Feds say target is assisted suicide, not pain control

There are concerns that going after Oregon physicians who write lethal -- but legal -- prescriptions will have a chilling effect on aggressive treatment of pain.

By Andis Robeznieks, amednews staff. Nov. 26, 2001.

U.S. Attorney General John Ashcroft's move to block assisted suicide in Oregon is being viewed by some as another government intrusion into the practice of medicine.

In a letter to the Drug Enforcement Administration, Ashcroft declared assisted suicide is "not a legitimate medical purpose" and authorized federal drug agents to revoke the drug licenses of physicians who prescribe controlled substances -- such as morphine -- for use in an assisted suicide.

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State officials are challenging the edict, which could pull the plug on Oregon's Death With Dignity Act.

The law allows physicians to prescribe -- but not administer -- a lethal dose of drugs to adults who have been diagnosed as having less than six months to live. Patients are required to make two oral requests and one written request for drugs and then wait 15 days before receiving the prescription. A second doctor must determine that the patient does not have depression or another mental illness.

Since his decision, Ashcroft has made efforts to reassure doctors that his intent was to prevent the use of controlled substances in suicides and not to prevent their use in general medicine. He outlined his position in a Nov. 6 letter to the Oregon Medical Assn.

"No effort to prevent the use of controlled substances to assist suicide should operate in any manner to deter physicians from prescribing controlled substances to alleviate pain," stated the letter to OMA President Hugh C. Stelson, MD. "I want Oregon's doctors to know that under this decision, they will have no reason to fear that prescription of controlled substances to control pain will lead to increased scrutiny by the DEA, even when high doses of painkilling drugs are necessary and even when dosages needed to control pain may increase the risk of death."

Between 1998 and 2000, 96 Oregon residents got prescriptions for letal doses; 70 took the drugs and died.

OMA spokesman Jim Kronenberg questioned whether this statement will reassure doctors who treat terminally ill patients.

"While this is certainly quite authoritative, we continue to have some concern about just how individual physicians will respond in clinical circumstances requiring high doses to achieve pain relief among terminal patients," he said.

"It is understandable that some physicians may be prone to err on the side of caution when confronted with situations they may believe may put their DEA licensure at risk given the gravity of revocation on their ability to pursue their profession," he added.

This concern was echoed by Oregon Gov. John Kitzhaber, MD, a former emergency physician, who also protested federal interference in the state's regulation of medicine.

"Oregonians are satisfied that we can responsibly implement physician aid in dying and this is an unprecedented federal intrusion on Oregon's ability to regulate the practice of medicine," Dr. Kitzhaber said.

Oregon Attorney General Hardy Myers' request for a temporary restraining order delaying the DEA's enforcement of the new policy has been granted by a U.S. district court judge in Portland.

AMA President-elect Yank D. Coble, MD, reiterated the Association's policy opposing assisted suicide, explaining that it isn't a legitimate medical practice and is in "severe conflict" with the physician's role as a healer.

Dr. Coble was encouraged by Ashcroft's remarks that the DEA is limiting its focus. "It seems that Attorney General Ashcroft has been trying to reassure everyone that it is not his intent to interfere with aggressive pain management and relief."

But, Dr. Coble also said there have been aggressive investigations of doctors by the DEA, and those investigations can be "extremely burdensome and intimidating."

Part of the difficulty for doctors and law enforcement officials is that there isn't -- and really can't be -- a line physicians cross before they can be charged with illegal prescribing.

"There are enormous variants in the effectiveness of pain medication and the tolerance individual patients have built up," Dr. Coble said. "It is very difficult to evaluate pain. It's a very subjective, professional thing."

Dr. Coble cited a recent case in which a California jury ruled undertreatment of pain constituted elder abuse and awarded the patient's family a $1.5 million judgment. The jury award was later reduced.

Since there are not enough specifics as to what constitutes undertreatment or illegally high doses, he said doctors are being "caught in the trap both ways," and the effect may be an inhibition of people entering fields where such decisions are required.

William Hurwitz, MD, whose McLean, Va., practice concentrates exclusively on management of patients with intractable pain, agreed.

"There's nothing in medicine that doesn't entail risks or a learning curve," Dr. Hurwitz said. "By highlighting the costs of error in either direction, it seems more doctors might withdraw from the whole game."

Dr. Hurwitz said he was first raided by the DEA in 1991 and has been the subject of several investigations and legal actions since then. In the meantime, however, he has built a nationwide practice consisting of some 800 patients, many of whom travel cross-county to receive treatment.

"Doctors all over the country are intimidated about treating pain," he said. "If they weren't, I wouldn't have a practice."

With some irony, Dr. Hurwitz noted a study in the American Journal of Health-System Pharmacy indicating that, among Oregon physicians, interest in palliative care and treating depression has increased since the Death With Dignity Act became law.

"I think the whole nation was looking to Oregon as an experiment state to see what the results would be of their decisions and policies," said Cynthia X. Pan, MD, an expert on palliative care at the Mount Sinai School of Medicine in New York. "There were not that many requests" for lethal prescriptions.

Between 1998 and 2000, 96 Oregon residents received prescriptions for lethal doses and 70 died after ingesting the prescribed dose.

"I think that the majority of people -- if their worries, symptoms and fears could be heard and treated -- would not choose physician-assisted suicide," Dr. Pan said.

In June 1998, while noting the Clinton administration's opposition to assisted suicide, Ashcroft's predecessor, Janet Reno, allowed the Death With Dignity Act to stand. She ruled that it was not the intention of the federal Controlled Substances Act "to displace the states as the primary regulators of the medical profession."