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GOVERNMENT & MEDICINE

AMA secures changes to anti-suicide bill

Some state and specialty medical groups still oppose efforts to pass the Pain Relief Promotion Act.

By Vida Foubister, AMNews staff. April 24, 2000.

Federal legislation that would overturn Oregon's physician-assisted suicide law didn't make it to the Senate Judiciary Committee as originally scheduled early this month.

But the procedural move by Sen. Ron Wyden (D, Ore.) to block the bill's consideration was quickly overshadowed by amendments that were being negotiated behind closed doors.

Sen. Orrin Hatch (R, Utah), chair of the committee, has been working with the AMA to address concerns raised by its House of Delegates at the Interim Meeting last December. At issue was what some perceived to be the shift in the authority to regulate legitimate medical practice from the states to the federal government and the ability of the Drug Enforcement Administration to investigate and criminally prosecute physicians based on its determination of a doctor's intent to use aggressive pain treatment to end a patient's life.

The resolution adopted by the AMA house last year called on the leadership to work with other interested societies to improve the Pain Relief Promotion Act "by deletion of those provisions which establish federal protocols and/or regulations for pain management and palliative care." It also asked the AMA to oppose legislation that gives the federal government the responsibility to "define appropriate medical practice and regulate such practice through the use of criminal penalties."

E. Ratcliffe Anderson Jr., MD, AMA executive vice president, believes the new language introduced by Hatch provides the necessary clarification. In an April 6 letter to the senator, Dr. Anderson wrote that the proposed amendments "specifically express the sponsors' intention to honor the existing authority of the states to regulate legitimate medical practice while exercising the concurrent federal authority to regulate the prescribing and administration of controlled substances.

"We believe that it fully satisfies the concerns expressed by our House of Delegates," he continued.

Sen. Don Nickles (R, Okla.), the bill's main sponsor in the Senate, supports the proposed changes, said Gayle Osterberg, his spokeswoman. "He's been working with the Judiciary Committee and the AMA on those modifications."

Changes receive mixed reception

Even if the committee adopts Hatch's amendments in their entirety, some state and national medical groups say the new language fails to address their original concerns and those raised by the AMA delegates.

"These amendments clearly don't even begin to get close to what the house told the AMA to do," said Steve DeToy, director of government and public affairs for the Rhode Island Medical Society.

That sentiment seemed to surprise AMA President Thomas R. Reardon, MD. "I have been informed that many of the groups who had concerns were satisfied with the changes." He quickly added, "I'm not sure that Oregon can ever be satisfied, however the bill is modified."

Indeed, an extensive review by the Oregon Medical Assn.'s legal counsel led that state's leadership to continue its opposition.

"Our concerns still exist," said Robert Dernedde, OMA executive director. "They have not been alleviated by the Hatch amendments."

The debate continues to focus on both the goal of the legislation and the means it uses to achieve the desired ends.

Despite its title and its provision of funds for research and education on proper pain management and palliative care, the overarching goal appears to be overturning Oregon's physician-assisted suicide law. It states: "The Attorney General shall give no force and effect to state law authorizing or permitting assisted suicide or euthanasia."

Oregon is the only state that allows physician-assisted suicide under some circumstances. It is opposed by the AMA and many of the same groups who continue to oppose the act.

"If the thing you're really after is to ratchet down on physician-assisted suicide across America, I'm not sure this is the best way to do it," said Richard Roberts, MD, JD, president-elect of the American Academy of Family Physicians and a professor of medicine at the University of Wisconsin in Madison.

To achieve that goal, the proposed legislation empowers the DEA to enforce the act. That raises the issue of whether the state or federal government has the authority to regulate pain treatment.

Medical procedures have historically been overseen at the state level. However, as proponents of the bill point out, the DEA has always held the ultimate authority over controlled substances.

To address this perceived conflict, language was added that says "nothing in the Pain Relief Promotion Act shall be construed to provide the Attorney General with the authority to issue national standards for pain management and palliative care clinical practice, research or quality."

Said Dr. Reardon, "There's very clear language in here that the standard of practice for pain management resides with the states."

But several state associations continue to fear that the act will preempt pain management and palliative care guidelines they've worked to establish at the state level. They point to language immediately following the above guarantee: "except that the Attorney General may take such other actions as may be necessary to enforce this act."

Determining a physician's intent

A secondary issue involves the role of the DEA agents in determining whether a doctor intended to cause a patient's death. The act would establish a protection for physicians whose patients' deaths are secondary to the treatment of their pain, but those who are found guilty of intentionally causing death will be subject to criminal penalties and loss of registration.

Pain experts say there are no universally applicable guidelines they can use to determine how much pain medicine to prescribe.

"It's hard for me as a physician to make judgments about another doctor's intentions, much less a DEA agent who is going to have much less clinical judgement and experience," Dr. Roberts said.

He thinks the threat of jail time and loss of livelihood will lead doctors to question their patients' suffering. "It turns me into the great inquisitor in the moment of your suffering."

Again, the Hatch amendments attempted to address this chilling effect by raising the burden of proof to "clear and convincing evidence." The standard in many administrative proceedings is initially preponderance of the evidence and then substantial evidence on appeal.

"They're going to have to have very strong evidence to meet a clear and convincing evidence standard," said Bob Saner, a lawyer with Powers, Pyles, Sutter & Verville in Washington, D.C., who represents the Pain Care Coalition.

The coalition, which includes the American Pain Society, the American Academy of Pain Medicine and the American Headache Society, is among those groups who will drop their opposition to the bill if the Hatch amendments are adopted.

Joel R. Saper, MD, director of the Michigan Head Pain and Neurological Institute in Ann Arbor and the coalition's chair, said it "was not an easy decision for us. No physician likes the government meddling in his or her decision-making process."

But with the AMA-initiated amendments and others, the coalition concluded that more good will come than harm. (It had worked to amend the bill by broadening the research and education initiative to pain care in general and not just in terminal cases.)

"There's some real value here in this bill for the pain patients of this country and the pain treatment community," Dr. Saper said. "We don't think that the risks justify eliminating these gains."

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