Opposition to Neutrality on AB 651

H. Rex Greene, MD
1820 Ogden Dr. Suite 200
Burlingame, CA 94010
Hematology-Oncology, Palliative Medicine, and Gerontology
(650) 697-720

Feb 22,2006

Council on Ethical Affairs
California Medical Association
Oakland, CA

Re: Opposition to neutrality on AB 651

Dear Colleagues,

As a board certified hematologist-oncologist, a palliative care/hospice physician and a member of the CMA Council on Ethical Affairs for the past 18 years I have been closely involved with the issue of legalization of euthanasia. In the late 1980’s our chair invited Derek Humphry to spend an afternoon with the Committee on Evolving Trends and tell us why medicine should change its long held position. Mr. Humphry was candid and discursive. He described the agenda he had formulated for the euthanasia movement that it has pursued now for over a generation. At the end of the meeting we were powerfully persuaded to oppose his proposal. In anticipation of future legislation we issued a white paper on euthanasia and assisted suicide that remains pertinent nearly two decades later.

I founded a hospice 27 years ago and have testified in court in defense of physicians on many occasions. AB 651, the latest effort of the seemingly unrelenting euthanasia movement, will lead to acts that are indefensible. My friends in the disability and poverty law communities can better discuss why the underserved, elderly, minorities and the disabled have deep concerns about this bill, but I believe that the problems stemming from this radical change in our professional role fall into three broad areas: bad public policy, bad ethics, and bad medicine.

I will briefly mention the impact on professional ethics. The medical ethic to do no harm has served Western Civilization for over two millennia and should not be tampered with lightly. Hippocrates got this one right: we shall give no poison, no matter who asks. Professional ethics should not be recut to fit the latest opinion poll. Physicians should not cause intentional harm either in the service of our own interests, in service of the state or upon request of our patients. The wisdom behind this bright line boundary around the health professions is self-evident, and it is why the AMA, the CMA, nursing associations, and virtually all health professional associations that have taken a public position to oppose legalized physician assisted suicide.

In the remainder of this letter I shall commingle my public policy and medical quality concerns. (Because my papers are in storage in preparation for our move to Ohio I will spare the committee the mountain of documents that bolster my arguments). I shall attempt to summarize my concerns in response to the latest letter that my friend Dick Ikeda sent to the Board. I note, however, that no new information has been brought forth since the CMA House overwhelmingly rejected resolutions 504 and 505 last year. The arguments remain essentially the same. For CMA to take a neutral position would be tantamount to an endorsement of legislation we have consistently opposed-and our opposition has provided a powerful counter-argument to claims that this is something the medical profession wants to take on.

First, a look at AB 651: It is a slightly amended version of AB 654, which did not have enough support to be heard on the floor of the Assembly last year. Due to its failure the authors of AB 654 “gutted and amended” a bill that had passed the Assembly and was before the Senate to extend health care coverage for poor people. They swapped in the language of AB 654. This symbolism was hardly wasted on poverty rights and health law advocates whose concerns about the shortcomings of California healthcare were not assuaged by (in effect) substituting assisted suicide for better benefits.

The latest bill is a minor reworking of Oregon’s Death With Dignity Act, passed eight years ago. Yet it fails to meaningfully address problems that have surfaced in Oregon. For example, based on the most recent published data only two victims of the Oregon law were referred to psychiatric or psychology evaluations in 2004. AB 651 attempts to cure this problem by imposing “counseling” on anyone requesting PAS that is not in hospice. Yet the definition of counseling (7195.1 e) is a one shot visit to a licensed psychologist or psychiatrist to evaluate whether “a psychiatric or psychological disorder, or depression [is] causing impaired judgment. “This hardly qualifies as counseling and begs the question whether suicidal ideation represents impaired judgment per se. (Under LPS we can involuntarily “5150” those who represent a danger to themselves).

