When the nation debates an emotionally charged issue like physician-assisted suicide, the high road can be a crowded place. The truth can often be found on the road less-traveled.
The nation's dominant provider associations oppose a national right to physician-assisted suicide, but their rhetoric doesn't tell the whole story, according to a month-long look at the issue by MODERN HEALTHCARE.
In countless news releases and media interviews, provider groups have stressed that legalizing assisted suicide would violate healthcare's fundamental mission to heal and could endanger patients.
For example, in connection with last month's hearing before the U.S. Supreme Court, the American Medical Association launched an intensive media blitz in which it said legalization would put patients "at serious risk for unwanted and unnecessary death." The AMA announced an "aggressive education campaign" on end-of-life care options.
But the public debate obscures a private concern of provider groups with regard to legalizing physician-assisted suicide: messy regulations and administrative red tape.
If assisted suicide were legal, after all, states would almost certainly impose safeguards. That would open a new and uncertain realm of administrative burdens and liability risks for physicians, hospitals and others who give care at the end of life.
Some provider organizations acknowledged their concerns in amicus briefs filed with the U.S. Supreme Court, which is considering whether to uphold state laws that make assisting suicide a crime:
The AMA, in a brief filed with the American Nurses Association, the American Psychiatric Association and 43 other national specialty and state medical societies, argued that states should be allowed to ban physician-assisted suicide because of the "inherent difficulty in regulating" it.
The brief said: "The essential confidentiality of the relationship between patients and their physicians and nurses precludes any effective monitoring of physician-assisted suicide, at least absent a kind of intrusive oversight that states could very rationally wish to avoid."
The American Hospital Association said declaring a national right to assisted suicide would create "an administrative nightmare for hospitals and other healthcare providers as courts struggle to define the parameters of this new right."
Hospitals and other providers "will be acting against a background of uncertainty and potential liability for years to come," the AHA wrote.
Reflecting the inability of its own members to agree on legalization, the AHA argued that the issue ought to be left to the states.
The American Association of Homes and Services for the Aging argued against legalizing assisted suicide because, it said, judging patient competency to choose suicide is so subjective that it is "not prone to effective regulation."
The high court seemed to consider these regulatory issues at last month's hearing. Chief Justice William Rehnquist said regulations "might create a whole new set of political and constitutional problems, citing the abortion wars as an example."
But even if assisted suicide bans in the states of New York and Washington are allowed to stand, as many expect, other states could legalize the practice, most likely through ballot initiatives.
Added burdens. Thomas C. Royer, M.D., senior vice president of medical affairs at Detroit-based Henry Ford Health System, believes polarity on the issue would lead to tight regulation, bringing additional costs for providers.
"It would be people-intense," said Royer, who is also chairman of the board of governors at Henry Ford Medical Group. "You could minimize some of that by having the guidelines so well-defined that they would be quite clear. However, (regulation) will be difficult because there will be some gray areas."
Such is the case in Oregon, the only state to have legalized assisted suicide. Implementation of the law has been blocked by a court challenge, but providers anticipate a host of thorny issues should it go into effect.
Some hospitals fear they will be forced to participate in assisted suicide against their will. As is standard for controversial procedures, the law includes a conscience clause that allows providers to opt out, but it does not obligate physicians to notify a hospital, nursing home or other healthcare professional of a patient's intent to commit suicide.
"The pharmacist, the nurse, the social worker-they're not protected under this," said the Rev. Norbert Novak, an ethicist at Portland-based Sisters of Providence Health System, which has taken a position that it will not support assisted suicide.
Kelly Hagan, a Portland, Ore., attorney who sits on a task force on care for the terminally ill, said providers might be advised to seek a patient's permission to share information about their intentions.
But the AHA fears the courts will override conscience clauses altogether. It cited the case of a private hospital in Alaska that was ordered to host elective abortions because it was the only facility in the community. A judge deemed the defendant, Valley Hospital in Palmer, Alaska, "quasi-public" in part because of its acceptance of public funding, the AHA said. The case is now before the Alaska Supreme Court.
"If there is a right to physician-assisted suicide, there's got to be a corresponding responsibility somewhere to provide that," AHA attorney Margaret J. Hardy said. "The hospital would have to be the juggler in the middle, if you will, juggling the patient's right to physician-assisted suicide against (a medical worker's) right not to participate in something he or she believes is morally wrong."
Fear of lawsuits. Nursing homes could be sued whether they attempt to block an assisted suicide or not, said Alan Rosenbloom, chief operating officer and general counsel of the AAHSA. Nursing homes that serve Medicare are under a federal statutory obligation to provide care "sufficient to attain or maintain that resident's highest practical physical, mental and psychosocial function."
"How will HCFA and the state survey agencies interpret those disparate ideas?" Rosenbloom asked.
The Oregon law gives civil and criminal liability immunity to physicians who follow procedures in "good-faith compliance" with the act, which requires waiting periods and second opinions. But it does not answer the question of liability for other healthcare professionals, such as pharmacists who would fill lethal prescriptions, Hagan said.
The law also does not address what obligation a physician or an institution would have to make a referral if he or she does not wish to assist in suicide. Those who feel "morally paralyzed" about making a referral could have a liability problem, Hagan said.
Another concern is that juries would extend regulations for assisted suicide to other end-of-life procedures. For example, physicians commonly give morphine to terminal patients, which both eases pain and accelerates death. Most physicians don't consider this to be assisted suicide, but a jury could disagree and find a physician liable for failing to seek a second opinion, documenting a patient's request and following other procedures in the law.
"There's some concern that heavily regulating a specific procedure is going to encourage lawsuits," said Hagan, whose firm, Cooney & Crew, represents the Oregon Medical Association. "You legislate in areas of fast-breaking social concern and suddenly have unintended consequences."
Scare tactics. Proponents of assisted suicide say provider groups exaggerate the pitfalls. Charles Baron, a professor of constitutional law and bioethics at the Boston College Law School, called many of the arguments brought by providers "scare tactics," aroused by the concern that legalizing assisted suicide would lead to stricter oversight of other end-of-life decisions, such as removing patients from ventilators.
"I think it is truly motivated by the fear that doctors will lose their totally unsupervised autonomy when it comes to making decisions about their patients," Baron said.
But Rosenbloom countered that providers raise valid safety issues, such as the vulnerability of patients who have cognitive impairments or lack access to palliative care. "I would argue that for most providers of good conscience, their primary concern is with the well-being of their clientele, not avoiding legal red tape," he said.
Milton Estes, M.D., director of the Forensic AIDS Project in San Francisco, said healthcare leadership must recognize the reality that physician-assisted suicide occurs. Yet, he's ambiguous about legalization because, he said, it could lead to overuse.
"I believe that if there is a role of physician-assisted suicide, it's limited to very specific patients and special circumstances," he said.
The American Medical Student Association, which bucked the trend by supporting a right to assisted suicide, said legalization "in contrast to the current secret practice, would ensure that patients will make such decisions based on frank and full discussions with their doctors."
Some healthcare systems and medical societies have begun to address how assisted suicide should be handled, but much of the discussion has taken place in private.
Last month, an article in the Annals of Internal Medicine said the practical issues of physician-assisted suicide "should be part of the ongoing debate." It called on professional societies to cooperate in developing practice guidelines to handle such issues as patient confidentiality, provider reimbursement, referrals and evaluation of assistance requests.
Advocates of open dialogue worry that the rules of implementation will be written by bureaucrats and suicide champions in each state, rather than the medical community.
In the end, patients might cross state lines and die in strange places. "It is setting ourselves up for a dying process of a lower quality than we would like," said Henry Ford's Royer.