In the laboratory of the states: the progress of Glucksberg's invitation to states to address end-of-life choice

It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation that would allow terminally ill individuals the choices they had previously sought through litigation. Oregon's experience with its Death with Dignity Act, which grants terminally ill, mentally competent individuals the choice to end their lives through self-administered medication, has proven that such laws provide comfort not only to those who, faced with the prospect of a horrible death from a terminal illness, choose to end their lives in a peaceful and dignified manner, but also to those to ultimately choose not to. Additionally, Oregon's experience shows that the fears that originally attended the "assisted suicide" debate are unfounded so long as proper procedures are in place. Because Oregon's Death with Dignity Act has proven both useful and harmless, this Article concludes that it is time for other states to follow Oregon's lead and enact their own legislation to allow their citizens an alternative to what otherwise could be a prolonged and painful death from terminal illness.     

Five Words for Assisted Dying

Motivated by Lord Joffe’s Assisted Dying for the Terminally Ill Bill, but with one eye on any possible future legislation, I consider the justifications that might be offered for limiting assistance in dying to those who are suffering unbearably from terminal illness. I argue that the terminal illness criterion and the unbearable suffering criterion are not morally defensible separately: that a person need be neither terminally ill (or ill at all), nor suffering unbearably (or suffering at all) to have a right to assisted dying. Indeed: I shall suggest that the unbearable suffering criterion undermines the Bill (or any proposal like it) wholesale. On the other hand, the criteria taken together are defensible, and this defence would be built on a concern for the protection of the vulnerable. However, I also claim that this implies that the law might justifiably—and maybe even properly—aim to prevent a person from gaining access to that to which they have a serious moral right. This seems paradoxical, and, towards the end of the paper, I seek to tease apart the paradox.     

The descriptive epidemiology of unnatural deaths in Oregon's state institutions: a 25-year (1963-1987) study. I. A preliminary analysis of recent incidence rates of suicide in mental and correctional facilities

This paper presents for the first time the annual suicide incidence rates of residents from four Oregon state institutions for a 5-year (1983-1987) period of time. The suicide rate for inmate-patients of the Forensic Psychiatric Program (for the care and treatment of individuals who have been found guilty of serious crime and to be mentally ill) is 820/100,000. This represents a suicide rate 51 times higher than the rate for Marion County or the state of Oregon. This is also one of the highest annual suicide rates ever reported. The suicide rate for patients of the Oregon State Hospital is 289/100,000, which is similar to other reported suicide rates in hospitalized mentally ill populations. This rate is approximately 18 times higher than the rate for Marion County or the state of Oregon. The suicide rate for inmates of Oregon's four correctional institutions is approximately 29/100,000, which is similar to other reported rates for prisoners. This rate is approximately 1.8 times higher than the rate for Marion County or the state of Oregon. The suicide rate for residents of the Fairview Training Center (for care of the mentally retarded and developmentally disabled) is zero.     

Disobedience to Law – Debbie Purdy's Case

This case note examines the implications of the House of Lords decision to order the DPP to issue offence specific guidelines allowing those contemplating assisting terminally ill persons to commit suicide to know the risk they face of prosecution under section 2(1) of the Suicide Act 1961. On the assumption that these guidelines will be law, and binding upon the DPP as well as the CPS, does this represent a change in the law, or a situation in which it may be unlawful to enforce the law, or even generate a legal right of disobedience to law?     

Foreword: can Glucksberg survive Lawrence? Another look at the end of life and personal autonomy

