hearing: ''Assisted Suicide in the United States,'' Monday, April 29, 1996, House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary at 162, 165.
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Let us evaluate what this position entails. Since Rep. Frank maintains that there is no supportable distinction between rejecting life-saving treatment and taking lethal prescriptions to kill the patient, whenever the State permits rejection of treatment, it must also equally permit active killing. What follows from this?
First, one does not need have to any particular condition—for example, a terminal condition—in order to refuse treatment of any kind. Under the law of informed consent, it almost always the case that a doctor cannot treat a competent patient if the patient refuses permission to be treated or to continue to be treated. This is true regardless of the nature of the treatment and regardless whether the patient would continue to live indefinitely if the treatment were provided. Thus, if there is no difference between actively killing and forgoing life-saving treatment, it follows that the government cannot prevent anyone from being provided a lethal prescription because, with rare exceptions, it cannot force anyone to accept life-saving treatment. For example, a mentally competent 18-year-old woman who, for whatever reason, refuses a blood transfusion or an antibiotic that would certainly save her life, but without which she would die, would also have an equal right to receive a prescription for a lethal overdose of drugs.
Second, if there is no distinction between the use of active means to cause death and forgoing life-saving treatment, then assisted suicide would be made available not only for competent adults, but also for mentally incapacitated adults and children. At least thirty-eight states and the District of Columbia impute the authority to order the withholding or withdrawing of life-sustaining medical treatment to surrogates to exercise on behalf of patients unable to make their own treatment decisions. See Thomas J. Marzen, Mary K. O'Dowd, Daniel M. Crone & Thomas J. Balch, 'Suicide: A Constitutional Right?'—Eleven Years Later, 35 Duquesne L. Rev. 261, 279 n. 58 (1996) (''Eleven Years Later''), attached as Exhibit D. In state after state, it has been ruled, as has the Washington State Supreme Court, that ''[a]n incompetent's right to refuse treatment should be equal to a competent's right to do so.'' In re Guardianship of Grant, 747 P.2d 445, 449 (Wash. 1987). If the right to forgo treatment necessary to sustain life is to be equated with a right to seek a lethal prescription, it follows that lethal drugs may be provided to mentally disabled adults and to children whenever surrogates may refuse life-saving treatment for them. Under the same circumstances in which a public guardian or family member might reject use of a respirator or chemotherapy for adults with Alzheimer disease or for children with disabilities, they would also have the authority to order lethal drugs be given to them.
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The U.S. Supreme Court has explained the difference between use of active means to cause death and forgoing treatment:
First, when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication . . . he is killed by that medication. . . . Furthermore, a physician who withdraws, or humors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes . . . [A] patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not . . . [P]atients who refuse life-sustaining treatment 'may not harbor a specific intent to die' and may instead 'fervently wish to live, but to do so free of unwanted medical technology, surgery, or drugs.' . . . [T]he law distinguishes actions taken 'because of' a given end from actions taken 'in spite of' their unintended but foreseen consequences. 'When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death . . . His purpose, though was to . . . liberate Europe from the Nazis.' '' [Quill v. Vacco, 117 S.Ct. 2293, 2299 (1997), quoting Compassion in Dying v. Washington, 79 F.3d 790, 856 (9th Cir. 1996) (Kleinfeld, J., dissenting)].
It is undoubtedly true that some patients or their surrogates may refuse life-sustaining treatment precisely in order to cause the death of the patient rather than to relieve the burden treatment imposes or to achieve some other end. From an ethical or moral perspective, such a decision may not be different from a decision to actively kill through the use of lethal agents. In both cases, the motive is homicidal rather than beneficent.
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However, law and public policy are hardly in the position to distinguish between the subjective motives of the decision makers when the contemplated conduct—foregoing life-sustaining treatment—is the same when treatment is refused for entirely legitimate reasons and when it is refused for homicidal motives. The law cannot read minds. And any attempt to establish a system to distinguish among refusal of treatment cases by balancing risk of death versus prospect of benefit or through prior oversight by an authoritative decisionmaking body would involve tortuous, and ultimately subjective, bureaucratic entanglement in end-of-life decisionmaking processes. See Eleven Years Later, 35 Duquesne L. Rev. at 271–273. In contrast, homicidal intent is clearly always manifest when active means are used to cause death. Drawing a bright line between the use of active means to cause death and forgoing treatment is thus not only logically defensible and already widely accepted in law, but it is sensible practical public policy. Moreover, failure to acknowledge the distinction between use of active means and forgoing treatment would result in a regime that legitimatized assisted suicide and euthanasia for virtually everyone since life-sustaining treatment can be refused by virtually everyone regardless of circumstance or condition.
LACK OF CRIMINAL SANCTIONS AGAINST SUICIDE
It is sometimes argued that because there are at present no criminal penalties for those who commit or who attempt to commit suicide, it is irrational to make it crime to permit someone to assist others to commit suicide. After all, the argument goes, there are those who are physically incapable of killing themselves without assistance and those who may not otherwise be able to obtain drugs to permit them to commit suicide in a ''humane and dignified manner.'' Shouldn't they have the opportunity for suicide as those who are physically able to do so or who have some access to controlled substances without physician prescription?
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Thus, Representative Frank at an earlier hearing asserted that the ''difference between the State not doing something to punish somebody for doing an act and the State calling it a right, which gives it a sanction'' is ''a distinction without a difference. You leave me alone, and I do what I want, and that is okay. People legally should be allowed to kill themselves if you're driven to do that without any fear of adverse legal consequences either to themselves or their estates . . . [I]f I am . . . legally entitled to commit suicide without adverse legal consequences, and I become physically incapable of doing it, then it seems to me to say that in those limited circumstances I can get someone else to help me and share with them my immunity to legal action is not discriminatory.'' Transcript, Oversight Hearing: ''Assisted Suicide in the United States,'' Monday, April 29, 1996, House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary at 48–49.
