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P&S Medical Review: Apr 1995, Vol.2, No.2
Oregon's Death With Dignity Act: Too Much Death and Not Enough Dignity
JOHN R. COOKE
Columbia University College of Physicians and Surgeons, New York, N.Y.
INTRODUCTION
Samuel Johnson remarked that the prospect of death wonderfully concentrates the mind.1 Such is arguably the case when contemplating one's own mortality. In medicine, however, the prospect of the patient's imminent death from a terminal illness too often confounds the mind of the treating physician. Should, for example, the physician collaborate with the patient who seeks to die "prematurely" to forestall an agonizing and undignified death? Or must the physician refuse to provide succor and thus simply minister to the patient in his final days? While each culture in each era develops its own de jure response to this conundrum, physicians throughout the history of medicine have "helped," either directly or indirectly, terminally ill patients die using a series of sub rosa practices that are alternatively viewed as merciful or monstrous.
Public awareness concerning these practices has been focused in the last decade by news reports and litigation concerning either terminally ill or debilitated individuals seeking to die. Dr. Kevorkian has become a prominent figure in this arena, initially for his role in participating in the deaths of approximately two dozen individuals ostensibly at their request, and subsequently for his various entanglements with the legal system as a result of these activities. While many of his colleagues decry his methods, he has become something of a folk hero for his lay supporters.
In addition, the Hemlock Society has published a briskly selling book, written by Derek Humphry, entitled "Final Exit,"2 that describes "self-deliverance" techniques to enable the terminally ill patient to end his life. This organization was also instrumental in placing voter initiatives on the ballots in California and Washington that would have permitted physicians to collaborate with terminally ill patients seeking to die. These referenda were subsequently rejected by the electorate in both jurisdictions.
The Hemlock Society later succeeded in placing an initiative on the Oregon state ballot that would permit a form of "physician-assisted suicide" for terminally ill individuals.3 Oregon voters approved this measure by a two-percent margin in November 1994.4 In December 1994, a federal district court in Washington State enjoined the implementation of this "Death With Dignity Act" pending resolution of legal challenges to its validity. The court's injunction remains in effect at the time of this writing.
Despite its uncertain status, the Oregon Act is appropriately at the epicenter of the current debate concerning "physician-assisted suicide," as it is the only legal provision in this country that affirmatively condones such activity. Thus, perceptions concerning the success or failure of this law will undoubtedly influence future efforts in this field.
This article reviews the provisions of the Oregon Act. Next, it examines two aspects of the Act that are, in the author's opinion, fundamentally deficient. Finally, in an attempt to divine what this law says about the public's perception of the effectiveness of physicians in caring for the their terminally ill patients, the article considers the procedure pursuant to which the Oregon Act was passed.
In brief, it is the author's contention that the Oregon measure eschews difficult issues at the peril of its apparent beneficiary, the terminally ill patient. The author also maintains, however, that the public considers the current standard of care for the terminally ill to be myopic and ineffectual and that the Oregon Act is a lay protest against what is perceived as feckless doctoring. Accordingly, medical practices concerning the terminally ill need to be modified substantially, not only if physicians hope to maintain a semblance of autonomy in treating such individuals, but also if these patients hope to retain the ability to receive individualized and compassionate care at the end of their lives.
Summary of the Oregon "Death with Dignity Act"
The "terminal disease" must be "incurable and irreversible" and one that will, "within reasonable medical judgment, produce death within six (6) months."7 The term "attending physician" is defined as "the physician who has primary responsibility for the care of the patient and the treatment of the patient's terminal disease."8 The term "consulting physician" is defined as "a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease."9 There is no requirement of independence between the attending and consulting physicians; thus, the Act apparently permits the attending and consulting physicians to practice together.
