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The Right to Death

In response to:

May Doctors Help You to Die? from the October 11, 2012 issue

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To the Editors:

Marcia Angell’s “May Doctors Help You to Die?” [NYR, October 11] assures us that assisted suicide in Oregon involves people who “were relatively affluent and well educated,” protected by safeguards to ensure voluntary choice. However, as the Oregon Reports themselves note, the state can’t assess the extent of nonreporting or non-compliance. Some independent articles find that safeguards failed in individual cases (see, e.g., Herbert Hendin and Kathleen Foley, MDs, “Physician-Assisted Suicide in Oregon: A Medical Perspective,” Michigan Law Review, June 2008). But the law includes no authority for investigation or enforcement, so nothing happens as a result.

Angell’s article also states that “there has been no indication of coercion by unscrupulous family members,” but all forms of elder abuse are notoriously undetected and underreported. Sure, some people are safe from the rising tide of elder abuse, but with 19,500 reported Massachusetts cases in 2011, many are not. Pressure to choose assisted suicide can come in many forms, most private and hidden. When we’re talking about changing public policy in the real world of families that are not necessarily all loving and supportive, we have an obligation to think of everyone, not just those who are safe from pressures to get it over with.

Diane Coleman, JD
President/CEO
Not Dead Yet
Rochester, New York

Marcia Angell replies:

The Oregon law permitting physician-assisted dying has multiple safeguards, including the requirement that the patient be an adult with decision-making capacity; that two physicians agree that the patient is suffering from a terminal illness that will likely cause death within six months; that the patient make two oral requests at least fifteen days apart, plus a written request with two witnesses; and that the patient be referred to a mental health counselor if a physician believes the patient’s judgment is impaired. Those safeguards seem ample to me.

Diane Coleman warns darkly of all sorts of abuses in Oregon, but gives no specific examples. Instead, she provides a link to a 2008 paper in the Michigan Law Review by Herbert Hendin and Kathleen Foley, two implacable opponents of physician-assisted dying, who present six cases to illustrate that safeguards in the Oregon law are being “circumvented.” But these cases do nothing of the sort, so it’s worth looking at them here.

As described in the paper, cases 1, 3, and 5 conformed to the law, and the problem for Hendin and Foley seemed to be that the patients and prescribing physicians made up their own minds without consulting a psychiatrist (Hendin’s specialty) or a palliative care expert (Foley’s specialty)—something the law does not require. In case 2, a request for assisted dying was refused because the patient’s life expectancy was longer than six months; she then took her own life, which, while tragic, cannot be seen as a failure of the law. In case 6 (a case so complicated and extreme that it cannot be taken as representative of anything), the patient obtained the medication to hasten his death, but did not use it and died of his underlying illness (lung cancer). None of these five cases can reasonably be considered as illustrating circumvention of the law’s safeguards. What Hendin and Foley seem to object to is not the application of the law, but the law itself.

Only case 4, involving an eighty-five-year-old woman with stomach cancer, raised the specter of coercion. As required by her HMO, she was seen by a psychiatrist when she requested assisted dying. He found she had memory deficits, and referred her to a consulting psychologist, who agreed that her memory was impaired and also noted, according to a newspaper account referred to by Hendin and Foley, that her daughter might have been “somewhat coercive.” But he nevertheless thought she was capable of making her own decision. In another account of this case (in an amicus brief in the Montana Supreme Court case that legalized physician-assisted dying there), the patient herself was quoted as saying that she did not feel pressured. Speaking of her daughter, the patient said, “She makes more noise than I do, but that doesn’t make me less serious.”

Hendin and Foley make much of the fact that in three of these cases, the physicians initially consulted refused to write the prescription, and the patients “doctor-shopped” until they found one who would. But that is to be expected since many physicians disagree with the law on principle or for other reasons that have nothing to do with the specific case, and there is no requirement that they participate. Moreover, in the early years (case 1 was said to be the first patient to use the law), physicians were intimidated by the Drug Enforcement Administration’s contention that writing the prescription would violate the federal Controlled Substances Act. Until the US Supreme Court upheld the Oregon law in 2006, many physicians in Oregon likely refused requests for assisted dying for that reason. In case 3, for example, a doctor referred a patient to a psychologist to check her decision-making capacity, not because he believed it was in doubt, but “to cover my ass.”

If these six cases are the worst instances of wrongdoing that Hendin and Foley could find, they add to the overwhelming evidence that the Oregon law is working very well. Of course, no law could ever be passed if held to the standard that there could not possibly be instances of abuse, but there is simply no credible evidence that this one is being abused.

The heart of the matter, it seems to me, is who should decide how much suffering is too much for a dying patient—the patient or someone else. Hendin and Foley criticized volunteers from an organization that supports the Oregon law because their role “was to help the patient and family get what they wanted, not to assess whether this was an appropriate option for the patient.” But helping dying patients “get what they want” is exactly what we should be doing.

I note that Coleman is president and CEO of Not Dead Yet, an advocacy group for disabled people that opposes physician-assisted dying. This organization has the right to take any position it likes on this issue, but it is important to point out that a disability is not a terminal illness. No one with a disability would be eligible for physician-assisted dying in Oregon because of their disability, so they need not worry about being victimized by the law.

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