Washington: Don't Copy Oregon
Herbert Hendin, M.D.
On November 4, voters in Washington state will decide whether to approve Initiative 1000, a proposal to legalize assisted suicide modeled after the Oregon Death with Dignity Act. They may vote on the basis of a mistaken belief that Oregonians are receiving what they had been promised from their state's law -- relief from intractable suffering at the end of life, and protection from abuse through built-in safeguards.
The Washington proposal, like its Oregon model, does include what may seem to be reasonable safeguards: presenting patients with the option of palliative care; ensuring they are competent to make a life-ending decision for themselves; limiting the procedure to patients who are terminally ill and make two voluntary requests in a two-week period; requiring a second opinion on the case; encouraging the involvement of next of kin; and requiring physicians to report their cases to the public health department.
However, these safeguards are largely a façade because there are no adequate procedures or guidelines for determining when or whether they are complied with. Apart from asking for a limited amount of information from the physicians prescribing lethal medication, Washington (like Oregon) will ensure that information collected by the state is not open to public scrutiny. The Washington proposal even goes a step further, requiring the physician who prescribes the lethal medication (who may be present when the patient takes it) to sign the death certificate and list the underlying terminal illness (not the lethal medication) as the cause of death. Essentially this requires the physician to falsify the death certificate. Neither state provides for any independent researcher or evaluator to review the available data.
Physicians who declined to prescribe the lethal medication, as well as nurses and social workers who cared for the patient - that is, those who often know the patient best and understand how the law will actually affect him or her - will not be interviewed. Moreover, the evidence from surveys of such health care professionals in Oregon strongly contradicts the claim in annual reports from the Oregon Public Health Division (OPHD) that adequate palliative care is being provided to terminally ill Oregonians. In fact, a higher percentage of terminally ill patients has experienced inadequately treated pain since the Oregon law went into effect. It is worth considering that health professionals' motivation to learn and exercise the art of good palliative care may be reduced when they know their most difficult cases can simply be offered lethal medication.
In Washington, as in the Oregon law, intolerable suffering will not be a necessary criterion to receive assisted suicide. A diagnosis of terminal illness, with a prognosis of less than six months to live, will be sufficient. Thus physicians will be able to assist in suicide without inquiring into the source of the medical, psychological, social, and existential concerns that usually underlie requests for hastened death - the kind of discussion that often leads to relief for patients. Nor need patients be told that predictions of dying within six months are notoriously unreliable. Such predictions will of course not be found inaccurate, but will be self-fulfilling prophecies, if the prognosis leads to a patient's assisted suicide in two weeks.
In Washington, as in Oregon, physicians will need only to tell a terminally ill patient requesting assisted suicide that palliative care and hospice care are feasible alternatives. They will not be required to know how to relieve these patients' physical or emotional suffering, or to refer them to a physician who does. Most physicians tragically do not have this knowledge, and so cannot meaningfully offer the feasible alternatives.
Under such a law, the focus shifts away from relieving the distress of dying patients considering a hastened death, to meeting statutory requirements. Under Oregon's law, in only thirteen percent of the first 142 requests for assisted suicide was a palliative care consultation even recommended.
The issue of the emotional state of the patient is also treated cavalierly. A psychiatric evaluation is the medical standard of care for any patient requesting suicide. This is no longer true in Oregon and will not be in Washington. Only if the attending physician himself personally believes a patient requesting assisted suicide has a psychiatric or psychological disorder need he refer the patient to a licensed psychiatrist or psychologist. Studies show that physicians are not reliably able to determine whether patients are suffering from depression, the most common condition underlying a request for assisted suicide. Yet in Oregon, the percentage of cases referred for psychiatric evaluation has dropped from an average of 14% in the first five years of the new law to 4% in 2006. And in the rare case when a psychiatric evaluation is employed, it tends to be used to protect clinicians rather than patients.
