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Analysis: The Pain Relief Promotion Act (HR 2260)

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Analysis: The Pain Relief Promotion Act (HR 2260)
by ALL
Released October 12, 2005

Introduction: Oregon’s ‘death with dignity’ law

The provisions of the Oregon suicide law enacted in an Autumn 1997 voter referendum (rejecting efforts to undo a previous statute) make it an inviting target for anyone concerned with protecting human life. For example, the Oregon law authorizes doctors to assist a patient with suicide if the patient is expected to die in six months (Or. Rev. Stat. 127.800, 127.805) and is not suffering from ``a psychiatric or psychological disorder, or depression causing impaired judgment.'' (Or. Rev. Stat. 127.825) Yet clinical experience and medical literature all point to the general unreliability of such judgments. And does impaired judgment mean the inability to remember the name of a casual acquaintance you met a year ago?

Possibility for abuse

Moreover, the chief author of the Oregon "Death with Dignity" law has stated that "depression in itself does not rule out the physician's assistance'' under the Act. (Cheryl K. Smith, "Safeguards for Physician_assisted Suicide: The Oregon Death with Dignity Act,'' in S. McLean (ed.), Death, Dying and the Law (Dartmouth Publishing 1996), 69_93 at 75.)

Even these loose legal guidelines are covered by a generous "good faith" standard which protects doctors from civil, professional and criminal liability so long as they believe "in good faith" that they have complied with the guidelines. (Or. Rev. Stat. 127.885) And the law's confidentiality provisions (Or. Rev. Stat. 127.865) and the section barring notification of family members without a suicide patient's express consent (who is presumed to be incompetent anyway) would insure that no oversight of "abuses" would occur. (Or. Rev. Stat. 127.835) Assassins must envy the protections given doctors who are called to assist an Oregon suicide.

It is already obvious that "abuses" have crept into the Oregon scheme of self-deliverance, which have produced inaction by state officials toward those who perpetrating the abuses, and hostility toward those disclosing them.

For example, Oregon Governor John Kitzhaber told a Congressional Committee that as far as he knows there are no penalties for violating the State assisted suicide guidelines. (Lethal Drug Abuse Prevention Act: Hearing on H.R. 4006 Before the Subcommittee on the Constitution of the House Committee on the Judiciary , 105th Cong. July 14, 1998) Further publicity attending the involuntary active euthanasia of an Oregon patient in violation of Oregon’s homicide law found officials declaring the doctor "unprosecutable" because of the climate created by Oregon’s assisted suicide law. (See "Doctor Won't Be Prosecuted," The Bulletin, Bend, Oregon, Dec. 11, 1997)

Then when Oregon public health workers released a report concerning assisted suicide, the Oregon Health Division issued a memo to state employees stating that state employees who reveal that a physician_assisted death has occurred in his or her county "will immediately be terminated." (Death with Dignity Memorandum from Sharon Rice, Manager Registration Unit, Center for Health Statistics of the Oregon Health Division, to County Vital Records Registrars and Deputies, Dec. 12, 1997, reprinted in Confidentiality of Death Certificates, 14 Issues in Law & Med. 333, 334 - 1998)

So, doing nothing is not really an option for persons whose consciences are troubled by assisted suicide.

Federal administrative response

First, federal administrative action was sought. The Administrator of the Drug Enforcement Agency, Thomas K. Constantine, in response to an inquiry from House Judiciary Committee Chairman Henry J. Hyde (11/5/97) that physician-assisted suicide with the use of federally controlled substances violated the Controlled Substances Act of 1970. Constantine stated that using drugs to intentionally kill patients was not a "legitimate medical purpose'' within the meaning of the Controlled Substances Act. (221 U.S.C. 801 971).

However, on June 5, 1998, Attorney General Janet Reno reversed Mr. Constantine's decision and stated that physician assisted suicide does not fall under the jurisdiction of the Controlled Substances Act (CSA) because such usage is now part of the ordinary practice of medicine in Oregon and, therefore, exempt from the CSA and also the oversight jurisdiction of the Drug Enforcement Agency.

Physicians receive licenses to practice medicine from state medical boards, but they must register with the DEA to prescribe controlled substances used in interstate commerce. Every time a physician orders a controlled substance, they must fill out a form in triplicate with one copy going to the DEA. If challenged by the DEA, doctors must, under the Controlled Substances Act, be prepared to explain to DEA officials their use of these drugs. They will lose their DEA registration and also risk criminal penalties if they prescribe drugs for any reason other than a "legitimate medical purpose."

Attorney General Reno's ruling commits the Drug Enforcement Administration to regulating assisted suicide as a ``legitimate medical practice.'' Her ruling prevents the DEA from denying, revoking or suspending the drug dispensing license of a doctor who assists in a suicide in compliance with Oregon law. DEA investigations in Oregon would focus on whether the doctor followed proper state guidelines in killing his patient.