This line of argument rests on a faulty premise: that people who are physically unable to do so in a desired manner now have a ''right'' or ''freedom'' to commit suicide.
Why is this premise faulty? Compare the situation of someone who avails herself of First Amendment rights by denouncing a politician in a public park. If an irate supporter of the politician tries to physically restrain the speaker and prevent her from continuing her denunciations, that person will be subject to criminal charges of assault and battery. On the other hand, suppose someone else tries physically to prevent that person from committing suicide. As the Minnesota Supreme Court held in a 1975 case, ''[T]here can be no doubt that a bonafide attempt to prevent a suicide is not a crime in any jurisdiction, even where it involves the detention, against her will, of the person planning to kill herself.'' State v. Hembd, 305 Minn. 120, 126, 232 N.W.2d 872, 878 (1975). In fact, if public authorities detect someone in the act of attempting suicide, they will typically not only interfere, but also place the person in temporary custody of mental health authorities. Posing such a danger to oneself is grounds for involuntary commitment for mental health treatment by statute in every jurisdiction in the United States. See, e.g., Mass. Gen. Laws Ann. ch. 123, §1, 18(a) (involuntary commitment to a mental health facility if there is ''a substantial risk of physical harm to the person himself as manifested by evidence of threats or attempts at, suicide''); D.C. Code Ann. §21–5459 (involuntary commitment for treatment for the mentally ill ''likely to injure himself'').
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In short, it is not accurate to assert that there is a legal right or liberty to commit suicide. If this were so, then it would be no more constitutionally permissible for the State to interfere with suicide decisions than to interfere with free speech.
But if suicide is not today treated as a right, then why are there no criminal penalties against it? In fact, under English common was there was criminal punishment of a sort for suicide: the suicide was buried ''ignominiously'' (at a crossroads, and sometimes with a stake through the heart) and the personal property of the suicide was forfeited to the State. See Thomas J. Marzen, Mary K. O'Dowd, Daniel Crone & Thomas J. Balch, Suicide: A Constitutional Right? 24 Duquesne L. Rev. 1, 56–100 (1985), for an extensive treatment of the history of the law of suicide. There were instances of ignominious burial and forfeiture in the American colonies. By the time of the American Revolution or shortly thereafter, however, these penalties had been abolished in virtually all the states. This was not because early America approved of suicide. In an influential 1796 treatise, Zephaniah Swift, later Chief Justice of the Connecticut Supreme Court, explained that they were discontinued because it was seen as ''contemptible'' to exercise ''mean act of revenge upon lifeless clay, that is insensible of punishment'' and cruel to inflict ''a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender.'' 2 Zepheniah Swift, A System of Laws of the State of Connecticut 304 (1795). Swift emphasized that suicide was nevertheless a ''crime'' that is ''abhorrent to the feelings of mankind,'' but observed that ''it is evident that were a person so destitute of affection for his family . . . as to wish to put an end to his existence, that he will not be deterred by a consideration of their future subsistence.'' Id. As the U.S. Supreme Court pointed out, abolition of the old common law of forfeiture of a suicide's personal property ''did not represent an acceptance of suicide; rather . . . this change reflected the growing consensus that it was unfair to punish the suicide's family'' by denying them their inheritance. Washington v. Glucksberg, 17 S. Ct. 2258, 2264 (1997). ''Nonetheless, courts continued to condemn it as a grave public wrong.'' Id.
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The colonies and later the states continued to punish assisting suicide and even attempted suicide. In the latter part of the Nineteenth and Twentieth Century, penalties for attempting suicide were generally repealed—but not because suicide was seen as a liberty. Rather, the feeling grew that those who attempted suicide should be given treatment for mental or emotional disorders rather than punished by the criminal law. Typical was the 1902 statement of a Pennsylvania court about one who attempted suicide: ''[I]t is the result of disease. He should be taken to a hospital and not sent to prison.'' Commonwealth v. Wright, 11 Pa. D. 144, 146 (1902). In 1980, the Supreme Court of Iowa wrote, ''The only reason we view suicide [as] noncriminal is that we consider inappropriate punishing the suicide victim or attempted suicide victim, not that we are concerned about that person's life any less than others' lives. To say that aiding an abetting suicide is a defense to homicide would denigrate these views.'' State v. Marti, 290 N.W.2d 570, 581 (Iowa 1980). As the Florida Supreme Court stated in 1933, ''No sophistry is tolerated . . . which seek[s] to justify self-destruction as commendable or even a matter of personal right'' Blackwood v. Jones, 111 Fla. 528, 532–33, 149 So. 600, 601 (1933).
In sum, history a legal precedent does not support the notion that now or in the past suicide has been treated as an accepted liberty or freedom in the United States. That criminal penalties against suicide have been abolished does not render suicide an affirmative right. It remains against public policy. If it did not, then the numerous laws against assisted suicide, that permit police and private parties to use necessary force prevent suicide, and that warrant involuntary commitment of those who attempt suicide could not survive under the Constitution.
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CONCLUSION
I strongly encourage enactment of H.R. 2260, the ''Pain Relief Promotion Act of 1999.'' This proposed law would create a needed uniform federal standard on the use of controlled substances for assisted suicide and euthanasia, create an explicit exception for doctors to use controlled substances for palliative care, and authorize needed federal funds for palliative care training.
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EXHIBIT C
70TH OREGON LEGISLATIVE ASSEMBLY--1999 REGULAR SESSION
A-ENGROSED
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SENATE BILL 491
ORDERED BY THE SENATE APRIL 20
INCLUDING SENATE AMENDMENTS DATED APRIL 20
NOTE: Matter within { + braces and plus signs + } in an amended section is new. Matter within { - braces and minus signs - } is existing law to be omitted. New sections are within { + braces and plus signs + } .
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the measure.
Amends Oregon Death with Dignity Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to Oregon Death with Dignity Act; creating new provisions; amending ORS 127.800, 127.805, 127.815, 127.825, 127.835, 127.860, 127.865, 127.885 and 127.897; and declaring an emergency.
