September 3, 2008 03:15 PM

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PHYSICIAN-ASSISTED SUICIDE IN OREGON:
A MEDICAL PERSPECTIVE
Herbert Hendin*
Kathleen Foley**
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.
Table of Contents
Introduction.................................................................................... 1613
I. Providing Alternatives .................................................... 1615
II. Psychiatric Concerns ........................................................ 1620
III. Voluntariness and the Risk of Coercion ...................... 1624
IV. Protection for Physicians Instead of Patients ............ 1626
V. The Role of Compassion in Dying.................................... 1628
VI. A Comparison of Two Different Approaches ................ 1630
VII. Ten-Year Perspective ........................................................ 1634
Introduction
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 physicianassisted
suicide, the Oregon Death with Dignity Act, having survived its
own legal challenges, took effect.1 It was thought that Oregon would serve
* Chief Executive Officer and Medical Director, Suicide Prevention International; Professor
of Psychiatry, New York Medical College.
** Attending Neurologist, Memorial Sloan-Kettering Cancer Center; Professor of Neurology,
Neuroscience, and Clinical Pharmacology, Weill Medical College of Cornell University;
Medical Director, International Palliative Care Initiative of the Open Society Institute.
1. Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800–.897 (1997).
1614 Michigan Law Review [Vol. 106:1613
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.
2. Kathleen Foley & Herbert Hendin, The Oregon Experiment, in The Case against
Assisted Suicide: For the Right to End-of-Life Care 144, 144–45 (Kathleen Foley & Herbert
Hendin eds., 2004).
3. FAQs about the Death With Dignity Act, http://www.oregon.gov/DHS/ph/pas/faqs.shtml
(last visited Apr. 3, 2008).
4. Amy D. Sullivan et al., Legalized Physician-Assisted Suicide in Oregon—The Second
Year, New Eng. J. Med. 598 (2000).
June 2008] Physician-Assisted Suicide in Oregon 1615
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.
I. 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
5. Two of the cases were first published in our 2002 book, The Case against Assisted
Suicide: For the Right to End-of-Life Care, supra note 2, copyright © 2002 by The Johns
Hopkins University Press. They are reprinted in modified form with permission of The Johns
Hopkins University Press. We have reprinted with permission modified portions of Kathleen Foley
& Herbert Hendin, The Oregon Report: Don’t Ask, Don’t Tell, Hastings Center Rep., May–Jun.
1999, at 37, copyright © 1999 by The Hastings Center. Excerpts from the original article Herbert
Hendin, Kathleen Foley & Margot White, Physician-Assisted Suicide: Reflections on Oregon’s First
Case, 14 Issues in L. & Med. 243 (1998) are reprinted with permission. Copyright © 1998 by the
National Legal Center for the Medically Dependent & Disabled, Inc.
6. Herbert Hendin et al., Physician-Assisted Suicide and Euthanasia in the Netherlands:
Lessons From the Dutch, 277 J. Am. Med. Ass’n 1720, 1720–22 (1997).
7. Paul B. Bascom & Susan W. Tolle, Responding to Requests for Physician Assisted-
Suicide: “These Are Uncharted Waters for Both of Us. . . .”, 288 J. Am. Med. Ass’n 91, 91–97
(2002); Diane E. Meier, Op-Ed., A Change of Heart on Assisted Suicide, N.Y. Times, Apr. 24, 1998,
at A27.
1616 Michigan Law Review [Vol. 106:1613
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
A. 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 mideighties,
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
8. Part I reprints modified versions of our previous work. Foley & Hendin, supra note 2, at
146–50; Foley & Hendin, supra note 5, at 38, 40–41; Hendin et al., supra note 5, at 244–48. See
supra note 5 for copyright information.
9. Diane M. Gianelli, Praise, criticism follow Oregon’s first reported assisted suicides, Am.
Med. News, Apr. 13, 1998, at 1.
10. Erin Hoover & Gail K. Hill, Two Die Using Suicide Law, Oregonian, Mar. 26, 1998, at
AO1.
11. Gianelli, supra note 9.
June 2008] Physician-Assisted Suicide in Oregon 1617
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.
B. 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 had known her for some time and another who considered
that she was depressed—were essentially ignored. As Barbara Coombs
Lee, then the executive director of Compassion in Dying, expressed it, “ ‘If I
get rebuffed by one doctor, I can go to another . . . .’ ”15
Patients, of course, have the right to obtain other opinions and to seek
out physicians who will provide the therapy that the patients choose. We
wondered at the time if the prescribing physician consulted either Helen’s
physician or the physician who diagnosed her as depressed. In reply to a
journal article we wrote that asked this question,16 we received a response
from Dr. Peter Reagan, who had been anonymous but who now identified
himself as the prescribing physician. He wrote:
12. Id.
13. Id.
14. After the announcement of what was thought to be the first case of assisted suicide in
Oregon, the Hemlock Society in Oregon announced that since the Oregon law had gone into effect it
had helped arrange an even earlier assisted suicide at some unspecified date for another patient with
cancer. Erin Hoover, Two Deaths Add New Angle to Debate, Oregonian, Mar. 27, 1998, at A01.
15. William Claiborne, In Oregon, Suicide Option Brings a Kinder Care, Wash. Post, Apr.
29, 1998, at A01.
16. Hendin et al., supra note 5, at 247.
1618 Michigan Law Review [Vol. 106:1613
Before my patient died I didn’t personally discuss the case with her regular
physician and had only a very cursory contact with her second. I regret
this. I don’t think either of the previous MDs disagreed with her qualification,
but at the time I would have clarified it. Had I felt there was a
disagreement among the physicians about my patient’s eligibility, I would
not have written the prescription.17
It is noteworthy that Reagan used words like “qualification” and “eligibility”
to justify his actions rather than discussing the appropriateness of the
decision.
C. Making Options Available
No information indicates Reagan was trying to find any feasible alternatives
to suicide. In the taped interview with Helen, he told her that it is
important she understand that there are other choices she could make that he
will list for her, and in three sentences covering hospice support, chemotherapy,
and hormonal therapy, he did:
[Reagan]: There is, of course all sorts of hospice support that is available
to you. There is, of course, chemotherapy that is available that may or may
not have any effect, not in curing your cancer, but perhaps in lengthening
your life to some extent. And there’s also available a hormone which you
were offered before by the oncologist—tamoxifen—which is not really
chemotherapy, but would also have some possibility of slowing or stopping
the course of the disease for some period of time.
[Helen]: Yes, I didn’t want to take that.
[Reagan]: All right, OK, that’s pretty much what you need to understand.18
During the taped remarks, Helen expressed concern about being artificially
fed, a concern that may have contributed to her request for assisted suicide,
and suggests greater anxiety and uncertainty about her course of action than
the physician perceived. One would expect him to have assured her that this
need not happen in any case. Instead he ignored the remark and changed the
subject by asking a question about her desire to die.19
Reagan was impressed by Helen’s determination to die. In an interview
with Oregon Public Broadcasting, he described talking to her as “ ‘like talking
to a locomotive’ ”20 in her desire for death even though she was not in
great immediate distress. Although Reagan was troubled by her haste, and
with good reason—such stubborn urgency is often a sign of irrational
motives—he was unable to resist it. As striking as Helen’s determination is,
17. Letter from Peter Reagan to Kathleen Foley (Mar. 23, 1999) (on file with author).
18. Doctor & Patient: A Conversation on Suicide, Oregonian, Mar. 27, 1998, at A18.
19. See id.
20. Hoover, supra note 14.
June 2008] Physician-Assisted Suicide in Oregon 1619
Reagan’s haste in presenting and moving past the alternatives to assisted
suicide is even more striking.