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority--all of whom still sit on the Court--might overrule Glucksberg. For various reasons, however, this seems improbable. Unlike the situation with respect to the pre-Lawrence era, Glucksberg does not stigmatize any politically vulnerable group. When there is no democratic defect in the political process, there is much to be said for courts deferring to reasonable legislative judgments. Moreover, unlike the developments preceding Lawrence, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. No state supreme court has found a right to PAS in its own state constitution. Nor, in the decade since Glucksberg, has any state legislature legalized PAS. And attempts have been made to do so in some twenty states. In addition, various considerations might cause a court to balk at constitutionalizing PAS for the terminally ill. Such a right is not easily cabined. If personal autonomy extends to the time and manner of one's death, why doesn't it also apply whenever a competent person believes that death is better than continued life? Once the right to PAS is grounded on self-determination or personal autonomy in controlling ones own life and death, it no longer seems plausible to limit it to the terminally ill. Why should people who have to endure pain, suffering, or indignity for a much longer time than the terminally ill (often defined as those with six months or less to live) be denied this right? The argument made by many proponents of PAS that the right to forgo medical treatment and the right to PAS are merely subcategories of the same broad right is not convincing. Most of the two million people who die every year in this country do so in hospitals and long-term care institutions and do so after a decision to forgo life-sustaining treatment has been made. If medical treatment could not be rejected, vast numbers of patients would be at the mercy of every technological advance. (For example, Nancy Cruzan could have been kept alive in her persistent vegetative state for thirty years.) Allowing a patient to die at some point is a practical condition upon the successful operation of medicine. The same can hardly be said of PAS.     

Glucksberg, the putative right to adequate pain relief, and death with dignity

This Article focuses on the legality of the aggressive use of analgesics and deep sedation for terminally ill patients. The author analyzes the 1997 Supreme Court decisions on physician-assisted suicide, examines the tension between controversial palliative care practices and the traditional legal framework, and explores the contours of an emerging constitutional right to avoid suffering at the end of life. In addition, the author argues that deep sedation together with withholding of artificial nutrition and hydration should be an option for dying patients suffering from severe physical or emotional pain.     

Assisted suicide under the European Convention on Human Rights: a critique

In a high profile case, a terminally ill woman, Diane Pretty, challenged the United Kingdom prohibition on assisted suicide as incompatible with certain fundamental rights which are guaranteed under the European Convention on Human Rights. Mrs Pretty's battle was ultimately unsuccessful, with a total of three courts and 15 judges ruling against her. Such unanimity of opinion might well be thought to represent the coup de grace for arguments about the right to assistance in death under European human rights law. However, in this article it is suggested that, in limited circumstances, such assistance might yet still be possible under the Constitution.     

Washington v. Glucksberg was tragically wrong

Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v. Glucksberg. The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects of autonomy that the Court has protected in decisions concerning family autonomy, reproductive autonomy, and autonomy to engage in sexual activity. Moreover, the government's general interest in protecting life and preventing suicide has far less force when applied to a terminally ill patient. The tragedy of Washington v. Glucksberg is that every day across the country, terminally ill patients are being forced to suffer longer and being denied an essential aspect of their autonomy and personhood.     

The right to die: state courts lead where legislatures fear to tread

The right to die may be among the most legally complex and culturally sensitive areas of civil rights to emerge in our time. The thorny issues associated with a terminally ill individual's right to self-determination, and the disposition of individuals who are incompetent to make right to die decisions for themselves, promises to keep all parties involved - health care professionals, medical ethicists, families, lawyers, judges, and state legislators -busy for some time to come. To this point, the state courts have taken the lead in the right to die debate, while the state legislatures have tended to drag their collective feet. This article lays the case law groundwork for right to die decision making, then goes on to assay the legislative responses to the issue that have been rendered in the fifty states.     

Toward a continuum of care for the elderly: a note of caution

The search for better ways to care for the chronically ill elderly has led to "alternatives to institutional care." A study fo geriatric day care and homemaker services finds that they were used as an add-on to existing care, few patients benefited, and costs were 60-71% higher than costs of a control group. Four more studies have confirmed the lack of substitution effects. Services could be targeted on those who need them even though it is very difficult to do so, and efficacy should be demonstrated before benefits are expended to new services.     

