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Vt. Lawmakers, Doctors Grapple With Assisted-Suicide Issue

Volunteer Chaplain Irene Schaefer prays with Loney Knipe, of Pomfret, and her brother, Jerry Tucker, of North Clarendon, Vt., in the Garden Room at Gifford Medical Center last month. Knipe has pancreatic and lung cancer and has not responded to chemotherapy. She is receiving palliative care to manage her pain and maintain quality of life while surrounded by family. (Valley News - James M. Patterson)

Volunteer Chaplain Irene Schaefer prays with Loney Knipe, of Pomfret, and her brother, Jerry Tucker, of North Clarendon, Vt., in the Garden Room at Gifford Medical Center last month. Knipe has pancreatic and lung cancer and has not responded to chemotherapy. She is receiving palliative care to manage her pain and maintain quality of life while surrounded by family. (Valley News - James M. Patterson) Purchase photo reprints »

Several months before she died, Joe Benning’s mother asked him to make a promise.

“My mother extracted a promise from me that the state would not step in to sanction suicide,” said Benning, a Republican state senator from Lyndon, Vt.

He agreed to her request, not knowing that a bill to legalize physician-assisted suicide would be proposed a year and a half later in the Vermont Legislature.

He kept his word and voted against the “death with dignity” bill when it arrived in the Senate in January.

But in the negotiations that followed, a new bill arose that he found he could support while keeping the promise he made to his mother.

The two versions of Senate Bill 77 have continued to divide lawmakers, the medical community, patients and the general public as the Vermont statehouse takes up a question that some have said gets to essential patient rights and civil liberties.

The original proposal, which is based on Oregon’s landmark 1994 law, would have allowed a person suffering an incurable and fatal disease the option of requesting, from a willing physician, a prescription for lethal drugs.

There were safeguards in place, aimed at preventing abuse, that outlined the procedures and thresholds for physician-assisted suicide: The terminal patient had to initiate the process, make multiple requests for the lethal medication, be of sound mind and informed of all the end-of-life options available, and the patient’s diagnosis needed to be verified by more than one doctor.

Proponents argued that it offered a humane and regulated way to put the ultimate decision into the hands of the person who is dying.

The second proposal, which passed the Senate and is now in the House, takes a very different approach, yet continues to divide physicians and policymakers. The amended Senate bill would indemnify doctors who prescribe patients life-ending drugs, and would hold harmless the friends and family members who participate in the process.

The revised bill does not require any kind of open conversation between patient and doctor about assisted-suicide. Supporters of the amended version say it merely legalizes what is already happening.

Opponents of the amended bill say, however, it would have no practical impact and had the potential to open the door for abuse. The original bill would bring the conversation out into the open, they say, rather than keeping such decisions behind closed doors and relying on a tacit agreement between a doctor and patient. In its revised state, the proposal creates a gray area that doctors may be wary to enter, opponents say.

“I don’t think the (amended) bill makes a lot of sense,” said Diana Barnard, a palliative care physician at Fletcher Allen Health Care in Burlington. “I think there’s a lot of concern that it may not be of the highest legal, moral and ethical standards and that it could be challenged.

“If it passes, I think it will largely be ignored.”

That any assisted suicide bill has made it this far, however, should encourage those who support legalizing the practice, Barnard said.

The issue remains contentious and very well may fail to pass the House, but this is the farthest such a proposal has ever gone in Vermont. Lawmakers have likened it to the fight for civil unions more than a decade ago, a debate that gets to fundamental questions of liberty and the state’s role in determining health care decisions for its residents.

“Am I free or am I not?” asked state Sen. Dick McCormack, a Bethel Democrat who supports the original bill but does not favor the amended version because it lacks the safeguards to protect patients from coercion.

Dartmouth palliative care doctor Ira Byock has criticized physician-assisted suicide laws as being a “regressive social policy” that does nothing to improve hospice and palliative care, which he said are “threadbare” services throughout Vermont. Hospice is intended to alleviate suffering for patients at the end of their lives, while palliative care is aimed at relieving the pain of patients suffering under a severe illness.

While physicians agree palliative and hospice care needs to be improved, the Oregon experiment has led to shifts in thinking among members of the public and medical community about the consequences of, and arguments for, physician-assisted suicide.

State Sen. Mark MacDonald, a Williamstown Democrat, said he believes momentum is now gaining to make Vermont the third state to enact a “death with dignity” law.

“I think Vermont is ready for it,” MacDonald said.

A Tale of Two Bills

The debate among lawmakers in Montpelier has perhaps been less personal than the arguments happening on town listservs and on the street. However, for lawmakers such as Benning, it remains an emotional issue.

