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
BY N. GREGORY HAMILTON, M.D.
JUNE 24, 1999
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
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
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 Promotion 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
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
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
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 Promotion Act does much to alleviate this danger to the
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.
N. Gregory Hamilton, M.D.
The Morgan Building, Suite 670
720 S.W. Washington
(503) 241- 8887, FAX 241-9098
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