Many Duties of Care--Or A Duty of Care? Notes from the Underground

In the course of attacking the idea that the concept of theduty of care can be dispensed with and replaced by a view ofnegligence that deals only with fault and causation, criticshave revived the notion that there are many duties of care.This article argues that the idea of many duties of care isunworkable, but that there is no need to revive such an ideato avoid falling into the view that the whole concept of theduty of care can be discarded. It argues instead for a unifiedview of the duty of care as a single duty. It also argues fora new analysis of negligence, facilitated by the one-duty view,which does see fault as central to negligence but which, insteadof discarding duty, sees arguments about duty as about whetherthe defendant should be permitted to act unreasonably. The articledefends the one-duty view and the new analysis of negligenceagainst the relational view of negligence and against chargesthat it is motivated by a desire for unity between English andFrench law, that it would be incompatible with the conventionaleconomic analysis of tort law (in the course of which it suggestsan economic analysis of the duty of care), and that, unlikethe no-duty view or the many-duties view, it fails to articulatea coherent view of the relationship between freedom and community.     

Fifty years on: against the stigmatising myths, taboos and traditions embedded within the Suicide Act 1961 (UK)

Although assisted suicide carries a maximum of 14 years imprisonment in England, courts and juries have historically demonstrated a reluctance to convict, most specifically in relation to those travelling abroad to accompany a terminally ill person seeking assisted dying. The possibility of prosecution is still present, however, and there have recently been a number of challenges to the law on assisted dying. During the consultation period of the Coroners and Justice Act 2009 (UK) an amendment was proposed that would have legalised, among other things, assisting suicide overseas. However, it was voted down by peers who believed it to be dangerously radical. In 2008 a multiple sclerosis sufferer requested a clear policy statement, should her partner help her to seek assisted dying abroad in the future. After her application was initially rejected, Mrs Purdy was granted leave to appeal and following a favourable ruling by the House of Lords in 2009, the Director of Public Prosecutions clarified the law on assisted suicide, introducing a Full Code Test which includes the consideration of "public interest factors". Although the new guidelines are not a direct threat to the 50-year-old Suicide Act 1961 (UK), it is clearly an historic development: the latest in a series of high-profile cases and debates which have taken place over the last decade. It is suggested that English law on assisted dying continues to rely on a range of inappropriate concepts, taboos and superstitions, and it is from this perspective that the implications for future legislative reform are addressed.     

The Politics of Palliative Care and the Ethical Boundaries of Medicine: Gonzales v. Oregon as a Cautionary Tale

The U.S. Supreme Court's 6-decision in Gonzales v. Oregon is the latest defeat for the Bush administration in its sustained attack on Oregon's physician-assisted suicide law. Both the majority opinion and the major dissent in Oregon provide an opportunity to assess the dangers inherent in allowing a political agenda that emphasizes the sanctity of life and minimizes professional ethical obligations to overshadow quality patient care at the end of life.     

Neuroscientific and behavioral genetic information in criminal cases in the Netherlands

In this contribution an empirical approach is used to gain more insight into the relationship between neuroscience and criminal law. The focus is on case law in the Netherlands. Neuroscientific information and techniques have found their way into the courts of the Netherlands. Furthermore, following an Italian case in which a mentally ill offender received a penalty reduction in part because of a ‘genetic vulnerability for impulsive aggression’, the expectation was expressed that such ‘genetic defenses’ would appear in the Netherlands too. To assess how neuroscientific and behavioral genetic information are used in criminal justice practice in the Netherlands, we systematically collect Dutch criminal cases in which neuroscientific or behavioral genetic information is introduced. Data and case law examples are presented and discussed. Although cases are diverse, several themes appear, such as prefrontal brain damage in relation to criminal responsibility and recidivism risk, and divergent views of the implications of neurobiological knowledge about addiction for judging criminal responsibility. Whereas in the international ‘neurolaw literature’ the emphasis is often on imaging techniques, the Dutch findings also illustrate the role of neuropsychological methods in criminal cases. Finally, there appears to be a clear need of practice oriented instruments and guidelines.     

Forensic mental health law reform in Japan: from criminal warehousing to broad-spectrum specialist services?