Reagan subsequently wrote an article for the British journal Lancet, in
which he stated that he liked Helen immediately. He continued:
The thought of Helen dying so soon was almost too much to bear. . . . On
the other hand, I found even worse the thought of disappointing this family.
If I backed out, they’d feel about me the way they had about their
previous doctor, that I had strung them along, and in a way, insulted
them.21
Neither reluctance to disappoint her family nor embarrassment at backing
out should have been such a significant factor in the decision to end her life.
D. The Palliative Care Alternative
The difference it makes if a cancer patient is seen by someone who has
experience in providing palliative care is suggested by the following excerpt
from a letter written by a practicing oncologist in response to the law:
As a practicing gynecologic oncologist in Portland, Oregon, where physician-
assisted suicide is legal, I informed patients of my views by having a
clear statement, based on the Hippocratic Oath posted in my waiting room.
This reassured most patients, however, I had two patients who objected.
The first was afraid that I would prolong her life beyond her wishes. This
conversation helped me to meet her needs and she had a peaceful, comfortable
death at home with her family. The second patient wanted me to
prescribe lethal medications in case her cancer pain became unbearable.
Prior to this conversation, she had been minimizing her pain. This conversation
allowed us to work together to better control her pain, after which
her desire for assisted suicide disappeared. She died comfortably and naturally
two months later.22
The OPHD’s yearly progress reports contend that patients who requested
assisted suicide were receiving adequate end-of-life care, citing the frequency
with which patients were in hospice care as evidence. However, a
referral to hospice care cannot be regarded as a substantive palliative care
intervention without knowing what care the hospice provided.
Moreover, available data contradict the OPHD’s contention of adequate
care. A study at the Oregon Health & Science University indicated that there
has been a greater percentage of cases of inadequately treated pain in terminally
ill patients since the Oregon law went into effect.23 However, among
patients who requested PAS but availed themselves of a substantive
21. Peter Reagan, Helen, 353 Lancet 1265, 1266 (1999).
22. Letter from William Petty to the New England Journal of Medicine (Apr. 30, 2007) (on
file with Physicians for Compassionate Care), available at http://www.pccef.org/articles/art52.htm.
23. Erik K. Fromme et al., Increased Family Reports of Pain or Distress in Dying Oregonians:
1996 to 2002, 7 J. Palliative Med. 431 (2004).
1620 Michigan Law Review [Vol. 106:1613
intervention by a physician, forty-six percent changed their minds about
having PAS.24
Surviving family members surveyed by the Oregon Board of Medical
Examiners (“BME”) found a trend of increasing rates of moderate to severe
pain reported among patients dying in acute-care hospitals throughout
Oregon. This trend led the BME to conclude that inadequate palliative care
was a problem in the state.25
A study, Means to a Better End, by the Last Acts Program of the Robert
Wood Johnson Foundation, evaluated end-of-life care in all fifty states and
gave Oregon a mediocre grade. The Foundation and the Last Acts Program
have no position on assisted suicide, but they have a strong commitment to
improving end-of-life care. Oregon received good marks for its use of advance
directives, for not overusing intensive care units in ways that only
prolong the dying process, and in training registered nurses in palliative
care. Oregon did poorly on five other measures utilized in the evaluations,
including the large number of its nursing home residents in persistent pain,
the small number of its hospitals providing hospice or palliative care, and
the lack of state policies encouraging pain control and palliative care.26
Supporting these findings regarding the quality of palliative care in
Oregon is an anonymous survey of Oregon physicians regarding their experience
in dealing with patients’ requests for assisted suicide. Physicians
recommended a palliative care consultation in only thirteen percent of the
first 142 requests for assisted suicide after the Oregon law went into effect;27
we do not know how many of these recommendations were actually implemented.
II. Psychiatric Concerns
Because Oregon was the first state to legalize suicide as a treatment for
medical illness, it would seem to have a special responsibility to protect the
significant number of patients who become suicidally depressed in response
to serious or terminal illness. Although pain and other factors, such as lack
of family support, contribute to the wish for death, researchers have found
hopelessness, which is strongly correlated with depression, to be the factor
that most significantly predicts the wish for death.28
24. Linda Ganzini et al., Physicians’ Experiences with the Oregon Death with Dignity Act,
342 New Eng. J. Med. 557, 557 (2000).
25. Susan Tolle & Kathleen Haley, Pain Management in the Dying . . . Successes and Concerns,
BME Rep. (Or. Bd. of Med. Exam’rs, Portland, Or.), Fall 1998, at 1, 4; see also Susan W.
Tolle & Susan E. Hickman, Don’t prescribe less—chart better, BME Rep. (Or. Bd. of Med.
Exam’rs, Portland, Or.), Winter-Spring 2002, at 1, 4.
26. Last Acts, Means to a Better End: A Report on Dying in American Today 10–42
(2002), available at http://www.rwjf.org/files/publications/other/meansbetterend.pdf.
27. Ganzini et al., supra note 24, at 559–60.
28. Harvey M. Chochinov et al., Depression, Hopelessness, and Suicidal Ideation in the
Terminally Ill, 39 Psychosomatics 366 (1998). Part II reprints modified versions of our previous
June 2008] Physician-Assisted Suicide in Oregon 1621
Patients requesting suicide need psychiatric evaluation to determine
whether they are seriously depressed, mentally incompetent, or for whatever
reason do not meet the criteria for assisted suicide. Oregon law, however,
does not require it for patients requesting assisted suicide.
A. The Second Case: Anonymous
The next case is an example of what can happen when psychiatric consultation
is not provided:
[A] woman in her mid-fifties with severe heart disease . . . requested assisted
suicide from her cardiologist, despite having little discomfort and
good mobility. She was referred to another doctor, who in turn referred her
to a physician willing to provide assisted suicide. That doctor determined
that the woman had more than six months to live, according to his best estimate.
Therefore, she was eventually dismissed as ineligible. Rather than
inquire further into possible causes of [her] suicidal despair [or refer her
for psychiatric treatment], the physician apparently considered . . . his responsibility
ended. . . . [H]e told her to go back and make yet another
appointment with her original physician and dismissed her. She killed herself
the next day.29
Under the Oregon law, only if the physician believes a patient requesting
assisted suicide is suffering from a psychiatric or psychological disorder or
from a depression causing impaired judgment must the physician refer the
patient to a licensed psychiatrist or psychologist. The caveat about impaired
judgment is strange, since impaired cognitive function is one of the characteristics
of a depressive disorder; a rigid tendency to see only one possible
solution (such as suicide) to their problems is also characteristic.30 In any
case, a number of studies have shown that physicians are not reliably able to
diagnose depression,31 let alone to determine whether depression is impairing
judgment.
More than pain, depression, or current distress is often involved in patients’
requests for assisted suicide. Many patients who request assisted
suicide are doing so out of fear of what will happen to them. Such fears often
derive from the patient’s past experience with the death of someone
close to him or her, so a history of these experiences should be part of any
physician’s evaluation of a request for assisted suicide. That evaluation must
reflect an awareness of risk factors for suicide, such as alcoholism, a past
history of depression, and, of course, any prior suicide attempts.
work. Foley & Hendin, supra note 2, at 150–52, 170–71; Foley & Hendin, supra note 5, at 39–40;
Hendin et al., supra note 5, at 251–52. See supra note 5 for copyright information.
29. N. Gregory Hamilton, Oregon’s Culture of Silence, in The Case against Assisted
Suicide: For the Right to End-of-Life Care, supra note 2, at 175, 188.
