First, Do No Harm: The debate over euthanasia comes to Minnesota

June 30, 2015

Jennifer Martin-Romme
Zenith News

"Death is not an abstract concept. It’s one we all must face,” says David Plimpton, a retired Twin Cities physician who practiced internal medicine for 40 years, and who, for reasons both personal and professional, supports physician-assisted “aid-in-dying.”  


“Through my practice, seeing the limits of what medicine can do. We can keep patients alive for longer and longer periods of time...but we seem to forget what the patient wants when we run out of options.”


Plimpton’s father was a surgeon who developed Parkinson’s Disease later in life. He was also a member of the Hemlock Society, a now-defunct group that advocated for the terminally ill to be able to end their own lives.


“My dad got the medicine, and he fully intended to take it when he lost his autonomy. But he developed dementia first and he lost the memory of his plan to do that.”


A bill that would legalize prescriptions for a lethal medication to qualifying patients—called the Compassionate Care Act and sponsored by Senator Chris Eaton (DFL-Brooklyn Center)—was read in both chambers of the state legislature last session. It’s currently awaiting a hearing in the Health and Human Services Committees.


A patient may qualify if he or she is terminally ill, with a prognosis of six months or less to live. The patient must make two written requests to their doctor, at least 15 days apart, and consult with a second physician. Both doctors must confirm a terminal diagnosis, a six-month prognosis, and determine whether the patient is mentally competent and making the decision voluntarily. They must actively offer the patient an opportunity to rescind the request. If the doctor suspects a psychiatric condition, the patient must be referred for a psychological evaluation first.


If all these conditions are met, the physician is required to suggest that the patient notify their family, have at least one other person present when they take the prescription, and not take the prescription in a public place. The doctor must confirm—one more time—that the patient is doing this of their own free will and remind the patient that he or she does not ever have to take the lethal dose.


The bill requires that the patient “self-administer” the prescription—a very large amount of barbiturates, usually Seconal or Nembutal, which causes unconsciousness, and then suppresses the respiratory system until the patient dies from lack of oxygen. Unconsciousness occurs within a few minutes, and death within about half an hour.


The barbiturates cannot be swallowed in pill form because unconsciousness would set in before the full lethal dose is ingested. An anti-emetic is also prescribed to prevent vomiting, and then the barbiturate is dissolved in a few ounces of water or a similar substance (e.g., pudding).


The death certificate must identify the manner of death as “natural”—not suicide—and the cause of death must be the patient’s terminal illness, not an overdose. The bill even dictates the words to be used when talking about it:

No report of a public agency may refer to the practice of obtaining and self-administering life-ending medication to end a qualified patient’s life as “suicide” or “assisted suicide,” and shall refer to the practice as “aid in dying.”

Language is prime real estate in the debate over whether to allow terminally ill people to hasten death. Each side seeks to control the conversation by controlling the terminology. Those in favor refer to it as “aid-in-dying.” Those against it use “assisted suicide.”


“Euthanasia” is perhaps the most commonly recognized term, but (despite its use in the title of this article) it is not the correct term for the intent of the Compassionate Care Act. Euthanasia means someone else—for reasons of mercy, by definition—commits the specific action that induces death. Minnesota’s bill requires that the patient themselves “self-administer” the lethal dose.


Because these terms have become so politically charged that there is no longer any neutral term, I have opted in this story to refer to it with an abbreviation of my own creation—“CC laws,” the initials of the Minnesota bill as well the organization behind it, Compassion & Choices.


Only five states in the U.S. have CC laws or their equivalent. Oregon passed the Death With Dignity Act via ballot initiative in 1997. Washington State passed a similar ballot initiative in 2008.


In 2009, the court in Baxter v. Montana ruled that there is “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid-in-dying is against public policy,” effectively decriminalizing it.


In 2013, Vermont passed the Patient Choice and Control at End of Life Act—the first and only state to pass a CC law via legislation.


In 2014, Morris v. New Mexico ruled that terminally ill residents have a right under the state constitution to hasten death with medical assistance. The state attorney general declined to challenge the ruling, but it’s unclear whether it applies outside of New Mexico’s Second Judicial District. The Morris decision is currently being appealed.


Behind all of these laws, court rulings, and many of the proposed CC laws nationwide is Compassion & Choices, an advocacy organization with an unusual pedigree.


When contacted by the Zenith in 2011, after a Google search for the Hemlock Society led to Compassion & Choices, a media spokesperson in the Oregon office categorically denied that Compassion & Choices ever had any connection to the Hemlock Society.


