So-called Safeguards and Minimal Oversight: The Assisted Suicide Law in Oregon

1. So-Called Safeguards

Doctor shopping can circumvent any of the Oregon law’s supposed protections.

Take the case of Oregon patient Kate Cheney, who was 85. Her doctor refused to prescribe lethal drugs, because he thought the request actually resulted from pressure by her adult daughter who felt burdened with care giving. So the family found another doctor, and Ms. Cheney soon used the lethal prescription, and died.^[1] We call this “doctor shopping.”

It’s become common knowledge in Oregon that if your doctor says no, call the main organization that supports assisted suicide—today it’s called Compassion & Choices but it used to be known as the Hemlock Society—they will refer you to assisted-suicide–friendly doctors. They have been involved in between 75% and 90% of Oregon’s reported assisted suicides.^[2] Shopping for another doctor who will say yes, will get around the law’s weak safeguards.

The Oregon law is based on the faulty assumption that it is possible to make a clear distinction between those who are terminally ill with six months to live, and everyone else. Everyone else is supposedly protected and not eligible for doctor-prescribed suicide.

But it is extremely common for medical prognoses of a short life expectancy to be wrong. Studies overwhelmingly indicate how many errors are made, often predicting death when people may live for decades. So the effects of legalizing doctor-prescribed suicide are extremely broad, including many who may be mistakenly diagnosed as terminal, but have many meaningful years of life ahead.

This can lead people to give up on treatment and lose good years of their lives.

Jeanette Hall of Oregon was diagnosed with cancer in 2000 and told she had six months to a year to live. She knew about the assisted suicide law, and asked her doctor about it, because she didn’t want to suffer. Her doctor encouraged her not to give up, and she decided to fight the disease. She underwent chemotherapy and radiation. Eleven years later, she wrote, “I am so happy to be alive! If my doctor had believed in assisted suicide, I would be dead. … Assisted suicide should not be legal.”^[3] Seventeen years later, Jeanette Hall is still alive.

But not all doctors are like Jeanette Hall’s.

This poses considerable danger to people with new or progressive disabilities or diseases, who may often be misdiagnosed as terminally ill but who, in many cases, outlive these prognoses by years or even decades.

Research overwhelmingly shows that people with new disabilities frequently go through initial despondency and suicidal feelings, but later adapt well and find great satisfaction in our lives. However, the adaptation usually takes considerably longer than the mere fifteen-day waiting period required by many assisted suicide proposals and the Oregon law.

In that early period before one learns the truth about how good one’s quality of life can be, it would be all too easy, if doctor-prescribed suicide is legal, to make the final choice, one that is irrevocable.

An example is Dr. Richard Radtke, who was a well-known academic oceanographer from Hawaii. Richard had a very disabling form of muscular sclerosis for over 30 years. In the period after onset of the disease, doctors often classified him as terminally ill. He experienced acute depression for two years. Had assisted suicide been legal, he wrote that he would have chosen it, and died long before.

Notwithstanding his extremely limiting disability, he had a successful academic career, was a happily married father, and in retirement, was the president of a charitable foundation. He was grateful for his long, meaningful life, and finally died of natural causes in 2012.^[4]

How many people like Richard Radtke is our society prepared to sacrifice as collateral damage from the legalization of assisted suicide?

Depressed people have been harmed where assisted suicide is legal.

For example, Michael Freeland obtained a lethal prescription in Oregon, despite a 43-year history of severe depression and suicide attempts. His prescribing doctor said a psychological consult was not “necessary.” Yet, when finally provided high-quality medical and social services, his desire for assisted suicide vanished. He was able to reconcile with his estranged daughter and lived two years post-diagnosis.^[5]

If Oregon’s safeguards are strong, how did someone like Michael Freeland obtain lethal drugs?

Oregon’s statistics show that, in recent years, only 2 percent of patients are being referred for psychological evaluations. Over all the years, only 6% have been referred.^[6]

Moreover, doctors often unable to diagnose depression, and on the rare occasions psychiatric assessments happen, they are usually “pro forma,” because a doctor who thinks her patient should receive lethal drugs can “shop” for a psychologist or psychiatrist who will make a finding consistent with that view.^[7]

As Ruthie Poole, an advocate for people with psychiatric disabilities, wrote, “As people many of whom have suffered from major depression in the past, we can relate to the desire for ‘an easy way out.’ Depression is treatable and reversible. Suicide is not.”^[8]

Nothing in assisted suicide laws protects patients when pressures, whether financial or emotional, sometimes from family, distort the person’s choice.

There is a significant danger that many people would choose assisted suicide due to external pressure. Elderly individuals who don’t want to be a financial or caretaking burden on their families can take this escape, and no provision in the law can stop it. For example, according to prescribing doctors in Oregon, 40% of people who died by assisted suicide reported feeling like a burden on family and caregivers as a reason for requesting lethal drugs.^[9]

Assisted suicide proposals drawing on the Oregon model protect anyone from any civil and criminal liability if they act in “good faith.”^[10] It is virtually impossible to disprove an allegation of someone’s good faith, making all other safeguards effectively unenforceable.

Even more alarming, for all other medical procedures, practitioners are liable under a much stronger standard, that of negligence. But, even if negligent, practitioners of assisted suicide will not be found violating the law, as long as they practice in good faith.^[11]

2. Fatally Flawed Oversight and Minimal Data

Oregon’s annual reports on their assisted suicide statistics, highly praised by proponents as informative, actually tell us very little. Available data is quite minimal and there is no real oversight, investigation of abuse, enforcement, penalties for non-compliance, nor monitoring,^[12] despite the fact that the results can be deadly.