In preparation for the CMA conference last fall I reviewed 35 papers published in peer reviewed journals over the past five years dealing with psychological distress in end-of-life care: cancer, depression, and suicide. The overwhelming body of evidence was that a desire for hastened death was in itself a strong indicator of depression. Furthermore, the psychosomatic literature has described an entity known as the Demoralization Syndrome, which is very common in chronic, ultimately life threatening illness, the features of which (hopelessness, helplessness, and despair) fit the profile of the victims of Oregon’s law, who are consistently reported NOT to be in pain or disabled by their allegedly terminal illness but request PAS because of fears of what might come in the future: helplessness, dependency, becoming a burden. Oregon in fact has proven that the only symptom driving requests for PAS is psychological distress. Clearly the standard of care for depression and demoralization is not a lethal overdose of barbiturates.

AB 651 requires that physicians adjudge the patient to be “terminal” (six months prognosis) and make certain certifications, which seem to go beyond the scope of medical practice-for which we are unqualified. Research on prognostication in terminal illness indicates that we cannot accurately predict death more than about two weeks in advance. Hospice long ago proved that the six-month rule imposed a powerful conceptual barrier to referral, but it works both ways in that patients who can live far longer than six months can be judged to be “terminal” as well. Moreover, six months prior to a natural death a patient is not likely to have any symptoms that would require extreme measures to relieve them. In Oregon (under their quite lax oversight) several patients have lived more than a year after receiving a lethal prescription.

Physicians also must certify,”that the patient is capable, is acting voluntarily and has made an informed decision.”The latter category,”informed decision”,is defined (7195.1 h) as one that is not “based on coercion &[but] is based on an appreciation of the relevant facts, and is made after being fully informed of all of the following [emphasis added]:”medical diagnosis, prognosis, “the potential risk associated with taking the medication,”the feasible alternatives (comfort care, hospice care and pain control). I know of no basis in training or experience that qualifies physicians to identify coercion. We are not police. In addition, most physicians have no expertise in comfort care, hospice care and pain control. The law does not restrict itself to experienced palliative care or hospice physicians. Hence, it is very unlikely that the average physician can assure that a patient is “fully informed” of all the alternatives.

This law would allow marginal physicians, say two Botox dermatologists to diversify into end-of-life prescribing. This is a real concern as a study done a few years ago indicated that the more experience physicians have in end-of-life care the more they disapprove of PAS. Conversely, it is those that rarely care for the dying that tend to support it. Thus, this law will necessarily put vulnerable patients in the hands of physicians who either lack experience or hold philosophical beliefs that an approach to end-of-life care includes lethal overdoses to relieve “suffering”.

That the legislation defies common sense and glibly defines its outcome (a self-administered lethal overdose) as not being “suicide” threatens established professional standards and norms. More importantly, suicide is simply not something about which physicians should have an ambivalent or conflicted stance. We should not be put in the role of sorting patients into two categories, for some, sponsoring suicide while for others, thwarting it. Imagine my seeing a demoralized cancer patient and doing everything in my power to help that patient cope. The next day I realize that my patient now has a six-month prognosis, hence is qualified for a lethal overdose. If I don’t approve, well there’s a Soylent Green clinic down the road. Perhaps I will never tell a despairing patient what her prognosis truly is, but of course, the two obitologists next door will gladly certify that she is “terminal”. (What’s the CPT code?)

A key unstated consequence of this legislation is that it requires physicians to abandon our objectivity and make a highly subjective decision that an individual’s life is no longer worth living. In Oregon, only a handful of physicians have made this horrific jump-of course under the self-congratulatory banner of compassion. But compassion can be more about relieving our own discomfort than relieving that of our patients. Clearly, the risk is that our colleagues who have significant counter-transference issues in dealing with terminal illness will act on their own needs. The message: “I wouldn’t want to live like that” is what sends chills through my disabled friends. While the legislation proposes “safeguards,” they are nothing more than an empty ritual. The key safeguard is having a competent palliative care physician who will do everything imaginable to relieve suffering except kill patients.

