Washington, August 2 - The politics and pressing need to improve America’s end-of-life care system were in sharp display at a July 31 Senate Judiciary Committee hearing, "Drugs, Dignity, and Death: Physician Assisted Suicide," chaired by Senator Orrin Hatch (R-UT). On a day when Washington mourned one of the slain Capitol Hill police officers and buzzed with the latest innuendoes, end-of-life issues still drew a standing-room only crowd for two hours of testimony and sharp questioning by Senators Hatch and Richard Durbin (D-IL).
The proposed legislation, S. 2151, introduced by Senator Don Nickles (R-OK), has twenty-three cosponsors, and is making a quick trip through Congress. Indeed, proponents wanted the bill to reach the House and Senate floor before Congress recesses for the summer. Two weeks ago, the House heard testimony on its version of the bill, H4006, introduced by Representative Henry J. Hyde (R-IL). The speed at which the bill is going through the legislative process belies its complexity.
In opening remarks, Hatch noted his desire to forge a consensus among “health care providers on the appropriate government role in the practice of medicine." Hatch's objective was "to use our hearing today to begin exploring a successful resolution of any important issues so as to facilitate enactment of the Nickles/Hyde bill this year." However, the hearing did less to resolve issues than to demonstrate problems with the bill and to highlight widespread misunderstanding about end-of-life care, physician-assisted suicide, and pain control. Even the hearing’s name was a misnomer, with testimony and questioning that revolved around issues of states rights, the role of the Drug Enforcement Administration (DEA) in enforcing the Controlled Substances Act (CSA), and medical issues surrounding adequate pain control for the terminally ill.
Questioning by Durbin illustrated just how little many thoughtful people understand about end-of-life issues and the role of medication in treating dying patients. Durbin asked Joseph N. Onek, Principal Deputy Associate Attorney General, and Thomas A. Constantine, Administrator of the Drug Enforcement Administration (DEA), if there were a specific dose and a specific medication that would lead to patient death that would make the proposed law easier to enforce. Isn't there, he asked, a clear line at which a doctor is not "trying to alleviate pain but to kill the patient? Is there an objective standard that the line has been crossed?" Durbin asked.
Joanne Lynn, M.D., President of Americans for Better Care of the Dying (ABCD), told the Committee that no such line exists and that any number of substances can be used to kill a patient. "Jack Kevorkian uses carbon monoxide, and that's not even a drug," she said.
One witness, Andrew I. Batavia, J.D., M.S., professor at Florida International University, told the committee, "Administering this requirement is likely to result in an increased regulatory burden on health care providers, as well as the need for increased DEA manpower, primarily in the form of psychics and mind readers."
The issue is a political hot potato. Onek testified that the Administration, which opposes PAS, also opposes SR 2151/ H4006. Onek told the committee, "It is inconceivable that Congress intended an issue of this magnitude and moment to be decided by a midlevel DEA bureaucrat. Such profound issues are decided by the people and to date, only the people of Oregon have voted on it."
In June, U.S. Attorney General Janet Reno concluded, "There is no evidence that Congress, in the CSA, intended to displace states as the primary regulators of the medical profession or to override a state’s determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice."
The DEA, which initially announced that it would prosecute Oregon doctors who participate in PAS, has since back-pedaled from that position and now, said Constantine, supports the Attorney General's ruling.
Other witnesses included Senator Ron Wyden, (D-OR), who opposes the bill. Wyden, who voted not to legalize PAS in his home state, asked the Committee, "Is the effort to overturn Oregon's law being made because it is being administered in a reckless or unjust fashion? To date, only five people have qualified for the PAS option and have exercised it. . . . The law is being used sparingly because of Oregon’s extraordinary record in promoting alternative end-of-life approaches to physician-assisted suicide."
In addition to Lynn and Batavia, the final witness panel included Walter Hunter, M.D., Hospice of Michigan; Ralph Miech, M.D., Ph.D., professor of pharmacology at Brown University; Harold Sox, Jr., M.D., President of the American College of Physicians and American Society of Internal Medicine; and M. Gayle Hafner, Esq., of Not Dead Yet. Hunter said he uses "controlled substances with the frequency with which other doctors prescribe antibiotics," and claimed the bill would not change the way he practices medicine. However, his testimony underscored a general concern about the possibility of abusive enforcement practices by the DEA. Dr. Hunter pled with lawmakers to be sure the DEA not act with the kind of irresponsibility that has sometimes marked the IRS.
Lynn and Sox described just how dramatically the bill would change medical practice, making some doctors so fearful of DEA investigations - which can ruin a physician's credibility - that they would no longer treat dying patients, or prescribe adequate amounts of pain medication.
"Why do we take no notice of doctors who underprescribe pain medications? The rates of bad symptoms at death are stunning. Our care system simply does not do the job well. There is no good reason to worsen the situation by passing this bill," Lynn said.
Sox concurred. Most of the 100,000 members of the ACP-ASIM "care for dying people, and they are deeply, universally concerned about this bill. Our greatest concern is that this bill, if enacted, has the potential to seriously harm care for dying patients. Each year, 2.3 million people die. Without adequate treatment for this pain, many of them will suffer severe, unremitting, constant pain during their terminal illness."
In states with similar legislation, Sox said studies indicate "that government regulations are one of the barriers to effective pain treatment." He described recent cases in Florida and Arizona, where doctors who prescribed correct doses of controlled substances to alleviate pain were disciplined, although the decisions were ultimately overturned by the courts.
Hatch concluded by saying, "I am finding out this is not an easy issue," and invited the final panel's witnesses to work with him. On behalf of ABCD, Lynn told Hatch, "This is a federal issue. Although three-quarters of us die in Medicare, we have no performance standards and no monitoring of end-of-life care. We need the will to make a system that works, and ABCD will contribute in any way it can."
Markup in the House Judiciary Committee occurred on August 4, and the bill was reported out to the full House. The Senate is likely to act quickly when it returns to Washington in September.
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