30. Herbert Hendin & Gerald Klerman, Physician-Assisted Suicide: The Dangers of Legalization,
150 Am. J. Psychiatry 143, 144 (1993).
31. George E. Murphy, The Physician’s Responsibility for Suicide. II. Errors of Omission, 82
Annals Internal Med. 305 (1975).
1622 Michigan Law Review [Vol. 106:1613
Patients attempting assisted suicide are usually ambivalent about dying;
so too are patients requesting assisted suicide. Physicians inexperienced in
dealing with suicidal patients tend not to hear this ambivalence. Therefore,
they are likely to take such requests to die literally and concretely and to act
on them.
A guidebook for health care professionals written by the Oregon University
Center for Ethics advises physicians to refer all cases requesting
assisted suicide for psychiatric evaluation, even though physicians are not
legally required to do so.32 Oregon physicians are not following that advice.
The percentage of cases referred for psychiatric evaluation dropped from
thirteen percent in the eight years between 1998 and 2005 to four percent in
2006.33
B. The Third Case: Joan Lucas
The psychiatric evaluation when employed in Oregon, however, like the
palliative care recommendations, has the tendency to be utilized to protect
clinicians rather than patients, as the following case illustrates.
Joan Lucas, a patient with amyotrophic lateral sclerosis, attempted suicide.
Paramedics were called to Joan’s house, but her children sent them
away, explaining, “ ‘We couldn’t let her go to the ambulance. They would
have resuscitated her.’ ”34 Joan survived her attempt and was assisted in suicide
eighteen days later by a physician who gave interviews about the case
to an Oregon newspaper on condition of anonymity. He stated that after
talking with attorneys from the Oregon Medical Association and agreeing to
help aid Joan in death, he asked Joan to undergo a psychological examination.
The doctor reported that “ ‘[i]t was an option for us to get a
psychological or psychiatric evaluation. I elected to get a psychological
evaluation because I wanted to cover my ass. I didn’t want there to be any
problems.’ ”35
The doctor and the family found a cooperative psychologist who asked
Joan to take the Minnesota Multiphasic Inventory, 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
32. Task Force to Improve the Care of Terminally-Ill Oregonians, The Oregon
Death with Dignity Act: A Guidebook for Health Care Providers 31 (Kathleen Haley &
Melinda Lee eds., 1st ed. 1998) [hereinafter Oregon Guidebook].
33. Or. Dep’t of Human Servs., Ninth Annual Report on Oregon’s Death with
Dignity Act tbl. 1 (2007), http://www.oregon.gov/DHS/ph/pas/docs/yr9-tbl-1.pdf [hereinafter
Ninth Annual Report]; Office of Disease Prevention & Epidemiology, Dep’t of Human
Servs., Eighth Annual Report on Oregon’s Death with Dignity Act tbl. 4 (2006), available
at http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf [hereinafter Eighth Annual Report].
34. Bill Kettler, ‘We knew she would do it’: Stricken by ALS, Joan Lucas decides to die—
then acts, Medford Mail Trib., June 25, 2000, at 8A.
35. Id.
June 2008] Physician-Assisted Suicide in Oregon 1623
up’ ” over them.36 Based on these test results, the psychologist concluded
that whatever depression Joan had was directly related to her terminal illness,
which he considered a completely normal response.
When Oregon psychiatrists were surveyed, only six percent felt very
confident that, absent a long-term relationship with a patient, they could
satisfactorily determine whether a patient was competent to commit suicide.
37 The psychologist’s report in Joan’s case is particularly disturbing
because without taking the trouble to see her, and on the basis of a single
questionnaire administered by her family, he was willing to give an opinion
that would facilitate ending Joan’s life. The physician’s attitude toward the
consultation surely played a part in his receiving a report that did not meet
professional standards.
OPHD’s monitoring procedures do not make it possible for OPHD to
evaluate the care Joan Lucas received. To do so OPHD would have to interview
Joan’s primary care physician who had refused to assist in her suicide
and to assess the quality of her psychological evaluation. Using psychologists
or psychiatrists as gatekeepers only to establish a patient’s capacity to
make a decision for assisted suicide contributes to pro forma, meaningless
consultations.
In the Lucas case, we have no way of knowing if Joan Lucas was seriously
depressed or if the doctor or psychologist was disposed to proceed
even if she were. Even more troubling is that OPHD does not seem to want
to know about the psychiatric status of patients requesting assisted suicide.
Under the current monitoring system, OPHD collects no information from
psychiatrists who did not find patients to be competent and has no direct
communication with psychiatrists or psychologists who did. Its monitoring
reflects a lack of concern with the welfare of depressed patients.
C. Context of Mental Health Evaluation
Although a competent professional psychiatric evaluation is necessary to
determine if a patient has impaired judgment that would make him or her
not “capable” of an “informed decision,” as required by Oregon law,38 it is
needed for other reasons as well. We know that patients requesting a physician’s
assistance in suicide are usually telling us that they desperately need
relief from their mental and physical distress and that without such relief
they would rather die. When they are treated by a physician who can hear
their desperation, understand the ambivalence that most feel about their request,
treat their depression, and relieve their suffering, their wish to die
usually disappears.
If the patient has seen no one knowledgeable enough to undertake to understand
and relieve the desperation, anxiety, and depression that underlie
36. Id.
37. Linda Ganzini et al., Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide,
153 Am. J. Psychiatry 1469, 1473 (1996).
38. See Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.815, .820, .830 (1997).
1624 Michigan Law Review [Vol. 106:1613
most requests for assisted suicide, then even if the patient is capable, an informed
decision is not possible.
III. Voluntariness and the Risk of Coercion
The Oregon law requires both that patients requesting assisted suicide
voluntarily give informed consent to the procedure and that they have the
mental capacity to do so, but it lacks safeguards to ensure that this takes
place. OPHD’s monitoring does nothing to correct the problem.39
A. The Fourth Case: Kate Cheney
The case of Kate Cheney, as described by both Cheney and those members
of her family who told their story to The Oregonian,40 highlights the
deficiencies in the informed consent procedures. An eighty-five-year-old
widow, Kate was diagnosed with terminal stomach cancer. Kate wanted the
option of assisted suicide in case she was in pain or if the indignities of losing
control of her bodily functions became unbearable. Her daughter Erika,
a retired nurse who had come from Arizona to care for her mother, went
with Kate when Kate made the request to her physician at Kaiser Permanente.
Erika described the physician as “ ‘dismissive’ ”41 and requested and
received a referral to a second physician. He arranged for a psychiatric consultation,
a standard procedure at Kaiser. The psychiatrist, who visited Kate
at her home, found that Kate did not “ ‘seem to be explicitly pushing for
[assisted suicide]’ ”42 and lacked the “ ‘level of capacity . . . to weigh options
about [it].’ ”43 Although Kate seemed to accept the assessment, Erika became
very angry.
Kaiser then suggested that the family obtain a second assessment from
an outside consultant. The psychologist consulted noted that Kate had memory
defects and that her “ ‘choices [might have been] influenced by her
family’s wishes and [that] her daughter, Erika, [might have been] somewhat
coercive,’ ”44 but felt Kate had the ability to make her own decision. A Kaiser
administrator saw Kate and decided that she was competent and was making
the decision on her own. Kate received the lethal drugs, which were put under
Erika’s care.
As time passed, Erika and her husband needed a respite, and they sent
Kate to a nursing home for a week. When Erika visited, Kate always asked
when she would be going home. On the day she returned from the nursing
39. Part III reprints modified versions of our previous work. Foley & Hendin, supra note 2,
at 156–59; Hendin et al., supra note 5, at 255–56. See supra note 5 for copyright information.
