Courts support lifting assisted-suicide bans
Decisions may affect other end-of-life treatments
On the heels of a California federal court ruling in March, the 2nd U.S. Circuit Court of Appeals based in New York, NY, struck down the state's ban on assisted suicide in early April. Legal experts say hospitals need to be prepared to deal with risk management implications of physician-assisted suicide, starting with examining pain management through your hospital's ethics committee.
The federal court said the state had no rational basis to distinguish between assisted suicide and withholding or withdrawing treatment.
"The ruling really forces those who are committed to palliative care to find new ways to talk to patients about physical and emotional pain and the option for comfort measures only," says Tracy E. Miller, JD, a visiting scholar in the Department of Health Policy at Mount Sinai School of Medicine in New York City. The appeals court made its ruling without addressing the clinical and social concerns surrounding physician-assisted suicide, says Miller, and "is indifferent to concerns about alleviating patient pain and depression," she says.
"This ruling also may be destructive of a patient's right to refuse treatment," says Miller.
Opponents of laws enacted in New York and other states that grant the right to surrogate decision making and refusal of treatment had argued that allowing withholding and withdrawal of treatment would lead to assisted suicide. Proponents of advance directive legislation have always advanced a clear line between forgoing medical interventions and assisted suicide or euthanasia.
The Circuit Court, for the first time, officially coupled the two together. "This is a wake-up call for physicians to do a much better job of communicating with patients about their end-of-life decisions," says Miller.
In comparison to a March ruling by the 9th U.S. Circuit Court of Appeals in San Francisco, the 2nd Circuit ruling was that because terminally ill patients can choose to refuse medical treatment and in effect allow themselves to die, they must also have the same right to ask a physician to provide adequate medication to assist them in the process of choosing to terminate life.
The federal appeals court decision covers New York, Connecticut, and Vermont. The three-judge panel said the state had no compelling interest in banning physician-assisted suicide and that because patients have the right to refuse treatment, the constitutional statutes on equal protection prohibit any state-imposed ban on assisted suicide. The plaintiff's lawyers in the case argued that the New York ban on assisted suicide deprived citizens of personal liberty without due process and denied them equal protection. The federal court agreed.
"What interest can the state possibly have in requiring the prolongation of a life that is all but ended? What business is it of the state to require the continuation of agony when the result is imminent and inevitable," reads the opinion.
The court did not specify how "terminal" illness would be defined, nor did it offer any time frame for the patient's expected death.
Unlike the 9th Circuit Court, the 2nd Circuit Court found no guaranteed constitutional right to assisted suicide. New York's attorney general appealed the federal court ruling to the U.S. Supreme Court. "It is now extremely likely that the Supreme Court will hear arguments on assisted suicide," says Miller.
The New York judges wrote that the current state ban on physician-assisted suicide was "not rationally related to any legitimate state interest." If patients are permitted to refuse life-sustaining treatment ['commit suicide'], then "they should be free to do so ['commit suicide'] by requesting appropriate medication to terminate life during the final stages of terminal illness," said the judges.
The 2nd Circuit Court recognized the state's right to regulate physician-assisted suicide, and while New York's attorney general waits for a ruling from the Supreme Court, the state legislature may draft proposed guidelines. Already, a bill introduced in the aftermath of the federal ruling would require the following:
* patients to submit a written request for assisted suicide 15 days after making an oral request;
* a second oral request within 48 hours of the written request;
* that the patient be certified as mentally competent to make the request;
* confirmation of terminal illness by a second physician;
* that administration of the lethal dose of medication would be done by the patient.
At the same time, other New York legislators have promised to block any attempts to set guidelines, and instead focus on reinstituting the ban on assisted suicide. No state currently permits assisted suicide but prohibitions are handled in several different ways.
Rulings provide impetus for change
Many health care professionals tell Healthcare Risk Management that unaddressed pain or fear of pain is the main reason terminally ill patients seek physician-assisted suicide or euthanasia.
There are a host of legal issues related to physician-assisted suicide and euthanasia that are a minefield of risks for the hospital. (See related story, p89.) Legal experts suggest trying to wade through these issues by first focusing on the quality of pain management in your hospital. Risk managers should work with their hospitals' ethics committees to assess the quality of their pain management programs.
Two years ago, system administrators for the Sisters of Charity of Nazareth (SCN) Health System in Louisville, KY, set out to determine whether pain management programs in their system were adequately addressing the needs of patients. The effort was led by ethics professionals.
"Ethics committees have an important responsibility to monitor how well their facility is doing in terms of relieving the patient's pain and suffering, says Carl L. Middleton, DMin, vice president of ethics and leadership development for the SCN system. "Recognizing and controlling pain should be essential to what we mean when we talk about the ethical obligation to provide quality care to patients."
Middleton worked with institutional ethics committees at each of the system's health care facilities in Kentucky, Tennessee, and Arkansas, to establish a quality improvement pain initiative that became SCN's No. 1 corporate goal.
"After an extensive degree of discussion among ethics committee members at our facilities about end-of-life care and the growing sentiments toward physician-assisted suicide, we decided in 1994 to proactively address problems that may lead patients to this choice," says Middleton.
"Health care professionals who are concerned about the ethical questions brought out by the [current] physician-assisted suicide arguments need to flip the debate on its ear," says Alan Fleischman, MD, senior vice-president of the New York Academy of Medicine, and a member of the New York State Task Force on Life and the Law in New York City.
The 25-member task force was created in 1985 to develop public policy on issues arising from medical advances. In 1994, the group recommended unanimously that state laws prohibiting assisted suicide and euthanasia should not be changed. In an accompanying report, the task force challenged hospitals and other health care institutions to explore ways to promote effective pain relief.
