- Email: [email protected]
The Emerging Role of Nurse Practitioners in Physician-assisted Death
The Emerging Role of Nurse Practitioners in Physician-assisted Death Felicia Stokes, JD, RN ABSTRACT
This article explores the role of the nurse practitioner (NP) and raises the awareness of the potential for NPs to be called on to participate in physician-assisted death. This article identifies the ethical and legal dilemmas that NPs may face when dealing with patients who have requested physician-assisted death. The article further defines the ethical and legal responsibilities of the NP who cares for patients requesting physicianassisted death and provides recommendations if future legislation allows NP involvement in the physician-assisted death process. Keywords: aid in dying, death with dignity, end of life, ethics, nurse practitioner, physician-assisted suicide Ó 2016 Elsevier Inc. All rights reserved.
B
y definition, physician-assisted death (PAD) has traditionally and legally been prescribed by physicians. PAD, also known as aid in dying or death with dignity, occurs when a physician provides interventions that intentionally assist a patient to die, such as prescribing lethal medication to bring about death for someone suffering from an incurable and painful disease.1 PAD differs from euthanasia in the method of administration. Euthanasia occurs when a physician administers a lethal dose of medication with the intention of ending a patient’s life versus PAD in which selfadministration of a medication prescribed by a physician is consumed by the patient.2 Although a nurse’s participation in PAD is prohibited by law and professional nursing ethics codes, numerous studies have shown that over the past 20 years 1%-18% of nurses provided or prescribed drugs to a patient knowing the patient intended to use them to hasten death or intentionally injected drugs to hasten a patient’s death.3-6 Little is known about actual nursing practices in PAD, but anecdotal studies suggest that the nurses’ role in PAD over the past
American Association of Nurse Practitioners (AANP) members may receive 1.0 continuing education contact hours, approved by AANP, by reading this article and completing the online posttest and evaluation at aanp.inreachce.com. 150
The Journal for Nurse Practitioners - JNP
20 years could span from simply presence at the bedside to actual administration of lethal medication.7 Approximately 17% to 40% of intensive care and hospice nurses have received requests to hasten a patient’s death as a means to end suffering.8 However, the question looms as to the role of an advanced practice registered nurse, specifically a nurse practitioner (NP) in PAD. Because several states have allowed NPs to practice independently without a collaborative agreement with a physician, the role of the NP in PAD should be carefully considered. In the United States, PAD occurs when a patient self-administers lethal medication via oral ingestion prescribed by an attending physician. PAD naturally creates controversy and angst for many people and continues to evoke strong emotions as more states in the US have passed laws legalizing PAD. PAD is currently available by legal statute in Oregon, Washington, Vermont, Colorado, and California and by court opinion in Montana.9 The New Mexico Supreme Court recently announced their decision in Morris v New Mexico regarding whether physician assistance in death is constitutional. In 2014, the New Mexico Second District Court ruled that PAD was a fundamental right for residents of New Mexico.10 However, in August 2015, the Court of Appeals of New Mexico overturned that ruling in a split decision.11 The court declined to find that there Volume 13, Issue 2, February 2017
“is an absolute and fundamental constitutional right to a physicians’ aid in dying” and therefore nullified the short-lived right to die in this state.12 Twenty states have proposed legislation to provide PAD as an option for terminally ill patients at the end of life. The District of Columbia also has legislation that has been signed by the mayor, but will require approval by the U.S. Congress.9 Each state where PAD is legal by statute, has similar laws on participation, and all states mandate that a patient meet the following criteria: (1) the patient must have a terminal illness diagnosed by 2 physicians, (2) the patient must be 18 years of age, (3) the patient must be a state resident, (4) the patient must be mentally competent, and (5) the patient must provide informed consent.10 In addition, all states allow a patient to change his or her mind.13 Internationally, varying forms of assisted death are available in Belgium; the Netherlands; Luxembourg; Colombia14; and, most recently, Canada.15 The United Kingdom, Scotland, and Israel have considered but failed to pass PAD legislation,16-18 and Australia is currently considering decriminalizing assisted death.19 There is a stark contrast in the qualifying criteria of patients who have requested PAD in the U.S. versus other countries. In the US, a patient is required to have at least 1 terminal physical illness. However, in the Netherlands and Belgium, PAD can be performed on patients with mental illness or nonterminal physical conditions as well as patients under the age of 18 years.15 A recent study by the National Institutes of Health revealed an estimated 66 patients from the Netherlands and Belgium were granted PAD based on psychiatric conditions from 2011 to 2014.15 Thirty-five percent of these PAD cases were for depression, whereas other conditions included anxiety, posttraumatic stress disorder, schizophrenia, psychosis, bipolar disorder, substance use disorder, eating disorders, neurocognitive impairment, prolonged grief, autism spectrum, and other dissociative disorders.15 In the US, PAD is largely underutilized, despite the increasing legality and heightened public awareness. Oregon, the first state in the US to legalize PAD, has served as a model state since 1997 and has more empirical data than any other state. Since the www.npjournal.org
passage of the Oregon law, data reveal that two thirds of individuals who obtained prescriptions for PAD died from ingesting medication.20 A majority of the patients who died from ingestion were white males, educated, married, diagnosed with terminal cancer, had a minimum of a baccalaureate education, and were over the age of 65.20 In 2015, Washington state data revealed that three fourths of individuals who obtained prescriptions for PAD died from ingesting medication. A majority of the participants who died from lethal ingestion were white males with at least some college education and were diagnosed with terminal cancer.21 Researchers and ethicists are keeping a watchful eye on data from the End of Life Option Act in California. California is the largest and most racially, ethnically, and socioeconomically diverse state to pass PAD legislation. The outcomes will likely be evaluated in other states considering PAD with comparable demographics. THE ROLE OF NPs IN PAD: AN INTERNATIONAL PERSPECTIVE
In Canada, a highly controversial law was finally passed after several tumultuous amendments legalizing Bill C-14, now entitled Medical Assistance in Dying (MAID). Bill C-14 was drafted after the Canadian Supreme Court ruled in Carter v Canada that the prohibition on PAD for a competent adult person was unconstitutional.22 The court determined that PAD is constitutional for individuals who clearly consent to the termination of life and have a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering intolerable to the individual in the circumstances of his or her condition.22 The Canadian legislature reworded the term physicianassisted death referenced in Carter to medical assistance in dying, a change signaling an expansion of the role of the provider in the health care team. MAID is the first law in the world that allows NPs to participate in PAD. MAID specifically allows an individual over the age of 18 who provides informed consent and meets a residency requirement and has an “irremediable medical condition” diagnosed by 2 qualified health care practitioners to make a voluntary request for medical assistance in dying.23 Once implemented, the law will allow an NP to diagnose The Journal for Nurse Practitioners - JNP
151
and prescribe the lethal medication necessary to carry out PAD. “The medical practitioner or nurse practitioner who, in providing medical assistance in dying, prescribes or obtains a substance for that purpose . . . ”23 In addition, an NP may also be the consulting or second health care practitioner to diagnose the patient with a terminal illness.23 Canadian legislators were entangled in legal and ethical debates regarding the roles and protections of nurses and pharmacists. The original Bill C-14 provided protection against criminal and civil liability for medical practitioners participating in PAD; however, the bill failed to provide protections for NPs or pharmacists who participate in medical assistance in dying within the legal parameters of the law.23 The Canadian House of Commons and Senate voted on over 10 amendments to this bill before a final vote on June 16, 2016, after a third reading.23 The final law, which passed on June 17, 2016, provides an exemption for all health care providers from any civil or criminal offense for legal and appropriate participation in PAD. CAN AN NP PRESCRIBE MEDICATION IN PAD IN THE US?