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Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 127.800 is amended to read:
127.800. §1.01. Definitions. The following words and phrases, whenever used in ORS 127.800 to 127.897, [shall] have the following meanings:
(1) ''Adult'' means an individual who is 18 years of age or older.
(2) ''Attending physician'' means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.
{ + (3) ''Capable'' means that in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available. + }
{ - (3) - } { + (4) + } ''Consulting physician'' means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.
{ - (4) - } { + (5) + } ''Counseling'' means { - a consultation - } { + one or more consultations as necessary + } between a state licensed psychiatrist or psychologist and a patient for the purpose of determining { - whether - } { + that + } the patient is { + capable and not + } suffering from a psychiatric or psychological disorder { - , - } or depression causing impaired judgment.
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{ - (5) - } { + (6) + } ''Health care provider'' means a person licensed, certified { - , - } or otherwise authorized or permitted by the law of this state to administer health care { + or dispense medication + } in the ordinary course of business or practice of a profession, and includes a health care facility.
{ - (6) ''Incapable'' means that in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, a patient lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available. Capable means not incapable. - }
(7) ''Informed decision'' means a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:
(a) His or her medical diagnosis;
(b) His or her prognosis;
(c) The potential risks associated with taking the medication to be prescribed;
(d) The probable result of taking the medication to be prescribed; { + and + }
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(e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.
(8) ''Medically confirmed'' means the medical opinion of the attending physician has been confirmed by a consulting physician who has examined the patient and the patient's relevant medical records.
(9) ''Patient'' means a person who is under the care of a physician.
(10) ''Physician'' means a doctor of medicine or osteopathy licensed to practice medicine by the Board of Medical Examiners for the State of Oregon.
(11) ''Qualified patient'' means a capable adult who is a resident of Oregon and has satisfied the requirements of ORS 127.800 to 127.897 in order to obtain a prescription for medication to end his or her life in a humane and dignified manner.
(12) ''Terminal disease'' means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six { - (6) - } months.
SECTION 2. ORS 127.805 is amended to read:
127.805. §2.01. Who may initiate a written request for medication. { + (1) + } An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with ORS 127.800 to 127.897.
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{ + (2) No person shall qualify under the provisions of ORS 127.800 to 127.897 solely because of age or disability. + }
SECTION 3. ORS 127.815 is amended to read:
127.815. §3.01. Attending physician responsibilities. { + (1) + } The attending physician shall:
{ - (1) - } { + (a) + } Make the initial determination of whether a patient has a terminal disease, is capable, and has made the request voluntarily;
{ + (b) Request that the patient demonstrate Oregon residency pursuant to ORS 127.860; + }
{ - (2) - } { + (c) To ensure that the patient is making an informed decision, + } inform the patient of:
{ - (a) - } { + (A) + } His or her medical diagnosis;
{ - (b) - } { + (B) + } His or her prognosis;
{ - (c) - } { + (C) + } The potential risks associated with taking the medication to be prescribed;
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{ - (d) - } { + (D) + } The probable result of taking the medication to be prescribed; { + and + }
{ - (e) - } { + (E) + } The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control { + ; + } { - . - }
{ - (3) - } { + (d) + } Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily;
{ - (4) - } { + (e) + } Refer the patient for counseling if appropriate pursuant to ORS 127.825;
{ - (5) - } { + (f) + } { - Request - } { + Recommend + } that the patient notify next of kin;
{ + (g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking the medication in a public place; + }
{ - (6) - } { + (h) + } Inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15 day waiting period pursuant to ORS 127.840;
{ - (7) - } { + (i) + } Verify, immediately prior to writing the prescription for medication under ORS 127.800 to 127.897, that the patient is making an informed decision { - : - } { + ; + }
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{ - (8) - } { + (j) + } Fulfill the medical record documentation requirements of ORS 127.855;
{ - (9) - } { + (k) + } Ensure that all appropriate steps are carried out in accordance with ORS 127.800 to 127.897 prior to writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner
{ - . - } { + ; and
(L)(A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, provided the attending physician is registered as a dispensing physician with the Board of Medical Examiners, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule; or
(B) With the patient's written consent:
(i) Contact a pharmacist and inform the pharmacist of the prescription; and
(ii) Deliver the written prescription personally or by mail to the pharmacist, who will dispense the medications to either the patient, the attending physician or an expressly identified agent of the patient.
(2) Notwithstanding any other provision of law, the attending physician may sign the patient's death certificate. + }
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SECTION 4. ORS 127.825 is amended to read:
127.825. §3.03. Counseling referral. If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder { - , - } or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient's life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder { - , - } or depression causing impaired judgment.
SECTION 5. { + Section 5a of this 1999 Act is added to and made a part of ORS 127.800 to 127.897. + }
SECTION 5a. { + Any governmental entity that incurs costs resulting from a person terminating his or her life pursuant to the provisions of ORS 127.800 to 127.897 in a public place shall have a claim against the estate of the person to recover such costs and reasonable attorney fees related to enforcing the claim. + }
SECTION 6. ORS 127.835 is amended to read:
127.835. §3.05. Family notification. The attending physician shall { - ask - } { + recommend that + } the patient { - to - } notify { + the + } next of kin of his or her request for medication pursuant to ORS 127.800 to 127.897. A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason.
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{ + NOTE: + } Section 7 was deleted by amendment. Subsequent sections were not renumbered.
SECTION 8. ORS 127.860 is amended to read:
127.860. §3.10. Residency requirement. Only requests made by Oregon residents { - , - } under ORS 127.800 to 127.897 { - , - } shall be granted. { + Factors demonstrating Oregon residency include but are not limited to:
(1) Possession of an Oregon driver license;
(2) Registration to vote in Oregon;
(3) Evidence that the person owns or leases property in Oregon; or
(4) Filing of an Oregon tax return for the most recent tax year. + }
SECTION 9. ORS 127.865 is amended to read:
127.865. §3.11. Reporting requirements. (1) { + (a) + } The Health Division shall annually review a sample of records maintained pursuant to ORS 127.800 to 127.897.
