Mr. Chairman and Members of the Committee:

Thank you for the opportunity to testify on this important issue. My name is Joseph Onek and I am the Principal Deputy Associate Attorney General at the Department of Justice. My statement will focus on the legislation introduced as S. 2151, the "Lethal Drug Abuse Prevention Act of 1998." After presenting my statement, I will be pleased to answer any questions that you may have concerning the broader issue of physician assisted suicide in relation to the enforcement authority of the Department of Justice.

As you know, Mr. Chairman, the President is opposed to assisted suicide and any Federal support for it. As such, he is open to working with you and other interested Members of Congress on this complex but extremely important issue. Having said this, the Administration believes that S. 2151 represents a flawed approach to the sensitive area of Federal regulation of medicine. We are fully cognizant of the general authority of the Drug Enforcement Administration (DEA) to regulate physicians’ activities that facilitate the abuse or diversion of controlled substances. We are concerned, however, that the insertion of the DEA into the role of overseer of the practice of medicine in the unique circumstances of suffering, terminally ill patients would inevitably divert agency attention away from the core mission of strictly controlling Schedule I drugs and preventing the abuse, diversion of and trafficking in all scheduled drugs.

Determination of whether a practitioner’s conduct which results in a patient’s death -- either in a specific instance or in general -- is "an appropriate means to relieve pain" is far afield from the DEA’s role, as envisaged by Congress and as carried out by the agency, under the original legislative rubric of the Controlled Substances Act (CSA). The medical, scientific, ethical, and related aspects of the practice of medicine at the end of life would involve DEA in issues in which it has no particular expertise. The use of a peer review board of pain management experts would lend needed consultation on the merits of any case, but the very necessity for such a board is evidence of the poor fit between the task DEA is being asked to undertake and its central expertise. Moreover, as noted below, the board’s insertion in the context of a contested administrative proceeding could well complicate rather than elucidate matters surrounding physician-assisted suicide.

In addition to the above-noted concerns, the proposed revision of the Controlled Substances Act through S. 2151 would not necessarily accomplish the intended effect of banning all assisted suicides, as there are several plausible means of assisted suicide or euthanasia that do not involve the use of controlled substances. Typically, a controlled substance is used as a sedative; a non-controlled substance is used to actually bring about death. Thus, the CSA offers at best only a partial fix. If amendments to the CSA force physicians to use non-controlled substances to assist a patient to hasten a desired death, a procedure that would not explicitly be banned by the CSA, it will not save lives, but merely will increase the amount of pain suffered by those taking their lives.

The flaws of this proposed ban on assisted suicide are visibly apparent by examining the plausible scenario of a patient who has legally obtained a controlled substance from a physician for palliative purposes without disclosing an intent to commit suicide. Once that patient has decided to end his or her own life, they would need only to employ the services of a second physician, who would agree to assist in the suicide so long as the patient agrees to self medicate. As long as the second physician does not “dispense or distribute” a controlled substance, it is difficult to imagine how they could be subject to a revocation action under the proposed changes to the CSA. Moreover, if the bill were modified broadly to reach those who merely assist in a suicide, including by providing their patients with truthful information, it would likely invite serious constitutional challenges.

In addition to the foregoing concerns, the proposed bill raises several technical concerns. First, Sec. 3(a) would amend 21 U.S.C. § 823 to require denial of registration, as inconsistent with the public interest, of any application for registration that had either been revoked within the preceding five years under § 824(a)(4) or for which there is "clear and convincing evidence" that it is sought "with the intention of using the registration" to assist a suicide or commit euthanasia. This latter provision may be unworkable. We are concerned that it is not practical to determine in advance an applicant’s "intent" as to how he/she will use a registration; much less can this be determined by clear and convincing evidence. Certainly, few if any applicants will seek the controlled registration with assisted suicide as a primary intended use; even fewer would admit as much on an application. For most physicians, whether they use controlled substances for this purpose will depend on the circumstances, which cannot be foreseen in advance.

There is an apparent inconsistency between Sec. 3(a), stating a new basis for action against a practitioner’s registration under § 824(a)(4), and Sec. 3(c), setting forth the responsibility of the new "Medical Review Board on Pain Relief" to issue an opinion under new § 824(c)(3)(C)(i). Under the latter, the Board would review, for appropriateness as a means to relieve pain, "any potential action" (as opposed to "intended" action) by an applicant. Review of "potential" action is even more speculative than "intended" action. Moreover, this section does not mention the clear and convincing evidence standard; it is not clear whether a different level of proof is intended.

The new Board would afford a peer review process to any practitioner aggrieved by a show cause order under 21 U.S.C. § 824(c) proposing to take adverse action against a practitioner’s registration in light of physician-assisted suicide. This provision would for the first time inject a regulatory peer review process into the quasi-judicial administrative discipline process. The Board’s opinion would be "admissible" in any show cause hearing, but would it be binding in effect? If the DEA went against the Board’s decision, either in favor of or against the physician, what would be the likely result on appeal? We think this Board -- undoubtedly a well-intended innovation designed to give the physician a fair hearing -- unnecessarily creates a myriad of difficult issues.

Finally, in Sec. 4, the language includes a statement that the amendment does not imply that the dispensing of a controlled substance before the date of enactment was not a violation of the CSA. In light of the Attorney General’s letter of June 5, 1998, to you, concluding that "adverse action against a physician who has assisted in a suicide in full compliance with the Oregon Act would not be authorized by the CSA," we recommend a neutral construction regarding the effect of this amendment (e.g., “Nothing in this Act or the amendments made by this Act shall be construed to express an opinion as to whether the dispensing or distribution of a controlled substance before the date of enactment of this Act. . .").

Mr. Chairman, that completes my prepared remarks. I would be pleased to respond to any questions that you or other Members of the Committee may have.