40. Erin Hoover Barnett, A Family Struggle: Is Mom Capable of Choosing to Die, Oregonian,
Oct. 17, 1999, at G01.
41. Id.
42. Id.
43. Id.
44. Id.
June 2008] Physician-Assisted Suicide in Oregon 1625
home, she told Erika and her husband that she had considered going permanently
into a nursing home but had decided to use the pills instead and asked
for their help. Her son-in-law asked, “ ‘When would you like to do this?’ ”45
Kate replied, “ ‘Now.’ ”46 Within a short time, with her family beside her,
Kate took the pills and died.
The eagerness of her daughter and son-in-law are likely to have influenced
Kate’s decision. One wonders if the decision would have been
different if her family had responded to her request by saying, “We love you
and want to keep you at home and care for you as long as possible.” Sending
Kate to the nursing home conveyed that she was a burden to her family. Her
poignant and repeated requests to go home expressed her distress, as did her
request to end her life on the day she did so.
One can readily see how in the best of circumstances frail, elderly patients
can feel coerced to die. Caregiver burden has been identified as a
serious issue, particularly for women like Erika who are asked to shoulder
the work and responsibility of providing twenty-four-hour care to a parent.
This particular case raises the question of what real meaning or value
Oregon’s prohibition of coercion has if it can be circumvented so easily.
B. Financial Considerations
Since ongoing care for terminally ill patients is far more expensive than
assisted suicide, the role of a single health maintenance organization
(“HMO”) administrator in making the final decision in a matter in which the
HMO might have a financial conflict of interest, as in Kate’s case, was questionable.
47 Would the HMO have asked for a second opinion if the
psychiatrist had deemed the patient competent to request assisted suicide?
The Kaiser administrator was indignant at a journalist’s implication that
financial considerations might have influenced both his recommendation to
Kate’s family to seek an outside consultant and his own final decision. Yet
this case makes a compelling argument for the need for openness and transparency—
and perhaps even judicial review of competency determinations—
because of the competing interests in deciding what was appropriate for a
vulnerable elderly patient whose competency was in question and whose
family may have been seriously burdened by her care.
C. Consulting with Family
Under the Oregon law, physicians are required to suggest that patients
inform their families of their request for assisted suicide, but the patients are
not required to do so. The law instructs physicians not to deny the request
45. Id.
46. Id.
47. David Reinhard, Editorial, In the Dark Shadows of Measure 16, Oregonian, Oct. 31,
1999, at D05.
1626 Michigan Law Review [Vol. 106:1613
on the basis of such a refusal. Even if the patient complies, the physician is
not required by law to ask to see the patient’s family.
How can any physician be sure there is no coercion unless the physician
has met the family and seen the interaction among them and with the patient?
On the other hand, not informing the family can prevent a caring
family from expressing their affection in ways that might alter the patient’s
decision. It also opens the family up to the devastating grief and guilt that
we see in survivors of suicide. Much of that guilt comes from feeling there
were things they could or should have done to encourage the person who
committed suicide to want to live. Feeling cut off from what a loved one
was going through before the act is a major contribution to such anguish.
Advocates of assisted suicide argue that legalization, by permitting the family
to be part of the process, should ameliorate such suffering. Not
informing the family makes this impossible.
This problem, to which OPHD seems oblivious, is cited by social workers
in Oregon hospices as providing a serious challenge to hospice care
professionals who feel that in protecting patients’ confidentiality they have
failed to help the patients’ families, and they feel split in their allegiance
between the patients and their families.48 The provision of the Oregon law
stating that a patient who declines to inform his or her family “shall not have
his or her request denied for that reason”49 is too sweeping in scope, and
monitoring is necessary to learn its consequences.
IV. Protection for Physicians Instead of Patients
A concern with physician protection, rather than patient protection, pervades
the Oregon experience. The statute’s liability shield, its incomplete
reporting system, and the excessive secrecy with which the law is implemented
protect doctors who assist patients with suicide but leave patients
vulnerable.50
A. Lower Standard of Liability
Oregon physicians assisting in a suicide are exempt from the ordinary
standards of care, skill, and diligence required of Oregon physicians in other
circumstances (e.g., a physician’s conduct when withdrawing life support).
Instead, the physician is immunized from civil and criminal liability for actions
taken in “good faith” in assisting a suicide irrespective of community
standards in other matters and even when the physician acts negligently.51
48. See Pamela J. Miller et al., Conversations at the End of Life: The Challenge to Support
Patients Who Consider Death with Dignity in Oregon, J. Soc. Work End-of-Life & Palliative
Care, Nov. 2006, at 37–38.
49. Oregon Death with Dignity Act, Or. Rev. Stat. § 127.835 (1997).
50. Part IV reprints modified versions of our previous work. Foley & Hendin, supra note 2,
at 159–61; Hendin et al., supra note 5, at 264–66. See supra note 5 for copyright information.
51. Or. Rev. Stat. § 127.885(1)–(3).
June 2008] Physician-Assisted Suicide in Oregon 1627
Good faith is a troublesome, subjective standard. Homicide law provides
an example of an area where a good faith test might be appropriate. In some
jurisdictions, when a person actually—but unreasonably—believes he must
kill in self-defense, the person may nonetheless avail himself of the right of
self-defense (which means he is guilty of manslaughter rather than murder).
52 Applying a similar good faith standard to physicians seems curious.
As Professor Dan Dobbs has noted:
An instruction [in a medical malpractice case] that tells the jury that the
physician is not liable for honest error or good faith mistake injects subjective
. . . issues into [what is usually an] objective negligence test and may
lead the jury to think that bad faith, not a departure from professional standards,
is the test of liability. This kind of instruction is now widely
condemned by appellate courts.53
In professional practices a negligence standard based on objective, established
medical guidelines is customary. If the intent of the assisted suicide
law is to protect physicians from accountability for violating the statute’s
provision, the good faith standard is ideal. But if the intent of the law is to
provide protection for patients, a negligence standard would be more appropriate.
B. Reporting System Lacks Teeth
The fact that it may not be possible to punish physicians even if they
have behaved irresponsibly is not a reason for not monitoring their behavior.
Ensuring adequate care for patients is the aim of monitoring, and without
knowledge of the quality of care being given, that is not possible.
However, there is no enforcement mechanism in the Oregon law should
physicians not comply with guidelines set up by OPHD for reporting all
cases in which medication for the purpose of assisted suicide has been prescribed.
The Dutch experience suggests that even if the Oregon law had
noncompliance penalties, nonreporting would still be a serious problem. By
continually focusing on this problem, the Dutch have slowly been able to
improve reporting. But since OPHD has not addressed the question of nonreporting,
it is in the position of drawing conclusions from limited data.
C. Excessive Secrecy
OPHD has focused more on patient-doctor confidentiality than on monitoring
compliance or abuse. The agency has developed confidentiality
measures unique to physician-assisted suicide which appear to be unnecessarily
secretive and limit the potential for thorough research into the
dimensions and context of this practice as it unfolds. For example, internal
memoranda from OPHD to its county vital records offices instructed all
52. Wayne R. LaFave, 2 Substantive Criminal Law § 15.3(a), at 514–15 (2d ed. 2003).
53. Dan B. Dobbs, The Law of Torts § 243, at 635 (2000).
1628 Michigan Law Review [Vol. 106:1613
employees that they should “neither confirm nor deny if a [physicianassisted]
death has occurred in your county.”54 To underscore “how seriously
this matter is being taken” by OPHD, the memo warned that “[a]ny staff
within the Center for Health Statistics that reveals any information they are
not authorized to release, will immediately be terminated.”55
The Oregon law specifically states that although OPHD will issue a report
each year based on a selected sample of cases, “the information
collected shall not be a public record and may not be made available for
inspection by the public.”56 There is no provision for an independent researcher
or evaluator to study whatever data are available.