{ + (b) The division shall require any health care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the division. + }
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(2) The Health Division shall make rules to facilitate the collection of information regarding compliance with ORS 127.800 to 127.897. { + Except as otherwise required by law, + } the information collected shall not be a public record and may not be made available for inspection by the public.
(3) The { - Health - } division shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section.
SECTION 10. ORS 127.885 is amended to read:
127.885. §4.01. Immunities. Except as provided in ORS 127.890:
(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with ORS 127.800 to 127.897. This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.
(2) No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating or refusing to participate in good faith compliance with ORS 127.800 to 127.897.
(3) No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of ORS 127.800 to 127.897 shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.
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(4) No health care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient's request under ORS 127.800 to 127.897, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.
{ + (5)(a) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in ORS 127.800 to 127.897 on the premises of the prohibiting provider if the prohibiting provider has notified the health care provider of the prohibiting provider's policy regarding participating in ORS 127.800 to 127.897. Nothing in this paragraph prevents a health care provider from providing health care services to a patient that do not constitute participation in ORS 127.800 to 127.897.
(b) Notwithstanding the provisions of subsections (1) to (4) of this section, a health care provider may subject another health care provider to the sanctions stated in this paragraph if the sanctioning health care provider has notified the sanctioned provider prior to participation in ORS 127.800 to 127.897 that it prohibits participation in ORS 127.800 to 127.897:
(A) Loss of privileges, loss of membership or other sanction provided pursuant to the medical staff bylaws, policies and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider's medical staff and participates in ORS 127.800 to 127.897 while on the health care facility premises, as defined in ORS 442.015, of the sanctioning health care provider, but not including the private medical office of a physician or other provider;
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(B) Termination of lease or other property contract or other nonmonetary remedies provided by lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in ORS 127.800 to 127.897 while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or
(C) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in ORS 127.800 to 127.897 while acting in the course and scope of the sanctioned provider's capacity as an employee or independent contractor of the sanctioning health care provider. Nothing in this subparagraph shall be construed to prevent:
(i) A health care provider from participating in ORS 127.800 to 127.897 while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or
(ii) A patient from contracting with his or her attending physician and consulting physician to act outside the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.
(c) A health care provider that imposes sanctions pursuant to paragraph (b) of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.
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(d) For purposes of this subsection:
(A) ''Notify'' means a separate statement in writing to the health care provider specifically informing the health care provider prior to the provider's participation in ORS 127.800 to 127.897 of the sanctioning health care provider's policy about participation in activities covered by ORS 127.800 to 127.897.
(B) ''Participate in ORS 127.800 to 127.897'' means to perform the duties of an attending physician pursuant to ORS 127.815, the consulting physician function pursuant to ORS 127.820 or the counseling function pursuant to ORS 127.825. ''Participate in ORS 127.800 to 127.897'' does not include:
(i) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;
(ii) Providing information about the Oregon Death with Dignity Act to a patient upon the request of the patient;
(iii) Providing a patient, upon the request of the patient, with a referral to another physician; or
(iv) A patient contracting with his or her attending physician and consulting physician to act outside of the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.
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(6) Suspension or termination of staff membership or privileges under subsection (5) of this section is not reportable under ORS 441.820. Action taken pursuant to ORS 127.810, 127.815, 127.820 or 127.825 shall not be the sole basis for a report of unprofessional or dishonorable conduct under ORS 677.415 (2) or (3).
(7) No provision of ORS 127.800 to 127.897 shall be construed to allow a lower standard of care for patients in the community where the patient is treated or a similar community. + }
SECTION 11. ORS 127.897 is amended to read:
127.897. §6.01. Form of the request. A request for a medication as authorized by ORS 127.800 to 127.897 shall be in substantially the following form:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
REQUEST FOR MEDICATION TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER
I, XXXXXXXXXXXXXXXXXXXX, am an adult of sound mind.
I am suffering from XXXXXXXXXX, which my attending physician has determined is a terminal disease and which has been medically confirmed by a consulting physician.
I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including comfort care, hospice care and pain control.
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I request that my attending physician prescribe medication that will end my life in a humane and dignified manner.
INITIAL ONE:
XXXXXX I have informed my family of my decision and taken their opinions into consideration.
XXXXXX I have decided not to inform my family of my decision.
XXXXXX I have no family to inform of my decision.
I understand that I have the right to rescind this request at any time.
I understand the full import of this request and I expect to die when I take the medication to be prescribed. { + I further understand that although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility. + }
I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.
Signed: XXXXXXXXXXXXXXXXXXXX
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Dated: XXXXXXXXXXXXXXXXXXX
DECLARATION OF WITNESSES
We declare that the person signing this request:
(a) Is personally known to us or has provided proof of identity;
(b) Signed this request in our presence;
(c) Appears to be of sound mind and not under duress, fraud or undue influence;
(d) Is not a patient for whom either of us is attending physician.
XXXXXXXXXX Witness 1/Date
XXXXXXXXXX Witness 2/Date
NOTE: One witness shall not be a relative (by blood, marriage or adoption) of the person signing this request, shall not be entitled to any portion of the person's estate upon death and shall not own, operate or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.
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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
SECTION 12. { + This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage. + }
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Mr. HYDE. Thank you, Mr. Marzen.
Mr. Jenkins, do you have any questions?
Mr. JENKINS. Dr. Hunter, as I understood your testimony, now you do not share the fear of compromising your treatment with your patients, as Dr. Orentlicher does. Is that——
Mr. HUNTER. You are correct. I do not fear that.
Mr. JENKINS. And you don't think this law is going to change your practice one iota?
Mr. HUNTER. Not one iota.
Mr. JENKINS. Do you have any opinion about how doctors would line up on the score? How many would feel the way you do? How many would feel the way Dr. Orentlicher feels?
