States seek to combat physician-assisted suicide
Oregon to put measure 16 before the voters again
In at least three states, lawmakers are tackling the issue of physician-assisted suicide head-on. In doing so, these leaders also are beginning to look at how the legal and regulatory system may influence the course of death for patients in their state, and how they can redefine public policy to meet the needs of dying patients.
Nowhere is the high court’s ruling more menacing than in Oregon, where voters approved the practice of physician-assisted suicide several years ago. Now that state’s legislature is asking for a medical second opinion. "No one looked at the bill itself the first time around, it was the concept of assisted suicide itself that we all took sides on," says Ann Jackson, president of the Oregon Hospice Association in Portland.
Both opponents and supporters of the practice now see serious flaws in the first Dignified Death Act (Proposition 16) that was approved by voters in November 1994, including a vague definition of residency. Other concerns include mandatory counseling, informed consent procedures, and the inclusion of pharmacists as health care providers. Opting not to change the measure to address these issues and face a ballot referendum on a revised assisted-suicide statute, the state House voted to send the original measure back to Oregon voters this November. The Oregon Senate is expected to agree with this strategy, Jackson says.
One reason for the legislative strategy is that the Oregon Medical Society, on both state and local levels, has reversed its previous eutral stand on Proposition 16. Although Oregon’s physicians have not voted to oppose assisted suicide as many other state groups and the Chicago-based American Medical Association have done recently, the group did vote 121-1 in May to oppose the current Dignified Death Act.
It has never been the policy of hospices in Oregon to deny access to hospice care for patients who express a wish for assisted suicide, Jackson emphasizes. As hospice programs wait for the court and ballot decisions, some have developed policies that allow staff to be at the bedside (but not participate) during the suicide of a patient who chooses this option.
One hospice that previously said it would not accept patients who stated a preference for physician-assisted suicide has since changed its stance and agreed to accept these patients, Jackson says. (See "Institutional responses to possible legalization of assisted suicide," Medical Ethics Advisor, April 1996, p. 37.)
In the 21¼2 years since Proposition 16 originally was approved, the number of patients enrolled in hospices in the state has increased by nearly 50%, Jackson says. But the length of stay for these same patients has decreased, she suggests, because of questions about insurance coverage that may delay referral to hospice.
Now the same Oregon House committee that voted for a new ballot referendum also has asked fellow lawmakers to approve a requirement that all health insurance policies sold in the state must offer hospice coverage, Jackson says.
The hospice emphasis on pain and symptom management is juxtaposed against the philosophy of assisted suicide, arguably that patients have a right to say they have had enough. At the core of the legal debate now before the Supreme Court is the issue of whether there is a liberty interest and/or a constitutional right to determine how and when we die. Some experts in law, medicine, and ethics are concerned about the clinical implications of this reasoning.
In New York, Attorney General Dennis Vacco testified before the high court against lifting the ban on assisted suicide. At the same time, he directed that a panel of leading experts look into how laws and public policy in the state have affected the physician’s ability to provide quality end-of-life care.
The Commission on Quality Care at the End of Life will issue a report to Vacco by the end of the year. "We need a compelling report that will change how people in New York think and act," says Lucia Valente, JD, chief special counsel to Vacco and chairwoman of the commission.
"Pain is the disease that we have to fix. People are asking for the right to commit suicide when others don’t think they have the right to say, Give me more morphine,’" Valente says.
Valente tells MEA that the commission will hold public hearings in the fall and issue a report with specific suggestions for legislative changes regarding pain management and controlled substance regulations, as well as recommendations for education of physicians and the public.
The group is expected to study these areas of concern:
• methods of identifying patient depression and fear that lead to thoughts of suicide;
• existing procedures and standards for measuring and recording pain levels, including pain treatment, in both the hospital and nursing home setting;
• the role of for-profit insurers and HMOs in determining the care given to dying patients.
One commission member, Carl Coleman, JD, executive director of the New York State Task Force on Life and the Law in New York City, says it’s likely the group will recommend a safe harbor for physicians who prescribe appropriate pain medication.
The task force recently issued a supplement to its 1994 report on assisted suicide.1 "We are deeply concerned that the reasoning behind the circuit court opinions has been given less attention than the concern over saying yes or no to assisted suicide," says Coleman.
"People should be aware and alarmed by the reasoning and by the fact that even if the Supreme Court reverses the lower court, a precedent of seriously flawed reasoning will have occurred," he adds.
New York’s Second Circuit Court held there was no distinction between physician-assisted suicide and a patient’s refusal of treatment. Coleman and others say equating the two situations may result in inappropriate care for terminally ill patients.
In an analysis in a recent journal article, Bernard Lo, MD, director of the program in medical ethics at the University of California – San Francisco, said, "Physicians who oppose assisted suicide have honored refusals of life-sustaining treatment. If told that honoring such refusals is indistinguishable from assisting suicide, these physicians may insist on providing life-sustaining treatment."2
Maryland leads the way
The state of Maryland, one of the first to create a legal right to refuse life-sustaining treatment and have a surrogate make that decision, is now at the forefront of efforts to determine how a variety of state laws and regulations affect people’s dying experience.
"Pain is only one aspect of the dying process," explains Jack Schwartz, JD, chief legal counsel to the state’s attorney general. His office is developing an advisory committee that will spend the next two to three years looking at the impact of the legal system.
In conjunction with Johns Hopkins University’s Bioethics Institute in Baltimore, Schwartz tells MEA, the advisory group will design survey instruments, sponsor conferences, and develop pilot projects to answer these questions:
• How do hospitals, nursing homes, and other health care providers deliver palliative care? Is care coordinated among providers? Do regulatory statutes create impediments to the delivery or continuum of care? Are there legal incentives that could be devised that would encourage these practices?
• Does the state’s new program of Medicaid managed care have a role in defining quality end-of-life care?
• Is the current law on advance directives effective? What might be added to the law to make it more effective?
"We know that the key to providing better care for the dying isn’t all changes in the law, but the legal system does have a tremendous impact, and we hope to make sure it is pulling care in the right direction," Schwartz says.
References
1. New York State Task Force on Life and the Law. When death is sought: Assisted suicide and euthanasia in the medical context. Supplement to the report. New York; 1997.
2. Alpers A, Lo B. Does it make clinical sense to equate terminally ill patients who require life-sustaining inter- ventions with those who do not? JAMA 1997; 277:1,705-1,708.
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