Medical standards require openness about facts, research data, and records
to assess the appropriateness of treatment. The anonymity and secrecy
about physician practice of assisted suicide makes such an assessment impossible.
If physician-assisted suicide is to be part of the medical treatment
for terminal illness, why are existing patient-doctor confidentiality rules not
sufficient to protect physicians in this setting? Restricting access to information
about the indications for assisted suicide, patient data, radiologic
documentation, and specific drug therapy limits the opportunity to establish
an objective standard of care, provides excessive protection to the physician
and, in the name of confidentiality, leaves the patient vulnerable.
The law sets a low legal standard for physicians’ conduct, and OPHD
does not provide a mechanism for ascertaining whether physicians are meeting
even this reduced standard, thereby precluding accountability.
V. The Role of Compassion in Dying
Compassion in Dying executives have indicated that the organization
has been involved in seventy-five percent of all cases of PAS since the implementation
of the Oregon law.57 In a study of the role of non-governmental
organizations in physician-assisted suicide, however, Stephen J. Ziegler and
Georg Bosshard observed that advocacy organizations have unresolved
problems in their relationship with doctors,58 as the following case illustrates.
54. Memorandum from Sharon Rice, Manager, Registration Unit Center for Health Statistics,
to County Vital Records Registrars and Deputies (Dec. 12, 1997), reprinted in Confidentiality
of Death Certificates, 14 Issues L. & Med. 333, 333 (1998).
55. Id. at 334.
56. Or. Rev. Stat. § 127.865(2).
57. David Jeffrey, Physician-assisted suicide v Palliative care: a tale of two cities
(2007), available at http://www.pccef.org/articles/PCCEF_June07_posting.pdf.
58. Steven J. Ziegler & Georg Bosshard, Role of non-governmental organisations in physician
assisted suicide, 334 Brit. Med. J. 295, 297 (2007) (citing Select Committee on the
Assisted Dying for the Terminally Ill Bill, Report, Vol. II: Evidence, 2005, H.L. 86–II).
June 2008] Physician-Assisted Suicide in Oregon 1629
A. The Fifth Case: A Desperate Wife
Information about this case comes from a talk given by George Eighmey,
the executive director of Compassion in Dying of Oregon, to state
regulators about Oregon’s experience with physician-assisted suicide.
Eighmey described a case in which “a woman who was desperate” called
Eighmey and said, “ ‘I can’t take it any more. My husband is begging me to
kill him, I cannot stand his continued suffering any more. I love him too
much.’ ”59 Eighmey describes the call and its aftermath as follows:
I begged her to wait and she said, “Unless you’re at the door with the pills,
don’t come.” I said, “I cannot be there with the pills, I don’t do that.” But
wait—I arrived at her door, she opened the door, and as with a lot of people
who are in emotional states, she saw me and started laughing and
crying simultaneously and I hugged her and I walked in and we sat for
three hours, talking to her husband and to her at length about the process.
Fortunately, her . . . ah . . . his physician had already noted in the file that
[the patient] had asked [another physician] for Oregon’s Death With Dignity
fifteen days prior, so the time had elapsed. So we said, you have to ask
for it a second time and you have to put it in writing. And then forty-eight
hours after the writing you may obtain the prescription.60
The initial physician was unwilling to provide the patient with a prescription,
but the advocates helped the patient to make a second request to
another physician. After the patient obtained the prescription, Eighmey and
two other members of Compassion in Dying went to the patient’s house. He
describes what happened:
[W]e three Compassion in Dying members were present, the wife, the two
friends across the street, and we were preparing everything. [The patient]
came up and asked, “What do I wear, and where do I go?” We said, “You
might do it in bed, or do it wherever you wish, but we recommend that you
do it in bed.” [He] crawled into bed, and we left [him] and his wife together
for a while. We came in with the medication and we said, “Now you
have the choice to change your mind at any time. Please, please do not feel
compelled to do this.” And he said, “I want to do it. I have had a beautiful
life, I have had a loving wife, and it is my time. I said goodbye to this
earth.” We handed it to him; he took it and he turned to his wife and said to
his wife, “I love you very much. We had a good life.” In five minutes he
was in a deep coma, and died in seventeen minutes. And that is what being
open and honest and above-board and regulated by a state statute means in
the state of Oregon. We have compassion for people who wish to die with
dignity.61
59. George Eighmey, Oregon’s Death with Dignity Act: Health Care Professionals Speak
Out on Its Impact, Remarks at the Nineteenth Annual Meeting of the Council on Licensure, Enforcement,
and Regulation (Sept. 3, 1999), quoted in Hamilton, supra note 29, at 184.
60. Id. (ellipses in original).
61. Id. at 184–85 (fourth alteration in original).
1630 Michigan Law Review [Vol. 106:1613
The role of an advocacy group and a lay advocate in facilitating assisted
suicide with this patient is troublesome. The advocates formed a relationship
with the desperate wife and then coached the patient and his wife in how to
access PAS by taking advantage of a loophole in the law that does not stipulate
that the two requests for assisted suicide must be made to the same
physician. The role of the advocates was to help the patient and family get
what they wanted, not to assess whether this was an appropriate option for
the patient.
Compassion in Dying identifies their role as helping patients find physicians
who will provide them with assistance in death. But advocacy can run
amok when passionate volunteers interfacing with demanding families see
no options but a prescription for lethal medication. We do not think such
volunteers are likely to be able to assess competency or complex psychological
issues or family dynamics that may influence the patient’s request.
Eighmey seems to have an exaggerated idea of his own ability to do so, stating
that patients “tell me more in [a] half-an-hour phone call than they
sometimes will tell their physician or their spouse. I know more about their
life history in that half an hour than a lot of other people close to them.”62
The union of Compassion in Dying with the Hemlock Society and the
name of the merged organizations, Compassion and Choices, permits them
to avoid the word “dying,” and the association of the word “hemlock” with
lethality. We need to have a clearer picture of the role of such advocacy
groups in coaching patients who seek their help and in helping patients to
have real choices.
VI. A Comparison of Two Different Approaches
The implementation of the Oregon law on assisted suicide encouraged
physicians to adopt a different approach to patients with serious medical
illness.63 In the medical model, modified by advances in palliative care and
practiced in states other than Oregon, patients requesting assistance in suicide
are assessed in the same way as other patients intent on suicide. The
medical model recognizes that “[a]lthough physical illness may be a precipitating
cause of despair, these patients usually suffer from treatable
depression and are [almost] always ambivalent about their desire for
death.”64 Study of terminally ill cancer patients has demonstrated that those
preoccupied with assisted suicide had symptoms of depression or hopelessness.
65
62. Id. at 185 (alteration in original).
63. N. Gregory Hamilton & Catherine A. Hamilton, Competing Paradigms of Responses to
Assisted Suicide Requests in Oregon, 162 Am. J. Psychiatry 1060 (2005).
64. Id. at 1060.
65. E.g., William Breitbart et al., Depression, Hopelessness, and Desire for Hastened Death
in Terminally Ill Patients With Cancer, 284 J. Am. Med. Ass’n 2907, 2910 (2000).