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Mr. HUNTER. I think any physician who understands the principles and practice of pain management and palliative care will not be afraid of this bill. I think that the challenge is to get the physician community educated, and that is doable. We cannot let perception rule in this case. It is a matter of education. I think, again, by having basically in law Principle of Double Effect, the reality that sometimes these medications when used appropriately may hasten death, it is a reality. We know that as doctors, and, actually, in law, it helps me to educate and to say that this is a reality. We recognize it. We are prepared to do what has to be done for our patients.
So, again, I think that with the proper education, which is certainly, in absence of this law, has been bad up until now. This law, from my perspective could give a necessary impetus to gain access to medical communities to say we are here to educate; we are to help you understand; you have nothing to fear. Let us have grand rounds; let us have physician education time and begin to work and make the inroads that are necessary.
Mr. JENKINS. It is my understanding that the American Medical Association just very recently endorsed this legislation. Do you know anything about that?
Mr. HUNTER. I don't know anything specifically. I did also hear the same thing that a vote was taken yesterday at the meeting and that they do endorse this, but that is strictly what I have heard.
Mr. JENKINS. We are kind of like Will Rogers—all we know is what we read in the papers.
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Mr. HUNTER. That is right.
Mr. JENKINS. All right. Thank you very much, sir.
Mr. HYDE. Mr. Frank.
Mr. FRANK. Thank you, Mr. Chairman. At the request of the ranking member, Mr. Watt, who is, as I said, on the floor, I would like to insert into the record a letter from Susan Pendergast who is president of the American Society of Pain Management Nurses in which she expresses her concerns regarding the bill.
Mr. HYDE. Without objection.
Mr. FRANK. Mr. Marzen, I apologize again for having been called outside, but you said there is a need for a national standard over and above the merits. I mean, there is an argument—people who disagree with what Oregon has done obviously have some interest in seeing it overturn, but then there is sort of a separate argument that says there should be a national standard. The chairman also said there should be a national standard. Why? Why is this—we all agree that there are issues in our society which are best dealt with nationally, because they cross State lines—clean air, obviously, or some economic issues where manufacturers go across State lines—but why is there a need for this to have a uniform standard? I mean, over and above the substance of the policy, what is inherently difficult about different States having different practices? If you are a doctor, you practice in this State with the laws, and if you move—certainly, it has been my experience that medical practice rules and regulations and statutes differ in a lot of other ways. What is the independent reason why there has to be a national standard?
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Mr. MARZEN. Well, Representative Frank, I think there are a couple of reasons. One is consistency. We have already established in Federal law that euthanasia and assisted suicide are not to be funded under Federal law, and we have a uniform policy in that regard.
Mr. FRANK. Well, I understand that, Mr. Marzen, but that is a policy discrepancy. You don't like assisted suicide. Indeed, I was struck by your forthrightness. You don't like suicide. You think suicide is against public policy, and your testimony, which I did have a chance to read, you say the only reason we don't lock people up who try to commit suicide is we already feel sorry them, but you think it is wrong. So, I understand that, but that is the substantive objection to suicide, assisted or not. Over and above that, people have been arguing that there is a reason for uniformity. Why is this a subject on which there needs to be uniformity nationally rather than a State-by-State policy? I don't understand——
Mr. MARZEN. I think that there is a practical problem I alluded, and that is that suppose you are in the DEA and you have 50 different State policies on assisted suicide. Under the Attorney General's ruling, that would mean that you would be applying 50 different standards of what it means to do a legitimate medical practice. In Oregon, you would say, ''I am going to prosecute and remove licenses or registrations of doctors, if they allow a waiting period of 15 days, because that is not a legitimate medical practice. Whereas, in Michigan, I am going to remove if they do it at all.''
Mr. FRANK. And you think that would be too hard for the average DEA agent? Like he might know where Oregon ended and Washington started?
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Mr. MARZEN. Well——
Mr. FRANK. That doesn't sound to me like——
Mr. MARZEN. You have to admit, it would be odd for the DEA to be always researching the extent of State law in order to apply the Federal law.
Mr. FRANK. I am skeptical that is a real problem, Mr. Marzen. In the first place, you don't have 50 different policies; you might have 3 or 4.
Mr. MARZEN. Could have 50.
Mr. FRANK. And there is also a real problem here, and the reason there is a State autonomy problem is you are suggesting is that whenever the Federal Government sort of enters into the regulatory area, it somehow has to impose uniformity on the States. For instance, we have shared jurisdiction—I mentioned clean air—we have shared jurisdiction in some of the environmental areas, and the regional administrator in a particular area has to take into account different State policies, but you really think that the complexity of this would be the reason, why it has to be uniform policy?
Mr. MARZEN. Well, I think that is an element. I think that is one of the possibilities.
Mr. FRANK. Is that really what motivates this bill, you think, Mr. Marzen, honestly?
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Mr. MARZEN. No. I think the primary motivation is——
Mr. FRANK. Is to be against suicide.
Mr. MARZEN. Right.
Mr. FRANK. I mean, I think the federalism argument is kind of a make wave here, to be honest.
Mr. MARZEN. I want to point out, however, Representative, that the Federal law here doesn't preempt the State law. In theory, somebody in Oregon can come forward with a medication that is not a controlled substance——
Mr. FRANK. I understand that, Mr. Marzen, but neither you nor I think much of that argument, so why waste time with it?
Mr. MARZEN. Okay.
Mr. FRANK. Let me ask you one other question, because I notice you are with National Center on Disability. What do you think of the Medicare cuts of 1997? [Laughter.]
Mr. MARZEN. Our organization does not have a policy on that issue. I really don't know.
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Mr. FRANK. Well, what about the level of medical care that the Federal Government provides through Medicaid and Medicare?
Mr. MARZEN. We are very much in favor of increased medical care for people with disabilities, if that is your question.
Mr. FRANK. Well, it would be, because in 1997 I cut medical care for people with disabilities and others. So, let me ask you, do you think the current level of Federal support for medical care for people with disabilities is adequate?