Around the world, PAD debates continue to emerge as new proposals on PAD are presented. Whether or not PAD is inconsistent with the physician’s Hippocratic Oath to “do no harm” is widely contested in the medical community.13 Direct participation in PAD by NPs in the US has never been a consideration because of the legal prohibition of any activity in PAD, including the diagnosis of a terminal condition or prescribing lethal medication by NPs in all states where PAD is legal. Currently in the US, NPs have varying prescribing authority for different classes of medications but have no legal authority to prescribe any medication for the purpose of PAD or, more broadly, to hasten a patient’s death. Twenty states have pending legislation for PAD; however, none of the proposed laws allow an NP prescribing authority or involvement with the patient’s diagnosis of terminal illness in the PAD process.9 Legal prescribing authority for PAD in the US only allows for an attending physician to prescribe the lethal medication with the confirmation of diagnosis and prognosis of a consulting physician. 152
The Journal for Nurse Practitioners - JNP
Although there are no states that allow NPs to diagnose or prescribe to PAD patients, a bill pending in the New York State Assembly could shape the role of NPs in PAD. New York Bill No A10059, the Medical Aid in Dying Act, proposes to allow NPs to participate in PAD if he or she qualifies as a mental health professional by training, clinical expertise, or certification.24 If deemed as a qualified mental health professional, the NP could be eligible to provide a determination of capacity in cases in which the capacity of the PAD patient is questioned by the attending physician, provided that the NP does not have a collaborative agreement with the attending or consulting physician. New York may be the next state to enact PAD legislation and the first state in the US to allow NPs any involvement in the provision of PAD. This raises a significant ethical and moral dilemma for NPs because of the prohibition in the professional Code of Ethics for Nurses with Interpretive Statements against any participation or involvement with hastening one’s death.25 PAD has become more of a legal and ethical challenge for health care professionals because of the increased availability of PAD at the end of life and for some patients has become a more desirable option than hospice or palliative care. Several nursing organizations expressly prohibit a nurse’s involvement in hastening a patient’s death because it is against “the ethical traditions and goals of the profession, and its covenant with society.”26 The American Nurses Association position statement on assisted death specifically prohibits nurses from participating in any action that contributes to the means to an end of a patient life such as providing or administering medication, with knowledge of the patient’s intent.26 Such actions are in direct violation of the Code of Ethics for Nurses Interpretive Statement 1.4, which states “The nurse should provide interventions to relieve pain and other symptoms in the dying patient consistent with palliative care practice standards and may not act with the sole intent to end life.”25 The Oncology Nursing Society does not support “procedures or actions whose direct and immediate purpose is to cause a person’s death.”27 The Hospice and Palliative Nurses Association does not support legislation of Volume 13, Issue 2, February 2017
assisted death.28 However, the Hospice and Palliative Nurses Association position statement does allow for the individual nurse to “decide whether their own moral and ethical value system does or does not allow them to be involved in providing care to a patient who has made the choice to end his or her life through assisted death.”28 Some medical organizations remain hesitant to fully support PAD but recognize the deep chasm among the health care community and therefore have taken a position of studied neutrality.29 The California Medical Association was the first organization to change its opposition on PAD after a shift in the conversation on the issue among the public and health care provider. Public momentum is building for PAD.30 A 2015 Gallup poll revealed that almost 7 of 10 Americans are in support of PAD.31 The health care community is keeping a watchful eye on the American Medical Association’s position on PAD. In June 2016, the current position statement on PAD was up for review, and the American Medical Association rejected a proposal to reaffirm the current policy opposing PAD.32 Instead, the organization voted to approve an exploratory study on the adoption of a neutral position in PAD, which is expected to be concluded in 2017. Professional organizations are beginning to recognize the increasingly visible public debate surrounding PAD as well as acknowledge a patient’s right to self-determination. NPs will continue to face ethical challenges when a request for PAD is made or when caring for patients who have chosen PAD as an option at the end of life. NPs are uniquely positioned to continue the conversation surrounding PAD through community dialogue and deliberation on these issues to examine widening perspectives from societal and professional communities.26 WHERE IS THE ETHICAL LINE?
