Academic journal article
By Hendin, Herbert; Foley, Kathleen
Issues in Law & Medicine , Vol. 24, No. 2
ABSTRACT: This article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector of the welfare of terminally ill patients. We make explicit suggestions for what OPHD would need to do to change that.
In 1997, five months after the U.S. Supreme Court ruled that there was no right to assisted suicide in the Constitution but implied that states have the right to decide for themselves whether to permit or prohibit physician-assisted suicide, the Oregon Death with Dignity Act, having survived its own legal challenges, took effect. (1) It was thought that Oregon would serve as a "laboratory of the states," showing us how physician-assisted suicide ("PAS") would work. This has not occurred, in large part because the Oregon Public Health Division ("OPHD"), charged with monitoring the law, has interpreted its mandate in an extremely restrictive manner.
OPHD limits its yearly reports to general epidemiological data and collects limited information from physicians who have prescribed lethal medication. Physicians who declined to prescribe the lethal medication, as well as nurses and social workers who cared for the patients, pharmacists who filled the prescriptions, and family members, are not interviewed. Not all the information collected is made public, (2) and after a year "all source documentation is destroyed." (3)
Since the passage of Oregon's Death with Dignity Act, however, various sources--patients, families, healthcare professionals, physicians, nurses, social workers, chaplains, and advocacy groups--have supplied more detailed information that suggests that the implementation of the law has had unintended, harmful consequences for patients.
The Oregon law seems to require reasonable safeguards regarding the care of patients near the end of life, which include presenting patients with the option for palliative care; ensuring that patients are competent to make end-of-life decisions for themselves; limiting the procedure to patients who are terminally ill; ensuring the voluntariness of the request; obtaining a second opinion on the case; requiring the request to be persistent, i.e., made a second time after a two week interval; encouraging the involvement of the next of kin; and requiring physicians to inform OPHD of all cases in which they have written a prescription for the purpose of assisted suicide.
The evidence strongly suggests that these safeguards are circumvented in ways that are harmful to patients. Addressing and correcting the situation would require more information than OPHD has been willing to obtain. Instead, based on the inadequate information it collects, OPHD has been issuing annual reports declaring that terminally ill Oregon patients are receiving adequate care. The available evidence, which we will present in this article, suggests otherwise.
Nothing in the Oregon law prevents OPHD from collecting needed information.
During the second year of the law, OPHD did undertake a survey of the family members of patients who had been assisted in suicide. (4) Apart from not permitting independent investigators to examine the data, the Oregon law gives OPHD great flexibility. OPHD has not taken advantage of this opportunity.
This article draws on six cases previously published, three of them by us. In four of them there was independent information from more than one source. …