Mr. MARZEN. I won't make a judgment on the level of Federal support. I don't think that the level of support is adequate. I don't know enough about the level of Federal support to make a proper answer.
Mr. FRANK. Well, I would be interested in what the National Legal Center thought about that, so I appreciate that you don't have a policy now, but I would make a request that you tell me what it is, and I think it is directly relevant, because many people use the inadequacy of Federal medical assistance as one reason why we have to be very vigilant not to allow any kind of assisted suicide, and that is calling attention to what seems to be an inadequacy of medical assistance. So, I would be interested in your organization's position on what you think the level of Federal support is for people who are disabled.
Mr. JENKINS [presiding]. Mr. Frank, I hate to interrupt the gentleman from Massachusetts——
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Mr. FRANK. Well, I don't believe that. [Laughter.]
Mr. JENKINS [continuing]. But we have a House vote. I understand I am going to have to answer to the gentleman from Massachusetts, and I run the risk.
Mr. FRANK. You know we don't have to answer to each other.
Mr. JENKINS. We have 10 minutes to make this vote in the House of Representatives, and we have heard from these three fine witnesses, and I want to say thank you very much. As with the last panel, we certainly do appreciate the fact that you are willing to come and that you have given reasoned positions on this enactment, and I am going to declare the hearing adjourned.
[Whereupon, at 11:46 a.m., the subcommittee was adjourned.]
(Footnote 1 return)
A statement and list of task force members. (Available to the subcommittee)
(Footnote 2 return)
Focus: Oregon's POLST Program, State Initiatives in End-of-Life Care, Issue 3, April 1999. (Available to the subcommittee)
(Footnote 3 return)
Focus: Oregon, State Initiatives in End-of-Life Care, Issue 1, June 1998. (Available to the subcommittee)
(Footnote 4 return)
Tolle S, Haley K. Pain Management in the Dying, Successes and Concerns, Oregon BME Newsletter, Fall 1998. (Available to the subcommittee)
(Footnote 5 return)
Controlled Dangerous Substances, Narcotic and Drug Control Laws' Hearings before the U.S. House of Representatives Committee on Ways and Means. Washington, DC: U.S. Government Printing Office, 1970.
(Footnote 6 return)
See for example Section 202 of the 1962 amendments to the FFDCA, P.L.87–871, 76 Stat 780; and U.S. vs. Evers, 1981)
(Footnote 7 return)
Code of Federal Regulations Part 21, Section 1306.07(c)
(Footnote 8 return)
Drug Enforcement Administration. Physician's Manual: An Informational Outline of the Controlled Substances Act of 1970. U.S. Department of Justice: DEA; March, 1990.
(Footnote 9 return)
Federation of State Medical Boards of the United States, Inc. Model Guidelines for the Use of Controlled Substances for the Treatment of Pain. Euless, TX; May 1998.
(Footnote 10 return)
Fohr SA. The double effect of pain medication: Separating myth from reality. Journal of Palliative Medicine. 1998;1(4):315–328.
(Footnote 11 return)
United States Sentencing Commission, Guidelines Manual, p. 227, §3A1.1.
(Footnote 12 return)
The Oregon law has been found to violate constitutional guarantees of equal protection by the only federal court to review that law on the merits. See Lee v. Oregon, 891 F.Supp. 1429 (D. Or. 1995), vacated on other grounds, 107 F.3d 1382 (9th Cir. 1997), cert. denied, 118 S. Ct. 328 (1997). In its 1997 rulings on assisted suicide, the U.S. Supreme Court noted that it has yet to review the validity of this argument: ''Lee, of course, is not before us . . . and we offer no opinion as to the validity of the Lee courts' reasoning. In Vacco v. Quill . . . , however, decided today, we hold that New York's assisted-suicide ban does not violate the Equal Protection Clause.'' Washington v. Glucksberg, 117 S. Ct. 2258, 2262 n. 7 (1997) (emphasis added). To this day no appellate court has ruled on the constitutionality of a law like Oregon's.
(Footnote 13 return)
Washington v. Glucksberg, 117 S. Ct. 2258, 2272 (1997), quoting United States v. Rutherford, 442 U.S. 544, 558 (1979).
(Footnote 14 return)
In particular, 1984 amendments to the CSA were designed ''to make it easier for the [DEA] to suspend or revoke the authority of physicians . . . who write or dispense prescriptions in a way that is threatening to the public health or safety,'' even in cases where they may not have been charged or convicted under state criminal statutes. Remarks of Rep. Gilman, 130 Cong. Rec. H9681 (daily ed. Sept. 18, 1984), quoted in Trawick v. Drug Enforcement Administration, 861 F.2d 72, 75 n.* (4th Cir. 1988).
(Footnote 15 return)
Thus H.R. 2260's affirmation that the relevant section of the CSA does not authorize intentionally prescribing and dispensing federally regulated drugs for the purpose of causing death is restrained, and carefully focused on the legal anomaly created by the Attorney General's ruling.
(Footnote 16 return)
''Registration of a physician under the Controlled Substances Act is a matter entirely separate from a physician's State license to practice medicine. Therefore, revocation of registration only precludes a physician from dispensing substances controlled under the Controlled Substances Act and does not preclude his dispensing other prescription drugs or his continued practice of medicine.'' S. Rep. No. 225, 98th Congress, 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3449 n.40.
(Footnote 17 return)
Indeed, the bill's creation of a new medical advisory board to review particular cases was taken by critics as evidence that massive new enforcement actions were contemplated—though sponsors intended this board as an independent panel of experts to be convened only at the practitioner's request, to provide an additional shield against medically uninformed enforcement actions.
