Oregon's guidelines for physician-assisted suicide: a legal and ethical analysis

Oregon's Death with Dignity Act was first passed by a ballot initiative in 1994, but numerous judicial challenges delayed implementation of the Act. In November of 1997, following the United States Supreme Court decisions in Vacco v. Quill and Washington v. Glucksberg, which left the states' power to regulate physician-assisted suicide undisturbed, the Oregon voters upheld their law. Oregon remains the only state in the nation to authorize physician-assisted suicide. The Task Force to Improve the Care of Terminally Ill Oregonians published a Guidebook for health care providers on the Oregon Act, and the New England Journal of Medicine recently issued a special report on the first year's experience under the Act. This paper analyzes the legal context of the Oregon Death with Dignity Act, discusses the efficacy of the tenets in the Guidebook, and explores ethical issues underlying the guidelines, particularly those pertaining to the meaning of a patient's request for assisted suicide and processes supporting informed consent.     

Assisted suicide and the inalienable right to life

This article focuses on a topic largely overlooked by both the supporters and opponents of assisted suicide. The legalization of suicide assistance damages the interests of persons who value the law's full and equal protection of their lives by designating them as eligible for help in killing themselves. Measures such as Oregon's Death with Dignity Act regard every person diagnosed as having a terminal condition as a candidate for suicide assistance, as if the protection of life was an alienable interest for this class. Thus all members of the eligible class, including those opposed to assisted suicide, lose the status of being regarded by law as having an inalienable right to the protection of life. This status-based injury should inform the standing and substantive constitutional questions raised by a state's adoption of such a policy.     

Oregon: does physician-assisted suicide work?

Since November 1997, Oregon, a State in the United States of approximately 3.3 million people, has allowed physician-assisted suicide, although not euthanasia, by virtue of the Death with Dignity Act. Before the Act, physician-assisted suicide, as in Australia and other common law jurisdictions, was illegal. Under the Act, the Oregon Department of Human Services is required to collect information and provide an annual report. The Sixth Annual Report on Oregon's Death with Dignity Act was released on 10 March 2004.     

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.     

Extending the Practice of Physician‐Assisted Suicide to Competent Minors

In an effort to address the mental and physical suffering terminally ill patients endure, some states have either legalized or decriminalized physician‐assisted suicide—a practice commonly referred to as death with dignity. However, as the practice of physician‐assisted suicide becomes accepted among states, competent minors continue to be excluded from legislative and judicial decisions. Regardless of parental consent, states institute an age requirement of eighteen years old for participants of physician‐assisted suicide. This Note proposes that states amend their physician‐assisted suicide statutes to (1) remove any age restriction, (2) create a standard of competency that minors must meet to be eligible for physician‐assisted suicide, and (3) implement a procedure to determine whether a minor meets the competency standard.     

The body and the body politic: assisted suicide under the Canadian Charter of Rights and Freedoms

The author critically examines the majority judgment of the Supreme Court of Canada in Rodriguez v. Canada (A.G.) and concludes that the judges in the majority have adopted a legislative public policy mandate rather than carrying out a judicial function that accords with established canons of Charter interpretation and analysis. The author contends that the majority read section 7 of the Charter as enshrining the sanctity of life as an intrinsic, abstract societal value necessary to protect the ill and the vulnerable and not as an expression of the individual's entitlement to autonomy against the State. She also contends that the majority's section 1 analysis was unduly deferential not only to the Canadian Parliament but also to the legislatures of the majority of Western democracies. This came at the expense of considering the legislative pattern of abandoning laws against suicide, the common law respect for individual autonomy and quality of life regarding refusal of and withdrawal from medical treatment, and the widespread lax enforcement of laws critical of the majority's reliance on "slippery slope" reasoning, which subordinated Ms Rodriguez's Charter rights to apprehend wrongdoing by the medical profession and the presumed best interests of society as a whole. The author recommends that legislators who address the question of assisted suicide look to methods of regulating access to assisted suicide that reflect respect for individual dignity under the Charter at the end of life, and reject any reading of the majority judgment that suggests that legislators are free to regulate or to proscribe assisted suicide according to abstract notions of the sanctity of life, pragmatic views of the public good, or the false consciousness or perceived vulnerability of the terminally ill or disabled.     

Physician-assisted suicide: legal and ethical considerations

As medicine's technical limits have become increasingly clear, Americans seem more willing to address end-of-life decisionmaking. A major development during the 1990s was physician assistance in dying: physician-assisted suicide in Michigan, Oregon's Death with Dignity Act, and developments in Europe, most notably The Netherlands. This evolution toward recognizing the appropriateness of assistance in dying raises legal and ethical issues for physicians and healthcare institutions such as nursing facilities and acute care hospitals. These issues include the effects on providers' values systems, the trust between patient and provider, and the "slippery slope" that voluntary, active assistance in dying will become involuntary, active assistance. This Article addresses the policy issues that institutions must confront in a changing environment.     

Physician-assisted suicide in Oregon: a medical perspective

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.     

