Testimony of Norman C Smith, Esq.
Before the Vermont House Human Services Committee April 12, 2013
Chairwoman Pugh, members of the Committee, thank you for allowing me to testify. My name is Norman Smith. I was born and raised in St. Johnsbury, graduating from St. Johnsbury Academy in 1973. After graduating from MIT and Boston University Law School, I clerked for the Hon. Chief Justice Albert W Barney, Jr., Chief Justice of the VT Supreme Court, in 1980 and 1981.
I am an attorney with a focus on matters involving the legal affairs of elderly clients in addition to other matters. I testified before the Senate Judiciary Committee against the original Senate Bill 77.
Over the last few days, you have heard testimony from people who disagree on whether some form of Death with Dignity or Physician-Assisted Suicide legislation should be passed.
The proponents of Death with Dignity claim that there is this crying need for the legislation to help patients alleviate their pain at the end-of-life. Nothing in their proposal, however, requires that pain be the reason for the patient to commit suicide at the end-of-life. In fact, the 2012 Oregon Report states that from 1998 to 2011, less than 23% of patients gave inadequate pain control or concerns as the reason for requesting the lethal dose. Last year it was slightly less than 30%.
We have heard discussions of the Vermont way. The current practice of doctors speaking with their patients and determining end-of-life care IS the Vermont way. The State should not interfere with that relationship. The Legislature should leave things alone. The Oregon style bill fundamentally changes the doctor-patient relationship.
If this Committee feels that it must do something, however, the current version of Galbraith Hartwell is much better than the Oregon approach. It essentially codifies current practice. Opponents of the version say it does not protect the patient, whereas the Oregon version provides a great deal of protection. They are wrong.
The current version of Senate bill 77 preserves the doctor-patient relationship. It prevents patients from shopping for doctors to obtain lethal prescriptions. A patient’s existing physician will know the patient and her concerns, and will be better equipped to advise and treat her patient.
Under the Galbraith Hartwell version, the medication is for the relief of systems associated with or caused by the terminal condition, the purported reason proponents provide for adopting the Oregon style bill.
We can all agree that those on both sides of this issue are truly concerned about patients and patients’ rights. We all recognize that we should show compassion for those who are facing life-threatening conditions. Furthermore, we all recognize the importance of making our own choices when it comes to medical treatment.
But I ask that you consider carefully whether the Oregon style law will live up to promises its proponents have made. Whether it provides the protections the proponents claim.
Its proponents depict suicide using drugs prescribed by a doctor as a patient’s choice – something that would be facilitated by a caring doctor after lengthy doctor– patient discussions. And, we’re told that it would only be after making certain that the patient is has considered and rejected all other options that the doctor would write a prescription for lethal drugs to be used as a last resort.
We are led to believe that all necessary safeguards are in place.
We’re offered the illusion that, after “goodbyes” are said, the patient – surrounded by a loving family or friends and the caring physician – will take the lethal dose and slip peacefully away. And, after the patient’s death, the physician in attendance will fill out the death certificate, death certificate that will falsely state the manner and cause of death as the underlying disease, rather than suicide.
But, under the proposed law, the reality can be far, far different.
The Oregon style bill does not provide adequate protection for patients.
I ask you to consider the following.
D octor patient discussions
While we would all wish that there would be lengthy discussions between the patient and the doctor, we live in the real world. Today, physicians are forced to work within an economic system that leads to doctor/patient interaction often limited to 10 to 12 minutes a visit. This makes it extremely unlikely that a full exploration of the patient’s hopes, fears and feelings will take place.
It is true that, if a doctor has diagnosed a patient with a terminal condition that is expected to cause death within six months and, if the doctor is willing to participate in providing the prescription, the Oregon bill requires the doctor to inform the patient, in person and in writing, about such things as the diagnosis, prognosis, and, in the words of the Bill, “all feasible end-of-life services, including palliative care, comfort care, hospice care, and pain control.”
But informing a patient does not mean that the doctor must discuss these options with the patient. Indeed, the requirements of the law could be fulfilled by the doctor simply handing the patient a printed brochure listing and describing the options and not discussing the options at all.
And it certainly does NOT mean that the patient will have the financial ability to obtain those services.
Nothing in the Oregon style version requires discussion of the options. Nothing in the Oregon version ensures that some patients will have the resources or ability to avail themselves of those options. In fact, assisted suicide is a far less expensive “option” than any other and, if available, could become the option that some may be encouraged to choose in order to save money.
D octor/Patient Relationship
The widespread assumption is that the doctor who ultimately writes the prescription for assisted suicide will be the patient’s regular family doctor. This is simply inaccurate.