Trust, honesty, and professionalism are essential in the NP-patient relationship. Providing care at the end of life is fundamental when planning care and fully within a NP’s scope of practice. NPs implement a plan of care that incorporates the desired restorative, curative, palliative, and end-of-life goals with patients.33 Assessment, prescribing, and monitoring effects of therapies including symptom management www.npjournal.org
in palliative care or at the end of life are all within the NP scope of practice. However, NPs cannot legally or ethically make the diagnosis to determine terminal illness for the purpose of qualification in PAD because such action would be considered either illegal or unethical participation in PAD.33 If a patient requests PAD in a state where it is legal, an NP may choose to remain in the relationship or make a conscientious objection and terminate the NPpatient relationship. If a request for PAD places an NP in a circumstance that exceeds personal moral limits, then the NP must express a conscientious objection in an appropriately timely manner to the appropriate authority.25 A conscientious objection must be based on a deeply held conviction that assisted death is wrong.34 It must be clear that the conscience-based refusal is not based on a personal prejudice or bias of the NP and the NP must refrain from making unwarranted judgmental comments or actions. In this situation, the NP provides the patient with information on end-of-life care and arranges for a palliative care consult. As a result, a consciencebased refusal still satisfies the obligation to provide patient safety and avoids patient abandonment.25 Termination of the relationship must be appropriate, within state law to avoid abandonment, and withdrawal of care can occur only when an alternative health care provider is available to the patient.26 If an NP chooses to remain involved in the NPpatient relationship, he or she may refer the patient requesting PAD to an appropriate physician but must also discuss and explore all patient options with regard to end of life.35 NPs must be educated to ensure that patients are fully informed of all endof-life options and aware of the implications of all potential decisions. The NP may also provide resources for the patient and family to access the resources they are requesting.35 RECOMMENDATIONS
It is imperative that any pending PAD legislation include a safe harbor protection and a right to make a conscientious objection for all health care providers. The safe harbor protection, which is present in all of the current PAD laws in the US, specifically protects any health care provider who is lawfully participating The Journal for Nurse Practitioners - JNP
153
in PAD from any civil or criminal liability. It is important to note that although health care providers are protected from criminal or civil liability, they may still be subject to a lawsuit and must be aware of the potential for any costs associated in defending their actions. However, because of the safe harbor protections, it is unlikely that any legal ramifications will materialize. The legislative intent of the safe harbor provision is to prevent health care providers from any adverse actions when practicing under the requirements of PAD laws. Several states currently have laws that allow for the prosecution of any person who provides assistance in the hastening of one’s death or performs an intentional act to cause a person’s death. In addition, some states have incorporated the professional nursing Code of Ethics into their nurse practice acts or regulations.36 An ethical violation could be considered unprofessional conduct and subject to disciplinary action, including suspension or loss of licensure. However, the safe harbor provision is designed to protect those health care providers who legally choose to participate in the PAD process and those who make a conscientious objection secondary to moral convictions from any civil liability from a regulatory agency or organization. The safe harbor provision does not protect a provider from actions contradictory to the law. In Oregon, 22 physicians were referred to the Board of Medical Examiners between 1998 and 2012 for clerical noncompliance of the PAD law.37 In 2010, a physician was also referred to the Board of Medical Examiners for failing to wait the required 48 hours between the patient’s request and writing the prescription.38 It is unclear if the physician was sanctioned, but the subsequent annual report in Oregon did not report any disciplinary actions taken during that year. It will be critical for NPs to know the laws in their state and to stay abreast of pending PAD legislation. People are becoming more and more aware of their individual mortality, and the personal autonomy surrounding it will continue to be an issue. The nursing community must continue to have open dialogue regarding the ethical dilemmas that arise in patient care. “Nurses have invaluable experience, knowledge and insight into effective and compassionate care at the end of life and should actively 154
The Journal for Nurse Practitioners - JNP
engage in related research, scholarship, education, practice, and policy development.”25 Controversial issues, such as PAD, must continue to be evaluated and researched to determine efficacy, safety, and risk of harm. Conversations must include all views, including recognition of public and provider perception, and maintain the underlying principle that NPs respect the values of all patients in the NPpatient relationship and provide leadership in the development and implementation of changes in public and health policies.25 References 1. Harris CD. Physician-assisted suicide: a nurse’s perspective. Nursing. 2014;44(3):55-58. 2. Johnson S, Cramer R, Conroy M, Gardner B. The role of and challenges for psychologists in physician assisted suicide. Death Studies. October 2014; 38(9):582-588. SocINDEX with Full Text, Ipswich, MA. Accessed July 5, 2016. 3. Asch DA. The role of critical care nurses in euthanasia and assisted suicide. N Engl J Med. 1996;334:1374-1379. 