MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session March 22, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:00 a.m., on Wednesday, March 22, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O.C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Marilyn Hofmann, Committee Secretary OTHERS PRESENT: Kelle Brogan, M.D., Medical Director, The Hospice of Northern Nevada Lawrence P. Matheis, Executive Director, Nevada State Medical Association Paul E. Dieringer, M.D., Treasurer, Nevada State Medical Association John Flanders, Member of the Public Lucille Lusk, Nevada Concerned Citizens Joanne Medeiros, Bio-Ethics Scott Dickinson, Nevada Concerned Citizens Janine Hansen, Nevada Eagle Forum Tahnya Ballard, Attorney at Law Robin Bernhoft, M.D., International Anti-Euthanasia Task Force, Everett, Washington Brother Matthew Cunningham, Diocese of Reno-Las Vegas Senator James stated he had been approached by a member of the medical profession and asked to request a bill draft regarding "privilege of peer review documents." A copy of the requested bill draft information is attached hereto as Exhibit C SENATOR LEE MOVED TO REQUEST A BILL DRAFT PURSUANT TO EXHIBIT C. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.) * * * * * Senator James opened the hearing on Senate Bill (S.B.) 234. SENATE BILL 234: Prohibits act of assisting suicide. Senator James indicated the bill's sponsor, Senator Ray Rawson, was detained and could not be present to testify. The first witness to testify in opposition to physician-assisted suicide was Kelle Brogan, M.D., Medical Director, The Hospice of Northern Nevada. Dr. Brogan provided written testimony, which is attached as Exhibit D. The next to approach the committee were Larry Matheis, Executive Director, Nevada State Medical Association, and Paul E. Dieringer, M.D., Treasurer, Nevada State Medical Association. Mr. Matheis submitted for the record a letter from James S. Todd, M.D., of the American Medical Association, which is set forth as Exhibit E. Dr. Dieringer presented written testimony, attached as Exhibit F. Senator Adler stated he shared some of Dr. Dieringer's concerns regarding the bill. He said assisted suicide is not "something we wish to sanction," and asked for a definition of suicide. Senator Adler asked if a patient decided he or she wanted no further nutrition or fluids and a physician, pursuant to directive, did not continue such nutrition or fluids, would that be "assisted suicide?" Dr. Dieringer responded that was his concern regarding the language of the bill. Senator Adler referred to legislation passed in a previous session pursuant to the Uniform Rights of the Terminally Ill, which sets out the parameters for dying declarations and directives to physicians. He said S.B. 234 "seems to blur" what was done in that legislation. Senator Adler added, "I think it is clearly illegal to assist in suicide...but I think the Rights of the Terminally Ill it is also clearly illegal to continue certain types of extraordinary medical care...." Mr. Mathias responded, "[The bill] may have to be reworked if it is going to go forward," to make it very clear it is not intended to weaken the existing medical directives law or to infringe on proper pain management control. The next person to speak was John Flanders, a member of the public from Carson City, Nevada. Mr. Flanders stated he appreciated the statement of Dr. Brogan but indicated she did not bring up the matter of "quality of life." He indicated he had two sons who reside in rest homes because of a totally debilitating disease. Mr. Flanders said there was no cure or treatment for their disease and his sons are becoming "vegetables." He said one of his sons has asked him when he will die. He stated: "If you have never been faced with this, believe me, it takes you away...his quality of life...at age 38...is almost an untenable situation." Mr. Flanders said his fear regarding S.B. 234 was that if a doctor felt an individual had "no quality of life" and if that doctor "dares to help him end this," he would not want that doctor to be a criminal. He added, "He will be doing the best he thinks is necessary." Mr. Flanders asked that the will of the committee not be placed upon the doctors to "make them criminals legislatively." He closed by saying, "When you have two kids like I have...quality of life means a lot...do not tie the hands of a perfectly honorable person...." Speaking to the committee next was Lucille Lusk, representing Nevada Concerned Citizens. Ms. Lusk stated nearly everyone supports the right of individuals to choose their own medical care, including refusal or removal from artificial means of life support. She said where S.B. 234 attempts to draw the line is "to prevent the crossing to an affirmative act that prematurely causes the death of a person who would not have otherwise died of natural causes at that time." Ms. Lusk said she believed the purpose of the bill was to "prevent the movement toward the unwanted assisted suicide of elderly persons...." She said "someone in government" could