[Federal Register Volume 66, Number 218 (Friday, November 9, 2001)]
[Rules and Regulations]
[Pages 56607-56608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28358]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

21 CFR Part 1306

[AG Order No. 2534-2001]


Dispensing of Controlled Substances To Assist Suicide

AGENCY: Department of Justice.

[[Page 56608]]


ACTION: Interpretive rule.

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SUMMARY: For the reasons provided in the memorandum set forth below, 
the Attorney General has determined that assisting suicide is not a 
``legitimate medical purpose'' within the meaning of 21 CFR 1306.04 
(2001), and that prescribing, dispensing, or administering federally 
controlled substances to assist suicide violates the Controlled 
Substances Act. Such conduct by a physician registered to dispense 
controlled substances may ``render his registration . . . inconsistent 
with the public interest'' and therefore subject to possible suspension 
or revocation under 21 U.S.C. 824(a)(4). The Attorney General's 
conclusion applies regardless of whether state law authorizes or 
permits such conduct by practitioners or others and regardless of the 
condition of the person whose suicide is assisted. The Attorney General 
recognizes, however, that pain management is a legitimate medical 
purpose justifying a physician's dispensing of controlled substances. 
Finally, the Attorney General's determination makes no change in the 
current standards and practices of the DEA in any State other than 
Oregon.

EFFECTIVE DATE: November 9, 2001.

FOR FURTHER INFORMATION CONTACT: Patricia Good, Chief, Liaison and 
Policy Section, Office of Diversion Control, Drug Enforcement 
Administration, Washington, D.C. 20537, telephone 202-307-7297.

SUPPLEMENTARY INFORMATION: The text of the Attorney General's 
memorandum follows:

Memorandum for Asa Hutchinson, Administrator, The Drug Enforcement 
Administration
From: John Ashcroft, Attorney General
Subject: Dispensing of Controlled Substances to Assist Suicide

    As you are aware, the Supreme Court reaffirmed last term that 
the application of federal law regulating controlled substances is 
uniform throughout the United States and may not be nullified by the 
legislative decisions of individual States. See United States v. 
Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001). In light of 
this decision, questions have been raised about the validity of an 
Attorney General letter dated June 5, 1998, which overruled an 
earlier Drug Enforcement Administration (DEA) determination that 
narcotics and other dangerous drugs controlled by federal law may 
not be dispensed consistently with the Controlled Substances Act, 21 
U.S.C. 801-971 (1994 & Supp. II 1996) (CSA), to assist suicide in 
the United States. Upon review of the Oakland Cannabis decision and 
other relevant authorities, I have concluded that the DEA's original 
reading of the CSA--that controlled substances may not be dispensed 
to assist suicide--was correct. I therefore advise you that the 
original DEA determination is reinstated and should be implemented 
as set forth in greater detail below.
    The attached Office of Legal Counsel opinion, entitled ``Whether 
Physician-Assisted Suicide Serves a ``Legitimate Medical Purpose'' 
Under The Drug Enforcement Administration's Regulations Implementing 
the Controlled Substances Act'' (June 27, 2001) (``OLC Opinion'') 
(attached) sets forth the legal basis for my decision.
    1. Determination on Use of Federally Controlled Substances to 
Assist Suicide. For the reasons set forth in the OLC Opinion, I 
hereby determine that assisting suicide is not a ``legitimate 
medical purpose'' within the meaning of 21 CFR Sec. 1306.04 (2001), 
and that prescribing, dispensing, or administering federally 
controlled substances to assist suicide violates the CSA. Such 
conduct by a physician registered to dispense controlled substances 
may ``render his registration * * * inconsistent with the public 
interest'' and therefore subject to possible suspension or 
revocation under 21 U.S.C. 824(a)(4). This conclusion applies 
regardless of whether state law authorizes or permits such conduct 
by practitioners or others and regardless of the condition of the 
person whose suicide is assisted.
    I hereby direct the DEA, effective upon publication of this 
memorandum in the Federal Register, to enforce and apply this 
determination, notwithstanding anything to the contrary in the June 
5, 1998, Attorney General's letter.
    2. Use of Controlled Substances to Manage Pain Promoted. Pain 
management, rather than assisted suicide, has long been recognized 
as a legitimate medical purpose justifying physicians' dispensing of 
controlled substances. There are important medical, ethical, and 
legal distinctions between intentionally causing a patient's death 
and providing sufficient dosages of pain medication necessary to 
eliminate or alleviate pain.
    3. No Change in Current DEA Policies and Enforcement Practices 
Outside Oregon. The reinstated determination makes no change in the 
current standards and practices of the DEA in any State other than 
Oregon. Former Attorney General Janet Reno's June 5, 1998, letter 
relating to this matter emphasized that action to revoke the DEA 
registration of a physician who uses federally controlled substances 
to assist a suicide ``may well be warranted * * * where a physician 
assists in a suicide in a state that has not authorized the practice 
under any conditions.'' The reinstated determination does not 
portend any increase in investigative activity or other change from 
the manner in which the DEA presently enforces this policy outside 
of Oregon.
    4. Enforcement in Oregon. Under 3 Oregon Revised Statutes 
(O.R.S.) Sec. 127.855 (1999), an attending physician who writes a 
prescription for medication to end the life of a qualified patient 
must document the medication prescribed. Under 3 O.R.S. 
Sec. 127.865(1)(b) (1999), the State of Oregon's Health Division 
must require any health care provider upon dispensing medication 
pursuant to the Death with Dignity Act to file a copy of the 
dispensing record with the Division. Those records should contain 
the information necessary to determine whether those holding DEA 
registrations who assist suicides in accordance with Oregon law are 
prescribing federally controlled substances for that purpose in 
violation of the CSA as construed by this Memorandum and the 
attached OLC Opinion.
    The Department has the authority to take appropriate measures to 
obtain copies of any such reports or records sent to the Oregon 
State Registrar. See 21 U.S.C. 876. When inspection of these 
documents discloses prohibited prescription of controlled substances 
to assist suicide following the effective date of this memorandum, 
then appropriate administrative action may be taken in accordance 
with 21 CFR Secs. 1316.41 to 1316.68 (2001).
    Thus, it should be possible to identify the cases in which 
federally controlled substances are used to assist suicide in Oregon 
in compliance with Oregon law by obtaining reports from the Oregon 
State Registrar without having to review patient medical records or 
otherwise investigate doctors. Accordingly, implementation of this 
directive in Oregon should not change the DEA's current practices 
with regard to enforcing the CSA so as materially to increase 
monitoring or investigation of physicians or other health care 
providers or to increase review of physicians' prescribing patterns 
of controlled substances used for pain relief.
    5. Distribution. Please ensure that this Memorandum and the OLC 
opinion on which it is based are promptly distributed to appropriate 
DEA personnel, especially those with authority over the enforcement 
of the CSA in Oregon.

Attachment

    Note: The attachment containing the Office of Legal Counsel 
opinion dated June 27, 2001, does not appear in the Federal 
Register. It is available from the Drug Enforcement Administration 
at the address listed in FOR FURTHER INFORMATION CONTACT.


    Dated: November 6, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-28358 Filed 11-7-01; 12:43 pm]
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