COLUMN ONE : Reaching Out for the Dying : How far should nurses go to help those in pain, even if they may hasten death? A Montana hospice case ignites a debate about the risks of compassion.

HELENA, Mont. —  When it first came to light last fall, the “Hospice Six” affair was regarded by most people here as a minor impropriety.

Half a dozen nurses at the Hospice of St. Peter’s had been accepting leftover morphine from the families of patients who had died. They had been storing it in a supervisor’s unlocked desk drawer, then giving it to other terminally ill patients in emergencies, when pharmacies were closed.

The nurses kept no written records. Dead patients’ drugs are supposed to be destroyed. Excessive amounts of morphine can depress the respiratory system. But the nurses always obtained at least a doctor’s phone authorization, and most of their patients had a prior written prescription for the type of drugs provided.

Don’t worry, the state’s investigator told the senior nurse involved, Mary Mouat, when he came to interview her. The Board of Nursing will probably just give you a reprimand.

Only gradually did the Hospice Six affair begin to escalate.

When they arrived, the citations from the Professional Licensing Bureau talked not of minor infractions but of “serious and gross” violations. Punishment, the notice informed them, could involve suspension or revocation of the nurses’ licenses.

Alarmed, the hospital and nurses hired an attorney, who demanded a public hearing. Hundreds of outraged letters began flooding the local newspaper. People started walking around Helena wearing “Free the Hospice Six!” buttons. In a city of 24,500, more than 1,400 signed and paid for a $1,300 double-page ad announcing their support for the nurses.

By the time the case came before a Board of Nursing hearing examiner in mid-April, it was clear that something beyond the immediate facts of the Hospice Six affair was driving the confrontation.

Who cares if the painkillers hastened death? letter writers from across the country were arguing. People should not have to die in pain. Let me tell you about how my father died. God bless those nurses.

“It’s good that the public is raising these questions,” John Guy, the administrator of St. Peter’s Community Hospital, was saying. “We don’t talk about this issue, but we’re facing it all the time. That’s why this matter strikes a resonant chord. People are outraged at the system.”

Hold on, the state’s lawyer, Steven Shapiro, was responding. What have these hospice nurses been doing? Montana law doesn’t allow the hastening of death. If it occurs, it could be homicide.

In this fashion, what began as a routine proceeding over an unauthorized stash of painkillers blossomed, for a moment, into an impassioned, free-ranging debate about how dying people should die. This spring in Montana, a curtain was pulled back on the way in which health care for the dying truly functions below the surface of laws and public discourse. Voices were raised, arguments advanced, confessions offered.

Then, just as abruptly as it flew open, the curtain once more fell dark across the window.

Looking back now, it is hard to say just which event persuaded the six hospice nurses to start stockpiling morphine for their dying patients.

There was the night when Deborah Ruggles, after getting stuck for three hours in a snowstorm while trying to fill a prescription, could hear her patient’s screams as she finally drove up to his house. There was the night Ruth Sasser sat until dawn with a morphine-dependent patient who hours before had been discharged from the hospital without a morphine prescription. There was the morning when Verna VanDuynhoven found a patient--after waiting five hours for painkillers--curled in a fetal position, covered by urine and feces, refusing her daughters’ help.

Whatever the precise impetus, by the fall of 1989 a supply of morphine suppositories and other painkillers had accumulated in Mary Mouat’s unlocked desk drawer. Getting drugs on short notice through the official procedures sometimes was just too cumbersome for the nurses.

We can’t always forecast pain with dying patients, since conditions change rapidly, they would argue later. We can’t easily get prescriptions filled. State law requires a new written prescription each time you get more morphine for a patient, and that’s especially impractical now that we treat so many dying patients outside the hospital, in hospices or in their own homes. The hospital pharmacy gives priority to hospital inpatients--it’s often a three-hour wait for others. The pharmacy closes at 11 p.m. and finding the on-call pharmacist after that is chancy. The emergency room doctors won’t help. Locating private physicians takes time.

Theirs was not an uncommon problem. The medical community generally agrees that doctors--partly because they lack training in pain management, partly because they fear painkillers’ side effects, partly because they are influenced by the nation’s war on drugs--don’t do enough to ease patients’ suffering. Nearly two-thirds of physicians recently questioned by Dr. Jamie von Roenn at Northwestern University said they did a poor job of even learning whether their patients hurt, and 85% said they believe the majority of cancer patients in the United States are under-medicated.

“We do very well at alleviating illness and taking care of patients . . . ,” Dr. Peter Kozisek, medical director at the Hospice of St. Peter’s, told a Board of Nursing hearing examiner. “But historically, taking care of terminally ill patients has been something that the physicians don’t do particularly well.”

