[This page is from: www.house.gov/judiciary/hami0624.htm.]

Physicians for Compassionate Care
P.O. Box 6042
Portland, Oregon 97228-6042
503-533-8154; Fax: 503-533-0429

Affirming an ethic that all human life is inherently valuable

PAIN RELIEF PROMOTION ACT OF 1999

TESTIMONY OF PHYSICIANS FOR COMPASSIONATE CARE

TO

SUBCOMMITTEE ON THE CONSTITUTION

COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES


JUNE 24, 1999

SUMMARY STATEMENT

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.

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.

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.

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.

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.

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).

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.

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.

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.

Respectfully submitted,

N. Gregory Hamilton, M.D.

The Morgan Building, Suite 670

720 S.W. Washington

(503) 241- 8887, FAX 241-9098

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.

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.

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.

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.



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