4. Matzo ML, Emanuel EJ. Oncology nurses’ practices of assisted suicide and patient-requested euthanasia. Oncol Nurs Forum. 1997;24:1725-1732. 5. Ferrell B, Virani R, Grant M, Coyne P, Uman G. Beyond the Supreme Court decision: nursing perspectives on end-of-life care. Oncol Nurs Forum. 2000; 27:445-455. 6. Inghelbrecht E, Bilsen J, Mortier F, Deliens L. The role of nurses in physicianassisted deaths in Belgium. CMAJ. 2010;182:905-910. 7. Muller MT, Pijnenborg L, Onwuteaka-Philipsen BD, Wal G, Eijk JTM. The role of the nurse in active euthanasia and physician-assisted suicide. J Adv Nurs. 1997;26(2):424-430. 8. Ersek M. The continuing challenge of assisted death. J Hosp Palliat Nurs. 2004;6(a):46-59. 9. Death with dignity. https://www.deathwithdignity.org/take-action/. 2016. Accessed July 16, 2005. 10. Morris v Brandenberg, No D-202-CV-2012-02909, slip op at 12 (2d Jud Dist NM January 13, 2014), rev’d, 2015-NMCA-100, 356 P.3d 564, cert granted, No 35, 478 (NM August 31, 2015). 11. Morris v Brandenburg, 2015-NMCA-100, { 54, 356 P.3d 564, 585, cert granted, No 35,478 (NM August 31, 2015). 12. Morris v New Mexico, 2016-NO. S-1-SC-35478. http://www.nmcompcomm.us/ nmcases/nmsc/slips/SC35,478.pdf. Accessed November 22, 2016. 13. Gostin LO, Roberts AE. Physician-assisted dying: a turning point?. JAMA. 2016;315(3):249-250. 14. Republic of Columbia, Ministry of Health and Social Protection. April 20, 2015. Online [Columbia “Resolution 1216 of 2015”]. 15. Kim SY, De Vries RG, Peteet JR. Euthanasia and assisted suicide of patients with psychiatric disorders in the Netherlands 2011 to 2014. JAMA Psychiatry. 2016;73(4):362-368. 16. Bingham J. Assisted dying campaign sets sights on courts after commons defeat the telegraph. http://www.telegraph.co.uk/news/uknews/assisted-dying/ 11859504/Assisted-dying-campaign-sets-sights-on-courts-after-Commons -defeat.html. Accessed November 22, 2016. 17. Nadal SH. Physician-assisted suicide and the struggle for the soul of the state of Israel. The Jerusalem Post. http://www.jpost.com/Opinion/Op-Ed-Contributors/ Physician-assisted-suicide-and-the-struggle-for-the-soul-of-the-State-of-Israel -359823. June 18, 2014. Accessed November 22, 2016. 18. Scottish Parliament report. http://www.parliament.scot/S4_HealthandSport Committee/Reports/her15-06w.pdf. April 30, 2015. Accessed November 22, 2016. 19. Short M. Why Australia should allow the right to physician-assisted death. The Age. http://www.theage.com.au/comment/why-australia-should-allow -the-right-to-physicianassisted-death-20160322-gnoar0.html#ixzz4CFZiVuRB. March 26, 2016. Accessed November 22, 2016. 20. Oregon Department of Human Services. Oregon Death with Dignity Act: 2015 Data Summary. https://public.health.oregon.gov/ProviderPartnerResources/ EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf. 2015. Accessed November 22, 2016. 21. Washington State Department of Health 2015 Death with Dignity Act Report Executive Summary. http://www.doh.wa.gov/portals/1/Documents/Pubs/422 -109-DeathWithDignityAct2015.pdf. 2015. Accessed November 22, 2016.
Volume 13, Issue 2, February 2017
22. Carter v Canada (Attorney General), 2015 SCC 5, 1 SCR 331 (2015). 23. Medical Assistance in Dying, SC 2016, c. 3. 24. New York Bill No A10059. http://assembly.state.ny.us/leg/?default_fld=&leg_ video=&bn=A10059&term=2015&Summary=Y&Actions=Y&Floor%26nbsp Votes=Y&Memo=Y&Text=Y. Accessed November 22, 2016. 25. American Nurses Association. Code of Ethics for Nurses with Interpretive Statements. Silver Spring, MD: http://nursingworld.org/codeofethics; 2015. 26. American Nurses Association. Euthanasia, Assisted Suicide and Aid-in-Dying. http://www.nursingworld.org/MainMenuCategories/EthicsStandards/Ethics -Position-Statements/Euthanasia-Assisted-Suicide-and-Aid-in-Dying.pdf. 2013. Accessed November 22, 2016. 27. Oncology Nursing Society Position. Role of the nurse when hastened death is requested. https://www.ons.org/sites/default/files/Role%20of%20Nurse%20 Hastening%20Death.pdf. 2011. Accessed November 22, 2016. 28. Hospice and Palliative Nurses Association. Legalization of assisted suicide position statement. http://hpna.advancingexpertcare.org/wp-content/uploads/ 2015/08/Role-of-the-Nurse-When-Hastened-Death-is-Requested.pdf. 2011. Accessed November 22, 2016. 29. American Academy of Hospice and Palliative Medicine. http://aahpm.org/ positions/pad; California Medical Association removes opposition to physician aid in dying bill. May 20, 2015. Accessed November 22, 2016. 30. Prokopetz JJ, Lehmann LS. Redefining physicians’ role in assisted dying. N Engl J Med. 2012;367(2):97-99. 31. Dugan A. In U.S. support up for doctor assisted suicide. http://www.gallup.com/ poll/183425/support-doctor-assisted-suicide.aspx/. 2015. Accessed November 22, 2016. 32. American Medical Association. Reports of reference committees of the American Medical Association House of Delegates 2016 annual meeting. https://assets.ama-assn.org/sub/meeting/documents/a16-status-report.pdf. 2016. Accessed November 22, 2016. 33. American Association of Critical-Care Nurses. AACN Scope and Standards for Acute Care Nurse Practitioners. Aliso Viejo, CA; 2012.
www.npjournal.org
34. Lachman VD. Conscientious objection in nursing: definition and criteria for acceptance. Medsurg Nurs. 2014;23(3):196. 35. Oregon Nurses Association. Assisted suicide: the debate continues. The Oregon Nurse. 1997;62(2). http://www.oregonrn.org/associations/10509/ files/Assisted%20Suicide%20Adjusted.pdf. Accessed November 22, 2016. 36. Olson L, Stokes F. The ANA code of ethics for nurses With interpretive statements: resource for nursing regulation. J Nurs Regul. 2016;7(2):9-20. 37. Lewis P, Black I. Reporting and scrutiny of reported cases in four jurisdictions where assisted dying is lawful: a review of the evidence in the Netherlands, Belgium, Oregon and Switzerland. Med Law Int. 2013. 38. Oregon Department of Human Services. Oregon Death with Dignity Act: 2010. https://public.health.oregon.gov/ProviderPartnerResources/Evaluation Research/DeathwithDignityAct/Documents/year13.pdf. 2011. Accessed November 22, 2016.