Benning didn’t completely agree with his mother, as assisted suicide seemed like a personal choice in line with his own libertarian leanings. He nevertheless made the promise and so, when the bill originally came up this year, he opposed it.

Benning rejected this bill largely to satisfy the promise he made to his mother. But after a contentious debate divided the Senate, an amendment was proposed that led him to change his mind.

That amendment, from Sens. Peter Galbraith, a Democrat from Windham, and Robert Hartwell, a Bennington Democrat, did away with the entire text of the original bill and proposed instead a simple grant of after-the-fact legal immunity to health care professionals who prescribed medication to patients who then used it to kill themselves. It would also protect family and friends who were present when that patient took the lethal dose.

The amendment’s sponsors argued that it was simply holding doctors harmless for a practice that already occurs but is rarely discussed or even acknowledged.

“It is more or less what goes on right now, at least for people lucky enough to have a doctor with whom they have a relationship,” Galbraith said during the Senate floor debate.

Suddenly, Benning and other senators who opposed the original bill had a piece of legislation they could get behind. It seemed to avoid outright state-sanctioned suicide, even if it offered legal protection to patients and doctors who wanted it as an option.

“This is exactly what’s happening, more or less,” Benning said, echoing Galbraith’s comments. “The decision in the end should be between the patient and the doctor.”

Those who supported the original bill say the amendment weakens a piece of legislation that has proven to work well in Oregon since it went into effect, following three years of court challenges, in 1997. The amended bill has none of the safeguards contained in the original and takes what would have been a publicly transparent process and hides it behind the physician’s office door, MacDonald said. “Immunity makes the checks and balances disappear,” he said.

A Change In Practice?

The debate among physicians has been more measured.

Many have refused to take a stance, at least publicly. A number of physicians and hospital administrators contacted for this article declined to comment because physician-assisted suicide, like abortion, is so divisive and politically volatile. Even the trade associations that represent health care professionals have not waded into the debate.

The Vermont Health Care Association, which represents long-term care facilities, has not taken a position on physician-assisted suicide. Meanwhile, the Vermont Medical Society, which represents physicians, has taken the position that the amended bill improves on the original, but the organization still opposes any law for or against physician-assisted suicide.

“These are decisions that are best to be kept on that smaller, individualized level,” said Justin Campfield, the medical society’s spokesman. “We also think it might actually hinder the provision of high-quality end of life care.”

For physicians, the proposal raises serious ethical questions that have pitted the rights of patients against the centuries-old Hippocratic oath doctors have sworn to “do no harm.”

It is a textbook case of an ethical dilemma, said Dr. James Bernat, a neurologist who is also the director of the program in clinical ethics at Dartmouth-Hitchcock Medical Center. It requires doctors to weigh the rights of patients to determine their own care against the physician’s professional obligation to not kill patients.

The original bill outlines the steps for making decisions about physician-assisted suicide, but the amended version has no such guidance. It says, simply, that doctors who prescribe medication to a terminal patient for relieving the patient’s symptoms cannot be held liable if the patient overdoses on the drug and dies.

That doesn’t guarantee a doctor would abuse his position. But it creates a gray area for health care practitioners, Bernat said.

“It seems to me that the brevity, the lack of the types of safeguards that are in the Oregon bill, and the areas of potential ambiguity might, if it were enacted as it is, provide an opportunity for the state medical society to write some type of advisory or directive or guideline to Vermont physicians on how they should deal with this,” Bernat said. “Because it does leave some questions unanswered and it might be nice to have some guidelines.”

Even with guidelines, many physicians still oppose writing a law that gets involved with the decisions that doctors, patients and their families make together.

“My problem is legislating it,” said Paul Manganiello, a Norwich resident and professor of obstetrics and gynecology at the Geisel School of Medicine who also sits on the ethics committee at Dartmouth-Hitchcock Medical Center. He also fears that “in some situations, (patients) could be coerced into making a decision.”

The protections offered in the amended bill address issues that Manganiello said haven’t concerned him. For example, he was never worried about being sued for prescribing pain medication to alleviate a patient’s symptoms, in large measure because he was confident in his diagnosis and clinical judgment. He would keep a patient as comfortable as possible, but would never knowingly prescribe a larger than necessary dose.

“It’s the intent,” he said. “I didn’t give them 10 milligrams of morphine because I wanted to kill that person. But, if in the process of giving them that medication it shortened their life, so be it.”

Mark Nunlist, a physician in White River Junction, agreed that attempts to legislate decisions that doctors make with their patients are misguided. Which is why, regardless of what happens with the law, he said it is unlikely to affect how he practices medicine.