“I don’t think doctors really think one way or another of how nurses get prescriptions filled,” added hospice nurse Ruth Sasser. “I’m continually having to remind physicians how to go through the procedure.”

There were only about a dozen incidents in all, the Helena nurses later estimated, although without records that couldn’t be documented. For a patient on liquid morphine who suddenly could no longer swallow, Sasser grabbed a handful of morphine suppositories from Mouat’s drawer, after getting a doctor’s phone pledge to deliver a written prescription later in the day. For a patient with a prescription but little money to pay for his medicine, Lynn Zavalney grabbed another handful. For a patient who had been writhing in pain all night, Alene Brackman took two more.

“What we do as nurses is we make choices and we make judgments,” Brackman said later. “And my judgment here was the patient needs medication now. He doesn’t need it in three hours. He needs it now. And if I can provide it, that’s what I am going to do.”

The investigation began after another nurse complained to supervisors. Within days, all six nurses provided the state investigator with voluntary, unguarded statements of admission. The hospital quickly adopted corrective measures making it easier for them to get drugs during off-hours. Mouat destroyed the stockpile in her drawer. The nurses offered to accept letters of reprimand from the Board of Nursing.

All this, however, was not good enough for Steven Shapiro, who serves as legal counsel to the state Department of Commerce’s public safety division, which includes the Board of Nursing.

Most people were missing the point about this case, it seemed to him. This case was not about compassion or suffering or the right to die. Nor was this about a “technical violation.” This case was about the mishandling of drugs. This case was about nurses who had violated the ethics and regulations of their profession.

Why, he sees stuff like that all the time--his office regulates, among others, nursing homes, chiropractors, veterinarians, psychologists. White-collar workers don’t like fingers pointed at them, but things happen. Patient abuse, negligence, drug diversions. He has to deal with it. It’s unpleasant, but necessary.

The hospice nurses, it seemed to Shapiro, had not responded well when the case was first opened. Mouat, panicking, forged a signature on a drug disposal register. Two other nurses hung onto a few morphine suppositories even after Mouat’s desk drawer was cleaned out. The situation hadn’t been fully corrected until hospital management intervened weeks later.

The hospice nurses said they used the stockpile only a dozen times, but who knew what numbers and amounts were involved? Anybody in town could have walked in and taken from that drawer. What if an addict learned that the nurses were carrying drugs? True, there was no evidence of harm, but that missed the point. The point was to protect the public and patients from even the risk of harm. The risk here was obvious--the drugs in that drawer could be contaminated or adulterated or misused.

“Preventing risk is why you have a stop sign at a corner,” Shapiro began telling people. “If you don’t stop, the police give you a ticket, even if there’s no traffic for miles around.”

He wanted six-month suspensions and five years of probation for five of the nurses. That was tough, since it would cripple their chances for finding work in the future. But for Mouat, Shapiro wanted more. Since she was a supervisor, he wanted Mouat’s license revoked outright until she was “rehabilitated.”

The Helena medical community was astounded.

What the nurses did happens all the time, pointed out Dr. Ken Eden, who served as the hospice’s first medical director in the early 1980s. In fact, he has done it himself for patients who couldn’t afford to buy their own medicine. “If you ask me to make a choice between the patient . . . not being properly treated and giving him a drug that I have access to,” he said, “I think the choice is fairly obvious. . . . I would consider it unethical to withhold the medication. . . .”

“It was not a good practice but this is a bookkeeping violation and nothing more,” argued Guy, the hospital administrator. “They ran a stoplight on the way to an emergency. . . . I hope Mary Mouat isn’t ever rehabilitated. What is she supposed to do, have a lobotomy and get rid of her caring and compassion?”

Shapiro endured the onslaught without wavering. “I didn’t write the laws,” he said one morning during the height of the debate. “I just have the job of enforcing them. I don’t have a choice.”

Shapiro was sitting in his office as he spoke. Just then, a clerk delivered his weekly paycheck. Shapiro waved it in the air. “This is what I get for all this. This is terrible pay. But this is what I do. Just like the care of the dying is what they do.”

It was by increments that the debate over the Hospice Six case began to broaden its focus.

The public, in a deluge of letters, led the way.

“Let me tell you how my father died,” wrote Maurice Wymore. “In absolute agony. Held on a hospital table by my mother and sister and two nurses. They had no morphine stash. . . . He died while they waited for the morphine. . . .”

“After working for 18 years in hospitals, I think the public had better wake up to what the situation is for terminally ill patients. . . . You are a prisoner of someone else’s compassion,” wrote Sydney Hoy.

Reading the letters that crossed her desk, hospice manager Bonnie Adee was amazed that most writers expressed ardent support, even though they thought the nurses had acted without doctors’ verbal guidance. The Hospice Six case had taken on the role of a myth. “They were going much further than the facts of our case,” Adee said. “They didn’t care if there was no prescription, no doctors, if the painkillers were illegal. I think the case was touching something really deep in people.”