The patient's written prescription request must be signed in the presence of at least two witnesses who attest that the patient is "capable, acting voluntarily, and is not being coerced to sign the request."10 The patient's attending physician "shall not be a witness."11 This, of course, implies that the consulting physician may be a witness. One of the witnesses must be a disinterested party, i.e., the witness cannot be "a relative of the patient by blood, marriage or adoption," a person "entitled to any portion of the estate" of the patient "under any will or by operation of law," or "an owner, operator or employee of a health care facility" treating the patient. The attending physician can request, but cannot require, that the patient notify his next of kin about the prescription request.12
The Act contains a set of requirements governing the timing of the patient's request for the lethal prescription. The patient is required to make "an oral request and a written request, and reiterate the oral request to his or her attending physician" no sooner than fifteen days "after making the initial oral request."13 In addition, no less than fifteen days "shall elapse between the patient's initial oral request and the writing of a prescription under this Act," and at least forty-eight hours "shall elapse between the patient's written request and the writing of a prescription under this Act."14 The patient may rescind his request "at any time and in any manner without regard to his or her mental state."15
The attending physician must determine whether the patient "has a terminal disease, is capable, and has made the request voluntarily." He must also refer the patient to a consulting physician for confirmation of the illness, capacity, and volition.16
Psychiatric evaluations are not required as a matter of course. Instead, the attending or consulting physician must refer the patient for "counseling" only if it appears that the patient "may be suffering from a psychiatric or psychological disorder, or depression causing impaired judgment."17 The term "counseling" is defined as "a consultation between a state licensed psychiatrist or psychologist and a patient" for the purpose of determining whether the patient has a condition "causing impaired judgment."18 There is no requirement of independence between the party providing the counseling and the attending or consulting physician. No prescription may be provided under the Act until the individual providing the counseling determines that the patient is not suffering from a disorder or depression causing impaired judgment.19 There is no requirement of a second psychiatric opinion. Nor is there a procedure for reassessment of a terminally ill patient previously found to have had impaired judgment.
The Act shields the medical personnel involved from liability. No physician is required to provide a prescription on request.20 In addition, physicians are accorded immunity from "civil or criminal liability" and from "professional disciplinary action" for "good faith compliance" with the Act.21 This immunity also extends to the physician who is present when the patient actually takes the medication with the intent to die.22
As for protecting the patient, the Act provides that neither a request for, nor a provision of a prescription shall "constitute neglect for any purpose of law" or "provide the sole basis for the appointment of a guardian or conservator."23 The Act also renders invalid any contract, will, or other agreement to make or to rescind a prescription request.24 It also states that the sale, procurement, or issuance of insurance or annuity policies cannot be conditioned on or affected by the making or rescinding of a prescription request.25 In addition, the patient's "act of ingesting medication to end his or her life in a humane and dignified manner" shall have no effect on insurance or annuity policies.26
The Act states that it shall not be construed "to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia."27 In addition, "[a]ctions taken in accordance with this Act shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law."28 This latter provision is discussed in further detail in the following section.
Does the patient have an enforceable right to commit an assisted suicide under the Oregon Act?
Medical literature is replete with discussions concerning the appropriate methods for regulating the activities of physicians collaborating with patients who seek to end their lives rather than endure the natural history of a terminal illness.29 What is conspicuously absent in these discussions, however, is an analysis of whether these patients have the right to complete the physician-assisted suicide in the first instance. This lacuna, unfortunately, is perpetuated in the Oregon Act. The resulting uncertainty as to the patient's independent right to die by his own hand fundamentally undermines the utility and legitimacy of the Act.
It should be noted initially that the phrase "assisted suicide" is a perplexing one. As a legal matter, the term "suicide" is understood to refer to an individual acting alone, without coercion or collaboration, to end his life.30 By contrast, when a putative suicide is "assisted," it is, at least in legal terms and effect, a crime, and it is well-settled that the consent of the victim will not absolve the party who collaborated with the deceased, no matter how unequivocal the evidence of consent. Thus, under Oregon law, a person who "intentionally causes or aids another person to commit suicide" is guilty of the felony of "manslaughter," which carries a maximum prison term of ten years.31
The peculiar nature of "assisted suicide" is highlighted by comparison to terms such as "assisted monologue," "assisted solo flight," or "assisted pregnancy." A more candid, or at least more neutral, phrase would be "physician-assisted death." Despite its semantic vagaries (or perhaps because of them), the term "physician-assisted suicide" has become entrenched in the literature and therefore will be retained for the balance of this discussion.
Assuming, then, that the procedure established by the Act can be characterized as an assisted suicide, it would follow that the patient was endowed with an antecedent right to engage in an unassisted suicide. As a matter of common usage, one "assists" another when the latter has the power to perform the act on his own. If both individuals are necessarily required to perform the act, then the notion of "assistance" is inapt. Yet it is far from clear that individuals in Oregon (or anywhere else in the United States) have an independent and enforceable right to commit suicide for any reason.