Since the 1980s Japan has undergone a number of mental health law reforms culminating in the 2005 forensic law. This added to its enactments on involuntary commitment, long-term aged care and substitute decision making, bringing Japan into focus as an industrialized state now possessed of a full package of civil and forensic provisions. This article seeks to demonstrate that the new forensic law cannot achieve its own stated goals without seeking to put into place financial and administrative supports aimed to integrate the myriad of patient populations that will be inevitably affected by the new forensic system. In order to avoid the widespread syndrome that has already been experienced internationally of warehousing mentally ill offenders in jails, it is critical that the Japanese government develop effective and culturally sensitive techniques for dealing with low risk populations through a diversionary process. Furthermore, although the legislation addresses serious crimes, it is imperative that policies be put into place to avoid directing young offenders, violent patients from the general hospital system, the developmentally handicapped, already convicted persons found in hospital settings and problematic cases in the correctional system, to the new forensic units established by the legislation. It is only though contemplating unintended outcomes of the legislation that the Japanese government will be able to avoid the ongoing stigmatization and prolonged institutionalization of mentally ill populations. Despite apparent cultural differences internationally vetted human rights requirements must be properly protected, not only in the forensic context, but throughout the mental health system at large. The coordination of services and the development of specialty training are necessary conditions for the realization of improved and humane conditions for mentally ill persons in Japan.     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

Psychiatric care or social defense?: The origins of a controversy over the responsibility of the mentally ill in French forensic psychiatry

While some countries like Belgium chose a penal system clearly inspired by social-defense theories for mentally disturbed criminals, the French law hasn't been consistent and varies from the enlightened classical law and social-defense law. Indeed paragraph 1 of article 122-1 states that people whose discernment or control is abolished by a psychiatric disorder are non-responsible respecting the classical logic of law. On the other hand, Paragraph 2 of Article 122-1 allows the mentally ill to be judged responsible whereas no institution exists to take care about them. Then the system of psychiatric care in prisons present as a solution for professionals wishing to promote a system where people are punished and socially rehabilitated. Thus these forensic psychiatrists don't refer to paragraph 1 of article 122-1 and even people presenting serious mental disorders are considered responsible. Moreover, if a controversy has always existed between psychiatrists who argue a large conception of mental irresponsibility and professionals who defend the right to punish and to conclude that responsibility even for mentally disturbed criminals, the controversy becomes more important in French forensic psychiatry after the Second World War. If until the 1970s the practice of imposing responsibility for mentally ill individuals shows itself as a humanism, it occurs more within a security perspective today.     

The impact of a change in commitment procedures on the character of involuntary psychiatric patients

The statutory requirements for involuntary civil psychiatric confinement have become increasingly restrictive. In the jurisdiction under investigation, patients were originally admitted under an Order to Apprehend (OTA) procedure simply on the petition of two affiants who indicated the patient was in need of care. A newly elected judge instituted changes requiring affiants to claim the subject was "dangerous" to self or others and asking for a clinical assessment and recommendation before signing the petitioned request for involuntary confinement. It might be expected that the more restrictive procedures would have produced a population of more assaultive patients. A study of petitions signed under in the earlier (N = 133) and later, more restrictive (N = 218) procedures indicated that the proportion of assaultive or dangerous patients was virtually identical. Further investigation, using hospital data an OTA patients from this area in both time periods, suggested that while patients were not more assaultive, they appeared to be more seriously ill or psychiatrically impaired. Apparently, movement to a dangerousness standard that allows clinical discretion in interpreting its presence may result in involuntary commitments for more seriously ill, although not necessarily more assaultive, patients.     

The POLST (Physician Orders for Life-Sustaining Treatment) paradigm to improve end-of-life care: potential state legal barriers to implementation.

The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm is designed to improve end-of-life care by converting patients' treatment preferences into medical orders that are transferable throughout the health care system. It was initially developed in Oregon, but is now implemented in multiple states with many others considering its use. An observational study was conducted in order to identify potential legal barriers to the implementation of a POLST Paradigm. Information was obtained from experts at state emergency medical services and long-term care organizations/agencies in combination with a review of relevant state law.