THE LETHAL DRUG ABUSE PREVENTION ACT OF 1998 AND PAIN CONTROL

Congress is considering H.R. 4006, to prevent the use of federally controlled drugs to assist suicide. Tragically, some medical organizations are opposing the bill, claiming it will " chill" adequate pain relief when, in fact, provisions in the bill will reduce current legal deterrents to appropriate pain relief, as the following questions and answers demonstrate.

Q. Does the Drug Enforcement Administration (DEA) currently revoke doctors' registrations when they prescribe federally controlled substances used to assist suicide?

A. To prescribe federally controlled substances, doctors must have a special DEA registration. On June 5, 1998, Attorney General Janet Reno PARTIALLY overturned an earlier ruling by the DEA which had been that since assisting suicide and euthanasia are not "legitimate medical purposes" doctors may not use their DEA registrations to obtain federally controlled substances for lethal prescriptions. The Attorney General said that when state law permits assisting suicide, as in Oregon, federally controlled substances may be prescribed to take life, but also said that "adverse action under the [Controlled Substances Act] may well be warranted" when "a physician fails to comply with state procedures" for assisting suicide. Thus, under existing law the DEA can investigate doctors for prescribing controlled substances to assist suicide to the full extent it is illegal under state law. In the past, the DEA has revoked a registration even when a doctor negligently assisted a suicide. To the extent there is any "chilling effect" on doctors seeking to prescribe adequate pain relief as a result of DEA oversight authority, it exists now. As will become clear, the Lethal Drug Abuse Prevention Act would significantly diminish any such "chill."

Q. What would the Lethal Drug Abuse Prevention Act do?

A. Senator Don Nickles and Representatives Henry Hyde and James Oberstar introduced S. 2151/H.R. 4006 not only to ensure that a state law such as Oregon's does not create an exception to the general federal prohibition on the use of controlled substances to assist suicide, but also to protect the ability of doctors to appropriately prescribe controlled substances to alleviate pain.

Q. How would the act change existing law to promote pain relief?

A. As reported from the House Judiciary Committee, H.R. 4006 (the Lethal Drug Abuse Prevention Act) would make three important changes in existing law to encourage physicians to prescribe adequate amounts of controlled substances to alleviate pain. First, it would specifically recognize the principle of double effect by providing that controlled substances may be used to fight pain, even with the known risk of death, as long as the intent is not to cause death. Second, it would impose a heavy burden of proof before doctors who claimed they were relieving pain could have their registrations revoked. Third, it would create a peer review panel of pain experts whom a doctor being investigated could ask to examine the evidence that prescriptions at issue were intended to relieve pain rather than cause death.

Q. How would the bill immunize "double-effect" pain relief prescriptions?

A. The bill specifically AUTHORIZES "the dispensing or distribution of a controlled substance for the purpose of alleviating pain or discomfort (even if the use of the controlled substance may increase the risk of death), so long as the controlled substance is not also dispensed or distributed for the purpose of causing, or assisting in causing, the death of an individual for any reason." Although the American Medical Association (AMA) now opposes H.R. 4006, claiming it could "chill" pain relief, last year the AMA said of virtually identical language, then incorporated in the Assisted Suicide Funding Restriction Act of 1997, that it "assures patients and physicians alike that legislation opposing assisted suicide will not chill appropriate palliative and end-of-life care." This recognition of the principle of "double effect" is not currently part of the Controlled Substances Act.

Q. How would the bill affect the burden of proof?

A. Before a doctor's federal DEA registration may be revoked, the bill places on the DEA "the burden of proving, by clear and convincing evidence, that the practitioner's intent was to dispense or distribute a controlled substance with a purpose of causing, or assisting in causing, the suicide or euthanasia of any individual. In meeting such burden, it shall not be sufficient to prove that the registrant knew that the use of the controlled substance may increase the risk of death."

Q. How does the bill provide for the protection of peer review?

A. Before a doctor's DEA registration can be revoked on the grounds the doctor prescribed controlled substances to assist suicide, the doctor may require that there be review by an advisory panel of experts on pain relief, appointed in consultation with leading medical organizations. This panel will evaluate "whether the dispensing or distribution of the controlled substance at issue ... was for the purpose of alleviating pain or discomfort in a manner that does not constitute a violation." This is a shield for doctors the panel cannot be convened by request of the DEA, only at the request of a registrant. It ensures that expert physicians, not just DEA agents, can be involved to ensure that DEA registrations are not revoked when high dosages of controlled substances are needed for effective pain relief.

It should be emphasized that none of these protections are in the current law, under which physicians throughout the country are NOW subject to DEA oversight.

Q. What about the "perceptions" doctors will have about the bill?

A. Some medical opponents of the bill concede that its actual effect will be to create stronger legal protections for pain relief prescriptions than under current law, but nevertheless say that doctors' "perception" if the bill passes will be that the DEA is cracking down on assisting suicide and that many will therefore refrain from writing adequate prescriptions because they fear being investigated. Doctors are not lawyers, they say, and will be influenced less by what the bill actually says than by the impression they have that they may be subject to intrusive oversight.

It is hard to deal with a claim that a bill doing something should be opposed because people erroneously believe it will do the opposite. By that token, ANY legislation making needed changes could be defeated simply by saying the "perception" if it is passed will be the opposite. Following such erroneous logic, laws against rape would not be passed if anyone claims the perception is that they will foster rape and laws against larceny would be defeated to avoid the perception that robbery is being legalized.The answer, surely, is to educate physicians and other health care professionals to correct their misperceptions, not to defeat the bill. In this connection, it must be said that much of the fault for any such misperceptions must be laid at the feet, not of the bill's sponsors, but of the medical organizations opposing it. In stirring up their membership against the bill, inaccurately claiming that it will deter pain relief, they are creating a self-fulfilling prophecy. If the immense efforts they are devoting to spreading misinformation about the bill were instead devoted to explaining how it dramatically reduces the risk of adverse consequences from prescribing appropriate pain relief, much of the "perception" problem would in all likelihood rapidly disappear.