In reality, we don’t know what is happening under the Oregon law. Doctor-prescribed suicide is practiced in Oregon in secret and without oversight. In this lax context we must assume that any abuses that come to light are the tip of the iceberg.

Doctors who fail to report to the State that they prescribed lethal drugs, face no penalty. Though reporting is required on paper, no investigations take place to ensure the reports are made.

The State of Oregon does not monitor underreporting, noncompliance, or violations. Many of Oregon’s reports clearly acknowledge that the State cannot confirm compliance with the law.

For example, the State does not talk to doctors who denied requests to prescribe lethal drugs for patients. These doctors who first said "no" may have viewed their patients as not meeting legal requirements, important information if one wishes to evaluate the law’s outcomes. Nor does the State talk to families.

The State has no resources nor even authority to investigate violations. All the abuses (Michael Freeland, Kate Cheney, Wendy Melcher, ^[13] etc.) are discovered by the media—not an oversight body whose job it should be—and they are not investigated. Not only is abuse not investigated; there isn’t even a way to report it. Thus, it’s not what the Oregon data shows – it’s what it fails to show. The data shows no abuse because the system is set up not to find it.

Autopsies are not required, opening the door to another Dr. Kevorkian, most of whose victims were not terminally ill.

The State of Oregon has acknowledged that after each annual report is published, the underlying data is destroyed, so no outside party can conduct objective research.^[14]

 

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^[1] Erin Barnett, A family struggle: Is Mom capable of choosing to die? Oregonian, Oct. 17, 1999.

^[2] Transcript of tape of PeterGoodwin, Oregon, January 11, 2003, Presentation at 13th National Hemlock Society Biennial Conference, “Charting a New Course, Building on a Solid Foundation, Imagining a Brighter Future for America’s Terminally Ill,” January
9 – 12, 2003, Bahia Resort Hotel, San Diego, California.

Compassion in Dying of Oregon, Summary of Hastened Deaths, data attached to Compassion in Dying (now called Compassion and Choices) of Oregon’s IRS Form 990 for 2003.

Dr. Elizabeth Goy of Oregon Health and Science University (OHSU) is an Assistant Professor in the Department of Psychiatry, School of Medicine, OHSU and has worked with Dr. Linda Ganzini in surveys dealing with Oregon’s law. In 2004, members of the British House of Lords traveled to Oregon seeking information regarding Oregon’s assisted-suicide law for use in their deliberations about a similar proposal that was under consideration in Parliament. They held closed-door hearings on December 9 and 10, 2004 and published the proceedings on April 4, 2005. House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, Assisted Dying for the Terminally Ill Bill [HL] Vol. II: Evidence (London: The Stationery Office Limited, 2005), p. 291, Question 768, available at: http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/86ii.pdf(accessed March 10, 2015).

Kenneth R. Stevens, Jr. MD, former Chairman of Radiation Oncology at Oregon Health & Science University, The Proportion of Oregon Assisted Suicides by Compassion & Choices Organization.

Stevens, Concentration of Oregon’s Assisted Suicide Prescriptions &
Deaths from a Small Number of Prescribing Physicians.

^[3] Jeanette Hall letter to the editor – http://articles.boston.com/2011-10-04/bostonglobe/30243525_1_suicide-doctor-ballot-initiative.

^[4] “A Case Against Physician Assisted Suicide,” Richard Radtke, Ph.D., then President and CEO, Sea of Dreams Foundation, Journal of Disability Policy Studies, Summer, 2005, accessed April 24, 2015, http://dps.sagepub.com/content/16/1/58.full.pdf+html.

^[5] N. Gregory Hamilton, M.D. and Catherine Hamilton, M.A., Competing Paradigms of Responding to Assisted-Suicide Requests in Oregon: Case Report, presented at the American Psychiatric Association Annual Meeting, New York, New York, May 6, 2004. http://www.pccef.org/articles/art28.htm and N. Gregory Hamilton, M.D., Testimony to the Select Committee on the Assisted Dying for the Terminally Ill Bill, House of Lords, Portland, Oregon, December 10, 2004, http://www.pccef.org/articles/art32HouseOfLords.htm.

^[6] Oregon Death with Dignity Act Annual Reports, Oregon Health Authority Public Health Division, https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ar-index.aspx.

^[7] N. Gregory Hamilton, M.D., Physicians for Compassionate Care Educational Foundation, Testimony to the Select Committee on the Assisted Dying for the Terminally Ill Bill, House of Lords, Portland, Oregon, December 10, 2004, available at http://www.pccef.org/articles/art32HouseOfLords.htm.

^[8] Ruthie Poole, President, MPOWER Board of Directors [MPOWER: Massachusetts People/Patients Organized for Wellness, Empowerment, and Rights].

^[9] Oregon Death with Dignity Act Annual Reports, Oregon Health Authority Public Health Division, https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ar-index.aspx.

^[10] Or. Rev. Stat. § 127.885(1)–(3).

^[11] Hendin and Foley, “Physician Assisted Suicide: A Medical Perspective,” Michigan Law Review, pp.1626-1627.

^[12] Oregon Death with Dignity Act Annual Reports, Oregon Health Authority Public Health Division, https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ar-index.aspx.

^[13] Pressure Increases on Suspected Nurses – Alleged Players in Assisted Suicide May Be Prosecuted; Others, Too, Portland Tribune, September 7, 2007.

^[14] Testimony of Dr. Katrina Hedberg, December 9, 2004, in House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, Assisted Dying for the Terminally Ill Bill [HL], Vol. II, p. 262, question 592.