Congressional action

With no help from the Clinton Administration on this matter, Rep. Henry Hyde introduced into the 105th and 106th Congresses' measures to distance the federal government from assisting suicides in Oregon.

Representative Hyde’s response to Oregon’s efforts at self-deliverance in the 106th Congress is HR 2260, The Pain Relief Promotion Act. HR 2260, would amend the federal Controlled Substances Act to promote pain management and palliative care for end-of-life patients without permitting federally regulated drugs from being used to implement assisted suicide and euthanasia where such practices are authorized by state law.

No pain control = more suicide

One of the underlying policy assumptions of HR 2260 is that support for legalizing assisted suicide would lessen if physicians were more competent in pain management of terminal patients. Testimony before the Judiciary Committee disclosed that in the year after Oregon passed its assisted suicide law, that the Oregon Health Plan placed barriers to the funding of antidepressants, restricted the availability of mental health services (which could have diagnosed depression commonly associated with suicide requests), and restricted pain medication for poor and disabled patients. (Jeanette Hamby, "The Enemy Within: State Bureaucratic Rules Threaten the Spirit of Oregon Health Plan's Founding Principles," Oregonian, Jan. 21, 1998; Joe Rojas-Burke, Survey Gives Oregon Health Plan High Marks, Oregonian, Feb. 3, 1999, at B15; Diane Gianelli, "Suicide Opponents Rip Oregon Medicaid Pain Control Policy," American Medical News, Sept. 28, 1998.)

For the first time, federal law would specifically authorize the use of controlled substances for alleviating pain and discomfort as a legitimate medical purpose. This use would be legal even if the use of the these drugs may have the unintended effect of increasing the risk of death. In 1996, the American Medical Association (AMA) testified before Congress that because most state laws did not expressly permit drug administered pain management that may unintentionally hasten death had the situation "generated reluctance among physicians to prescribe adequate pain medication.'' (Hearing on Assisted Suicide in the United States, before the Subcommittee on the Constitution of the House Comm. on the Judiciary, 104th Cong., 2d Sess., April 29, 1996, statement of Lonnie R. Bristow, M.D., President, American Medical Association)

AMA seeks doctor exemptions

In 1998, the AMA told Congress while more states allowed aggressive pain management even if death resulted, that many states still have not changed their laws. (Hearing on H.R. 4006, the Lethal Drug Abuse Prevention Act, before the Subcommittee on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess., July 14, 1998, statement of Thomas R. Reardon, President-elect, American Medical Association). For example, a 1998 Michigan law against assisted suicide did not include any provision authorizing or legitimating aggressive pain control that may unintentionally hasten death. (SB 200, 89th Leg., Reg. Sess. of 1998, 1998 Mich. Pub. Acts)

In states where laws were passed providing for aggressive drug treatment for end of life pain control, the per capita use of morphine has increased significantly after passage. Kansas ranked 35th in morphine use before passing an end of life law with specific drug use exemptions for accidental overdoses, and went to 2,287 grams per 100,000 population, placing it near Oregon with the highest per capita use of morphine, at 2,332 grams per 100,000 population. (Drug Enforcement Administration, U.S. Department of Justice, Statistics on Individual State Consumption of Morphine, January to June 1999). Other states showed similar morphine usage increases.

This similarity of morphine use and general increase raises the question whether morphine is being used by some physicians to effectuate a silent form of assisted suicide under the guise of aggressive drug treatment. The National Academy of Sciences November, 1999 report issued by the Institute of Medicine Sciences "To Err is Human" notes that doctors accidentally kill from 44,000 to 98,000 patients a year they were trying to heal with at least 7,000 of these coming from medication errors alone. (To Err is Human: Building a Safer Health System, Institute of Medicine, National Academy Press, November, 1999)


Other provisions of HR 2260

The bill provides that the use of controlled substances by doctors and pharmacists who seek to assist in a suicide may be criminally prosecuted and subject to civil fines. It also provides that the Attorney General, shall employ a uniform standard in enforcement of the Act, without regard to state laws permitting assisted suicide or euthanasia.

H.R. 2260 also authorizes the Attorney General to:

* Carry out education programs for law enforcement personnel;

* Promote public understanding of health professionals' legitimate use of controlled substances for pain management;

* Authorizes the Agency for Health Care Policy and Research in the Department of Health and Human Services to collect and disseminate protocols for palliative care;

* Establishes a $5,000,000 program under administered by the US Secretary of Health and Human Services for grants to health professions schools, hospices to develop and implement palliative care education and training.