June 2008] Physician-Assisted Suicide in Oregon 1631
To help these patients, we need to understand and relieve the desperation
that underlies the request for assisted suicide.66 Supportive psychotherapy,
antidepressant medication, and good palliative care are instrumental in providing
relief from distress and making it possible for patients to appreciate
and even enjoy whatever time they have left to live.
Oregon’s assisted suicide guidebook takes a totally different approach. It
stresses that any mental health consultation should be an evaluation of competency
focused on the patient’s capacity to make a decision,67 emphasizing
that “[t]he presence of depression does not necessarily mean that the patient
is incompetent.”68 Whether or not one agrees with the majority of clinical
psychiatrists and forensic psychiatrists, who believe “that the presence of
major depressive disorder should result in an automatic finding of incompetence”
to make decisions about assisted suicide,69 reducing the psychiatric
consultation to the issue of competency ignores all the other psychological
factors that go into the request for assisted suicide.
A. The Sixth Case: Mr. A
A dramatic illustration of the contrast between these two distinct approaches
for dealing with suicidal preoccupation in the seriously ill can be
found in the case that follows, in which the patient had substantial contact
with Physicians for Compassionate Care, an organization that follows the
medical model, and with Compassion in Dying, which follows the assisted
suicide competency model.70
Right after receiving a diagnosis that he had inoperable lung cancer, Mr.
A, a sixty-three-year-old computer technician, called Physicians for Compassionate
Care requesting information on how he could get drugs for
assisted suicide. He said, “ ‘I might as well just end it.’ ”71 The volunteer responded
by saying Mr. A was understandably upset at this news. In
response, Mr. A became tearful.72
The volunteer began a series of phone conversations with the patient
about his cancer, his treatment options, family support network, and his own
personal history. The patient described his state of mind:
66. Herbert Hendin, Suicide, Assisted Suicide, and Euthanasia, in The Harvard Medical
School Guide to Suicide Assessment and Intervention 540, 553 (Douglas G. Jacobs ed.,
1999); see Herbert Hendin et al., The Role of Intense Affective States in Signaling a Suicide Crisis,
195 J. Nervous & Mental Disease 363 (2007).
67. Oregon Guidebook, supra note 32, at 30.
68. Id. at 31.
69. Linda Ganzini et al., Evaluation of Competence to Consent to Assisted Suicide: Views of
Forensic Psychiatrists, 157 Am. J. Psychiatry 595, 598 (2000) (emphasis added); see also Ganzini
et al., supra note 37.
70. Hamilton & Hamilton, supra note 63, at 1061–65.
71. Id. at 1061.
72. Id.
1632 Michigan Law Review [Vol. 106:1613
[He was] haunted by suicidal feelings ever since his mother died from a
self-inflicted gunshot wound when he was 21. Shortly after her death he
had attempted suicide himself and was treated for depression in a psychiatric
hospital. He made at least two other suicide attempts and remained
preoccupied with suicide.73
He had a history of alcoholism but had joined Alcoholics Anonymous and
had been sober for more than twenty years. In addition, the volunteer
learned Mr. A was not currently in pain.74
The volunteer assured him that good palliative care was available for
any symptoms he might develop. With her support, he began treatment for
his cancer, including chemotherapy and radiation, and received medication
for his depression.75
Prior to contacting Physicians for Compassionate Care, Mr. A. had been
a suspicious person. He did not allow others into his home, which he protected
through extensive surveillance and ownership of assault weapons.
After a few months of treatment, however, Mr. A was able to allow people
into his home. The volunteer began monthly home visits and regular phone
calls; Mr. A’s daughter eventually moved in with him to help in his care.76
While he had been talking to the volunteer, Mr. A had also sought help
from two physicians whom he knew were activists for assisted suicide. The
first physician who evaluated him gave him a lethal prescription; the second,
who was affiliated with Compassion in Dying, regularly communicated with
Mr. A about the assisted suicide option. Neither doctor had thought he
needed a psychiatric consultation, but neither had known or asked about Mr.
A’s history of depression and past suicide attempts.77
Eighteen months after initially receiving his diagnosis, Mr. A became increasingly
agitated and was admitted to a psychiatric hospital after
expressing thoughts that were both suicidal and homicidal. His daughter had
to move out because of his combative behavior. Mr. A was given a DSM-IV
diagnosis of a depressive disorder; when he responded to treatment in the
hospital, he was discharged. The volunteer from Physicians for Compassionate
Care increased the frequency of her visits. This was a good period
for Mr. A. because he was able to enjoy regular visits from old friends and
reconciled with his daughter.78
After a while Mr. A developed excruciating constipation from his pain
medication which led him to discontinue the medication, dismiss hospice,
and consider using the medication he had been given for assisted suicide.
When he was given fluids to relieve his constipation and prescribed a morphine
pump and twenty-four-hour attendant care, however, his pain abated
73. Id.
74. Id.
75. Id. at 1063.
76. Id.
77. Id. at 1062.
78. Id.
June 2008] Physician-Assisted Suicide in Oregon 1633
and his mood improved.79 During the weeks he had left, he said goodbye to
his friends and expressed his appreciation to the volunteer and others who
had helped him.80
There are striking differences in the two approaches. The volunteer for
Physicians for Compassionate Care understood that the patient’s depression
and anxiety were an integral part of his wanting to end his life. By phone
and in visits to his home, she maintained a relationship with him and was
instrumental in seeing that he received the care he needed. Through communication
with his nurse, she encouraged his primary doctor to prescribe
antidepressant medication for him. When toward the end of his life he became
desperate because of poorly treated pain, she saw to it that he received
the care he needed.81
The contrast with the two doctors associated with Compassion in Dying
is significant. Without inquiring about a past history of depression or suicide
attempts, “the doctor who prescribed the assisted suicide drugs . . . told the
patient and his daughter that a psychiatric evaluation would not be ‘necessary.’
”82 He later admitted that he would have obtained such an evaluation
had he known of the prior suicide attempts. He did think, however, that “giving
Mr. A the assisted suicide drugs may have added to his sense of control
and security and may even have prolonged his life.”83 Yet it seems likely that
Mr. A would have used the pills at least a year before his death if it had not
been for the caring and knowledgeable intervention of the volunteer from
Physicians for Compassionate Care.
B. Predicting When a Patient Will Die
An additional problem in the implementation of the Oregon law is its
stipulation that eligibility for assisted suicide depends upon patients having
six months or less to live. Predictions regarding terminal illness vary in accuracy
depending on the disease involved—somewhat higher accuracy for
cancer (although not in Mr. A’s case) and lower for cardiovascular disease.84
The majority of Oregon physicians, when surveyed, were not confident they
could make such a prediction.85 The nine-year data suggest that a significant
number of patients live beyond their six-month prognosis.86 OPHD does not
indicate the time interval that elapsed until their death, thus preventing
79. Id. at 1063.
80. Id.
81. Id.
82. Id.
83. Id.
84. See Joanne Lynn et al., Prognoses of Seriously Ill Hospitalized Patients on the Days
before Death: Implications for Patient Care and Public Policy, 5 New Horizons 56 (1997).
85. Melinda A. Lee et al., Legalizing Assisted Suicide—Views of Physicians in Oregon, 334
New Eng. J. Med. 310, 312 (1996).
86. Ninth Annual Report, supra note 33, http://oregon.gov/DHS/ph/pas/docs/year9.pdf.
1634 Michigan Law Review [Vol. 106:1613
evaluation of the reliability of this crucial legal criterion and hiding from the
public the uncertainty of these predictions.87
VII. Ten-Year Perspective
A number of medical, psychological, social, and cultural factors have
been influencing attitudes toward physician-assisted suicide in the past decade.