"What we really need now in regard to pain control is institutional change," Fleischman says. "Educating physicians about pain management alone is not sufficient. We have to create systems around pain efforts that make treatment for pain routine and applaud physicians who do a good job of pain management," he contends.
A member of several hospital ethics committees in New York City, he urges ethics committees to begin to create an institutional standard for pain management in their facility. "Ethics committee members should embark on a major initiative that tells everyone in their facility, 'This is how we address patient pain,'" says Fleischman.
The SCN response is one example of how ethics committee members can respond to the current dilemma regarding physician-assisted suicide. "When we first decided to review our efforts two years ago, we found that our statistics mirrored national data that showed a high percentage of patients reported being in pain -- nearly 40%," says Middleton.
Build structures to enhance pain initiative
The SCN pain initiative uses 10 steps to improve pain management in the system's hospitals, nursing homes, and home health visits. These are:
1. Develop a pain task force to evaluate and monitor pain management efforts. Institutional ethics committees at each of SCN's facilities were a natural starting point, Middleton explains. The members of the pain task force should include physicians, nurses, a staff psychologist or psychiatrist, physical and respiratory therapists, social workers, and chaplains.
"Addressing the patient's psychosocial pain and emotional suffering is equally important to giving pain medication to control physical symptoms," says Andy Meyer, PhD, a psychologist and program director of the pain management center for Caritas Medical Center, a SCN facility in Louisville.
"The mental health component should be included in all consults on pain relief and in all educational programs for staff on effective pain management," says Meyer.
2. Develop systems and structures to address pain management. Each SCN facility now has a pain consult team, a pain resource center, and a pain clinic to address the needs of both adult and pediatric patients. One of the main goals of the SCN initiative was to have a pain management expert on each shift at each facility. "We want to have someone on hand at all times for the caregiver to turn to," says Middleton.
The pain resource center includes videos, written materials, and even dolls to use as tools for assessing pain in pediatric patients. A video shows caregivers how to use the dolls to help children show caregivers where they are hurting.
3. Implement guidelines, policies, and procedures for using key components of the pain management system. Several hospitals in the SCN system worried about prescribing pain medication for a patient who comes to the emergency department on the night shift. For example, a patient may come to the emergency department suffering from a migraine headache that may be symptomatic of other conditions but the emergency staff are unable to reach the patient's primary care physician at this time of the day to obtain more information about the patient. Guidelines permit the distribution or administering of pain medication in such a patient scenario, but subsequently require the patient to be seen at the pain clinic.
Other guidelines offer direction on when the pain consult team should be called, when a member of the clergy may need to do a spiritual needs assessment, and other situations in which pain may be overlooked.
Alternative sources of, solutions for pain
4. Address psychosocial and spiritual suffering and pain. "When a patient feels alienated or alone, their suffering is enhanced," says Middleton. "Part of our ethical responsibility is to show patients love and compassion. We may not always be able to totally alleviate physical pain, but we can keep it within manageable limits and help patients cope," he says.
Members of the clergy are contracted to spend two to three days per week at the SCN pain management centers.
"A major emphasis of our pain management efforts is the importance of an interdisciplinary approach to assessing and treating pain," he says.
5. Explore alternative therapies for treating pain. The SCN system's pain management task force decided to begin a certificate program in healing therapies for its interested health care providers. The program is based on the concept of healing rather than on curing.
"Healing is different than curing," says Suzanne Potvin, MSN, ARNP, CS, a consultant to the pain management team at Caritas Medical Center and a former nursing home administrator in the SCN system. "The purpose of the program is to help patients begin their own healing process of the body, mind, and/or spirit," she explains.
6. Provide ongoing education about the diagnosis and treatment of pain for all caregivers. SCN's commitment to quality pain management includes formal mandatory training for all caregivers. In addition to information about recognizing physical and emotional pain, health care professionals are given information on appropriate pain medications, laws about administration of pain medication, and myths relating to both the law and pharmacology.
7. Address physician concerns about prescribing pain medications. The educational sessions should also provide an opportunity for physicians and other professionals to share their concerns about pain management, says Middleton. "As we trained doctors, they told us they sometimes felt they were handcuffed regarding the use of narcotics for pain here in Kentucky," he says. "The state's laws and some third-party insurance payers including the Health Care Financing Administration [HCFA] have been critical of some providers in the state for overprescribing narcotics," he explains.
Most importantly, the pain management task force should hear the concerns of physicians and work with them and regulatory bodies to formulate appropriate guidelines, he says.
Staff education about pain management is ongoing throughout the SCN system and as a standard, includes input from Meyer on recognizing and alleviating mental anxiety and other emotional pain.
"It is important for the physician to recognize that some psychosocial symptoms may actually contribute to the patient's physical pain and that physical pain can severely add to a patient's depression and anxiety," says Meyer.
8. Make formal pain assessment (both physical and psychosocial) routine upon admission to the facility and at appropriate follow-up times.
9. Develop mechanisms to assess the effectiveness of pain-control efforts. Meyer says one way to determine how well pain is being managed is by the number of pain consults and the numbers of first-time and subsequent referrals to the pain center or pain clinic. Some hospitals in the SCN system have evaluated the practical effects of good pain management by comparing a patient's pain assessments on subsequent hospitalizations. The patient satisfaction questionnaires used by all SCN facilities also ask patients and family members to rate the pain treatment they or a loved one received.
10. Include pain assessment and treatment in aftercare.
The SCN initiative calls for ongoing assessment of patient pain when the patient receives subsequent care at home or is transferred from one facility within the system to another. For example, pain management will go with the patient from nursing home to hospital and from hospital to nursing home. *
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content