HR 2260 finds those who oppose assisted suicide on both sides of the bill, with a preponderance of opponents to assisted suicide however, favoring the bill. The bill is supported by the American Medical Association, the National Hospice Organization, National Conference of Catholic Bishops, the Catholic Health Association, the Christian Medical and Dental Society and others.

Among the groups opposing HR 2260 are the American Nurses Association, the Oncology Nursing Society, the National Association of Orthopaedic Nurses, the American Pain Foundation, American Academy of Family Physicians, and several state affiliates of the AMA, including the California Medical Association, Massachusetts Medical Society, Texas Medical Association and others.

The Clinton Administration has a split view of HR 2260 favoring portions of the law and opposing others. The President would probably veto the measure as it passed the House of Representatives in October, 1999.

Can HR 2260 facilitate suicide

Granted that the ethical principal of double-effect is in line with traditional medical ethics which opposed assisted suicide. However, this must be considered against the following background. The patrons of the bill recognized that the American Medical Association would not support HR 2260 without a doctors’ immunity clause. Many surveys show high support among physicians for helping patients end suffering even by suicide; at present there is in American hospitals is a high "accidental" death rate for patients seeking bona fide medical treatment, not release from end of life pain, granting a carte blanche immunity for doctors at this time may be a Trojan horse lurking in the provisions of HR 2260.

The AMA counters that these provisions are needed if end of life patients are to be made comfortable. And the AMA also contends that not allowing aggressive morphine treatment with immunity for doctors will increase public support for overt assisted suicide.

This may be true, but it must be asked if the risk of death standard would be applied to patients seeking cures, and not just relief from pain? Why should medicine to suppress pain have any significant increase of death for the patient? Is morphine the only drug available for terminal patients? Morphine can take away the ability of a patient to say they are sorry to friends and relatives is there is a need for that. There is also the difficulty that a lay person will have who may wish to challenge a doctor on what constitutes a medically appropriate use of a controlled substance. Giving morphine is much easier than listening to a patient who is dying from cancer. Issuing a "do not resuscitate" order and injecting morphine may become a substitute for deathbed conversations and conversions which can never be repeated.

Pro-life observers who have been active since before the 1973 Roe v. Wade US Supreme Court decision on abortion recall no "morphine will prevent assisted suicide" arguments ever made by the AMA, which supported the 1973 court decision allowing abortion on demand. Morphine was certainly available in the 1960s, the 70s and the 80s. But this argument wasn’t made then. Why?

For the end of life policy question, the "morphine will prevent assisted suicide" argument bears a striking similarity to the claim of abortionists that "birth control will prevent abortion." It doesn’t. And what was the more remarkable was that the claims about birth control allegedly preventing abortion were made in the face of decades of clinical experience showing a direct link between greater utilization of abortion among women who rely upon birth control than women who did not.

The morphine thesis appears to be a working assumption of the AMA since the suicidal pursuits of Dr. Jack Kevorkian. Where’s the proof? Where are the clinical studies? Before pro-lifers enshrine this assumption into criminal and civil law any further, hard facts should be forthcoming. It would be a lethal irony for pro-lifers if the bandwagon for more morphine in fact opened the door to more assisted suicide. Are pro-lifers innocently offering a chemical green light to negligent doctors, or to physicians who want to assist at suicides? Pro-lifers should careful beyond careful here. Sorting out the ethics of end of life questions including the licit administration of pain controlling drugs is more fact intensive and dependent upon clinical judgment and experience than are questions of abortion. Drug utilization figures from Louisiana show a dramatic increase in morphine use after passage of an end of life with a lethal morphine exemption provision even beyond that experienced in Oregon.

This is not to question anyone’s motives. This is only to ask what tools should we rely upon? Morphine in the hands of doctors, few of whom abide by the Hippocratic Oath which forbids them from assisting at a suicide, seems a strange prophylaxis to prevent killing weak or terminal patients.

Increased drug abuse?

There is the additional consideration that putting into the nation’s drug control law a provision that authorizes pain relief as a legitimate medical purpose will give comfort to organizations seeking to legalize smoked "medical marijuana" as medicine. Smoked marijuana is a Schedule 1 controlled substance not now available for medical therapy, except for very highly restricted limited research purposes. But smoked marijuana is sought for patients for the very same reasons as are advanced for making excess doses of morphine available to dying patients. Proponents put forth HR 2260 in part because of pro-suicide interpretations given the Controlled Substances Act by Attorney General Reno. HR 2260 now says nothing directly prohibiting smoked medical marijuana for terminal patients. Will the Attorney General remain silent on what she believes HR 2260 means, as opposed to what the authors tell us they intended?


A major difficulty with legally trying to suppress assisted suicide is that in modern America physicians neither believe nor honor the old Hippocratic Oath. When character disappears, laws multiply with less and less effect. They still are needed, not by those who would obey them, but by those who won’t.

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