It is important to remember that even if Oregon were Nirvana, California isn’t Oregon. We have nearly 7 million uninsured, a similar number of under-insured and an extraordinarily diverse society. Our health care system is in such disarray that the provider of choice for mental health is our prison system. Legalized euthanasia amounts to implied coercion for the underserved. We should not naively import Oregon’s experience-besides which a closer look at Oregon shows a disturbing picture of deteriorating quality of end-of-life care. As was reported in the December 2004 issue of the Journal of Palliative Medicine nearly twice as many dying patients are experiencing moderate-severe symptoms than at the advent of the Oregon law. Why? Because assisted suicide is a shortcut around the hard work of palliative care.

Ask physicians and nurses who routinely care for dying patients. We know that it takes real dedication not a bumper sticker slogan about “choice”. Keep in mind that Oregon has a voluntary reporting system, no doubt carefully managed by groups advocating for legalized euthanasia. They have reported 208 deaths under the law. About 80% were cancer patients, allegedly terminally ill with a six-month prognosis. Oncology is my area of expertise, and I am baffled. Few of these “dying patients” were reported to be disabled or in pain from their cancer. Moreover, some patients received lethal prescriptions a year or more before they died. Above all, Oregon clearly refutes the main argument for legalization that it is a last resort for patients dying in unrelieved agony, begging for death. On the contrary, something else is happening.

In its latest report (up through 2004) the Oregon Health Department noted that a disproportionate number of the victims were divorced, widowed or never-married women. These victims-men and women-made their requests based on fears of what might happen to them. In short, they were lonely, isolated and suffering psychological distress. These descriptions are quite consistent with what we’ve known for years about suicide in cancer patients-that it is due to the same factors that occur in non-terminal patients: depression, family conflict, past substance abuse, and certain personality characteristics.

The wish for death is a “cry for help,”a reliable sign of depression. How absurd that it would be met with a lethal prescription. Such an act violates professional standards of palliative care as much as if I were presented with a suicidal patient and handed her a gun or drove her to the Golden Gate Bridge. The case of Robert Freeland reported to the American Psychiatric Association last year documented the cursory way in which a man with deep psychological problems received his lethal prescription. Were it not for the efforts of volunteers in Physicians for Compassionate Care he would have died at his own hand instead of in peace and dignity.

Under Oregon’s voluntary self-reporting system abuses are likely to go undetected. A handful of Oregon physicians provide the lethal prescriptions, most of whom are aligned with pro-euthanasia organizations. One of them, an award-winning advisor to Compassion in Dying, recently acknowledged that she was involved in over 100 deaths. Another said that he makes his dispositions over the phone-and can reliably rule out depression over the phone. Other worrisome facts include the lack of reported “complications” and the brief survival after ingesting the lethal cocktail. For example, in the Netherlands 15% of self-administered overdoses are reported to survive (requiring a lethal injection to finish them off) yet the case of David Prueitt reported last year was the first from Oregon. How is that possible?

Disturbingly, the shortest reported survival following oral self-administration of a lethal dose of the drugs used in Oregon-Secobarbital or Pentobarbital-was five minutes. (The average was 25 minutes). During my residency I ran a service that cared for drug overdoses at LA County Hospital, mainly treating barbiturate overdoses. Seldom do such individuals die within minutes-or within hours. Only an IV injection causes death that quickly-or using devices such as plastic bags for suffocation-long a “failsafe” recommendation of the Hemlock Society. AB 651 offers no policing to preclude these sorts of abuses or any real consequences for violators. Rather it encourages incompetent and unprofessional conduct by physicians caring for suicidal patients.

Finally, what this legislation neglects is the fact that advances in palliative medicine have made it possible to relieve the symptoms in virtually all dying patients. The argument that 5-10 percent of dying patients experience intractable symptoms relies on outdated data. (Of course, the victims of the Oregon law were not imminently dying or suffering intractable pain; they were suffering from depression and despair). Those patients who are truly at the end-of-life need access to excellent palliative and hospice care not a lethal overdose. In hospice and palliative care we know how to handle symptom crises.

Our legislators should leave the time-tested boundaries of medical practice intact and turn their attention to more important matters, our collapsing public safety net and our shattered mental health system. These are better targets for their well-intentioned but misguided efforts.

H. Rex Greene, MD