That’s not true—Compassion & Choices is a direct descendant of the Hemlock Society—but the Oregon spokesman may have had good reason to be confused.


The Hemlock Society began in 1980 and changed its name in 2003 to End of Life Choices. In 2005, it merged with the Compassion in Dying Federation to become Compassion & Choices, headquartered in Denver.


The Compassion in Dying Federation was headquartered in Portland, Oregon—the same office I called in 2011—and the Compassion in Dying Federation, indeed, never had any direct connection to the Hemlock Society.


In 2004, a retiring Compassion & Choices board member formed the more radical Final Exit Network, which created a device for “independent self-deliverance” and advocated a right-to-die for anyone with a permanent and debilitating condition—not just a terminal illness.


Like incompatible siblings despite their shared parentage, Compassion & Choices eschews just about everything the Final Exit Network stands for. “[We] support only mentally competent, terminally ill adults about their end-of-life healthcare options,” says Sean Crowley, a spokesperson for Compassion & Choices. “These include hospice, palliative care services, discontinuation of life-sustaining therapies including food and nutrition, and the option to ask their doctor to prescribe aid-in-dying medication they can take if suffering becomes unbearable.”


In 2005, Janet Conn of Minneapolis, a retired accountant for Target, became president of the Minnesota chapter of Compassion & Choices.


Conn’s father was a Congregationalist minister and a member of the Hemlock Society. He and Conn’s mother died about a year apart, both of pancreatic cancer. “But even in our family...when they were dying, I could never talk to them about the fact that they were dying.”


In addition to getting the Compassionate Care Act passed, Conn hopes to “get people more comfortable thinking about and talking about death, and planning how they want that to go for themselves.”


“The cornerstone of medical ethics is patient autonomy,” says Plimpton. “Patient autonomy comes down to asking the patient, ‘What do you fear?’ When a person’s life is ending, what do they want? What can be done to reduce the anxiety and the suffering that comes with dying?


“Pain often isn’t the patient’s greatest fear. [Common fears include] shortness of breath, nausea, weakness, the fear of suffering, the existential fear of knowing they’re going to be dead soon—what if death is nothingness?”


Seattle attorney Margaret Dore, founder of “Choice” is an Illusion, believes the Compassionate Care Act itself is also worth rightly being afraid of. “If you believe in this, don’t use this law to do it. Just put a big sign on yourself, saying, ‘If anything happens to me, don’t ask questions.’”


Dore’s legal practice includes probate, guardianship, and inheritance, bringing her into frequent contact with vulnerable adults, elder abuse, and estate disputes.


“So, that was the environment of the work I was doing, but it doesn’t just apply to older people. Guardianships of younger people can also be about the money. Older people are one of the wealthiest demographics in the United States,” making them particularly susceptible to exploitation that they may be reluctant to disclose. “There’s a lot of denial in domestic violence situations.”


Among Dore’s concerns about the Compassionate Care Act is that it does not require a psychological or social work assessment unless the physician orders one. “There are things going on in the background [of a patient’s life] that the doctor may have no idea about.”


In addition, the bill does not require any official witnesses to be present at the patient’s death, nor does it require the state to collect any data. “All the safeguards end once the prescription is called in...Someone could mix it up, give it to you, and who would ever know?”


Plimpton points out that a large number of patients who utilize CC laws are already enrolled in hospice—93 percent in Oregon, according to the Oregon Health Division.


Hospice patients generally receive psychological or social work evaluations, making another assessment redundant. “I personally don’t think a psychiatric evaluation is necessary...We need to rule out depression, and if the hospice social services aren’t [doing that], then we need to.”


However, Plimpton enthusiastically supports a reporting requirement. “I see it as for education, for determining whether what we designed is working properly.”


He also would agree to a provision requiring an official witness of the death—at least at first. “I believe that the presence of a volunteer witness is appropriate for the early experience of legalized aid-in-dying, but with time and experience, the presence of a witness who is not a family member will no longer be appropriate...We have to be reasonable, but we will not be able to completely reduce the overwhelming anxiety of certain zealots.”


According to Oregon’s data, the prescribing physician or another healthcare provider is present about half the time when a patient dies by lethal prescription.


But Dore is unlikely to be reassured by data coming out of Portland. She says the Oregon Health Division destroys its Death With Dignity statistics, and the data are based entirely on voluntary reporting by doctors, rendering the information incomplete and unreliable.


Moreover, “the death certificate is required to be falsified,” referring to the requirement that the manner of death be identified as “natural” and the cause of death be listed as the terminal illness. “If someone were to investigate later, no one can be prosecuted.”


