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Dear PCC member,
There has been considerable confusion regarding the Pain Relief Promotion Act as to what it will do and what it won't do. We hope that the following update serves to clarify why this important legislation, already approved by the U.S. House of Representatives, should also be passed in the U. S. Senate and signed into law by the President. >>>>>

PCC physician update: Pain Relief Promotion Act

The Pain Relief Promotion Act was passed by the U.S. House of Representatives with solid bipartisan support (271-156) and will soon come to the Senate for vote (S. 1272).

WHAT IS THE PAIN RELIEF PROMOTION ACT?

- It helps doctors and patients by funding education concerning state-of-the-art practices on relieving pain and other palliative care.

- It provides research grants to improve treatment of pain, depression, and other causes of suffering in the seriously ill.

- It specifically reads into the Controlled Substances Act for the first time the physician's right to aggressively manage pain in the seriously ill, even if that treatment, in rare circumstances, might increase the likelihood of death, and clarifies that controlled substances may not be used to cut short pain and palliative care through assisted suicide or euthanasia.

WHAT ARE SOME MEDICAL ASSOCIATIONS THAT SUPPORT THE PAIN RELIEF ACT?

American Medical Association National Hospice Organization Hospice Association of America American Academy of Pain Management American Society of Anesthesiologists And many others ...

WHY DOES THE AMERICAN MEDICAL ASSOCIATION SUPPORT THE PAIN RELIEF ACT?

The American Medical Association (AMA) reminded the authors of the Pain Relief Act that it is squarely opposed to physician-assisted suicide and believes it is antithetical to the role of physician as healer. The authors of the Pain Relief Act responded to previous concerns the American Medical Association (AMA) expressed by strengthening the bill and protecting doctors. In a statement issued June 28, 1999, the AMA said:

"Physicians have been deeply concerned that such legislation must recognize that aggressive treatment of pain carries with it the potential for increased risk of death, the so-called 'double effect.'"

"Thus, we are very pleased to note that your bill would recognize the 'double effect' as a potential consequence of the legitimate and necessary use of controlled substances in pain management, and explicitly includes this as a provision of the Controlled Substance Act. This is a vital element in creating a legal environment in which physicians may administer appropriate pain care for patients and we appreciate its inclusion."

DOES THE PAIN RELIEF ACT CREATE NEW AUTHORITY FOR THE DEA?

No. The Pain Relief Act creates no new authority for the DEA. It introduces new protections for doctors. For twenty-nine years, the DEA has had the right in all 50 states to regulate the use of controlled substances. The Pain Relief Act, however, does not allow one state, Oregon, to exempt itself from federal regulation which disallows the use of controlled substances for assisted suicides instead of pain and palliative care. It creates new protections for doctors by recognizing that appropriate pain management can sometimes increase the risk of death.

WHAT IS AN EXAMPLE OF HOW THE PAIN RELIEF ACT CAN PROTECT DOCTORS?

Under current law, in all 50 states, if a doctor were to give a medically ill patient a large prescription of pain medication and the patient were to die of an overdose of that medicine, the doctor could potentially (although, admittedly, rarely) lose his or her DEA registration only with evidence of negligence, no need to prove intent. With the Pain Relief Promotion Act's new clarification, the bar is raised for the DEA. The doctor will have increased protection because of the new, specific recognition that aggressive pain management may carry an increased risk of death and is legitimate. Intent, not just negligence, would have to be demonstrated and the benefit of the doubt would go to the doctor. This is new protection for all doctors in all states.

WHAT ABOUT PENALTIES?

Some assisted suicide advocates are now claiming up to a "20 year" jail sentence for doctors under the Pain Relief Promotion Act. This is false claim and an obvious scare tactic. Nowhere does the Pain Relief Act mention a jail sentence or any other penalty! Certainly, in all 50 states, doctors can have their prescribing licenses revoked (and, theoretically, receive criminal penalties under different laws), for misusing those licenses. Oregon wants the federal government to exempt from these penalties the Oregon doctors who use federally regulated drugs to assist in suicides. It seems better, however, to protect the vast majority of doctors in all states by making it perfectly clear for the first time that aggressive pain management is legitimate medical care even if in rare instances it may increase the likelihood of death.

