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October 25, 1999

Oregon Patient With Dementia Given Suicide: Decision Falls Upon HMO Administrator

The psychiatrist who evaluated her declared Kate Cheney, an 85-year-old woman with growing dementia, ineligible for assisted suicide, because of her cognitive impairments and because her family appeared to be pressuring her, according to an October 17, 1999, Oregonian article by Erin Hoover Barnett ("Is Mom Capable of Choosing to Die?," p. G1-2).

She could not remember recent events and people, including the names of her hospice nurses or her new doctor. This doctor had been assigned to Mrs. Cheney when her disgruntled daughter demanded a different physician for her mother, after her original doctor appeared less than enthusiastic about assisted suicide for her.

When the psychiatrist said she was not eligible for assisted suicide, the daughter and the new doctor did not accept the opinion as the safeguard it was supposed to be. Instead, they sought another opinion from a second mental health professional, since there is nothing in the Oregon law to stop them from doing so.

The psychologist admitted the patient could not even remember when she was diagnosed with terminal cancer, although it had only been a few months ago. She also wrote that the patient's "choices may be influenced by her family's wishes and her daughter, Erika, may be somewhat coercive" (p. G2). Nevertheless, she approved the suicide.

The final call came down to a single Kaiser administrator, Dr. Robert Richardson. He gave the go-ahead for giving a lethal overdose to this elderly woman under pressure from her family. It was his call. Kaiser Permanente is a fully capitated HMO with a profit sharing plan for its doctors.

As predicted, it can be seen that once assisted suicide is legalized, there is no way to protect the vulnerable and mentally ill.

N. Gregory Hamilton, M.D.
President, Physicians for Compassionate Care


Vote Expected Wednesday on PRPA - Call/Fax Your Representatives

The U.S. House of Representatives is expected to vote Wednesday, Oct. 27 on the Pain Relief Promotion Act (HR 2260), a bill to promote the use of federally regulated drugs for pain management without allowing their intentional use for the purpose of assisted suicide and euthanasia.

While many national medical groups support the legislation -- AMA, National Hospice Organization, American Academy of Pain Management, etc. -- some continue to oppose it. Some opposing groups -- e.g., Rhode Island Medical Society, American Pharmaceutical Assoc. -- have a policy of opposing restrictions on assisted suicide. Others have been swayed by gross distortions of the bill, disseminated by members of Congress from Oregon or by the first set of groups. In any event, it would be extremely helpful in these last few days if medical groups and individual medical experts would call their elected representatives or fax them letters in support of the legislation.

If you wish, Americans for Integrity in Palliative Care, an alliance of health professionals supporting the bill, can fax your letter to the bill's sponsors and the members of your state's congressional delegation. You can address your letter "Dear Member of Congress" and fax it to Gene Tarne at AIPC between now and Wednesday : 703/684-5813.

Further background is provided below: a list of web sites with helpful information on the bill; a list of supporters; and a critique of the latest arguments being made to Congress by Rhode Island Medical Society.

Thank you!

Richard Doerflinger
National Conference of Catholic Bishops

--- For pending federal legislation, see Congress's Web service "THOMAS":
(You can "search" for the text of a bill, or for a report on its status and sponsors; searches can be done by bill number, sponsor or key words)

Background on Pain Relief Promotion Act (H.R. 2260, S. 1272)

House Judiciary Committee report on the legislation

House Commerce Committee report

June issue of Life at Risk, including summary of bill and list of initial supporting groups

July/August issue of Life at Risk, reporting on the bill's progress

Catholic Bishops' testimony in support of the bill

Complete testimony on bill in House Judiciary Subcommittee on the Constitution (includes supportive testimony by R. Doerflinger, W. Hunter, G. Hamilton, T. Marzen and S. Beckwith)

Excellent background piece by House Judiciary Committee staff

-- Pain Relief Promotion Act of 1999

House bill (H.R. 2260) introduced June 17 by Cong. Henry Hyde (R-IL) and Bart Stupak (D-MI); now has total of 166 sponsors (25 Democrats)

Senate bill (S. 1272) introduced June 24 by Sen. Don Nickles (R-OK) and Sen. Joe Lieberman (D-CT); now has total of 32 sponsors (3 Democrats)

Supporting organizations as of October:
American Medical Association
Christian Medical and Dental Society
National Hospice Organization
Catholic Health Association
Vitas Healthcare
Hope Hospice and Palliative Care (Florida)
Hospice Association of America
Aging with Dignity
Physicians for Compassionate Care
American Academy of Pain Management
American Society of Anesthesiologists
Americans for Integrity in Palliative Care
National Conference of Catholic Bishops
National Right to Life Committee
American College of Osteopathic Family Physicians
Eagle Forum
Not Dead Yet
Oklahoma State Medical Association
Focus on the Family Physicians Resource Council
Coalition of Concerned Medical Professionals
Florida Hospice Association
Florida Medical Association
National Association of Pro-Life Nurses

Individual endorsements:
Dr. Walter Hunter, Vista Hospice
Dr. Ira Byock, Palliative Care Service (Missoula, MT)
Dr. C. Everett Koop, former U.S. surgeon general
Dr. Herbert Hendin, Medical Director of American Foundation for Suicide Prevention
Dr. Ralph Miech, professor of pharmacology, Brown University
Dr. Edmund Pellegrino, Georgetown University Medical Center