Consider just one case. Joan Lucas, a patient with amyotrophic lateral sclerosis, had attempted suicide. She was assisted in suicide eighteen days later by a physician who gave interviews about the case to an Oregon newspaper. He stated that after talking with attorneys from the Oregon Medical Association and agreeing to help aid Joan in death, he asked her to undergo a psychological examination. "I elected to get a psychological evaluation because I wished to cover my ass," he said. "I didn't want there to be any problems."
The doctor and family found a cooperative psychologist who asked Joan to take the MMPI, a standard psychological test. Because it was difficult for Joan to travel to the psychologist's office, her children read the true-false questions to her at home. The family found the questions funny, and Joan's daughter described the family as "cracking up over them."
Based on these test results, the psychologist concluded that whatever depression Joan had was simply a normal response to her terminal illness. He was willing to give an opinion that facilitated ending Joan's life, without ever meeting her.
In the Lucas case we have no way of knowing if Joan Lucas was seriously depressed, or if the doctor or psychologist were disposed to proceed even if she were. Without a proper psychiatric evaluation one cannot tell whether the great majority of the patients committing suicide under the Oregon law may have had impaired judgment making them incapable of an informed decision.
Moreover, such consultations are stripped of meaning when psychiatrists and psychologists are enlisted only as gatekeepers to establish a patient's eligibility for assisted suicide. As a psychiatrist who has studied and written about suicide for [xx] years, I can verify that most suicide attempts reflect a person's ambivalence about dying - and this is no less true of seriously ill patients requesting assisted suicide. Many patients have anxiety and fear over what will happen to them, sometimes exacerbated by the earlier traumatic death of someone close to them. When they are treated by physicians who can hear their desperation, understand their ambivalence, treat their depression, and relieve their suffering, the wish to die usually disappears. Physicians inexperienced in dealing with suicidal patients tend to take requests to die literally and concretely, and may act on them while failing to hear this ambivalence. Laws like Oregon's encourage them to do so.
This kind of law protects doctors, not patients. Oregon physicians assisting a suicide are exempt from the ordinary standards of care, skill, and diligence required of Oregon and Washington physicians in other circumstances (e.g., when withdrawing life support). Physicians are immunized from civil and criminal liability for actions taken in "good faith" in assisting a suicide, even when they physician act negligently.
"Good faith" is a troublesome and subjective standard. Professional practices are generally governed by a negligence standard, based on objective and established medical guidelines. The "good faith" standard is ideal for protecting physicians from accountability, but provides little or no protection for patients.
The Oregon model's failure to provide for monitoring of these cases encourages the use of assisted suicide for patients who, if given adequate medical and psychiatric care, would be glad to live and able to enjoy whatever time they have left. With good palliative care, distressing symptoms can be relieved-even if for a small number of terminally ill patients heavy sedation is required. Physicians who are most knowledgeable about palliative care are the least likely to favor assisted suicide.
The Oregon law (and its proposed companion in Washington) gives physicians great power, without helping them to exercise it responsibly. It expects them to inform patients that alternatives are possible, without requiring them to be knowledgeable about such alternatives or to consult with someone who is. It expects them to evaluate patient decision-making capacity, without requiring or encouraging consultation with the professionals able to do so. It expects them to make decisions about voluntariness, without having to meet those close to the patient who may be exerting a variety of pressures from subtle to coercive. It expects them to do all this without necessarily knowing the patient for more than fifteen days. And it then permits those physicians to practice substandard medicine, by refusing to hold them responsible for wrongful deaths if they feel they acted in "good faith." Physicians are protected from the consequences, and patients are left unprotected while believing they have acquired a new right.
Washingtonians need to take the time to understand the serious flaws that their state's proposal has copied from the Oregon law. Otherwise, even with the best of intentions, they will encounter the same problems in implementing their proposed statute, to the detriment of those who are terminally ill. Washington should not repeat Oregon's mistakes.
Herbert Hendin, M.D. is CEO and Medical Director of Suicide Prevention International and Professor of Psychiatry at New York Medical College.