Euthanasia and the Pain Relief Promotion Act
President Clinton said that the key question regarding the Nickles/Lieberman Pain Relief Promotion Act is "whether the bill as written would have a chilling effect on doctors writing medication for pain relief on terminally ill patients."
The question he raised is a testable proposition. Language almost identical to that found in the Pain Relief Promotion Act has been enacted in ten states in recent years - and the effect of such language on the use of powerful pain relief medication such as morphine has been dramatically positive.
There is considerable data from states passing new laws against assisted suicide since 1992. During this period, ten states passed new laws that ban intentionally assisting suicide (or that strengthen existing bans), including language that affirms the use of medications to control pain even when this may unintentionally increase the risk of death. Data on morphine use from the Drug Enforcement Administration (DEA) show that per capita use of morphine always increased in these states afterward, sometimes dramatically so (in Iowa, Rhode Island and South Dakota, morphine use doubled). The average change in morphine use in these ten states was an increase of over 50%.
During the same period, four states passed laws against assisted suicide that did not include language affirming pain control like that found in the federal Pain Relief Promotion Act. Even here, there is little evidence of a significant "chilling effect" on morphine use; but per capita use of morphine tended to stay about the same or to increase only slightly. In these four states, where new bans on assisted suicide lacked the kind of positive language on pain control found in the Pain Relief Promotion Act, morphine use rose by an average of 3%.
Turning back to the ten states with language similar to that of the Pain Relief Promotion Act, one can reasonably predict that the impact of passing the federal Act would be even more positive for pain control, for the following reasons:
1. These states actually passed new bans (or established new civil penalties for doctors) where none previously existed. By contrast, in the vast majority of states the Pain Relief Promotion Act establishes no new ban at all - it is already a state crime (and/or a violation of state medical licensing standards) to assist suicide, and thus an automatic violation of the federal Controlled Substances Act to use a federally controlled drug in such a practice. Thus, in the vast majority of states, the only provision of the federal Act to have new legal effect is the clearer "safe harbor" for physicians practicing pain control even in cases where there is a risk of death.
2. The state bans generally imposed criminal liability (imprisonment and fines), and/or civil liability with the potential for large monetary damages. The only "penalty" under the federal bill is that the DEA has the option (not a mandate) to suspend or revoke a practitioner's special federal prescribing privilege to handle controlled substances. As the federal Act itself clearly states, and as the House Judiciary Committee acknowledged in its report on the bill, such action has no effect on a practitioner's state license to practice medicine. (The charge that the federal bill imposes a criminal penalty of 20 years in prison has been rebutted by the Congressional Research Service's analysis of this bill. That is the penalty allowed by the existing Controlled Substances Act in cases where a misuse of controlled substances causes death, and assisting a suicide is already deemed to be misuse in all 50 states, except for a handful of cases in Oregon. Moreover, the Justice Department pursues criminal indictments against physicians chiefly when they are involved in large-scale drug trafficking, not when they have misused their federal prescribing privileges in individual cases, and nothing in the federal bill changes that. Even Jack Kevorkian, convicted of violating Michigan's homicide and controlled substances laws after he used a controlled substance to kill a man on national television, has never faced criminal charges under the federal Controlled Substances Act.)
3. The state laws were primarily concerned with banning assisted suicide; they then added a disclaimer that pain control that unintentionally hastens death does not fall under the ban. The federal bill has the opposite priority: It establishes an affirmative endorsement of pain management as a "legitimate medical purpose" for use of controlled substances, and then adds a disclaimer that this endorsement "does not authorize" intentionally causing patients' deaths by assisted suicide and euthanasia. (An earlier federal bill, the Lethal Drug Abuse Prevention Act of 1998, was worded much more similarly to the state laws in this regard; but the new federal bill was rewritten with the help of medical and palliative care groups to be far more positive and unambiguous in endorsing aggressive pain management.)
4. The federal bill has educational and grantmaking provisions absent from these state laws: Continuing education for law enforcement personnnel on how to better accommodate physicians' legitimate need for controlled substances to control pain; and grants totaling $5 million a year to educate medical professionals in their legal authority and medical responsibility to provide better pain management and palliative care.Partner sites: French Bulldog, Spanish school in Quito, and Wedding Speeches