decide a person's care is too costly...or that their quality of life ...doesn't meet the standards of a nonhandicapped person." Ms. Lusk stated her organization supports the legislation currently in place which protects an individual's right to make health care decisions for themselves. She said she would like to see legislation which would protect those rights while at the same time not crossing "an uncrossable line." The next to speak was Joanne Medeiros, a member of the public, who is a graduate student in a "bio-ethics program." She said she was interested in the legislation as it was "too vague," and leaves too many doctors and health care providers at risk. Ms. Medeiros added many patients will be left "too vulnerable to ask for help or assistance." Senator Washington asked Ms. Medeiros if she had a suggestion for rewriting the language. Ms. Medeiros reiterated Senator Adler's suggestion to define "suicide," and to differentiate between "refusing treatment" and "actively seeking assistance in ending your life." Senator Washington established that Ms. Medeiros was involved in "medical ethics," and asked how "medical ethics" would define suicide. Ms. Medeiros responded, "Termination of life." Senator James reviewed the statute which states: "Death resulting from the withholding or withdrawal life sustaining treatment...does not constitute for any purpose suicide or homicide." He said pursuant to this language, withholding treatment or honoring a patient directive would not be considered suicide. The next person to speak to the committee was Scott Dickinson, Nevada Concerned Citizens. Mr. Dickinson stated: "Nevada Concerned Citizens believes the individual has the right to decide if, when and how he is to be medically treated." He said they support the sanctity of all life, and believe that no one else has the right to determine someone's quality of life, or "to put anyone else out of their misery." Mr. Dickinson indicated he wished to address previous testimony that there was no need for the bill. He referred to the "Hemlock Society" and the actions of Dr. Kavorkian, together with books on assisted suicide which are available in Nevada, and said there is a need for the law. Mr. Dickinson stated the intent of the bill was not to criminalize current medical care for the terminally ill, and added he felt doctors are not asking for the right to make judgments over who should die and when. He said he believes the system in place at this time is working well, and the palliative care for relief of pain "is amazing." Mr. Dickinson reiterated the need for the bill in order to preempt the "death angel movement." Senator Adler said from listening to testimony he believes the hospice movement is working well and physicians seem to be doing a good job in honoring dying declarations. He said the guidelines appear to be clearly defined in statute. Senator Adler asked why a law should be passed which might "muddy the waters." He also said he had never heard of any assisted suicides occurring in Nevada. Mr. Dickinson asked, "What is to stop Dr. Kavorkian from coming to Nevada?" He said there is an "assisted suicide" movement which is crossing the United States at this time. Senator Adler indicated he did not wish to react to persons like Dr. Kavorkian, when Nevada has a system that is working well now. Mr. Dickinson responded: "Imagine how the lawmakers in Michigan felt when they found out that under their statutes what he was doing was not illegal...." The next to speak was Janine Hansen, State President, Nevada Eagle Forum. Ms. Hansen submitted for the record a statement of Linwood E. Tracy, Jr., Nevada Families Eagle Forum, which is attached as Exhibit G. Ms. Hansen related to the committee a situation regarding a dying family member who was allowed to die as was his wish, and another family member who had hospice care prior to passing away. She said because of the declarations and hospice care, persons can be cared for without "extraordinary measures." Ms. Hansen stated the legislation does not attempt "...to deny people the right to be compassionate and make medical decisions on their own." However, she added, dealing with persons such as Dr. Kavorkian "...is an issue we must deal with." Ms. Hansen stated: "A person whose quality of life may not seem of quality to you may definitely be of quality to them and others who love them." She said what should be prevented is active suicide and euthanasia by people who don't care about others who may be victimized. Ms. Hansen added she did not believe it would aid Nevada's reputation to become a haven for persons like Dr. Kavorkian. Ms. Hansen referred to the situation which exists in the Netherlands, where "one in six" persons are killed by "active euthanasia." She said there is pressure in the country because of a socialized medicine system with not enough money to care for everyone. Ms. Hansen stated this state can utilize other alternatives, such as hospice. She said she hoped the bill would be passed in order to protect the "most vulnerable people who can be victimized