REFLECTIONS ON OREGON'S
By Barry A. Bostrom, M.Div., J.D.
Executive Editor, Issues in Law & Medicine
Editor's note. Issues in Law & Medicine is a quarterly peer-reviewed professional journal published by the National Legal Center for the Medically Dependent & Disabled, Inc.; the Horatio R. Storer Foundation, Inc.; and the American Academy of Medical Ethics, Inc. The Horatio R. Storer Foundation is funded by grants from the National Right to Life Educational Trust Fund. Published since 1985, Issues is devoted to providing technical and informational assistance to attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions.
The featured article in the winter 1998 issue of Issues in Law and Medicine, written by Herbert Hendin, M.D., professor of psychiatry and medical director of the American Foundation for Suicide Prevention; Kathleen Foley, M.D., professor of neurology, neuroscience, and clinical pharmacology; and Margot White, J.D., attorney and bioethicist, closely examines Oregon's first reported physician-assisted suicide. After carefully reviewing the record, the authors offer a measured but straightforward critique.
Oregon's 1994 "Death with Dignity" law legalized physician-assisted suicide. The unprecedented measure was initially found unconstitutional by the United States District Court in Oregon.
However, this decision subsequently was overturned by the 9th Circuit Court of Appeals, a decision the U.S. Supreme Court declined to review. In November 1997 a lengthy legal battle culminated when the first law of its kind in the world went into effect.
The death of "Mrs. A" was reported as the first victim of the "Oregon Death with Dignity Act." She was described as being in her mid-80s with metastatic breast cancer, and in a hospice program.
In a harbinger of later assisted suicides, Mrs. A's own physician was unwilling to assist in her suicide for reasons that were not specified. A second physician also refused on the grounds that Mrs. A was depressed.
However, Mrs. A's husband called an organization called "Compassion in Dying" and was referred to a doctor willing to participate in her suicide.
Hendin, Foley, and White critique the effectiveness of the act's supposed safeguards as illustrated by the case of Mrs. A. To begin with the authors point out that the act does not require that physicians be adequately trained in palliative care in order to participate in assisted suicide.
Nor does the act ensure that physicians will be in a position to assess coercion of patients' decisions, they explain. The act requires physicians to report only minimal information about their cases, and there are no enforcement provisions to see that even this is done. The authors further demonstrate that the act protects physicians more than patients.
Significantly, they conclude that the act encourages secrecy. They argue that secrecy will need to be replaced by openness to permit the kind of examination that the dangerous practice of assisted suicide warrants.
The Abstracts section includes excerpts from recent articles appearing in other professional journals on subjects of interest.
Alan Meisel, in "Physician Assisted Suicide: A Common Law Roadmap for State Courts," presents an argument for legalizing assisted suicide. Meisel points out that doctors have been permitted to kill terminally ill patients for at least two decades.
Despite the use of sanitizing phrases like "forgoing life-sustaining treatment," he argues that we need to recognize that this is what has been happening. Once it is understood why this has been allowed and why it has been accepted, he claims that it is simple to see that only two choices remain: re-criminalize forgoing life-sustaining treatment or de-criminalize physician-assisted suicide. He favors the latter.
Ezekiel J. Emanuel and Margaret P. Battin, in "What Are the Potential Cost Savings from Legalizing Physician-Assisted Suicide?" examine the potential cost savings from legalizing assisted suicide.
Their argument assumes that (1) 2.7 percent of patients who die each year (62,000 Americans) would choose physician-assisted suicide, (2) these patients would forgo an average of four weeks of life, and (3) the medical costs in the last month of life for each patient who dies are $10,118 (in 1995 dollars). From this the authors estimate that legalizing physician-assisted suicide and euthanasia would save approximately $627 million in 1995 dollars. This amount is less than 0.07% of total U.S. health care expenditures.