(Footnote 18 return)
Such effects are far rarer than was once thought. ''No more than 1 per cent of patients who receive narcotics for pain develop serious respiratory depression.'' M. Angell, ''The Quality of Mercy,'' in 306 New England Journal of Medicine 99 (January 14, 1982). ''There is close to universal ethical approval of the bold use of pain-control measures even if their use risks decreasing the period of survival. Yet palliative-care experience shows this situation to be extremely rare. The drugs for pain relief are very safe. Palliative-medicine specialists do not agree that good pain relief shortens life. Pain relief without sedation is a central and achievable goal of palliative care.'' J. Scott, ''Fear and False Promises: The Challenge of Pain in the Terminally Ill,'' in I. Gentles (ed.), Euthanasia and Assisted Suicide: The Current Debate (Stoddart: Toronto 1995) at 100.
(Footnote 19 return)
See Compassion in Dying v. Washington, 79 F.3d 790, 856 (9th Cir. 1996)(Kleinfeld, J., dissenting), rev'd, 117 S. Ct. 2258 (1997).
(Footnote 20 return)
Vacco v. Quill, 117 S. Ct. 2293, 2298–99, 2302 (1997).
(Footnote 21 return)
Since the end of 1994 new statutes against assisted suicide have been enacted in: Louisiana (1995); Rhode Island and Iowa (1996); Virginia, Michigan and South Carolina (1998); and Maryland (1999). In 1998, three states (Kansas, Oklahoma and South Dakota) added to their existing criminal prohibitions by providing civil penalties as well. The new Michigan law did not include an explicit disclaimer on the legitimacy of pain control, but such legislation was later enacted separately; Jack Kevorkian's flagrant but effective misuse of the ''principle of double effect'' in his trials made Michigan legislators hesitant to include such language in their ban.
(Footnote 22 return)
''Assisted suicide to be R.I. felony,'' American Medical News, Aug. 12, 1996 at 31.
(Footnote 23 return)
S. Beckwith, ''VA Makes Better End-of-Life Care a Top Priority,'' Last Acts Newsletter, Summer 1998 at 6.
(Footnote 24 return)
Brief for Amicus American Medical Association, et al., at 22, Vacco v. Quill, 117 S. Ct. 2293 (1997) (No. 95–1858).
(Footnote 25 return)
Brief for Amicus National Hospice Organization at 18, Vacco v. Quill, 117 S. Ct. 2293 (1997) (No. 95–1858) and Washington v. Glucksberg, 117 S. Ct. 2258 (1997) (No. 96–110).
(Footnote 26 return)
Oral Arguments in Vacco v. Quill, reprinted in 12 Issues in Law & Medicine 417, 437 (Spring 1997).
(Footnote 27 return)
D. Gianelli, ''Suicide opponents rip Oregon Medicaid's pain control policy,'' American Medical News, Sept. 28, 1998 at 7; S. Rojas-Burke, ''Health Plan cuts threaten status of safety-net clinics,'' The Oregonian, Feb. 16, 1999; J. Hamby, ''The Enemy Within,'' The Oregonian, Jan. 21, 1998.
(Footnote 28 return)
These states all prohibit assisted suicide by statute (Missouri, New Hampshire, Tennessee) or by common law or interpretation of the state homicide law (Vermont, West Virginia), except Nevada, which has no clear law on the matter. In 1998 the DEA rankings on morphine use for the other three states without a clear ban were 40th (Wyoming), 48th (Utah), and 49th (Hawaii).
(Footnote 29 return)
The Physician's Desk Reference and other widely used references do not typically reflect the doses of controlled substances used in comprehensive hospice and palliative care settings. These references reflect only the standard doses utilized in drug trials mandated by the Food and Drug Administration to prove safety in selected patient populations. The doses of medications used in the hospice and palliative care setting can be found only in specialized literature based upon published reports of specific studies of unique patient populations.
(Footnote 30 return)
Vide infra for a complete look at the Principle of Double Effect.
(Footnote 31 return)
A diuretic which helps rid the body of salt and water by increasing excretion through the kidneys. This diuretic effect helps mobilize fluid out of the lungs and should theoretically improve the patient's breathing if fluid accumulation in the lungs is creating the breathing difficulty.
(Footnote 32 return)
Morphine is used in respiratory distress to ease the work of breathing.
(Footnote 33 return)
For an excellent look at the Principle of Double Effect and the role of intent, see Daniel Sulmasy, O.F.M., M.D., Ph. D., ''The Use and Abuse of the Principle of Double Effect,'' Clinical Pulmonary Medicine, Vol. 3, No. 2, March, 1996.
(Footnote 34 return)
Beauchamp, Tom L. and Childress, James F. Principles of Biomedical Ethics, 4th Edition, Oxford University Press, New York, 1994.
(Footnote 35 return)
Interestingly, even though he was ''unconscious,'' his family reported to me that when his two young nephews left the house earlier that morning with their father, they said to him from the door of the apartment, ''Good bye, Uncle Joe.'' The family noted that upon hearing his name from the young boys he opened his eyes. In hospice work, we are convinced that patients are often able to experience the presence and hear the words of family and friends even though they (the patients) cannot effectively communicate their experience.
(Footnote 36 return)
Using the criteria of intent raised by Sulmasy in the article referenced above (Reference 5), had the patient not died, I would have felt relief and been happy. Additionally, by Sulmasy's criteria in analyzing my intent, I would then have calculated a dose of medication or combinations of medications based on my bedside work that morning which would have been designed to keep his breathing as comfortable as possible.
(Footnote 37 return)
Sadly, medical schools and residency programs throughout the United States still are not requiring clinical rotations in hospice and palliative medicine to any extent. There are, perhaps, a few exceptions, but we are still a long way from incorporating hospice and palliative care into the formal, required curriculum for our nation's physicians.
(Footnote 38 return)
While the purpose of this testimony is to consider House Resolution 2260, it is intimately tied to the entire concept of the legalization of physician assisted suicide. If the reader is interested in further learning my position on assisted suicide/euthanasia, please contact my office.
