Walter R. Hunter, M.D.
Associate National Medical Director
VistaCare Hospice

Mr. Chairman, Members of the Committee, Ladies and Gentlemen: It is a privilege to be here today and to offer you my thoughts on Chairman's Substitute for House Resolution 2260. I am a full time hospice physician with VistaCare Hospice, the second largest provider of hospice services in the United States. I have testified previously in favor of the Pain Relief Promotion Act and I return today to re-iterate my support, particularly in view of the current amended version you are now considering.

To briefly review my clinical background, I am certified in both internal medicine and hospice and palliative medicine. I have worked full time in hospice care for nearly four years. In that capacity, I have been involved in cases in which the side effects of medications may indeed contribute to the death of the patient. I have accepted these side effects as undesired effects in the true goal of providing pain and symptom relief. My use of controlled substances has always been dictated by the clinical circumstances. As a hospice physician I have never had any fear that my use of controlled substances could be interpreted erroneously as deliberately and intentionally killing my patients. I learned the clinical and ethical dimensions of palliative care long ago and can state that the oft-quoted ethical Principle of Double Effect is key and foundational to effective pain and symptom management.

The Principle of Double Effect is with me daily. It guides my actions as a physician and it keeps me honest in my actions. It is a viable ethical principle and it is the basis of this legislation's intent not to interfere with legitimate pain and symptom control.

Nothing in this bill will change what I do daily in my work as a hospice physician. Nothing in this bill will diminish our work at VistaCare to aggressively and adequately treat pain. Nothing in this bill frightens me that I will become a "target" of the DEA in a misguided attempt to prevent abuses of these controlled substances. Our patients at VistaCare will continue to receive as much morphine and other controlled substances as is necessary to control their pain and symptoms. On the contrary, this bill has the real potential to enhance our work in the communities we serve to promote palliative care, pain and symptom management, and a vision of end-of-life care which we believe is essential for our nation.

This bill has been accused by some in the medical community as merely a back door effort to thwart the development of assisted suicide and euthanasia for terminally ill patients. Some professionals have complained that it will discourage physicians from providing adequate pain relief for their patients because of fears of inappropriate scrutiny of medical practice by the Drug Enforcement Administration (DEA). Some believe it to be one more example of an intrusion by the Federal Government into the privacy of the physician-patient relationship and state jurisdiction over medical practice. I believe all of these concerns to be overstated and unfounded but they have been carefully examined by dedicated and knowledgeable professionals. The bill you have before you includes changes to address these concerns.

This legislation is, I believe, a timely, necessary, and explicit clarification of the existing Controlled Substances Act. Current CSA law does not allow for a physician to assist in suicide or to commit euthanasia; there are defined penalties for physicians who engage in diverting controlled drugs for non-medical uses and the Federal government has never regarded physician-assisted suicide or euthanasia as medical acts. However, Attorney General Janet Reno erred, in my opinion, when she ruled that existing CSA law was somehow invalid in Oregon just because Oregon has passed legislation allowing physician-assisted suicide. The current situation, therefore, is that I would face penalties for violation of the CSA if I practiced in 49 states and engaged in physician-assisted suicide, but I would not be subject to the same penalties if I lived in Oregon and committed the same act. Ladies and Gentleman, I am no legal scholar, but I thought I learned in grammar school that Federal law supercedes state law.

The legislation you have before you breaks no new legal ground. It does not authorize any new penalties for errant physicians. It does not grant the DEA any new powers for reviewing the use of controlled substances. It does not provide any excuse for a physician to underprescribe or fail to prescribe medications for pain and symptom relief. It merely brings Oregon under the same regulations affecting the other 49 states.

The authors of this amended legislation have heard the concerns and fears expressed in many arguments against this bill and have added further language to this bill that should satisfy all of its legitimate critics. This legislation clearly and definitely demarcates a line which is essential to the principles and practice of hospice and palliative care: it distinguishes philosophically and practically that there is, indeed, a difference between the aggressive management of symptoms even if death is an unfortunate outcome versus the deliberate and single-minded intention of killing a patient. The codification of the Principle of Double Effect in this legislation should be cause for celebration in the medical community. It grants to physicians express acknowledgement of the realities of the practice of pain and symptom control. It is an express acknowledgement that it is not that hard to distinguish the legitimate use of controlled substances for legitimate medical reasons from the deliberate, intentional causation of death.