WHAT EFFECT WILL THERE BE ON PAIN AND PALLIATIVE CARE?

The Pain Relief Act will improve pain and palliative care by funding new educational programs for doctors, nurses and hospice works. It will also fund research in pain and palliative care. It will create an encouraging legal environment by providing new protections for physicians.

Some assisted suicide and euthanasia proponents have falsely claimed that the new law could have a so-called "chilling effect" on pain and palliative care. The facts show their claims are without scientific merit.

Rhode Island provides an interesting example. After that state passed legislation very similar to the Pain Relief Act, that state nearly doubled its per capita morphine use the following year. Clearly encouraging aggressive pain management while disallowing the use of controlled substances for assisted suicides had no "chilling effect" on that state's prescription of morphine.

An analysis of per capita morphine use follows:

The most recent DEA figures on per capita morphine use show Oregon with the highest per capita consumption of morphine, at 2332 grams per 100,000 population. Kansas is a very close second, with 2287.

Regarding Oregon itself, two comments are in order. First, these figures do not indicate what the morphine is used for. The Oregon Health Division says it does not know how many unreported assisted suicides or cases of active euthanasia may be occurring in the state due to the greater freedom physicians feel they have under the new assisted suicide law; some of these cases may use large doses of morphine, as did one of the 15 reported cases in 1998. Second, the per capita consumption now (2332) is slightly less than it was during the first half of 1998 (2385), when Oregon physicians were allegedly operating under the "chilling effect" of threatened DEA action; from June to December 1998, after attorney general Janet Reno rescinded the DEA's interpretation of federal law and told Oregon it had a right to use controlled substances for assisted suicide, the per capita rate fell from 2385 to 2160.

Regarding other states:

- Of the top ten states, seven have specific statutes against assisted suicide (Kansas, Florida, Arizona, New Hampshire, Tennessee, Louisiana and Missouri). One state bans the practice by common law (Vermont), and one has no law (Nevada).

- A legal vacuum on assisted suicide is certainly no guarantee of free- wheeling pain control practices. The ranking in morphine use for the other three states with no clear law on assisted suicide are 35th (Wyoming), 46th (Utah) and 48th (Hawaii).

- The second-ranking state, Kansas, is an interesting case. Kansas strengthened its ban on assisted suicide in 1998, adding civil penalties to the existing criminal penalties so family members and others can sue a doctor who assists a suicide. Kansas was 35th in morphine use in 1997, the year before the civil ban; 11th in the first half of 1998, before the civil ban passed; 7th for the entire year of 1998; and is now second highest.

- Louisiana passed its ban in 1995. It was 41st in morphine use in 1994, the year before the ban; it is now 9th among states.

- Tennessee passed its ban in 1993. It was 16th in morphine use in 1992, the year before the ban; it is now 8th.

Clearly, banning use of controlled substances has no adverse effect on the prescription of morphine.

WHAT ABOUT STATES' RIGHTS?

The federal government has had explicit jurisdiction over the interstate commerce of controlled substances for twenty-nine years. Perhaps it was partially out of respect for the rights of states that the authors of this bill confined the Pain Relief Act's statement on assisted suicide to an area where there is clearly no state's rights issue. Oregon is not free, anymore than any other state, to exempt itself from federal regulations about the interstate commerce of dangerous controlled substances.

DOES THE PAIN RELIEF ACT HELP THE CHRONICALLY ILL?

Yes. The Pain Relief Act was amended in the House Commerce Committee to include the chronically ill, not just those who may soon die from their illness. Education, research and new legal protections for physicians also apply to the chronically ill.

CAN I GET A COPY OF THE PAIN RELIEF PROMOTION ACT ON THE INTERNET?

Yes. For a list of sponsors and the text of the Pain Relief Promotion Act you can contact http:www.senate.gov/~nickles/releases/pain.cfm.

N. Gregory Hamilton,
M.D. William L. Toffler, M.D.
Portland, Oregon
November 20, 1999


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