by unscrupulous individuals...while at the same time continuing to protect the rights of families and individuals to determine the type of medical care they want for themselves." Tahnya Ballard, Attorney at Law, approached the committee. Ms. Ballard indicated her comments are "...in no way intended to minimize the pain of those who would consider this as an option...." She said she would testify in favor of the bill with amendments which would address intentional acts. Ms. Ballard referenced earlier statements regarding the fact that no assisted suicides are apparently occurring in Nevada now. She said it is happening in other areas and Nevada should not send a message that the Legislature is sympathetic to assisted suicide. Ms. Ballard referred to literature which is available on committing suicide and indicated that literature could be read by any person who wishes to commit suicide. Senator James said he believed any decision regarding assisted suicide would be made by an individual and asked "...why the government should be able to step in and make a blanket rule that you couldn't take your own life if you judged your quality of life was so terrible that you didn't want to go on." The chairman indicated he had a relative who suffers from a disease which has left her "a shell of her former self." He said he believed whatever decision is made regarding her should be that of herself and her husband. Senator James asked, "Why should the government say this is going to be a felony crime - whatever you decide?" He said if somebody commits murder, that is a crime. He added, "If somebody isn't carrying out someone's wishes, that is a crime." The chairman indicated the issue was "someone's personal choice of whether they want to go on." He asked Ms. Ballard if the government had a right to become involved. Ms. Ballard stated she believed suicide was illegal, but the legislation was not directed to a person who takes their own life, but rather to one who assists. Senator James asked if there was not a distinction between doing something against someone's wishes and assisting them in their own wishes. He also asked for the difference between removing someone from life support and assisting them to die in another manner. Ms. Ballard replied if a person is removed from life support, they will die of natural causes. Senator James responded, "Then we make a distinction between a person who's affliction is of an organ that can be kept alive by a machine, and a person who's affliction is of some organs that cannot." He said in that case a person could essentially take their own life if a machine can be turned off, while a person who is not connected to a machine cannot. Senator James said a person not connected to a machine "...can be in just as an undignified position and be suffering just as much..one person will not be able to pass from this world with dignity and the other one will." Ms. Ballard responded, "If someone is without a machine and they are existing, they are a human life...is there a statute that says if you don't have `x, y and z' then your life is of no quality and we will terminate you?" Senator James stated he was not talking about "anybody terminating anybody." Ms. Ballard said the bill does just that." Senator James disagreed, saying, "Suicide...not assisted murder. In assisted suicide, you take your own life. Implicit in that is a finding that you had to make the decision yourself." He added if there was any doubt, a person would be prosecuted not for assisted suicide, but for murder. Senator James stated he believed the concepts were being mixed. Ms. Ballard agreed that was a good point, added, "When these things happen, who are the only two witnesses...the person who assists and the person who is now dead." Senator James responded that could happen now if it appeared a person took their own life when in fact it was murder. He said he had heard no testimony that would indicate this was occurring at this time. Senator James reiterated a person's decision to "live on" or not should not be in the hands of the government. Ms. Ballard closed by saying, "Who's to know that the person who helps isn't just sick and tired of dealing with [him or her]?" Senator James indicated that was a good point. Senator Titus referred to earlier testimony regarding certain publications which are available concerning "how to commit suicide," and asked if an author of such books would be guilty of a felony under the proposed legislation. Ms. Ballard answered the language in the bill which stated "...or solicits" might place an author in that position. She said she may not be opposed to such books being "banned" in the state. Senator Titus asked how similar measures regarding assisted suicide had fared in nearby states, and it was established that a measure passed in Oregon but failed in Washington and California. The next person to testify was Robin Bernhoft, M.D., F.A.C.S., International Anti-Euthanasia Task Force, from Everett, Washington. Dr. Bernhoft provided written testimony which is attached hereto as