A. Palliative Care
The advance in palliative care in the past ten years that has most diminished
the need for assisted suicide and euthanasia is the increasing
understanding and acceptance that to relieve suffering, it is often necessary
to administer pain medication even in doses that might shorten the patient’s
life. The medical profession, the U.S. Supreme Court, and most religious
groups have come to this realization. Lack of knowledge by physicians of
established guidelines on withholding care and the use of palliative care
approaches has led to confusion between foregoing life-sustaining therapy
(the legal right of every competent patient) and active euthanasia. Such uncertainty
results in inadequate control of distressing symptoms in terminally
ill patients. Some clinicians have argued that morphine drips in such cases
are a form of “slow euthanasia.”88 There is a distinction, however, between
the intent of palliative care physicians whose goal is to prevent and treat
suffering, and those who intend to hasten death.89 Specialists in palliative
care have developed guidelines for the aggressive pharmacological management
of intractable symptoms in dying patients, including sedation for
those near death.90
We now know that that proper use of pain medications in patients with
chronic pain, as well as patients at the end of life, does not hasten death.91
87. Id. Section VI.B reprints modified versions of our previous work. Foley & Hendin, supra
note 2, at 154. See supra note 5 for copyright information.
88. J. Andrew Billings & Susan D. Block, Slow Euthanasia, J. Palliative Care, Winter
1996, at 21, 21.
89. See Balfour M. Mount, Morphine Drips, Terminal Sedation, and Slow Euthanasia: Definitions
and Facts, Not Anecdotes, J. Palliative Care, Winter 1996, at 31; Russell K. Portenoy,
Morphine Infusions at the End of Life: The Pitfalls in Reasoning from Anecdote, J. Palliative
Care, Winter 1996, at 44.
90. Nat’l Ethics Comm., Veterans Health Admin., The Ethics of Palliative Sedation as a
Therapy of Last Resort, Am. J. Hospice & Palliative Care, Dec.–Jan. 2007, at 483, 488. Section
VII.A reprints modified versions of our previous work. Kathleen Foley, Compassionate Care, Not
Assisted Suicide, in The Case against Assisted Suicide: For the Right to End-of-Life Care,
supra note 2, at 293, 304–306, 311. See supra note 5 for copyright information.
91. See Frank J. Brescia et al., Pain, Opioid Use, and Survival in Hospitalized Patients With
Advanced Cancer, 10 J. Clinical Oncology 149 (1992) (reporting that increased use of pain
medication for cancer patients does not affect the relative risk of survival significantly more than
other variables do).
June 2008] Physician-Assisted Suicide in Oregon 1635
Studies have demonstrated that dying patients who received morphine lived
longer than those who did not receive morphine.92
Efforts at educating physicians appear to be making a difference in both
the United States and the Netherlands. The more physicians know about
palliative care, the less they favor assisted suicide; the less they know, the
more they favor it.93 The more critical question is whether it changes the
way they practice medicine. In the Netherlands, where there was evidence
that interesting doctors in palliative care was made more difficult because of
the easier alternatives of assisted suicide and euthanasia, the Dutch undertook
a national program to bring palliative care and hospice care to the
population.94
In 2005, for the first time since the Netherlands legalized assisted suicide
and euthanasia, a survey showed a slight drop in assisted suicide and a
significant drop in euthanasia.95 There are now reports by some Dutch doctors
who have performed euthanasia that, had they known then what they
know now, they would have treated their patients differently.96 Such a development
was hardly conceivable ten years ago.
B. Autonomy and Control
On the other hand, what is most likely to increase the demand for assisted
suicide is the impetus to treat the question as one of autonomy and
control. Oregon has been in the forefront of this trend. The original impetus
for passage of the Oregon law was to help relieve intractable symptoms such
as pain, but as the law was written and monitored it has evolved into providing
an option for control. Oregon physicians report that the most common
reason patients request PAS is not pain or depression but a need for control.
This need is usually related to patients’ fears of the future and presents the
physician with an opportunity to address their specific concerns and to develop
interventions that will relieve the anxiety of most patients. Oregon
researchers have described these patients, noting that they were inflexible
and “dreaded the thought of being dependent on others.”97
92. William C. Wilson et al., Ordering and Administration of Sedatives and Analgesics During
the Withholding and Withdrawal of Life Support From Critically Ill Patients, 267 J. Am. Med.
Ass’n 949, 952–53 (1992).
93. Russell K. Portenoy et al., Determinants of the Willingness to Endorse Assisted Suicide:
A Survey of Physicians, Nurses, and Social Workers, 38 Psychosomatics 277, 284–85 (1997).
94. See Zbigniew Zylicz, Letter, Euthanasia, 338 Lancet 1150, 1150 (1991); Zbigniew
Zylicz, Hospice in Holland: The story behind the blank spot, Am. J. Hospice & Palliative Care,
July-Aug. 1993, at 30, 34 (1993).
95. Agnes van der Heide et al., End-of-Life Practices in the Netherlands under the Euthanasia
Act, 356 New Eng. J. Med. 1957 (2007).
96. Margriet Oostveen, Spijt: Voorvechters van de euthanasiepraktijk bezinnen zich [Regrets:
Proponents of euthanasia reorient themselves], NRC Handelsblad (Neth.), Nov. 10, 2001, at Z1.
97. Linda Ganzini et al., Oregon Physicians’ Perceptions of Patients Who Request Assisted
Suicide and Their Families, 6 J. Palliative Medicine 381, 382 (2003).
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The need for control, however, is characteristic of most suicidal patients.
They make absolute conditions on life: “I won’t live . . . without my husband,”
“if I lose my looks, power, prestige, or health” or “if I am going to
die soon.”98 Depression, often precipitated by discovering a serious illness,
exaggerates their tendency to see life in black and white terms, but for most
such people the need for control has been a dominant feature of their lives.
They are unable to tolerate dependency on other people. In any case, the
good practice of medicine obliges doctors to relieve distress rather than to
assume that hastening death is the best or only way of doing so.
C. Oregon: What We Know and Need to Know
What has the Oregon experience with PAS taught us? Given the expectations
that Oregon could serve as a laboratory for understanding and
assessing physician-assisted suicide, not very much. Sadly, OPHD is wasting
the opportunity to study a natural experiment and to provide
understanding of the needs of patients and families at the end of their lives.
To date, OPHD figures indicate that since the Oregon assisted suicide
law was enacted, 292 Oregonians have used PAS to die between 1998 and
2006;99 456 received prescriptions to do so.100 Those who did not use them
either died of natural causes or are still alive.101 Sixteen Oregonians used
PAS in 1998, and that number has almost tripled, rising to forty-six in
2006.102 The ratio of PAS deaths to total deaths in Oregon has increased
from 5 in 10,000 in 1998103 to 14.7 in 10,000 in 2006.104
From the time the Oregon law went into effect, OPHD officials have
admitted that they have no way of knowing how many PAS cases are not
reported.105 If OPHD wished to know what is going on, it would need to follow
the Dutch example by granting physicians full immunity and then
surveying them with questionnaires and interviews.
The OPHD annual reports are marked by overreaching in the conclusions
they draw from the limited information they have. As we have
previously discussed,106 most striking and least justified has been OPHD’s
contention, without substantiating data, that patients who have requested
98. Hendin, supra note 66, at 542.
99. Ninth Annual Report, supra note 33, http://oregon.gov/DHS/ph/pas/docs/year9.pdf.
100. Prescription History—Oregon Death With Dignity Act, http://oregon.gov/DHS/ph/pas/
docs/prescriptionhistory.pdf.