Soon, the lawyers were following the public’s lead.

All of the patients whom the nurses supplied with morphine from the desk drawer, defense attorney Gary Davis pointed out, had signed the hospice’s standard living will, which says “medication can and should be administered to me to alleviate suffering, even though this may hasten the moment of my death.” So, he told the hearing officer, my clients “were following not only the physicians’ orders, but the written instructions of the patients.”

Wait a minute, Shapiro responded. What are you implying? What does this mean? It occurred to him that the nurses, by following the hospice’s living will instructions, might be engaging in something illegal.

Davis and Shapiro were treading into a treacherous gray zone. American Medical Assn. policy makes it acceptable to provide pain medication even if it might hasten death, as long as that is not the intent. But this policy is not consistent with statutes in Montana or most other states. As society’s attitudes and care givers’ practices have evolved, the precise wording of the law has not kept pace. There is a disparity between how the system actually works and how the law--focused on controlling narcotics--says it should work.

For this reason, Shapiro decided to look more closely at the hospice patients’ charts. In them he eventually thought he detected cases where narcotics might have been “inappropriately” given to patients with very weak vital signs. There was a suspiciously large “spike” in the amount of medicine given one particular patient during the last 24 hours of his life.

Shapiro first tried to raise this matter before the Board of Nursing hearing examiner, but was blocked by the rules of evidence. So instead, the state’s attorney wrote a warning letter to the nurses’ lawyer and talked to the local newspaper.

There are “indications” but no “hard evidence” of lives being shortened, he told a reporter. “The state’s living will statute does not imply moving someone along toward death. Administering too much medication could move them in that direction. . . . The doctors and nurses have to find their limits. At some point, there is nothing more to be done. It’s unfortunate. Yes, some people are going to suffer.”

By the time the executive director of the Board of Nursing, Dianne Wickham, weighed in with her personal story about offering a dying, pain-racked patient her hand rather than painkillers--”There is a point where you can no longer give medications that reduce vital functions”--the Helena community was in an uproar.

“It is unconscionable that the Hospice Six witch hunt has now extended to the patient’s right to the living will. I sympathize with the family of the patient that Diane Wickham decided should live another half-hour in pain,” one citizen wrote to the local paper.

“I recognize morphine might suppress my vital signs,” argued hospital administrator Guy. “But if I’m 79 and dying, and this hastens my death by 10 minutes or 10 days, who cares? Bring them on.”

“I have given injections of morphine knowing it could stop a patient’s breathing,” Dr. Eden reported. “It’s the right of the patient to determine whether to control the pain or extend the life. I think withholding of painkiller should be prosecutable.”

Listening to all this, the hospice nurses themselves felt overwhelmed. Several were single mothers, dependent on their paychecks. Two had chosen to aid the suffering because of firsthand experience--Sasser had battled cancer for three years and Ruggles had almost died from a ruptured appendix. Mouat, particularly, had a reputation in Helena for late-night missions of mercy, missions that by then were being described daily in letters to the editor and advertisements. None of the nurses were accustomed to being public figures.

Some, though, finally did speak out as the mid-April hearing drew to a close.

“I can’t fathom that someone in the care-taking profession could not understand the motivation for doing this,” Sasser said. “I look at it as a stupidity on my part in not trying to seek out another solution. I wasn’t very imaginative. But wrong? No.”

“These proceedings blemish my record and the records of the rest of us for a lifetime,” said VanDuynhoven. “It will follow us forever . . . . It feels like a witch hunt . . . . I don’t have to be a nurse. You may have my license, if that’s what you want.”

The hearing officer’s findings, released at the end of April, were unequivocal.

The nurses had violated technical fine points of state and federal laws, ruled John Bobinski. But they had done nothing substantively wrong. It was “unconscionable” that the state’s attorney was asking for lengthy suspensions and five years of probation. It was “unconscionable” that such punishment should even be considered. “I could not believe my ears . . . . I do not understand the zeal with which this case was prosecuted,” he wrote.

The Board of Nursing, however, did not share Bobinski’s attitude. Meeting in early May, the nine-member body, which consists of seven nurses and two lay members, voted against adopting its own hearing examiner’s findings. The board members wanted to review the record themselves.

The line began forming outside the Plaza Hotel basement meeting room in downtown Helena one hour before the Board of Nursing was to conduct its own inquiry on May 29. Local television cameras scanned the packed hallway as Biff Karlyn, nurse Ruth Sasser’s companion, handed out buttons reading “I am not Steven Shapiro (Don’t Shoot).”