Felicia Stokes, JD, RN, is a senior policy advisor for the American Nurses Association Center for Ethics and Human Rights in Silver Spring, MD, and can be reached at stokes [email protected]. In compliance with national ethical guidelines, the authors report no relationships with business or industry that would pose a conflict of interest. 1555-4155/16/$ see front matter © 2016 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.nurpra.2016.08.029
The Journal for Nurse Practitioners - JNP
155
This article explores the role of the nurse practitioner (NP) and raises the awareness of the potential for NPs to be called on to participate in physician-assisted death. This article identifies the ethical and legal dilemmas that NPs may face when dealing with patients who have requested physician-assisted death. The article further defines the ethical and legal responsibilities of the NP who cares for patients requesting physicianassisted death and provides recommendations if future legislation allows NP involvement in the physician-assisted death process. Keywords: aid in dying, death with dignity, end of life, ethics, nurse practitioner, physician-assisted suicide Ó 2016 Elsevier Inc. All rights reserved.
B
y definition, physician-assisted death (PAD) has traditionally and legally been prescribed by physicians. PAD, also known as aid in dying or death with dignity, occurs when a physician provides interventions that intentionally assist a patient to die, such as prescribing lethal medication to bring about death for someone suffering from an incurable and painful disease.1 PAD differs from euthanasia in the method of administration. Euthanasia occurs when a physician administers a lethal dose of medication with the intention of ending a patient’s life versus PAD in which selfadministration of a medication prescribed by a physician is consumed by the patient.2 Although a nurse’s participation in PAD is prohibited by law and professional nursing ethics codes, numerous studies have shown that over the past 20 years 1%-18% of nurses provided or prescribed drugs to a patient knowing the patient intended to use them to hasten death or intentionally injected drugs to hasten a patient’s death.3-6 Little is known about actual nursing practices in PAD, but anecdotal studies suggest that the nurses’ role in PAD over the past
American Association of Nurse Practitioners (AANP) members may receive 1.0 continuing education contact hours, approved by AANP, by reading this article and completing the online posttest and evaluation at aanp.inreachce.com. 150
The Journal for Nurse Practitioners - JNP
20 years could span from simply presence at the bedside to actual administration of lethal medication.7 Approximately 17% to 40% of intensive care and hospice nurses have received requests to hasten a patient’s death as a means to end suffering.8 However, the question looms as to the role of an advanced practice registered nurse, specifically a nurse practitioner (NP) in PAD. Because several states have allowed NPs to practice independently without a collaborative agreement with a physician, the role of the NP in PAD should be carefully considered. In the United States, PAD occurs when a patient self-administers lethal medication via oral ingestion prescribed by an attending physician. PAD naturally creates controversy and angst for many people and continues to evoke strong emotions as more states in the US have passed laws legalizing PAD. PAD is currently available by legal statute in Oregon, Washington, Vermont, Colorado, and California and by court opinion in Montana.9 The New Mexico Supreme Court recently announced their decision in Morris v New Mexico regarding whether physician assistance in death is constitutional. In 2014, the New Mexico Second District Court ruled that PAD was a fundamental right for residents of New Mexico.10 However, in August 2015, the Court of Appeals of New Mexico overturned that ruling in a split decision.11 The court declined to find that there Volume 13, Issue 2, February 2017
“is an absolute and fundamental constitutional right to a physicians’ aid in dying” and therefore nullified the short-lived right to die in this state.12 Twenty states have proposed legislation to provide PAD as an option for terminally ill patients at the end of life. The District of Columbia also has legislation that has been signed by the mayor, but will require approval by the U.S. Congress.9 Each state where PAD is legal by statute, has similar laws on participation, and all states mandate that a patient meet the following criteria: (1) the patient must have a terminal illness diagnosed by 2 physicians, (2) the patient must be 18 years of age, (3) the patient must be a state resident, (4) the patient must be mentally competent, and (5) the patient must provide informed consent.10 In addition, all states allow a patient to change his or her mind.13 Internationally, varying forms of assisted death are available in Belgium; the Netherlands; Luxembourg; Colombia14; and, most recently, Canada.15 The United Kingdom, Scotland, and Israel have considered but failed to pass PAD legislation,16-18 and Australia is currently considering decriminalizing assisted death.19 There is a stark contrast in the qualifying criteria of patients who have requested PAD in the U.S. versus other countries. In the US, a patient is required to have at least 1 terminal physical illness. However, in the Netherlands and Belgium, PAD can be performed on patients with mental illness or nonterminal physical conditions as well as patients under the age of 18 years.15 A recent study by the National Institutes of Health revealed an estimated 66 patients from the Netherlands and Belgium were granted PAD based on psychiatric conditions from 2011 to 2014.15 Thirty-five percent of these PAD cases were for depression, whereas other conditions included anxiety, posttraumatic stress disorder, schizophrenia, psychosis, bipolar disorder, substance use disorder, eating disorders, neurocognitive impairment, prolonged grief, autism spectrum, and other dissociative disorders.15 In the US, PAD is largely underutilized, despite the increasing legality and heightened public awareness. Oregon, the first state in the US to legalize PAD, has served as a model state since 1997 and has more empirical data than any other state. Since the www.npjournal.org
passage of the Oregon law, data reveal that two thirds of individuals who obtained prescriptions for PAD died from ingesting medication.20 A majority of the patients who died from ingestion were white males, educated, married, diagnosed with terminal cancer, had a minimum of a baccalaureate education, and were over the age of 65.20 In 2015, Washington state data revealed that three fourths of individuals who obtained prescriptions for PAD died from ingesting medication. A majority of the participants who died from lethal ingestion were white males with at least some college education and were diagnosed with terminal cancer.21 Researchers and ethicists are keeping a watchful eye on data from the End of Life Option Act in California. California is the largest and most racially, ethnically, and socioeconomically diverse state to pass PAD legislation. The outcomes will likely be evaluated in other states considering PAD with comparable demographics. THE ROLE OF NPs IN PAD: AN INTERNATIONAL PERSPECTIVE
In Canada, a highly controversial law was finally passed after several tumultuous amendments legalizing Bill C-14, now entitled Medical Assistance in Dying (MAID). Bill C-14 was drafted after the Canadian Supreme Court ruled in Carter v Canada that the prohibition on PAD for a competent adult person was unconstitutional.22 The court determined that PAD is constitutional for individuals who clearly consent to the termination of life and have a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering intolerable to the individual in the circumstances of his or her condition.22 The Canadian legislature reworded the term physicianassisted death referenced in Carter to medical assistance in dying, a change signaling an expansion of the role of the provider in the health care team. MAID is the first law in the world that allows NPs to participate in PAD. MAID specifically allows an individual over the age of 18 who provides informed consent and meets a residency requirement and has an “irremediable medical condition” diagnosed by 2 qualified health care practitioners to make a voluntary request for medical assistance in dying.23 Once implemented, the law will allow an NP to diagnose The Journal for Nurse Practitioners - JNP
151
and prescribe the lethal medication necessary to carry out PAD. “The medical practitioner or nurse practitioner who, in providing medical assistance in dying, prescribes or obtains a substance for that purpose . . . ”23 In addition, an NP may also be the consulting or second health care practitioner to diagnose the patient with a terminal illness.23 Canadian legislators were entangled in legal and ethical debates regarding the roles and protections of nurses and pharmacists. The original Bill C-14 provided protection against criminal and civil liability for medical practitioners participating in PAD; however, the bill failed to provide protections for NPs or pharmacists who participate in medical assistance in dying within the legal parameters of the law.23 The Canadian House of Commons and Senate voted on over 10 amendments to this bill before a final vote on June 16, 2016, after a third reading.23 The final law, which passed on June 17, 2016, provides an exemption for all health care providers from any civil or criminal offense for legal and appropriate participation in PAD. CAN AN NP PRESCRIBE MEDICATION IN PAD IN THE US?