“I don’t really think it affects what I do,” he said. “What happens in the course of a therapeutic relationship with a patient is based on ethics and morals … so much more than what the Legislature tries to codify.”

Palliative Care

While everyone is debating the issue, they actually are ignoring a far more common problem that affects people facing death, Bernat said.

In Oregon, where the “death with dignity” law has been in effect for more than 15 years, assisted suicide accounted for just over two out of every 1,000 deaths in 2011, the most recent year for which statistics are available, according to Oregon state figures.

“This is not alone the answer to the care of a dying patient,” Bernat said.

“Palliative care, improving systems of palliative care throughout the entire state, is where the emphasis should be given to take care of the other 998 out of 1,000 patients who aren’t using it.”

In his testimony to a Senate committee in late January, Byock argued that legalizing physician-assisted suicide not only ran counter to the societal prohibition on doctors killing patients, but it also ignored a larger need to boost palliative and hospice care in Vermont.

“Few of Vermont’s hospitals have palliative care services, including most of the critical access hospitals that serve small communities in this state,” Byock said in written testimony. “And in those hospitals where palliative care does exist, it is typically a threadbare service that leaves many patients and families with unmet palliative needs.”

Gifford Medical Center is one exception to this characterization.

The Randolph hospital has been offering palliative care for 10 years and has three specialists dedicated to the program.

“I don’t think there is another small hospital in Vermont or Northern New England that has three palliative care specialists,” said Jonna Goulding, who is one of those specialists and also a family doctor.

Gifford’s palliative care program integrates some of the psychological and spiritual aspects of care along with traditional medicine. It offers massage, acupuncture, Reiki and music therapy, in addition to the more conventional element of having a chaplain on staff.

For Goulding, palliative care is not just about easing pain for a patient with disease. It necessarily includes conversations with the family and the people who are close to a patient, to figure out how best to care for a person who is suffering.

“The most important thing we talk about with palliative care is talking about goals” a patient and family have for life’s final chapter, Goulding said.

Perhaps the patient wants to see a child get married, for instance, or a grandchild graduate from high school, said Goulding.

Loney Knipe, a patient at Gifford, just wants to get better. The 58-year-old Pomfret resident has had two separate stays in the hospital’s Garden Room for palliative care patients since December.

“They try to give you everything possible,” said Zina Dana, Knipe’s neice.

Knipe’s first stay lasted three weeks, until she was well enough to come home. But her condition began to deteriorate again, sending her back to the hospital several weeks ago for more intensive care.

As Knipe rested in her room several weeks ago, she spoke softly about how she enjoyed seeing Prancer, her small mixed-breed dog, during her stay in the hospital.

She talks about the future and keeps a good sense of humor, Dana said.

“That’s what keeps her going,” Dana said. “Not thinking about death and keeping it going.”

Gifford officials are unsure of what they would do if physician-assisted suicide were legalized in Vermont. Even if the bill now before the House, which protects doctors who prescribe lethal medications, were passed, the issue would remain complicated. Hospital administrator Joe Woodin said Gifford would cross that bridge when it comes to it.

“Just because that (bill) passes doesn’t mean we would require doctors to do anything they don’t feel are ethical,” Woodin said. “We’ll wait until the Legislature passes something. It’s an important social discussion.”

Bernat was once a strong opponent of physician-assisted suicide. He argued against it when Oregon passed its “death with dignity” law. But he has moderated his position as he watched the system go into effect.

A benefit of Oregon’s law is that it is transparent. There are concrete data. Since going into effect, a total of 1,050 patients have requested medication to hasten death.

Of those, 673 used it to take their own lives. More than a third of the people who asked for the medication never followed through.

Having the option of assisted suicide seems largely to be a comfort for patients — rather than a commitment to die.

“It’s like an insurance, if you will, if things get too horrible,” Bernat said.

Additionally, Oregon has built one of the best systems of palliative care in the nation, Bernat said, giving patients an alternative to suicide when they are experiencing pain and suffering from disease.

Taken as a whole, care for sick and dying patients seems to have improved in Oregon since the assisted suicide law was passed, Bernat said, part of the reason why he has changed his opinion.

“I was an opponent to the Oregon law. Having studied it over the years, that opposition has been markedly lessened,” he said. “It’s not zero, but it has lessened.”

One thing he’d like to see, however, is the phrase “death with dignity” go away. He said he believes such euphemisms confuse the discussion over the issue.

“Physician-assisted suicide” is the term he uses.

“This is a case that’s complicated enough,” he said. We should discard the euphemisms “and call it what it is.”

Chris Fleisher can be reached at 603-727-3229 or cfleisher@vnews.com.

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