Are Dozens of Hospitals Violating Letter or Spirit of the Medical Aid in Dying Law?

Proposition 106, which legalized what proponents call medical aid in dying, a process by which patients diagnosed with six months or fewer to live may be provided with a prescription they can self-administer in order to end their suffering, won overwhelming approval in the November 2016 election, passing by a 65-35 percent margin.

But a representative of the measure's main advocacy organization admits to frustration over the number of Colorado hospitals — dozens of them — that are making it more difficult for potentially qualifying individuals to access the procedure.

"The people this harms are the ones who voted overwhelmingly for it, saying that they want this option," argues Holly Armstrong, spokeswoman and consultant for Compassion & Choices. "It forces people either to go to other places or to get a different doctor. It creates barriers."

Armstrong feels that reports saying hospitals have "opted out" of participation are inaccurate. "There's really not an opt-out in the same way there is in other states with this kind of law," Armstrong emphasizes. "In some states, there's actually an opt-out clause, where facilities can say, 'We're not going to participate, and our doctors aren't going to participate. They're not allowed to do this.' But in Colorado, the law is written differently. It says hospitals cannot prevent their doctors from prescribing. A facility can say, 'You can't prescribe if the patient intends to take it on the premises,' but they can't prevent it in other places."

Here's the language in the law to which Armstrong alludes. It appears under the heading "Voluntary participation by health care providers:"

Physicians and pharmacists are not obligated to prescribe or dispense the medication. If a health care provider is unable or unwilling to carry out an eligible individual's request for the medication and the individual transfers to a new provider, the initial provider is required to coordinate the transfer of medical records to the new provider. A health care facility may prohibit a physician employed or under contract with the facility from prescribing medication to an individual who intends to use the medication on the facility's premises. The facility must provide advance written notice of its policy to the physician and its patients. A health care facility may not discipline a physician, nurse, pharmacist, or other person for actions taken in good faith or for refusing to participate in any way.

Thus far, three major hospital systems, which encompass thirty Colorado hospitals, have made announcements about non-participation with medical aid in dying. The first two — Centura Health, whose hospitals include St. Anthony in Denver, and SCL Health, which oversees Good Samaritan in Lafayette, among other facilities — are associated with Catholic organizations. Given that the Catholic church in Colorado was a major funder opposing Proposition 106, this stance is "no surprise," Armstrong admits. But she stresses that the law requires hospitals to produce a written policy about medical aid in dying, and she doesn't feel Centura and SCL have done so properly. Instead, both have issued general statements on the topic.

This is Centura's take....

Centura Health has a long tradition of believing in the sanctity of life, extending compassionate care and relieving suffering. These fundamental values are reflected in the depth and breadth of support and comfort services we offer, including palliative care, hospice care, spiritual care services and mental health services, so patients and their families may live with dignity until the patient’s time of death. As permitted by the statute, Centura Health has opted out of participating in the Colorado End-of-Life Options Act.

...and this is the SCL release:

In November 2016, Colorado voters passed the Colorado End-of-Life Options Act, which allows qualifying terminally ill adults to obtain a lethal dose of medication to voluntarily end their lives. Under the Act, healthcare providers, including SCL Health, are not required to assist qualified patients in ending their lives, and providers are required to establish policies supporting their positions.

SCL Health is committed to providing the best possible care for patients approaching the end-of-life, or actively dying, which includes curative and comfort care. We provide palliative and hospice care, and strive to mitigate suffering and address the fear of pain and loss of control that patients may experience.

We believe we can provide compassionate care and comfort to our patients so they can live with dignity until the time of natural death, and we have therefore opted out of participation.

SCL Health caregivers will continue to provide other requested end-of-life and palliative care services to patients and families, and they may discuss the range of available treatment options to ensure patients are making informed decisions with respect to their care.

Any of our patients wishing to request medical aid-in-dying medication will be offered an opportunity to transfer to another facility of the patient’s choice.

In contrast to these systems, HealthOne, which owns the Medical Center of Aurora and seven other Colorado hospitals and has no religious affiliation, created a policy that properly follows procedure, in Armstrong's view. "All secular facilities or hospitals have acted in accordance with the law," she says — and she's hopeful that doctors affiliated with such hospitals won't suffer retaliation of the sort expressly forbidden in the law should they go a different direction from the institution. "If I were a doctor and were threatened in that way, I'm not sure if that would end in a lawsuit or how that would be handled," she muses.

Other hospital systems are reportedly allowing participation — among them University of Colorado hospital, which has five facilities, and Kaiser Permanente, which Armstrong calls "far and away the largest HMO in Colorado, covering 456,792 people." And she is hopeful that more of the 109 hospitals in the state won't be frightened away from the process simply because it's new and unfamiliar.

"My understanding is that what's happening here is similar to what's happened in other states as the law was first implemented," she says. "There's a learning curve associated with any new law, and especially ones with a lot of nuance in them. And this law is very personal, very detailed, very private. That's why Compassion & Choices is working on an education and implementation campaign, to help doctors understand this measure. And you can't do that all at once."

She adds that "Compassion & Choices isn't releasing a list of doctors" that are open to the process — "and they've been asked. And they aren't releasing a list of patient names who are looking to access the law, either. This is a private situation for families, one that's deeply personal. So it's a process to make sure people are educated and informed."

To that end, the folks behind the Compassion & Choices website have assembled resources for doctors and pharmacists, as well as patients. Moreover, the organization is planning a series of webinars in February to pass along even more info intended to combat what she calls "fear tactics thrown out by the opposition" both during and after the election. For example, she says, "there was the implication of doctor-shopping, and we've not seen that in other states."

Meanwhile, Armstrong encourages people "to talk to their doctors now — talk to them before this becomes an issue. And educate yourself about the law. Because this isn't an overnight issue, where the law goes into effect and suddenly everyone is up to speed. We want to make sure people have really accurate and timely information about what's happening now."

And which hospitals are putting up roadblocks.