Around the world, PAD debates continue to emerge as new proposals on PAD are presented. Whether or not PAD is inconsistent with the physician’s Hippocratic Oath to “do no harm” is widely contested in the medical community.13 Direct participation in PAD by NPs in the US has never been a consideration because of the legal prohibition of any activity in PAD, including the diagnosis of a terminal condition or prescribing lethal medication by NPs in all states where PAD is legal. Currently in the US, NPs have varying prescribing authority for different classes of medications but have no legal authority to prescribe any medication for the purpose of PAD or, more broadly, to hasten a patient’s death. Twenty states have pending legislation for PAD; however, none of the proposed laws allow an NP prescribing authority or involvement with the patient’s diagnosis of terminal illness in the PAD process.9 Legal prescribing authority for PAD in the US only allows for an attending physician to prescribe the lethal medication with the confirmation of diagnosis and prognosis of a consulting physician. 152
The Journal for Nurse Practitioners - JNP
Although there are no states that allow NPs to diagnose or prescribe to PAD patients, a bill pending in the New York State Assembly could shape the role of NPs in PAD. New York Bill No A10059, the Medical Aid in Dying Act, proposes to allow NPs to participate in PAD if he or she qualifies as a mental health professional by training, clinical expertise, or certification.24 If deemed as a qualified mental health professional, the NP could be eligible to provide a determination of capacity in cases in which the capacity of the PAD patient is questioned by the attending physician, provided that the NP does not have a collaborative agreement with the attending or consulting physician. New York may be the next state to enact PAD legislation and the first state in the US to allow NPs any involvement in the provision of PAD. This raises a significant ethical and moral dilemma for NPs because of the prohibition in the professional Code of Ethics for Nurses with Interpretive Statements against any participation or involvement with hastening one’s death.25 PAD has become more of a legal and ethical challenge for health care professionals because of the increased availability of PAD at the end of life and for some patients has become a more desirable option than hospice or palliative care. Several nursing organizations expressly prohibit a nurse’s involvement in hastening a patient’s death because it is against “the ethical traditions and goals of the profession, and its covenant with society.”26 The American Nurses Association position statement on assisted death specifically prohibits nurses from participating in any action that contributes to the means to an end of a patient life such as providing or administering medication, with knowledge of the patient’s intent.26 Such actions are in direct violation of the Code of Ethics for Nurses Interpretive Statement 1.4, which states “The nurse should provide interventions to relieve pain and other symptoms in the dying patient consistent with palliative care practice standards and may not act with the sole intent to end life.”25 The Oncology Nursing Society does not support “procedures or actions whose direct and immediate purpose is to cause a person’s death.”27 The Hospice and Palliative Nurses Association does not support legislation of Volume 13, Issue 2, February 2017
assisted death.28 However, the Hospice and Palliative Nurses Association position statement does allow for the individual nurse to “decide whether their own moral and ethical value system does or does not allow them to be involved in providing care to a patient who has made the choice to end his or her life through assisted death.”28 Some medical organizations remain hesitant to fully support PAD but recognize the deep chasm among the health care community and therefore have taken a position of studied neutrality.29 The California Medical Association was the first organization to change its opposition on PAD after a shift in the conversation on the issue among the public and health care provider. Public momentum is building for PAD.30 A 2015 Gallup poll revealed that almost 7 of 10 Americans are in support of PAD.31 The health care community is keeping a watchful eye on the American Medical Association’s position on PAD. In June 2016, the current position statement on PAD was up for review, and the American Medical Association rejected a proposal to reaffirm the current policy opposing PAD.32 Instead, the organization voted to approve an exploratory study on the adoption of a neutral position in PAD, which is expected to be concluded in 2017. Professional organizations are beginning to recognize the increasingly visible public debate surrounding PAD as well as acknowledge a patient’s right to self-determination. NPs will continue to face ethical challenges when a request for PAD is made or when caring for patients who have chosen PAD as an option at the end of life. NPs are uniquely positioned to continue the conversation surrounding PAD through community dialogue and deliberation on these issues to examine widening perspectives from societal and professional communities.26 WHERE IS THE ETHICAL LINE?