Rhode Island Medical Society's Attack on the Pain Relief Promotion Act: A Response

In an October 12 letter to the U.S. Senate, the Rhode Island Medical Society (RIMS) has made several charges against the Pain Relief Promotion Act of 1999 (H.R. 2260, S. 1272). RIMS's opposition to this bill is not a surprise. The Act reaffirms that federally controlled substances may not intentionally be used for the purpose of assisting suicides, and RIMS opposes bans on physician-assisted suicide. In 1996 the group lobbied vigorously but unsuccessfully against Rhode Island's new law banning assisted suicide, and in that same year sponsored (again unsuccessfully) a resolution urging the American Medical Association to reconsider its national stance against assisted suicide.

In its letter, RIMS claims other reasons for opposing the federal Act. Each of its claims, however, is based on a misreading of the bill and of the underlying Controlled Substances Act:

1. The letter states: "[I]t is inappropriate and unworkable to authorize the Department of Justice, through the Drug Enforcement Agency [sic], to define, regulate and enforce the meaning of a 'legitimate medical purpose.'"

For years, the Drug Enforcement Administration ("DEA") has required, as a condition of registration, that controlled substances be issued only for a "legitimate medical purpose." In the Westlaw database alone, there are over 250 DEA decisions going back two decades that rely upon or reference the "legitimate medical purpose" standard. See, e.g., 48 Fed. Reg. 32887 (July 19, 1983) (registration revoked for prescribing controlled substances without "legitimate medical purpose"); 47 Fed. Reg. 55346 (Dec. 8, 1982) (registration revoked for, among other things, distributing and dispensing controlled substances without a "legitimate medical purpose"). The "legitimate medical purpose" standard was placed in the DEA regulations in the 1970s, and has been in place ever since. 21 C.F.R. § 1306.04 (1999), published at 36 Fed. Reg. 7799 (1971), redesignated at 38 Fed. Reg. 26609 (Sept. 24, 1973), and amended at 39 Fed. Reg. 37986 (1974). Prescribing federally regulated drugs without a legitimate medical purpose has long been grounds for denying or revoking a registration. See 47 Fed. Reg. 55346, 55347 (Dec. 8, 1982) ("The Respondent clearly abused his registration. He prescribed controlled substances for other than legitimate medical purposes. That, by itself, is sufficient for revoking a practitioner's registration.").

Using the term "legitimate medical purpose" in the federal drug laws is therefore nothing novel. There is no evidence -- and RIMS points to none -- to suggest that this standard has proven unworkable or inappropriate over the last few decades. The bill, in any event, does not purport to define "legitimate medical purpose," but clarifies that, for purposes of the federal Controlled Substances Act, such a purpose at least includes prescribing a controlled substance to alleviate pain or discomfort.

2. The letter states that the Act will "have the effect of increasing the incidence of unnecessary suffering among people who are in pain."

The bill will have the opposite effect. It states explicitly that dispensing, distributing, or administering a controlled substance to alleviate pain or discomfort is a legitimate medical purpose. In Rhode Island and elsewhere, enactment of such language as part of a ban on assisted suicide has had a positive effect on statewide use of controlled substances for pain control.

3. The letter states that "the bill explicitly preempts state laws that govern the practice of medicine."

The bill does nothing of the sort. It provides: "For purposes of this Act [i.e., the federal Controlled Substances Act] and any regulations to implement this Act, alleviating pain or discomfort in the usual course of professional practice is a legitimate medical purpose for the dispensing, distributing, or administering of a controlled substance...." State medical regulations are unaffected.

4. The letter states: "Many states have important legislation on palliative care and pain management that would be rendered irrelevant by the Act.

No state law on palliative care or pain management will be "rendered irrelevant by the Act," and the authors of the letter cite none. The bill merely clarifies that it is no violation of the federal Controlled Substances Act to dispense, distribute or administer a controlled substance to alleviate pain or discomfort. States remain free, as they have always been, to enact their own legislation on palliative care.

5. The letter states: "Under the Act, physicians who appropriately prescribe or administer controlled substances to relieve intractable pain would be threatened with excessive regulatory scrutiny, inappropriate disciplinary action and criminal prosecution."

Again, the bill has the opposite effect. By clarifying that use of controlled substances to relieve pain is not a violation of the Controlled Substances Act, the bill ensures that physicians will not be subjected to disciplinary action or criminal prosecution under the Act if they prescribe or administer controlled substances for that purpose. It is worth noting that RIMS made exactly the same claim against Rhode Island's proposed law banning assisted suicide in 1996 ("Doctors express concern over ban on assisted suicide," Providence Journal, May 4, 1996). But in the year following enactment, per capita use of morphine in the state more than doubled as the state rose from 46th among states in morphine use to 18th. To this day, morphine use in Rhode Island remains twice what it was before the ban (Source: Drug Enforcement Administration statistics on morphine use). In its own home state, RIMS's empirical claim has already been proved wrong.

© Copyright 1999
Physicians for Compassionate Care Educational Foundation