101. Ninth Annual Report, supra note 33, http://oregon.gov/DHS/ph/pas/docs/year9.pdf.
102. Prescription History—Oregon Death With Dignity Act, supra note 100.
103. Arthur E. Chin et al., Legalized Physician-Assisted Suicide in Oregon—The First Year’s
Experience, 340 New Eng. J. Med. 577, 579 (1999).
104. Ninth Annual Report, supra note 33, http://oregon.gov/DHS/ph/pas/docs/year9.pdf.
105. Linda O. Prager, Details emerge on Oregon’s first assisted suicides, Am. Med. News,
Sept. 7, 1998, at 10.
106. Foley & Hendin, supra note 2, at 162.
June 2008] Physician-Assisted Suicide in Oregon 1637
assisted suicide were receiving adequate end-of-life care.107 Data from Oregon
investigators, surveys of and interviews with families who observed the
pain or distress of their relatives who received end-of-life care, new surveys
of nurses who cared for hospice patients, and new surveys of physicians’
experiences do not support this contention.108
It has been possible to learn enough to know the defects that are there,
but much more will need to be known if they are to be addressed and corrected.
Any effective change in the way physician-assisted suicide is
practiced in Oregon will require OPHD to become a more effective monitor.
What should OPHD be doing? As we have noted, apart from the restriction
in the Oregon law that prohibits independent researchers from having
access to the data, OPHD has been given great flexibility to do its own research.
OPHD could correct its most glaring limitation by expanding its collection
of information beyond physicians who have written lethal prescriptions.
OPHD should interview doctors who, for whatever reason, declined to prescribe
lethal medication; psychiatrists who evaluated these patients (whether
or not they found them to be competent); and nurses, social workers, or family
members who cared for the patients. Without such information, we have
no idea of how many requests for assisted suicide there are each year, why
some physicians declined while others agreed to proceed, or what transpired
in any particular case.
OPHD justifies obtaining information only from physicians who prescribed
medication that patients actually used to end their lives as necessary
“[t]o maintain consistency in data collection and to protect the privacy of the
patient and the prescribing physician.”109 Limiting the information collected
to one physician when other physicians who saw the patient in connection
with an end-of-life decision might have information that would be contradictory
runs counter to the basic expectations of research design and
undermines the validity of the results. As for privacy, if OPHD collected
information from all physicians who received a request for assisted suicide,
OPHD would have valuable information about the patients, but the physicians
who provided the information and had not written the prescription
would not by this process know the outcome, and the privacy of the prescribing
physicians and their patients would be protected.
That information could also serve to evaluate the use of a six-month
prognosis to define terminal illness; recall that some of the patients receiving
prescriptions lived for a year or longer. OPHD should calculate the
107. Chin et al., supra note 103, at 582.
108. Fromme et al., supra note 23; Linda Ganzini et al., Nurses’ Experiences with Hospice
Patients Who Refuse Food and Fluids to Hasten Death, 349 New Eng. J. Med. 359 (2003); Helene
Starks et al., Family Member Involvement in Hastened Death, 31 Death Stud. 105 (2007); Jeffrey,
supra note 57.
109. Arthur E. Chin et al., Or. Dept. of Human Res., Oregon’s Death with Dignity
Act: The First Year’s Experience 3 (1999), available at http://oregon.gov/DHS/ph/pas/docs/
year1.pdf.
1638 Michigan Law Review [Vol. 106:1613
survival time of patients receiving a prescription and provide summary data
on the validity of this criterion.
As the years go by, OPHD is providing less information when it should
be providing more. For example, only in OPHD’s reports for 2004 and 2005
were the number of prescriptions written per physician cited. We were told
that the maximum number written by any one doctor was seven in 2004110
and eight in 2005.111 We know from other sources, however, that in one hospice
that has had twenty-eight PAS cases since 1997, a single doctor was
involved in twenty-three of them.112 Whether the doctor was the prescribing
physician or the consultant is not clear, but OPHD could ascertain that information.
Another piece of data that was only reported for the first two
years but that OPHD continues to collect is the number of physicians a patient
must see to obtain a prescription. In 1999, ten of the twenty-seven
cases went to a second physician and eight went to a third or fourth physician.
113 This information would clarify whether a small cohort of physicians
is involved in a majority of the cases and might suggest study of how physicians’
biases may be influencing patients’ requests.
D. Need for Change
So far OPHD has been collecting limited data and has not tried to address
any of the controversial issues the cases we have discussed present.
They have rather responded to pressure from advocacy groups not to use the
term “assisted suicide.” Since the inception of the Oregon law, OPHD had
used the internationally accepted term “physician-assisted suicide” in its
annual reports and on its website.114 In 2006, however, Compassion and
Choices, heeding polling data that indicated that the public responds unfavorably
to the practice when the term “assisted suicide” is used, lobbied
OPHD not to use it.115 OPHD briefly considered using “physician-assisted
death,” but gave that up in response to strong objections from PAS opponents
and settled on “death with dignity.”116
Patients who take a legally prescribed drug overdose to end their lives
are to be referred to as “persons who use the Oregon Death with Dignity
110. Office of Disease Prevention & Epidemiology, Or. Dep’t of Human Servs., Seventh
Annual Report on Oregon’s Death with Dignity Act 14 (2005), available at
http://www.oregon.gov/DHS/ph/pas/docs/year7.pdf.
111. Eighth Annual Report, supra note 33, at 13.
112. Jeffrey, supra note 57.
113. Amy D. Sullivan et al., Or. Dep’t of Human Servs., Oregon’s Death with Dignity
Act: The Second Year’s Experience 10 (2000), available at http://oregon.gov/DHS/ph/pas/
docs/year2.pdf.
114. Int’l Task Force on Euthanasia & Assisted Suicide, Oregon Plays Word Games with
Assisted Suicide, Update, Vol. 20, No. 5 (2006), available at http://www.internationaltaskforce.org/
iua39.htm.
115. Id.
116. Id.
June 2008] Physician-Assisted Suicide in Oregon 1639
Act.”117
Derek Humphry, the founder of the Hemlock Society, objected
strongly to the change, calling the term “death with dignity” “wildly ambiguous.”
118
As the Oregon assisted suicide law is currently implemented, “Death
with Dignity Act” is something of a misnomer. When patients like Kate
Cheney die because their relatives no longer want to care for them, they die
feeling rejected, not dignified. Mr. A was terrified when he learned he had
an illness that would be fatal. He assumed its course would be painful and a
hastened death the only solution. He was supported in that notion by Compassion
in Dying. He would likely have died feeling distraught, not
dignified, had it not been for the fortunate intervention of a truly compassionate
volunteer.
As we have previously noted,119 under the current monitoring system,
Oregon physicians appear to have been given great power without being in a
position to exercise it responsibly. They are expected to inform patients that
alternatives are possible without being required to be knowledgeable about
such alternatives or to consult with someone who is. They are expected to
evaluate patient decision-making capacity and judgment without a requirement
for psychiatric expertise or consultation. They are expected to make
decisions about voluntariness without having to see those close to the patient
who may exert a variety of pressures, from subtle to coercive. They are
expected to do all of this without necessarily knowing the patient for more
than fifteen days. Since physicians cannot be held responsible for wrongful
deaths if they have acted in good faith, substandard medical practice is permitted,
physicians are protected from the consequences, and patients are left
unprotected while believing they have acquired a new right.
117. Id.
118. Derek Humphry, Letter to the Editor, Stick to Plain English, Reg.-Guard (Eugene, Or.),
Nov. 7, 2006, at A8.
119. Foley & Hendin, supra note 2, at 174.
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