Trust, honesty, and professionalism are essential in the NP-patient relationship. Providing care at the end of life is fundamental when planning care and fully within a NP’s scope of practice. NPs implement a plan of care that incorporates the desired restorative, curative, palliative, and end-of-life goals with patients.33 Assessment, prescribing, and monitoring effects of therapies including symptom management www.npjournal.org
in palliative care or at the end of life are all within the NP scope of practice. However, NPs cannot legally or ethically make the diagnosis to determine terminal illness for the purpose of qualification in PAD because such action would be considered either illegal or unethical participation in PAD.33 If a patient requests PAD in a state where it is legal, an NP may choose to remain in the relationship or make a conscientious objection and terminate the NPpatient relationship. If a request for PAD places an NP in a circumstance that exceeds personal moral limits, then the NP must express a conscientious objection in an appropriately timely manner to the appropriate authority.25 A conscientious objection must be based on a deeply held conviction that assisted death is wrong.34 It must be clear that the conscience-based refusal is not based on a personal prejudice or bias of the NP and the NP must refrain from making unwarranted judgmental comments or actions. In this situation, the NP provides the patient with information on end-of-life care and arranges for a palliative care consult. As a result, a consciencebased refusal still satisfies the obligation to provide patient safety and avoids patient abandonment.25 Termination of the relationship must be appropriate, within state law to avoid abandonment, and withdrawal of care can occur only when an alternative health care provider is available to the patient.26 If an NP chooses to remain involved in the NPpatient relationship, he or she may refer the patient requesting PAD to an appropriate physician but must also discuss and explore all patient options with regard to end of life.35 NPs must be educated to ensure that patients are fully informed of all endof-life options and aware of the implications of all potential decisions. The NP may also provide resources for the patient and family to access the resources they are requesting.35 RECOMMENDATIONS
It is imperative that any pending PAD legislation include a safe harbor protection and a right to make a conscientious objection for all health care providers. The safe harbor protection, which is present in all of the current PAD laws in the US, specifically protects any health care provider who is lawfully participating The Journal for Nurse Practitioners - JNP
153
in PAD from any civil or criminal liability. It is important to note that although health care providers are protected from criminal or civil liability, they may still be subject to a lawsuit and must be aware of the potential for any costs associated in defending their actions. However, because of the safe harbor protections, it is unlikely that any legal ramifications will materialize. The legislative intent of the safe harbor provision is to prevent health care providers from any adverse actions when practicing under the requirements of PAD laws. Several states currently have laws that allow for the prosecution of any person who provides assistance in the hastening of one’s death or performs an intentional act to cause a person’s death. In addition, some states have incorporated the professional nursing Code of Ethics into their nurse practice acts or regulations.36 An ethical violation could be considered unprofessional conduct and subject to disciplinary action, including suspension or loss of licensure. However, the safe harbor provision is designed to protect those health care providers who legally choose to participate in the PAD process and those who make a conscientious objection secondary to moral convictions from any civil liability from a regulatory agency or organization. The safe harbor provision does not protect a provider from actions contradictory to the law. In Oregon, 22 physicians were referred to the Board of Medical Examiners between 1998 and 2012 for clerical noncompliance of the PAD law.37 In 2010, a physician was also referred to the Board of Medical Examiners for failing to wait the required 48 hours between the patient’s request and writing the prescription.38 It is unclear if the physician was sanctioned, but the subsequent annual report in Oregon did not report any disciplinary actions taken during that year. It will be critical for NPs to know the laws in their state and to stay abreast of pending PAD legislation. People are becoming more and more aware of their individual mortality, and the personal autonomy surrounding it will continue to be an issue. The nursing community must continue to have open dialogue regarding the ethical dilemmas that arise in patient care. “Nurses have invaluable experience, knowledge and insight into effective and compassionate care at the end of life and should actively 154
The Journal for Nurse Practitioners - JNP
engage in related research, scholarship, education, practice, and policy development.”25 Controversial issues, such as PAD, must continue to be evaluated and researched to determine efficacy, safety, and risk of harm. Conversations must include all views, including recognition of public and provider perception, and maintain the underlying principle that NPs respect the values of all patients in the NPpatient relationship and provide leadership in the development and implementation of changes in public and health policies.25 References 1. Harris CD. Physician-assisted suicide: a nurse’s perspective. Nursing. 2014;44(3):55-58. 2. Johnson S, Cramer R, Conroy M, Gardner B. The role of and challenges for psychologists in physician assisted suicide. Death Studies. October 2014; 38(9):582-588. SocINDEX with Full Text, Ipswich, MA. Accessed July 5, 2016. 3. Asch DA. The role of critical care nurses in euthanasia and assisted suicide. N Engl J Med. 1996;334:1374-1379. 4. Matzo ML, Emanuel EJ. Oncology nurses’ practices of assisted suicide and patient-requested euthanasia. Oncol Nurs Forum. 1997;24:1725-1732. 5. Ferrell B, Virani R, Grant M, Coyne P, Uman G. Beyond the Supreme Court decision: nursing perspectives on end-of-life care. Oncol Nurs Forum. 