Asphyxial suicide with helium and a plastic bag

Suicide by helium inhalation inside a plastic bag has recently been publicized by right-to-die proponents in "how to" print and videotape materials. This article reports a suicide performed according to this new and highly lethal technique, which is also a potentially undetectable cause of death. Toxicology information could not determine helium inhalation, and drug screening did not reveal data of significance. The cause of death could be determined only by the physical evidence at the scene of death. Helium inhalation can easily be concealed when interested parties remove or alter evidence. To ensure that their deaths are not documented as suicide, some individuals considering assisted suicide may choose helium methods and assistance from helpers. Recent challenges to Oregon's physician-assisted suicide law may increase interest in helium instead of barbiturates for assisted suicide.     

The right of caregivers to access health information of relatives with mental illness

This article reviews the legal, ethical and practical challenges of complying with the Ontario Personal Health Information Protection Act (PHIPA) within the context of a Canadian mental health system that is overburdened and under resourced. The advent of deinstitutionalization has placed significantly increased responsibilities on the families of mentally ill individuals. While research evidences that involving family members in the care of their mentally ill relatives improves treatment outcomes, mental health practitioners constantly face the challenge of engaging family caregivers while also complying with privacy laws. The authors propose an Ontario Caregiver Recognition Act (OCRA) to formally recognize family caregivers as informal health information custodians based on the practice of other jurisdictions which incorporate the rights of family members actively engaged in providing care to their mentally ill relatives.     

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.     

Is the death of the death penalty near? The impact of Atkins and Roper on the future of capital punishment for mentally ill defendants

In recent years, the U.S. Supreme Court has created two categorical exemptions to the death penalty. In Atkins v. Virginia, the Court exempted mentally retarded offenders. Three years later, in Roper v. Simmons, the Court extended the protection to juveniles. Based on these cases, the practices of foreign countries, and the opinions of professional organizations with relevant expertise, legal scholars speculate that the Court may, in the future, categorically exclude severely mentally ill offenders from the death penalty. This Note examines the feasibility of such an exemption for the mentally ill and considers its possible repercussions.     

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.     

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.     

Collaborated Death: An Exploration of the Swiss Model of Assisted Suicide for Its Potential to Enhance Oversight and Demedicalize the Dying Process

Death, like many social problems, has become medicalized. In response to this medicalization, physician-assisted suicide (PAS) has emerged as one alternative among many at the end of life. And although the practice is currently legal in the states of Oregon and Washington, opponents still argue that PAS is unethical, is inconsistent with a physician's role, and cannot be effectively regulated. In comparison, Switzerland, like Oregon, permits PAS, but unlike Oregon, non-physicians and private organizations play a significant role in assisted death. Could the Swiss model be the answer? The following essay explores the Swiss model of assisted suicide for its potential to enhance the regulation of PAS, reduce physician involvement, and perhaps demedicalize the way we die.     

Roe v. Wade and the history of abortion regulation

In "Roe," the Supreme Court found that the privacy right in the 14th amendment's view of "personal liberty" encompasses a woman's right to choose an abortion. The Court found that "abortion is a fundamental right." These conclusions are mistaken. The Court's analysis of "the history of abortion regulation" had a lot of errors and did not consider the state of technology in which abortion evolved. Sir Edward Coke, a 16th and 17th century jurist, said that abortion was a "great misprison." Quickening, the point at which a woman feels life, was used to determine fetal viability. State courts, therefore, viewed "abortion after quickening as common law crime." By the end of 1868, 30 to the then 37 states had passed laws restricting abortion. The Supreme Court said that the 19th century laws were passed to guard the mother's health "against the dangers of unsafe operation." In the 15 months before "Roe," 5 state courts said that their abortion laws were constitutional. They said that this was "intended to protect the lives of unborn children." Therefore, the Court's belief that "the state courts focused on the State's interest in protecting "the health of the mother" was unexplainable. The Court said that in many states the woman couldn't "be prosecuted for self-abortion." 17 states did "incriminate the woman's participation in her own abortion," but the Court did not note this. The Court's premise about the greater hazards of late abortions is mistaken. The states were concerned, in the late 19th century, about whether the attempted abortion caused the death of a child. The "right to an abortion" can only be seen as "fundamental" if it is "implicit" in the "ordered liberty" concept or "deeply rooted" in US tradition and history. "Roe" struck down the abortion laws of all 50 states and should be overturned.     

Death certification of "suicide by cop"

Death certification of "suicide by cop" is controversial among some medical examiners and coroners. We present five such deaths that were certified as suicides and discuss the medico-legal issues involved with these certifications. To certify such a death as a suicide, certain criteria should be met. Suicide by cop is a circumstance that involves competing intentional acts that may result in dichotomous determinations of the manner of death. Despite the absence of direct self-infliction, there is overwhelming evidence that these five individuals intended to end their own lives. Their use of an unusual method to accomplish this goal may inappropriately result in a reflexive certification of homicide. All of the decedents possessed weapons or a facsimile of a weapon. We present five instances of suicide by cop and contend that these types of deaths are best certified as suicides.     

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.     

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?     

Sampson v. state of Alaska: in the Supreme Court of the state of Alaska

HELD: The Alaska Constitution's guarantees of privacy and liberty do not afford terminally ill persons the right to a physician's assistance in committing suicide and Alaska's statute prohibiting suicide assistance does not violate their right of equal protection.