A NEW LAW TO HELP THE DYING

By Ralph Miech, Brown University, 08/25/98

When it returns from recess in September, Congress is scheduled to take up legislation that will have an enormous impact on the issue of physician-assisted suicide and the treatment of pain for the terminally ill.

The proposed Lethal Drug Abuse Prevention Act clarifies important ethical and legal distinctions between the appropriate medical use of therapeutic drugs for pain control and the misuse of such drugs to accomplish physician-assisted suicide. This distinction is important in the federal Controlled Substances Act, under which doctors can receive a federal registration from the Drug Enforcement Agency to prescribe the dangerous but medically useful drugs regulated by the act. Doctors who register agree not to prescribe these drugs in a way that threatens public health and welfare or for any purpose other than legitimate medical ones. The DEA has always interpreted the law to preclude physician-assisted suicide, and until June the Justice Department had accepted this interpretation. That's when Attorney General Janet Reno declared that the law, as traditionally interpreted, no longer applied in Oregon, where voters legalized physician-assisted suicide.

Enter the Lethal Drug Abuse Prevention Act. The heart of this legislation is its clarification and reform, in two important ways, of federal law governing the use of controlled substances in end-of-life care. First, it makes explicit a longstanding national policy that physician-assisted suicide is not a legitimate medical purpose under the Controlled Substances Act. More important, however, it distinguishes between legitimate efforts to control pain and physician-assisted suicide. This distinction is a welcome development, especially for physicians caring for patients in pain. It is well-known in medical circles that the aggressive use of drugs to control pain in the terminally ill can hasten death, even when this is not the intent of the doctor. Because state and federal laws are often vague or out of date in regard to pain care, doctors have often hesitated to provide the amount of medication needed to effect true relief for the dying out of fear that if the patient dies, the physician will nonetheless lose his or her DEA registration by assisting a suicide.

The proposed change provides a long-needed remedy to this situation. For the first time, the federal government positively states that aggressive efforts to control pain are legitimate, even if they hasten death, so long as they are not done for the purpose of causing death. In so doing, the legislation increases the DEA's burden of proof for revoking a doctor's registration to prescribe controlled substances. The legislation further protects doctors by establishing a medical advisory board to review such actions.

More important, the legislation's explicit encouragement of appropriate drug use for the control of chronic pain in the terminally ill serves to guarantee that patients will receive treatment they desperately need and deserve in order to face the final stage of life in dignity and comfort.

The proposed law has been welcomed by doctors nationwide. It is unfortunate that professional groups like the American Medical Association are nonetheless opposed for fear of federal intrusion in the practice of medicine.

This fear is misplaced. The Controlled Substances Act already restricts the use of narcotics and other such substances. The question, then, is not whether Congress can regulate these drugs but how to regulate them. If Congress determines that physician-assisted suicide is not a legitimate medical purpose under federal law, then the regulation must take the form of a prohibition for such a use.

Some object to the proposed measure because they say it would usurp states' rights, specifically Oregon's, where physician-assisted suicide is legal. But this issue is really a sideshow to the real point. Control of the drugs in question has been under federal jurisdiction for more than 30 years. It should be obvious and uncontroversial that setting federal standards for the use of regulated substances is an issue for the federal government, not the states.

Moreover, current law is explicit that a physician's federal registration to administer controlled drugs is separate from a physician's state license to practice. A revocation of the federal registration does not preclude a doctor from dispensing other prescription drugs or continuing to practice medicine in the state where he or she is licenced.

Without the clarifications this legislation offers, we would face a national legal quagmire, for there would be no uniform federal standard for the enforcement of regulations on federally controlled drugs. The very concept of "legitimate medical purpose" could have diametrically opposed meanings depending on one's state of residence.

The human reality behind this legislation is the suffering the terminally ill are forced to bear because of vaguely worded laws, misinterpreted statutes, and misplaced physicians' fear. The Lethal Drug Abuse Prevention Act will resolve these confusions.

Ralph Miech is an associate professor at the Brown University School of Medicine. This story ran on page A15 of the Boston Globe on 08/25/98.