As an example of the work I am called to do daily, let me describe a case of a young AIDS patient I cared for a few years ago. On a Monday morning the hospice for whom I worked received a phone call from his family that he was having difficulty breathing. His nurse and I made a house call. When we entered the room we could hear his laborious and moist respirations across the room. His respiratory rate was 44 and he was unconscious. We immediately set to work. I gave him 40 mg of Lasix (furosemide) intravenously. There was no effect. I then gave him 10 mg of morphine intravenously. There was no effect after several minutes. I repeated the dose of 10 mg of morphine and waited several minutes. Again, there was no effect. I gave 5 mg of morphine. There was still no effect. I then gave 5 mg of Valium (diazepam) in an attempt to sedate him and ease the work of breathing. There was no effect. I repeated the Valium dose and there was still no effect. I gave 5 mg of morphine, waited, saw no effect and gave another 10 mg of morphine. After a few minutes, his respirations decreased to about 20. This was a reasonable goal. However, instead of stabilizing at 20, they continued to diminish and he stopped breathing several minutes later.

Did the fact that a respiratory rate of over 40 is terribly inefficient and allows toxins to build up in the body that can suppress respirations cause his death_ Was he actively dying no matter what I did_ Did the medications play a role in hastening the moment of death_ Did I kill him_ The answer is that the disease, his respiratory rate and the medications all may have combined to cause his death to occur a moment in time sooner than it would have occurred without my intervention. But I did not intend his death. I was using everything in my medical powers to ease the distress of his breathing. Had I deliberately wished his death, I would have given the Lasix, 40 mg of morphine and 10 mg of Valium as one immediate injection. Instead, I titrated the medicine against the clinical response I saw over the period of an hour. To apply the oft-quoted principle of Double Effect and apply it to this case would be useful in this example.

The Rule of Double Effect makes the following assertions:

The Nature of the Act. The act must be good, or at least morally neutral (independent of its consequences.)

The Agent's Intention. The agent intends only the good effect. The bad effect can be foreseen, tolerated, and permitted, but it must not be intended.

The Distinction Between Means and Effects. The bad effect must not be a means to the good effect. If the good effect were the direct causal result of the bad effect, the agent would intend the bad effect in pursuit of the good effect.

Proportionality Between the Good Effect and the Bad Effect. The good effect must outweigh the bad effect. The bad effect is permissible only if a proportionate reason is present that compensates for permitting the foreseen bad effect. Using the above, let us analyze my patient utilizing each criterion from each perspective:

The Nature of the Act. The act (giving the patient the Lasix, morphine and Valium for the purpose of alleviating his respiratory distress) must be good, or at least morally neutral. I would propose that his respiratory rate was too fast for any effective air exchange. This alone increased his risk of death not to mention how much discomfort it may have been causing him even though he appeared to be unconscious. Certainly, his family was present and to watch him ghtml and labor for air was very difficult for them. Therefore, the act of giving him the medicine was good from the clinical perspective.

The Agent's Intention. The agent (the physician - I, in this case) intends only the good effect. (The alleviation of his labored breathing.) The bad effect (possibly depressing his respirations or even causing his breathing to stop as a result of side effects of the medications) can be foreseen, tolerated, and permitted, but it must not be intended. I knew that there was a slight risk of lethal side effects to the medications. But I knew that I might have to risk them, tolerate them in part or in totality if I were to attempt to ease his breathing. I did not intend for him to die, but I did intend to make his breathing easier. Had I intended the side effect of cessation of breathing, I would not have given incremental doses of medicine over time and observed his clinical response with each dose. I would have given a very large dose all at once to stop the breathing.

The Distinction Between Means and Effects. The bad effect (the cessation of breathing) must not be a means to the good effect (ease in breathing.) If the good effect (ease in breathing) were the direct causal result of the bad effect, the agent would intend the bad effect in pursuit of the good effect. Clearly, not breathing is not merely easier breathing. I intended only the effect of easing his breathing, not totally stopping his breathing. I, therefore, did not intend the bad effect in order to get the good effect.

Proportionality Between the Good Effect and the Bad Effect. The good effect (ease of breathing) must outweigh the bad effect (possible cessation of breathing as a side effect of medication.) The bad effect is permissible only if a proportionate reason is present that compensates for permitting the foreseen bad effect.