Exhibit H. Dr. Bernhoft said Senator James raised some very good questions, particularly "Why should the government become involved?" He said he viewed the matter as a type of "consumer fraud issue." Dr. Bernhoft indicated there have been four higher court cases in the past year across the country and in Canada which have resulted in rulings which state: "There is no right to have assisted suicide." He said the reasoning has been that "...whatever individual right may exist is outweighed by the government's responsibility to protect people from abuse and from fraud." Dr. Bernhoft referred to Exhibit H, which he indicated set forth several examples of the type of people who would be "defrauded" by legal assisted suicide. He reviewed those examples with the committee. Dr. Bernhoft added to his written testimony with some allegations: (1) A survey of 63 cancer specialists revealed an average of 2 persons per month are referred by other doctors who stated, "It is a shame I can't kill this person, because the pain medicine is not working; (2) When a patient is given morphine, they may live months or years "of good quality life; (3) The medical community has not done its homework on treating pain; (4) According to the World Health Organization, approximately 70 percent of doctors in this country in 1991 did not know morphine pills were on the market. Senator James asked if there were that many doctors who did not know the distinction between codeine and "something stronger" as a pain medication. He also asked if those doctors were saying people ought to commit suicide. Dr. Bernhoft answered affirmatively. Senator James asked if he could be provided with the actual statistics in this regard. Dr. Bernhoft indicated there were three reasons why persons with a terminal illness wish to die: (1) pain which is not being treated adequately; (2) depression; and (3) abandonment. The doctor stated: "Before we start legalizing physician- assisted suicide, we ought to train the doctors how to provide 1995 care, which we have not done." He referred to the matter of depression in the terminally ill and said studies are not encouraging. Dr. Bernhoft stated approximately 90 percent of "treatable, curable depression" in the terminally ill is either ignored or not noticed. He said this could be considered malpractice. (See the example set forth on pages 2 and 3 of Exhibit H.) Dr. Bernhoft suggested that the number of people who would benefit from the legalization of assisted suicide would be small, while the number of people who are burdened by inadequate pain and depression treatment is very large. He stated if doctors are going to be given the power to advise people regarding suicide, they should be provided with "full information." Senator Adler referred to the Uniform Act of the Terminally Ill, which states directives to physicians or patient consent does not allow the physician to assist in suicide or give euthanasia. He said that language is contained in Nevada statute and "...is as clear a statement as I have ever seen." Senator Adler referenced Nevada Revised Statutes (NRS) 449.535-690, which specifically states mercy killing or euthanasia is not authorized. Senator Titus indicated to Dr. Bernhoft that he continued to refer to "legalized assisted suicide." She said the provisions of S.B. 234 do not provide for the legalization of assisted suicide. Senator Titus stated the bill only spoke to the penalty. She added, "On the other hand, to `felonize' it, seems to put in jeopardy all the existing statutes we worked so hard on to guaranty a person the right to die." Dr. Bernhoft responded there needs to be a clear line drawn because of some of the pressures placed upon physicians and on families. He said there is also pressure from insurance companies to "get people out of the health care system as soon as possible." Dr. Bernhoft said insurance companies are doing what is termed as "economic credentialing." He explained, "The tab is running; if we run up too much money towards the end of the year, we may not have a job next year...that is the reality. It puts pressure on us to find cheap ways to get people out the door." Dr. Bernhoft said one of the "economic realities" is that persons are being pushed toward hospice care instead of being treated for their terminal illnesses. He said it was very important to draw a clear line between what is acceptable and what is not. Senator Titus admitted that was a serious problem but added, "I'm not sure that the way we need to address such a shameful act in our society is through this kind of measure." Senator Titus asked if there was a "national trend" for terminally ill persons to commit suicide. Dr. Bernhoft answered the suicide statistics have not changed. He said his concern was if it were made legal for doctors to assist suicide, the type of doctors which do not know what pain medication is on the market "...are going to be knocking people off that don't need to die." Senator Washington addressed Dr. Bernhoft's remarks regarding the insurance company and said that addressed a different