(Footnote 39 return)
Medical education in the late 20th century in the United States fails to incorporate rigorous philosophical training in the nature of the profession itself. Physicians are, lamentably, produced en masse to be highly proficient technicians who usually fail to understand the profound implications of the role they play in the society they serve. This role is dual: concrete and symbolic. In concrete fashion, physicians diagnose and treat the sick. Symbolically, they represent a body of professionals with specialized knowledge who have been granted the authority by the state to use their knowledge for the good of patients and the community. It is incumbent upon the profession to police itself and ensure that the work it performs is for both the individual good of the patient and the collective good of the community. I believe there are moments in history in which physicians are called upon to reject certain philosophical trends because of the danger those trends pose for patients and/or society. Physicians must resist any efforts by society or the state which might produce profound, long term negative effects upon that society or state. We have only to look back a few decades in this century to witness the devastating effects of the professional medical community's collusion with state policies of eugenics and euthanasia.
(Footnote 40 return)
A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients—The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments (SUPPORT), Journal of the American Medical Association, Vol. 274, No. 20, 1995, pp. 1591–1598.
(Footnote 41 return)
Webb, Marilyn. The Good Death—The New American Search to Reshape the End of Life. Bantam Books, New York 1997.
(Footnote 42 return)
I have often wondered how physicians might react if their license were subject to revocation if it could be proven they had undertreated their patient's pain. Would such a threat of censure provide the motivation to learn the principles and practice of modern pain management techniques and ensure appropriate consultations with pain management specialists in complex cases? Would such a threat of censure suddenly cause every licensed physician in the United States to demand that pain and symptom management courses be offered at once in their local communities?
(Footnote 43 return)
''Based upon the interpretation of the language, this bill (Michigan Senate Bill # 200) could target physicians who prescribe medications appropriately but whose patients deliberately use those medications as a means to commit suicide. While the goals of this bill are laudable—to protect the citizens of Michigan from unscrupulous individuals who would take advantage of the vulnerabilities of the sick and dying—it could have unintentional consequences if it dissuades dedicated physicians and nurses in hospice and palliative care from using whatever means are available to alleviate physical suffering without intentionally killing the sufferer.'' Walter R. Hunter, M.D., Oral Testimony, Michigan House Judiciary Committee Hearing, Tuesday, January 20, 1998.
(Footnote 44 return)
Quill TE, Lo B, and Brock D W. ''Palliative Options of Last Resort—A Comparison of Voluntarily Stopping Eating and Drinking, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia,'' Journal of the American Medical Association, 1997; 278: 2099–2104.
(Footnote 45 return)
Quill TE, Dresser R, Brock DW. ''The Rule of Double Effect—A Critique of Its Role in End-of-Life Decision Making,'' New England Journal of Medicine, 1997; 337: 1768–1771.
(Footnote 46 return)
Caplan, AL. ''Will Assisted Suicide Kill Hospice?'' The Hospice Journal, Vol. 12., No. 2, 1997, pp. 17–24.
(Footnote 47 return)
Neither the U.S. Constitution nor federal statutory law warrants carving out an exception to a general prohibition on assisted suicide based on the condition or status of a person—such as wheter the person has a terminal condition. See Washington v. Glucksberg, 17 S. Ct. 2258, 2265, quoting Blackburn v. State, 23 Ohio St. 146, 163 (1872) (''The life of those to whom life has become a burden—of those who are hopelessly diseased or fatally wounded—nay, even the lives of criminals condemned to death, are under the protection of the law, equally as the lives of those who are in full tide of life's enjoyment, and anxious to continue to live''); United States v. Rutherford, 442 U.S. 544, 558 (1979) (no exception implied in the federal Food, Drug, and Cosmetics Act for terminally ill cancer patients to secure Laetrile).
(Footnote 48 return)
Euthanasia or ''mercy killing'' with or without the consent of the person killed is a homicide under the law of every state. Thirty-seven states have explicit statutory authority banning assisted suicide: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Mississippi, Montana, Nebraska, North Dakota, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and Wisconsin. At present, the District of Columbia and twelve states have no explicit statutory authority prohibiting assisted suicide: Alabama, Hawaii, Idaho, Massachusetts, Illinois, North Carolina, Nevada, Ohio, Utah, Vermont, Wyoming, and West Virginia. However, assisted suicide may not be safely done in any of these jurisdictions in view of the possibility that the courts in these jurisdictions might find that assisting in suicide is a form of homicide. See, e.g., State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961)
(Footnote 49 return)
The Pain Relief Promotion Act does not repeal The Oregon Death with Dignity Act. Under the conditions prescribed by The Oregon Death with Dignity Act, assisted suicide would remain legal under Oregon law. If the use of a ''medication'' for this purpose does not also involve the use of a federally ''controlled substance,'' then the use of such a ''medication'' would not violate the CSA as amended by the Pain Relief Promotion Act. However, since Oregon law requires that death through assisted suicide be accomplished through use of ''medications'' that will cause death in a ''humane and dignified manner'' (Or. Rev. Stat. §127.805), and since only controlled substances would appear to satisfy these criteria, a federal ban on the use of controlled substances for assisted suicide would effectively ban assisted suicide in Oregon, as it is already banned elsewhere.
(Footnote 50 return)
Oregon Senate Bill 491 amends The Oregon Death with Dignity Act. It was passed by both the Oregon House and Senate; the Governor of Oregon has represented that he will sign it. It is attached as Exhibit C.
(Footnote 51 return)
The new amendments to The Oregon Death with Dignity Act also specifically provide for a circumstance in which the attending physician, rather than a pharmacist, dispenses the ''medications'' for assisted suicide. An attending physician may dispense lethal drugs, provided that ''the attending physician is registered as dispensing physician with the Board of Medical Examiners, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule . . .'' Oregon Senate Bill 491 at p. 3, lines 13–16 (emphasis added).
(Footnote 52 return)
I respectfully urge the Subcommittee to include in its Committee Report accompanying H.R. 2260 an expression of clear Congressional expectation that the DEA will in fact on a periodic basis subpoena the relevant records from Oregon authorities or from authorities in any other state that would permit assisted suicide or euthanasia.