Katrina Hedberg, Health Officer for the Oregon Public Health Division, cheerfully admits that the Death With Dignity Act is “permissive,” noting that if Oregonians wanted a more restrictive law, they would enact one.


According to Hedberg, when a lethal prescription is issued, that information is kept on file with the Health Division, along with the patient’s name. As death certificates come in, the Division matches up those who have died with those who have received a lethal prescription—although they cannot tell from the death certificate alone whether that patient consumed the prescription.


The Health Division then asks the physician to submit a report, which covers a wide variety of information tracked by the state—from the patient’s “end-of-life concerns” to who was present at the death and how it progressed.


Physician reporting is completely voluntary, but the data suggest that the rate of physician reporting in Oregon is quite high. Because the issuance of all lethal prescriptions is recorded, but not all physicians file a report after death, the difference between those two numbers represents the physicians who did not report. Of the 1,327 people who have received a lethal prescription (859 of whom have since died), only two physicians filed no report at all (though many did not fill out all the questions and/or indicated that they did not know some of the answers).


Hedberg says the Division keeps patient names on file for one year, and then destroys the names while retaining all the other data collected.


Hedberg takes exception to characterizing the death certificates as “falsified,” pointing to other situations in which the recorded cause and manner of death are similarly imprecise. For example, if a patient undergoing heart surgery goes into cardiac arrest, attempts at revival are unsuccessful, and the surgery is halted, “we don’t put all that on the death certificate. It just says ‘heart surgery.’”


Likewise, if a hospice patient is given a high dose of narcotics to control pain, and then dies as a result of the narcotics, the cause of death is reported as the underlying illness—not as a narcotics overdose.


Dore has passionate opinions about the immunity of hospice doctors to control pain. “Sometimes it’s appropriate, but some of my clients are guarding their patients in hospice because they don’t want them to get offed.”


Plimpton acknowledges that hastening the death of a dying patient is an open secret among physicians—one that he has personally participated in himself. “Yes. I have given morphine in large doses, which resulted in early death. These were all people in the final days of their life...Have I caused death? Well, I have made medical mistakes. But I don’t feel this was among them.


“In my experience, it’s accepted [among doctors]...No, it’s not discussed publicly; you just do it. Usually, the nurses are aware, and the family is in agreement, and the patient’s wishes are known. But even if the patient’s wishes are not known, if they’re suffering, you can do it.”


Plimpton is referring to a trifecta of Supreme Court decisions (Vacco v. Quill, Washington v. Glucksberg, and Gonzales v. Oregon) that carved out an exception for physicians to “provide effective palliative treatment, even though it may foreseeably hasten death.”


In ruling that CC laws are not a constitutional right, the Court was reluctant to discourage doctors from providing adequate pain relief to dying patients. The opinions in Vacco, Washington, and Gonzales each reiterate that a doctor treating a dying patient has—not only the ability, but the professional obligation—to provide “aggressive palliative care,” such as narcotic painkillers, even though a high dose of painkillers might foreseeably cause death.


“Let’s just look at the law,” says Dore. “What will it say and what will it do? Physician-assisted suicide is a bit of a misnomer, because other people can be involved.”


The Compassionate Care Act defines “self-administration” (in full) as “a qualified patient’s act of ingesting medication.” It nowhere delineates exactly what another person can do without crossing the line into homicide or assisting a suicide: Can they prepare the drug solution? Hand you the glass? Hold it up to your mouth? The language of the bill is completely silent on these questions.


“It is neutral as to who gives it to you. Self-administering is defined as the act of ‘ingesting.’ If I pour it down your throat, you’re ingesting. If I inject you, you’re ingesting. If I release poison gas into the air and you breathe it in, you’re ingesting. This law allows euthanasia.”


Dore wouldn’t say if changes to the bill might mitigate her concerns. “The other side would never agree to it anyway...but, as a practical matter, there’s no way to control it...I don’t think it matters whether I’m opposed [to this issue in general] or not. I don’t see any way you can make it safe. The statute in Minnesota allows the perfect crime, and I would urge your legislators to vote against it.”


Plimpton could not view it more differently. “Patients now have the right to refuse [life-sustaining] treatment...which was once condemned as euthanasia. That’s been a progression that, I think, is absolutely appropriate for how medicine has progressed...You need to get at [a dying patient’s] fears. If we can’t adequately fix those fears, then they need to be able to pursue aid-in-dying, and the physician needs the legal ability to help them do that.”

 

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