The doors eventually swung open to reveal, sitting around a horseshoe-shaped table, eight Board of Nursing members (one was absent), the board’s executive director and administrative assistant, a court reporter and four lawyers. A thousand-page pile of documents, indexed by dozens of colored tags, rose before each board member. Two armed Helena policemen stood in a corner--there might be trouble, they explained.

Within minutes the board made clear that whatever the undertones driving the public debate, the matter before them involved not philosophical concerns about suffering, but a violation of the laws and rules by which nurses operate. Shapiro had been vilified by the community, but this case was rising not just from the excessive zeal of one prosecutor.

For hours they labored over the fine points. Was the distance between the hospice and the hospital two blocks or several blocks? Were the nurses guilty of “serious and gross” violations or just “serious” ones? Were their actions “within the scope of their employment?” When an elderly man wearing a cap walked in and stood in a corner, sipping coffee, board member Blanch Proul interrupted the proceedings to bark, “You, sir, could you remove your hat--you’re at a formal board meeting.” In the hallway during a break, Sasser inhaled on a cigarette, shook her head and said, “This is embarrassing.”

Eventually, though, the board members put aside the legal documents and began to offer heartfelt explanations for their posture. Theirs, it soon became clear, was a mission driven largely by a dedication to the rules that govern nursing and a fear of the potential disorder that lies on the far side of those rules. These were advocates of nursing by the book, looking at how nursing sometimes is practiced on the front lines among the dying.

The six hospice nurses talked about emergencies, but wasn’t it their job to anticipate their patients needs? Why hadn’t they ever tried to solve the problem by going to their supervisors? Wasn’t this mainly done as a matter of convenience for themselves?

“Rules and regulations exist precisely to prevent possible harm to patients or abuse by nurses,” said board member Kathleen Long, dean of the College of Nursing at Montana State University. “That’s why we need rules.”

“I am proud of this committee and of nursing,” said Chairwoman Donna Mae Snodgrass, a registered nurse who works as a nurse practitioner for Indian Health Service. “Our goal is to protect the consumer the best we can. If you sat on our board, you’d see some of the things that happen.”

“This hurts,” a third member told the hospice nurses. “You are my sisters. But I have to say this is below regular nursing standards. You have to work within our laws and rules, or else you have chaos.”

Each member had read the record before convening, so their judgment now was swift and unanimous. They were going to reject the hearing examiner’s findings and adopt their own, which for the most part would parallel Shapiro’s. They would not, however, impose the harsh punishments asked by the state’s attorney, since they saw no evidence of malicious intent or personal abuse.

The nurses instead would be put on probation for terms ranging from three to five years, during which they would have to pursue a program of education and make quarterly reports to the board. The record of their disciplinary action would go into a national data bank, and they would have to tell potential employers about their past. Most important, they would not be allowed to hold a supervisory position until reinstated.

“Compassionate but legal high-level care can be delivered and is by R.N.s,” Long told the hospice nurses. “These practices you adopted were not necessary.”

When the meeting adjourned, there was considerable uncertainty and disagreement about how to regard its outcome.

Shapiro was satisfied that the board members had embraced his views, and thankful that they hadn’t addressed the larger issues. By then, he had come to regret raising questions about the living will, believing it had become a “diversion” from the true case, a topic “blown out of proportion” by his opponents’ “orchestrated campaign.”

Davis, the nurses’ defense attorney, was not as satisfied, of course, but he, too, had come to believe the living will matter a “slippery slope” and “quagmire” that “we want to avoid.” The board’s decision, he said, “could have been worse.”

Others were considerably more frustrated that a curtain pulled open to the workings of their world was now closing without the board addressing the broader issues. There was talk among the nurses and their supporters of lobbying the Montana Legislature for a statute with specific language about “hastening death.” There was a decision to appeal the board’s ruling to the Montana state court system. Yes, the nurses told each other, we broke laws, but weren’t those laws outdated, given how hospice care now works?

“The law has left it gray,” said Adee, the hospice manager. “Maybe it’s something that can’t be left gray. Maybe it must be spelled out.”

“Nurses now will find it dangerous to be on the cutting edge,” fumed Dr. Eden. “It has a chilling effect. The board members are t-crossers and i-dotters. It’s not chaos that these hospice nurses are about, it’s a struggle to do the right thing. The right thing is not always what the law says. Doing the right thing is difficult.”

If the Hospice Six affair failed to provide a resolution, however, it did leave in its wake a considerable impact. Four of the nurses have already left the hospice. Mary Mouat resigned first and no longer even works as a nurse. Banned from supervising roles, burdened with a blemished record, the effort no longer seemed worthwhile.

“I don’t think any of them will be working as nurses within five years,” Adee said one recent morning. “Why would they?”