In fact, the doctor who prescribes the lethal dose of barbiturates may have known the patient for fewer than three weeks before completing all requirements before issuing the prescription. And let’s be clear. The drug that the doctor will prescribe is not, as was recently said during a Vermont Edition program on Vermont Public Radio, a pill taken to cause death, nor is the drug administered intravenously as was erroneously reported on a recent Channel 22 News report on the Bill. The barbiturate dosage consists of 90 capsules that would have to be taken by the patient. That is a lot of pills to take it one time. Instead of having the patient take the capsules, a dosage of barbiturates sufficient to kill the patient is mixed in a liquid which the patient then drinks. The solution is vile tasting. Occasionally, the patient will vomit or regurgitate the liquid and the desired result, death, will not occur.
But back to the doctor/ patient relationship. If the patient’s family doctor who makes the initial diagnosis of a “terminal condition” is unwilling to participate in providing the lethal dose, assisted-suicide advocacy groups or family members could and do, refer the patient to a doctor who is willing to fast track the patient’s death. Once the doctor is found, the initial appointment could be scheduled. The willing physician could determine that the patient has a terminal condition based upon a cursory view of the patient’s medical records, and then send the patient down the hallway to another willing physician in the same practice. After the second (consulting) physician confirms the diagnosis and prognosis, the patient could then make the initial oral request in the presence of the attending physician. Fifteen days later, the patient could return to the attending physician and, in the physician’s presence, make the second oral request (in an office visit that could take as little as a minute).
The written request need not be completed in the presence of the attending physician. Indeed, the written request could consist of filling in a preprinted form at any location and mailing it back to the physician.
After that second visit, the personal contact between the patient and the physician well could be over. The patient need not ever see the attending physician again. (According to Oregon’s 11th Annual official report, the duration of the physician/patient relationship was reported as ranging from less than a week to as many as 1,440 weeks. After the 11th annual report, Oregon no longer included the category related to duration of doctor patient relationship in its official reporting.)
The Oregon style bill includes safeguards only until the prescription is written:
The oral requests must be made in the presence of the attending physician, but nothing requires that thewritten request be completed in the physician’s presence. Indeed, as noted earlier, the written request could consist simply of filling in a preprinted form at any location and mailing it back to the physician.
In addition, although the bill contains a list of individuals prohibited from witnessing the written request, a friend or acquaintance of any of the prohibited individuals could witness the written request.
Furthermore, the conditions under which the patient signs the written request could be such that the patient is being encouraged to sign it. (Although the Oregon style bill prohibits someone from being coerced into requesting the lethal dose, nothing prohibits a relative, an heir, or other individual from advising, suggesting or even encouraging a patient to request the prescription for lethal drugs.) These can all occur outside of the presence of the attending physician, who would never know of this.
Although the attending physician may not see the patient between the time the prescription is written and the time that the patient dies, the bill permits the prescribing physician to sign the death certificate. The bill specifically states that the death certificate “shall list the underlying terminal disease is the cause and manner of death.” Ironically, if the patient obtained a lethal dose of barbiturates on the street and died after taking them, the cause of death would be listed as barbiturate poisoning and the manner of death would be listed as suicide. But, if the same patient were to take the same drugs prescribed by a physician to hasten death, the Oregon style bill requires that the cause AND manner of death be listed as the underlying disease. Essentially, the bill requires the attending physician to falsify the death certificate, because we all know that the manner of death was suicide and that the cause of death was barbiturate poisoning.
The safeguards listed lead up only to the time the prescription is written. After that, there are no safeguards for the patient. There are no patient safeguards at their most vulnerable time. For example:
- The patient must be capable and not have impaired judgment when requesting the prescription.But the bill is silent about the patient’s mental capacity at the time that she takes the lethal drugs.
- Witnesses are to affirm that the patient signing the written request appears to understand the nature of the document and to be free from duress or undue influence at the time the request was signed. But the bill is silent about anyone affirming that the patient understands what she is doing and is free of duress or undue influence at the time the lethal prescription is taken.
- At the time of death there are no witnesses required. There are no protections for the patient. There is no way to protect the patient from being tricked or forced into taking the prescription. There is no way to know what went on at the time of the patient’sdeath.
D octors are not required to be present at the tim e of death
While doctors who write the prescriptions may sign the death certificate , those doctors need not be present at the time of death. In fact, there is no requirement that anyone be present. A doctor need only “counsel the patient about the importance of ensuring that another individual is present when the patients takes the medication prescribed….”
Those who support this Oregon style bill are well intentioned, but their good intentions will not protect vulnerable patients from the results of passing it. The Oregon style bill lacks sufficient and effective safeguards and protections for patients at their most vulnerable time.
I have been involved in many cases where I think abuse under the Oregon style bill could have occurred.
I have at least one client who could easily be manipulated into asking for drugs that will kill them under this Bill. I fear for that client’s life.
The cost of medical care can be great and even loving family members could unintentionally encourage a loved one to end his or her life using a prescription of barbiturates from a doctor. Senate Bill 77 will not protect any of these people.
For the foregoing reasons, if you feel the need to pass legislation in this area I urge the rejection of the Oregon style bill.