Physician-assisted suicide in Oregon: a medical perspective.

• Author: Hendin, Herbert

ABSTRACT: This article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector of the welfare of terminally ill patients. We make explicit suggestions for what OPHD would need to do to change that.

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In 1997, five months after the U.S. Supreme Court ruled that there was no right to assisted suicide in the Constitution but implied that states have the right to decide for themselves whether to permit or prohibit physician-assisted suicide, the Oregon Death with Dignity Act, having survived its own legal challenges, took effect. (1) It was thought that Oregon would serve as a "laboratory of the states," showing us how physician-assisted suicide ("PAS") would work. This has not occurred, in large part because the Oregon Public Health Division ("OPHD"), charged with monitoring the law, has interpreted its mandate in an extremely restrictive manner.

OPHD limits its yearly reports to general epidemiological data and collects limited information from physicians who have prescribed lethal medication. Physicians who declined to prescribe the lethal medication, as well as nurses and social workers who cared for the patients, pharmacists who filled the prescriptions, and family members, are not interviewed. Not all the information collected is made public, (2) and after a year "all source documentation is destroyed." (3)

Since the passage of Oregon's Death with Dignity Act, however, various sources--patients, families, healthcare professionals, physicians, nurses, social workers, chaplains, and advocacy groups--have supplied more detailed information that suggests that the implementation of the law has had unintended, harmful consequences for patients.

The Oregon law seems to require reasonable safeguards regarding the care of patients near the end of life, which include presenting patients with the option for palliative care; ensuring that patients are competent to make end-of-life decisions for themselves; limiting the procedure to patients who are terminally ill; ensuring the voluntariness of the request; obtaining a second opinion on the case; requiring the request to be persistent, i.e., made a second time after a two week interval; encouraging the involvement of the next of kin; and requiring physicians to inform OPHD of all cases in which they have written a prescription for the purpose of assisted suicide.

The evidence strongly suggests that these safeguards are circumvented in ways that are harmful to patients. Addressing and correcting the situation would require more information than OPHD has been willing to obtain. Instead, based on the inadequate information it collects, OPHD has been issuing annual reports declaring that terminally ill Oregon patients are receiving adequate care. The available evidence, which we will present in this article, suggests otherwise.

Nothing in the Oregon law prevents OPHD from collecting needed information.

During the second year of the law, OPHD did undertake a survey of the family members of patients who had been assisted in suicide. (4) Apart from not permitting independent investigators to examine the data, the Oregon law gives OPHD great flexibility. OPHD has not taken advantage of this opportunity.

This article draws on six cases previously published, three of them by us. In four of them there was independent information from more than one source. In two of the cases the information is provided by one source only--in one case by a proponent, and in the other by an opponent, of assisted suicide. This article differs, however, from our earlier treatments of the subject since it focuses on the implementation of the Oregon law and not on the law itself. (5)

Part I of this article examines OPHD's failure to ensure that palliative care alternatives to PAS are made available to patients. Parts II and III discuss the adequacy of safeguards to ensure a patient's psychiatric health and the voluntariness of the decision. Part IV discusses the emphasis on protecting physicians, rather than patients. Part V examines the role of advocacy groups for assisted suicide. Part VI describes how Oregon's current approach to patient requests for PAS differs from the accepted medical approach both to suicide and to requests for assisted suicide. Part VII concludes with an analysis of the main concerns raised by OPHD's monitoring of the Oregon law and suggests how these concerns could be addressed.

1. Providing Alternatives

   In Oregon, intolerable suffering that cannot be relieved is not a basic requirement of assisted suicide as it is in the Netherlands, the only country to give legal sanction to assisted suicide and euthanasia. (6) A diagnosis of terminal illness with a prognosis of less than six months to live is considered a sufficient criterion.

   The unintended consequence of this provision is that it enables physicians to assist in suicide without inquiring into the source of the medical, psychological, social, and existential concerns that usually underlie requests for assisted suicide, even though this type of inquiry produces the kind of discussion that often leads to relief for patients and makes assisted suicide seem unnecessary. (7) When a terminally ill Oregon patient makes a request for assisted suicide, physicians are required to indicate that palliative care and hospice care are feasible alternatives. They are not required, however, to be knowledgeable about how to relieve physical or emotional suffering in terminally ill patients. Without such knowledge, which most physicians do not have, they cannot present or make feasible alternatives available. Nor in the absence of such knowledge are they required to refer the patient to a physician with expertise in palliative care.

   In the absence of adequate monitoring, the focus shifts away from relieving the distress of dying patients considering a hastened death to meeting the statutory requirements for assisted suicide. Physicians can merely go through the motions of presenting the possibility of palliative care for their patients. How this happens is suggested by a case which was publicized by Compassion in Dying (now Compassion and Choices), an advocacy group which promotes legalized PAS, as the first case of assisted suicide under the Oregon law. (8)

   1. The First Case: Helen

      In earlier works, we gave an account of this case based on a news conference given by Compassion in Dying, our own correspondence with the doctor who assisted in the suicide, and other sources of information to which we will refer. The conference described how a patient in her mid-eighties, who had been diagnosed with metastatic breast cancer and who was then living in a hospice, came to choose assisted suicide.

      Helen's own physician had refused to assist in her suicide for unspecified reasons. A second physician refused on the grounds that Helen was depressed. Helen's husband then called Compassion in Dying and was referred to a physician who would assist her.

      The medical director of Compassion in Dying said that he had spoken by phone with Helen at the time of the referral and also spoke by phone to her son and daughter. He described Helen as "'rational, determined and steadfast'" (9) and questioned the opinion of the physician (with whom the medical director also spoke by phone) who described her as having a depression that was affecting her desire to die. He said Helen was "'frustrated and crying because she was feeling powerless.'" (10) He said she had been doing aerobic exercises up until two weeks before she contacted him but told him she could not do them anymore. She was also unable to continue to garden, which had been one of her favorite activities. The medical director said she was not bedridden, was not in great pain, and was still able to look after her own house. He said the "'quality of her life was just disappearing,'" (11) and he thought it prudent to act quickly before Helen lost the capacity to make decisions for herself. (12) He said she was "'going downhill rapidly.... She could have had a stroke tomorrow and lost her opportunity to die in the way that she wanted.'" (13)

      The physician who agreed to prescribe the medication had met Helen two and a half weeks before she died and described her as having more physical discomfort than Compassion in Dying had indicated. He said that after twenty years the cancer had spread to her lungs, causing some pain and shortness of breath. He followed a protocol that included an anti-nausea medication that Helen had taken before he arrived to be with her and her family when she died. She then took a mixture of barbiturates (nine grams) and syrup followed by a glass of brandy. She is said to have died within thirty minutes.

   2. The Medical Decision

      Helen's case was presented by Compassion in Dying as an example of how well the Oregon law is being implemented. (14) The organization did not seem aware that, contrary to their expectations, their presentation would raise troubling questions.

      The physicians who evaluated Helen offered two contradictory sets of opinions about the appropriateness of her decision. As the decision-making process progressed, there was no mechanism in place for resolving the disagreement based on medical expertise. An ethics committee that would hear the facts of the case before going forward could have resolved this dispute. Instead, the opinions of the two doctors who did not support the patient's decision--one who...