Unrelieved breathing at 44 times per minute without relief can become fatal in and of itself. It can is certainly uncomfortable for any conscious individual as it is literally a sense of suffocation. The risk of side effects of the medicine would be permissible to alleviate the certainty of the discomfort and danger of his uncontrolled respiratory rate of 44.

In short, the Principle of Double Effect guided me through the decision making process and the actions I performed in this case. Chairman's Substitute for H.R. 2260 recognizes what I did in this case as legitimate palliative care, does not view my actions as assisting a suicide or committing euthanasia, and therefore protects me from prosecution for committing those acts.

This legislation establishes also that the United States government stands firm in its commitment to ensure that patients receive the very best there is available in palliative care but that the deliberate killing of those patients is neither endorsed nor encouraged by the United States government. It is not unreasonable for the Controlled Substances Act to prohibit physician-assisted suicide or euthanasia as a condition for maintaining a DEA license. All licenses carry certain privileges and certain restrictions. It is disingenuous to believe a DEA license should have no restraints.

In addition to all of these benefits, this legislation puts end-of-life care, pain and symptom management, and the care of our citizens in the spotlight at the center of the stage. While it certainly is not the final word in a proactive response to the needs of our aging population and dying patients, it is an important start. As we study our progress in further developing hospice, palliative care, and pain treatment for our citizenry, Congress will be called upon again to re-commit itself in principle and practice to ensuring comfort for all people who face serious or terminal illness. This legislation is a giant step toward that commitment.

As a physician, I am ashamed to admit that the vast majority of our nation's medical schools and residency programs have simply failed to make medical ethics, pain and symptom management priorities in their curricula. This information, however, is absolutely essential for physicians to properly provide excellent care for patients. Physicians can and must learn and understand thoroughly the Principle of Double Effect, and how that principle is incorporated into the clinical practice of palliative medicine and the intent of this legislation. This legislation provides for much needed education in the professional community. We at VistaCare applaud this bill for its commitment of monies for the advancement of understanding of palliative care and for the education of health care professionals in the principles and practice of palliative care. This commitment of time and money to these educational efforts will send a very clear message that the United States Congress has taken up the cause of providing competent, compassionate, and comprehensive palliative care for our citizens who face life-threatening illness.

This is an extremely important action both in concrete and symbolic terms. I extend to the sponsors of this bill my deepest gratitude for such a commitment. Passage of this bill will send a clear message that the care of many of our nation's most vulnerable citizens - those facing death - is a concern shared by all of us and rises above partisan politics. This bill is good for Americans of all political persuasions.

We must educate our nation and our nation's health care providers in medical ethics, current law, and the principles and practice of palliative care and the incredible holistic work of hospice programs. This bill helps achieve this necessary education. It is imperative that we develop a strong national response to oppose efforts to legalize assisted suicide and euthanasia and this bill sends a strong message that our government does not endorse the deliberate killing of patients. Passage of this legislation strengthens hospice and palliative care, and says that our citizens - patients and physicians - need not resort to suicide and killing to achieve comfort and relief from distressing pain and symptoms.

I would urge you, Mr. Chairman, members of this committee and the entire Congress of the United States to continue to work with the hospice and palliative care communities to revolutionize the practice of hospice and palliative care in our nation. Let us commit to creating a comprehensive hospice and palliative care program for our citizens. Let us forge a new path with the Health Care Financing Administration and private insurance companies to ensure that all patients receive the finest in end-of-life care. Let us say to our citizens that no one must ever turn intentionally and deliberately to causing death because of pain, symptoms or the effects of a terminal illness. Chairman's Substitute for HR Resolution 2260 is an excellent step in the direction of forging a system of care that embraces with true compassion those who face terminal illness. Let this bill become not an end to itself, but the beginning of a national commitment to caring for our citizens in the final stages of their lives.

As a hospice and palliative care physician, I endorse this Chairman's Substitute for HR 2260. VistaCare Hospice, as a health care company that serves the interests of terminally ill and dying patients, believes that this Chairman's Substitute is consistent with our mission and vision that patients receive state-of-the-art pain and symptom management while affirming their inherent dignity. This bill is an excellent beginning in providing the long overdue and too often neglected component of hospice and palliative care in our health care system as we enter the new century.

Thank you for allowing me to be here today.