2000; 27:445-455. 6. Inghelbrecht E, Bilsen J, Mortier F, Deliens L. The role of nurses in physicianassisted deaths in Belgium. CMAJ. 2010;182:905-910. 7. Muller MT, Pijnenborg L, Onwuteaka-Philipsen BD, Wal G, Eijk JTM. The role of the nurse in active euthanasia and physician-assisted suicide. J Adv Nurs. 1997;26(2):424-430. 8. Ersek M. The continuing challenge of assisted death. J Hosp Palliat Nurs. 2004;6(a):46-59. 9. Death with dignity. https://www.deathwithdignity.org/take-action/. 2016. Accessed July 16, 2005. 10. Morris v Brandenberg, No D-202-CV-2012-02909, slip op at 12 (2d Jud Dist NM January 13, 2014), rev’d, 2015-NMCA-100, 356 P.3d 564, cert granted, No 35, 478 (NM August 31, 2015). 11. Morris v Brandenburg, 2015-NMCA-100, { 54, 356 P.3d 564, 585, cert granted, No 35,478 (NM August 31, 2015). 12. Morris v New Mexico, 2016-NO. S-1-SC-35478. http://www.nmcompcomm.us/ nmcases/nmsc/slips/SC35,478.pdf. Accessed November 22, 2016. 13. Gostin LO, Roberts AE. Physician-assisted dying: a turning point?. JAMA. 2016;315(3):249-250. 14. Republic of Columbia, Ministry of Health and Social Protection. April 20, 2015. Online [Columbia “Resolution 1216 of 2015”]. 15. Kim SY, De Vries RG, Peteet JR. Euthanasia and assisted suicide of patients with psychiatric disorders in the Netherlands 2011 to 2014. JAMA Psychiatry. 2016;73(4):362-368. 16. Bingham J. Assisted dying campaign sets sights on courts after commons defeat the telegraph. http://www.telegraph.co.uk/news/uknews/assisted-dying/ 11859504/Assisted-dying-campaign-sets-sights-on-courts-after-Commons -defeat.html. Accessed November 22, 2016. 17. Nadal SH. Physician-assisted suicide and the struggle for the soul of the state of Israel. The Jerusalem Post. http://www.jpost.com/Opinion/Op-Ed-Contributors/ Physician-assisted-suicide-and-the-struggle-for-the-soul-of-the-State-of-Israel -359823. June 18, 2014. Accessed November 22, 2016. 18. Scottish Parliament report. http://www.parliament.scot/S4_HealthandSport Committee/Reports/her15-06w.pdf. April 30, 2015. Accessed November 22, 2016. 19. Short M. Why Australia should allow the right to physician-assisted death. The Age. http://www.theage.com.au/comment/why-australia-should-allow -the-right-to-physicianassisted-death-20160322-gnoar0.html#ixzz4CFZiVuRB. March 26, 2016. Accessed November 22, 2016. 20. Oregon Department of Human Services. Oregon Death with Dignity Act: 2015 Data Summary. https://public.health.oregon.gov/ProviderPartnerResources/ EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf. 2015. Accessed November 22, 2016. 21. Washington State Department of Health 2015 Death with Dignity Act Report Executive Summary. http://www.doh.wa.gov/portals/1/Documents/Pubs/422 -109-DeathWithDignityAct2015.pdf. 2015. Accessed November 22, 2016.
Volume 13, Issue 2, February 2017
22. Carter v Canada (Attorney General), 2015 SCC 5, 1 SCR 331 (2015). 23. Medical Assistance in Dying, SC 2016, c. 3. 24. New York Bill No A10059. http://assembly.state.ny.us/leg/?default_fld=&leg_ video=&bn=A10059&term=2015&Summary=Y&Actions=Y&Floor%26nbsp Votes=Y&Memo=Y&Text=Y. Accessed November 22, 2016. 25. American Nurses Association. Code of Ethics for Nurses with Interpretive Statements. Silver Spring, MD: http://nursingworld.org/codeofethics; 2015. 26. American Nurses Association. Euthanasia, Assisted Suicide and Aid-in-Dying. http://www.nursingworld.org/MainMenuCategories/EthicsStandards/Ethics -Position-Statements/Euthanasia-Assisted-Suicide-and-Aid-in-Dying.pdf. 2013. Accessed November 22, 2016. 27. Oncology Nursing Society Position. Role of the nurse when hastened death is requested. https://www.ons.org/sites/default/files/Role%20of%20Nurse%20 Hastening%20Death.pdf. 2011. Accessed November 22, 2016. 28. Hospice and Palliative Nurses Association. Legalization of assisted suicide position statement. http://hpna.advancingexpertcare.org/wp-content/uploads/ 2015/08/Role-of-the-Nurse-When-Hastened-Death-is-Requested.pdf. 2011. Accessed November 22, 2016. 29. American Academy of Hospice and Palliative Medicine. http://aahpm.org/ positions/pad; California Medical Association removes opposition to physician aid in dying bill. May 20, 2015. Accessed November 22, 2016. 30. Prokopetz JJ, Lehmann LS. Redefining physicians’ role in assisted dying. N Engl J Med. 2012;367(2):97-99. 31. Dugan A. In U.S. support up for doctor assisted suicide. http://www.gallup.com/ poll/183425/support-doctor-assisted-suicide.aspx/. 2015. Accessed November 22, 2016. 32. American Medical Association. Reports of reference committees of the American Medical Association House of Delegates 2016 annual meeting. https://assets.ama-assn.org/sub/meeting/documents/a16-status-report.pdf. 2016. Accessed November 22, 2016. 33. American Association of Critical-Care Nurses. AACN Scope and Standards for Acute Care Nurse Practitioners. Aliso Viejo, CA; 2012.
www.npjournal.org
34. Lachman VD. Conscientious objection in nursing: definition and criteria for acceptance. Medsurg Nurs. 2014;23(3):196. 35. Oregon Nurses Association. Assisted suicide: the debate continues. The Oregon Nurse. 1997;62(2). http://www.oregonrn.org/associations/10509/ files/Assisted%20Suicide%20Adjusted.pdf. Accessed November 22, 2016. 36. Olson L, Stokes F. The ANA code of ethics for nurses With interpretive statements: resource for nursing regulation. J Nurs Regul. 2016;7(2):9-20. 37. Lewis P, Black I. Reporting and scrutiny of reported cases in four jurisdictions where assisted dying is lawful: a review of the evidence in the Netherlands, Belgium, Oregon and Switzerland. Med Law Int. 2013. 38. Oregon Department of Human Services. Oregon Death with Dignity Act: 2010. https://public.health.oregon.gov/ProviderPartnerResources/Evaluation Research/DeathwithDignityAct/Documents/year13.pdf. 2011. Accessed November 22, 2016.
Felicia Stokes, JD, RN, is a senior policy advisor for the American Nurses Association Center for Ethics and Human Rights in Silver Spring, MD, and can be reached at stokes [email protected]. In compliance with national ethical guidelines, the authors report no relationships with business or industry that would pose a conflict of interest. 1555-4155/16/$ see front matter © 2016 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.nurpra.2016.08.029
The Journal for Nurse Practitioners - JNP
155