Dear Senator Padden:

I appreciate the Health and Long-Term Care committee’s willingness to hear my testimony against SB 5179 on the Death with Dignity Act last week. I testified that hundreds of times, physicians have violated the Act’s safeguards, by failing to report to the Department of Health (DOH) that they prescribed the lethal medication only to patients who qualify (e.g., those who are terminally ill, expected to have six months or less to live, of sound mind, and voluntarily signing a request). In practice the Act has already been expanded beyond its legal bounds, and the legislature should not consider expanding it further at this time but investigate and address this problem.

I could almost hear committee members thinking: Is he exaggerating, or even making this up? I am not offended by that reaction, as I had trouble believing my own eyes when I first came across the data and realized what it means.

So I want to share with you a primary source: DOH’s 2021 Death with Dignity Act Report. I have attached the most relevant pages. The full report is here:

2021 Death with Dignity Act Report (wa.gov)

First, a word about dates. DOH says this is the documentation on drugs dispensed during all of 2021 that was received as of May 26, 2022: 400 lethal prescriptions; 387 deaths, of which at least 291 or as many as 343 were from taking the drugs (page 1). But the report is dated July 15, 2022 – and it was not posted to DOH’s web site until November 2022. Physicians have had ample time to submit their legally required documentation on 2021 cases.

Second, as DOH says: “To comply with the act, attending physicians and pharmacists must file documentation with DOH… Within 30 days of writing a prescription for medication under this act, the attending physician must file the following forms with DOH,” and lists the prescribing physician’s compliance form, the consulting physician’s compliance form (documenting a second opinion), and the patient’s written request (page 11, emphasis added).

This reflects the DWDA’s statutory language, which says the physician “shall” do these things to comply with the Act – in statutory language, “shall” means “must.” Filing these reports is as mandatory as the Act’s other safeguards: The physician “shall” diagnose a terminal illness, determine that the patient is competent and acting voluntarily, ensure informed consent, provide counseling on alternatives, etc. RCW 70.245.040. In fact the reporting requirement is the gateway to all other safeguards. The Act even requires DOH to contact the physician if the reports are not submitted within 30 days. RCW 70.245.150.

 (How does DOH know who the non-reporting physician is, if there is no report? Part of the answer may be that pharmacists have been somewhat more reliable in submitting their own reports that the drugs were dispensed, and that report includes the name and contact information of the physician. But DOH’s annual report does not directly answer this question.)

If these mandates seem strict, recall that the Act authorizes only the prescribing physician to report how the safeguards were complied with. It makes no provision for an independent version of events – unless one counts the consulting physician, who is chosen by the prescribing physician. When neither physician submits a report, no physician is bothering to claim compliance with the Act.

And when the Act’s requirements are not followed, the physicians are subject to liability – professional (referral to the state medical board), civil, and criminal. The DWDA establishes criminal liability for various abuses (coercing the patient, forging a request, destroying or concealing a rescission of a request), then states: “The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this chapter.” RCW 70.245.200. This would primarily refer to the statute punishing anyone who “knowingly causes or aids another person to attempt suicide,” which is a Class C felony. RCW 9A.36.060.

Some witnesses have said that providing the lethal drugs in compliance with the requirements of the DWDA is not assisting a suicide. As a matter of law, that is indeed what the Act says. RCW 70.245.180. But doing so without such compliance is subject to prosecution for assisting a suicide.

Finally: In the attached DOH pages, see the list of reports received from physicians months after the end of 2021 (page 11). Still missing were 46 patients’ requests, 35 prescribing physicians’ reports, and 47 consulting physicians’ reports. DOH notes correctly that it is required in such cases to contact physicians to urge them to provide this legally required documentation (page 12). But it seems this did not succeed, or was not attempted. No annual report from DOH claims that the required reports missing from a previous year were submitted later. Instead, without explanation, DOH lists all these as cases carried out “under the terms of the law” (page 1).

DOH does not report how much overlap there is among these cases. Were there at least 35 cases in which no requirement was complied with? Or as many as 133 in which one or more requirements were ignored?  It is not clear. Therefore the percentage of cases in which some safeguards were ignored in 2021 is between 9% and 32% of the total. In 12% of cases in which the drugs were dispensed, we have no evidence that the patient ever signed a voluntary request for them.

Alarmed by this finding, I went back through all DOH annual reports beginning with the law’s first year, 2009, and found the same pattern. In all there are 219 missing reports from the prescribing physician, 264 missing patient’s request forms, and 257 missing consulting physician’s reports. And these abuses have become much more common -- with half of them occurring in the last three years, 2019-2021 (see attached table).

At one point, DOH’s 2021 report says that physicians and pharmacists “must make a good faith effort to file required documentation in a complete and timely manner” (page 12, emphasis added). However, the DWDA,(and DOH on page 11 of this same report, say that physicians simply “must” file them. The statement on page 12 may allude to the prospect of some busy physicians filing them somewhat late, or having to be reminded that they missed something on the form.

The DWDA does speak of its immunities depending on “good faith compliance” with the law. RCW 70.245.190. But if “good faith compliance” meant deliberately ignoring the stated safeguards entirely, all the protections of the DWDA – including the protection of patients from coercion and undue influence -- would already be meaningless. And it would be equally meaningless to try weakening them to “expand” access to the drugs, when – as far as anyone knows -- they are already being dispensed to people who did not request them and were not terminally ill.

In the above I am not making an argument against the existing DWDA. I am arguing against a longtime refusal to comply with it. It is the physician who violates the law’s safeguards that is opposing the Act. DOH may also be doing so, by listing these violations as legally valid. A legislature that votes to “expand” opportunities for more of the same, instead of working to ensure that patients will be better protected against abuse in future, will be expressing opposition to the Act.

In conclusion, I think the responsible choice is to vote against SB 5179.

Thank you for your consideration. I am most willing to address any questions you may have.

Richard M. Doerflinger