issue which dealt with integrity and ethics. He said he has been involved with several patients as their clergy, who have made declarations regarding "right to die." Senator Washington said he is not in favor of assisted suicide, but feels that patient's request regarding prolonging their life should be honored. He said he is concerned regarding persons who may want to "prey upon individuals" who are terminally ill for monetary gain. Dr. Bernhoft stated, "There is a great difference in intent...of allowing somebody to be left alone...and barging in and ending their life." He added criminal law must keep that intent very clear. Senator James indicated Dr. Bernhoft "continued to mischaracterize the issue," by indicating someone could "barge in" and essentially commit murder. He said someone making a decision to end their own life because they do not want to "live as a vegetable...or in agonizing pain," has made a wish which should be honored. Senator James stated the law in Nevada was "hammered out" in order to draw the fine line between honoring the rights of a person to die with dignity and the concern over people imprudently taking their life. Dr. Bernhoft responded the question of choice "...is not as clear-cut as you might think." He said a person could choose to die because he or she "...received lousy advice from doctors who didn't know any better." Dr. Bernhoft reiterated: "If patient is receiving information from a doctor...if the doctor doesn't know how to treat pain or depression...and the patient is relying on the doctor's advice and choosing death, I would say that was consumer fraud." Senator James said if a death is brought on by incompetence, fraud or malfeasance by a doctor or insurance provider, it should be considered a crime. He referenced S.B. 234 and stated: "This is almost a stopgap measure...after we spent all the time putting the bill together last time...now we are going to slap this right on top...that seems to me to fly in the face of all the work we have done...." Dr. Bernhoft answered that may be so, but if all the studies which have been done show the majority of doctors are fitting an "incompetent standard" on the issues of pain management and depression, there is a problem. Senator James responded, "If 70 to 90 percent of our doctors out there are incompetent, we have a big problem...." Dr. Bernhoft replied: "Not grossly incompetent ...incompetent on pain and incompetent on depression." The doctor said if people get decent care, they will want to live. He said in 16 states around the country the governments are looking into standards which would require doctors to learn how to treat pain, depression and abandonment, and which would require insurance companies to offer hospice treatment coverage. Dr. Bernhoft asked Senator James if he felt Nevada's statute covered physician- assisted suicide as well as directive euthanasia. Senator James responded he believes the statute "...makes sure it is the mind and decision of the person whose life is at stake is carried out...." He added he does not think the law allows doctors to make decisions and decide who should live and die because, "...that is a moral decision they should not have...." Senator Adler referred to the earlier comments regarding insurance companies and said it is the law that a person cannot be required to sign a right-to-die declaration as a condition of being insured. He said a health insurance company cannot, as a condition of providing health insurance coverage, require someone to give up the right to continue treatment. Dr. Bernhoft indicated an insurance company can pressure physicians to keep expenses down, which is a more subtle way of attempting to move patients out of treatment into hospice care. He said this was becoming a question of professional survival for many physicians. The last to testify was Brother (Bro.) Matthew Cunningham, representing Bishop Daniel Walsh, Diocese of Reno-Las Vegas. Bro. Cunningham read a statement from Bishop Walsh, which is attached hereto as Exhibit I. Senator James asked Bro. Cunningham if the Catholic Church took a position against the death penalty. Bro. Cunningham answered there were mixed feelings regarding that issue and indicated there was strong support in opposition from the pope and from the bishops in New York. He said in other jurisdictions, "...they have just kept quiet." Prior to closing the hearing on S.B. 234, Senator James asked that certain letters he had received were made part of the record of the hearing. There are set forth as follows: (1) Exhibit J, facsimile from James and Judy Jansen; (2) Exhibit K, letter from Alan W. Feld, M.D.; (3) Exhibit L, letter from John H. DeTar, M.D.; (4) Exhibit M, facsimile from Terry L. Jensen; (5) Exhibit N, letter from George Mead Hemmeter, M.D., F.A.C.S.; and (6) Exhibit O, letter from Kathleen M. Dickinson. There being no further business to come before the committee, the hearing was adjourned. RESPECTFULLY SUBMITTED: Marilyn Hofmann, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary March 22, 1995 Page