Emanuel and Battin conclude that although the overall national savings from legalizing physician-assisted suicide might be small, for many families -- especially those of uninsured patients -- the savings could be substantial. What savings level, if any, would motivate families to pressure patients into requesting a physician's assistance with suicide is a matter of speculation but one that cannot be ignored.
Mark D. Sullivan et al., in their article entitled "Should Psychiatrists Serve as Gatekeepers for Physician-Assisted Suicide?" explain why psychiatrists should not be gatekeepers for assisted suicide. Many psychiatrists do not regularly work with seriously ill and dying patients in hospital, nursing home, or hospice settings.
In a survey of over 700 Oregon psychiatrists and psychologists, only three respondents reported working with hospice patients in the past year. Further, only 6% of psychiatrists were very confident that they could, within the context of a single evaluation, assess whether a psychiatric disorder was impairing the judgment of a patient desiring assisted suicide.
Ezekiel J. Emanuel et al., in their article entitled "The Practice of Euthanasia and Physician-Assisted Suicide in the United States: Adherence to Proposed Safeguards and Effects on Physicians," provide the results of a study of the practice of euthanasia and physician-assisted suicide (PAS) in the United States.
The objective of this study was to determine whether the practices of euthanasia and PAS are consistent with proposed safeguards and the effect on physicians of having performed euthanasia or PAS. The study reveals that of the cases studied oncologists adhered to all three main safeguards in only 34.2% of the cases.
The purported safeguards studied were: (1) having the patient initiate and repeat the request for euthanasia or PAS, (2) ensuring the patient was experiencing extreme physical pain or suffering, and (3) consulting with a colleague.
Daniel P. Sulmasy et al., in "Physician Resource Use and Willingness to Participate in Assisted Suicide," present a study of physician willingness to participate in assisted suicide. The objective of this study was to explore the relationship between general internists' tendency to conserve medical resources and their willingness to participate in physician-assisted suicide.
Sulmasy et al.'s study revealed that 67% of the 206 physician respondents indicated that they would participate in the suicide of the depicted patient. It also showed that physicians who were more conservative with resources were 6.4 times more likely than their resource-intensive counterparts to prescribe the requested drugs, and minority physicians were less willing than whites to participate in physician-assisted suicide.
The Verbatim section of Issues reprints noteworthy items word for word. The first item in the winter 1998 issue is a position paper of the National Council on Disability that opposes assisted suicide and is entitled "Assisted Suicide: A Disability Perspective." Although it was written shortly before the United States Supreme Court decisions in Quill and Glucksberg, the position paper provides an invaluable disability perspective in opposition to assisted suicide that still needs to be heard.
The second item in the Verbatim section is the House Judiciary Subcommittee on the Constitution report on "Physician-Assisted Suicide and Euthanasia in the Netherlands." A comprehensive review and critique of the evolution of assisted suicide and euthanasia in the Netherlands, the report is worth its weight in gold.
After examining the history of physician-assisted suicide in the Netherlands, the report concludes that it has moved from assisted suicide to euthanasia; from euthanasia for people who are terminally ill to euthanasia for those who are chronically ill; from euthanasia for physical illness to euthanasia for psychological distress; and from voluntary euthanasia to involuntary euthanasia.
The tragedy is that there is no way to stop the slide to nonvoluntary euthanasia once a society steps onto the slippery slope by penalizing physician-assisted suicide.
Third, the "Oregon Death with Dignity Act" -- the subject of the lead article -- is reprinted in its entirety.
The fourth item in the Verbatim section is a memo that was issued to Oregon county vital statistic officers requiring the confidentiality of death certificates for persons who die by physician-assisted suicide.
Fifth is the August 18, 1998, press release of the Oregon Health Division announcing the death of the first 10 persons who obtained prescriptions for lethal medications under the Act.
The sixth and seventh items in the Verbatim section are press releases issued by Physicians for Compassionate Care in Oregon. They provide notice that a major palliative care medication had been removed from the list of medicines provided to Oregon's poor, while physician-assisted suicide has been added to the list of medical "benefits" provided by the state to needy persons.
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