Suicide was previously criminalized, and penalties were visited upon both the deceased (in the form, for example, of an ignominious burial) and the surviving family members (in the form of penalties and forfeitures). Modern criminal codes have removed suicide from their list of offenses, not because suicide is now condoned, but because legislatures have concluded that the criminal justice system is not the appropriate forum for handling suicidal behavior and that the health-care system could more effectively deter suicide.32 In addition, the absence of a criminal (or civil) penalty for a particular activity does not imply that there is an affirmative and enforceable right to engage in that activity. Consequently, the silence of criminal statutes concerning suicide does not confer a right to commit suicide.33
In addition, the 1990 decision of United States Supreme Court in Cruzan v. Director34 strongly suggests that, if presented with the question directly, the Court would hold that individuals do not have a constitutionally protected right to commit suicide, assisted or otherwise. In Cruzan, the Supreme Court confronted the issue of the "right to die" in the context of a request for withdrawal of treatment. Nancy Cruzan, an adult woman, remained in a persistent vegetative state secondary to extensive brain injuries suffered in a motor-vehicle accident. She could breathe without assistance, but required artificial nutrition and hydration. Prior to the accident, the patient had not provided written instructions concerning her desire for life-support measures. When it became apparent that the patient had virtually no chance of recovery, her parents asked hospital employees to terminate the nutrition and hydration. All parties agreed that the withdrawal of treatment would result in the Ms. Cruzan's death. The hospital refused to honor the parents' request without prior judicial approval.
Accordingly, Ms. Cruzan's parents, in their capacity as her guardians, filed an action in Missouri state court to obtain the necessary judicial order. The supreme court of that state ultimately denied their request for relief. It was noted that, five years prior to the accident, Ms. Cruzan had indicated "in a somewhat serious conversation with a housemate friend" that if she were "sick or injured," she would not want to continue her life unless she could live "at least halfway normally."35 The state court held, however, that this oral statement did not meet the requirements of the Missouri Living Will Statute, which called for "clear and convincing, inherently reliable evidence" of an incompetent patient's prior intent to refuse medical treatment.36
The United States Supreme Court granted review to consider the question "whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances." The Court observed that the state has an interest in the protection and preservation of life, even in the life of an individual reduced to a persistent vegetative state. As support for this proposition, the Court observed that "the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide."37 The Court added, "We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death."38 Consequently, "a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."39
After the Court's observations that the state's "unqualified" interest in the sanctity of human life can overwhelm an individual's interest in the quality and dignity of his own life, the final ruling in the Cruzan decision was inevitable. Thus, "[a]ssum[ing]" "for the purposes of this case" only that a competent person had "a constitutionally protected right to refuse lifesaving hydration and nutrition,"40 the Court held that "a State may apply a clear and convincing evidence standard [for the intent of the person to refuse treatment] in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state" and that the Missouri court "did not commit constitutional error" in refusing to allow the withdrawal of hydration and nutrition for Ms. Cruzan.41
Read in context, the Court in Cruzan suggested, but explicitly did not decide, that an individual has the right to refuse life-sustaining treatment prospectively, even if such a refusal would shorten his life. The Court went on to hold, however, that the state may impose stringent evidentiary and procedural requirements for such refusals. The principal distinction for the issue of suicide, as opposed to refusal of treatment, is that Cruzan is grounded on principles of informed consent, patient autonomy, and preservation of the integrity of one's body from the actions of third parties. Taken together, the Supreme Court's decision, as well as prior state-court decisions,42 can be read to support a right to die a natural,43 i.e., unassisted, death without third-party interference. These rulings provide no solace for the argument that the terminally ill have an affirmative and enforceable right to commit suicide.44 In fact, notwithstanding prior inconsistencies from the Court, it would be bizarre for the justices in Cruzan to rely on laws prohibiting assisted suicide as support for the state's power to deny a comatose individual's right to die and then in a subsequent case to strike down those same laws as unconstitutional when applied to a terminally ill patient who sought to commit suicide.
This uncertainty concerning the scope of the patient's right to complete his suicide is not an idle and abstracted concern. For example, a terminally ill patient could confer with his physician, meet the requirements of the Act, and thereby obtain his lethal prescription. He next announces to his family that he intends to take his life. The family then seeks to have the individual placed in a psychiatric facility against his will to prevent his ingestion of the medication on the ground that the patient has unambiguously demonstrated an intent to take his life. What would be the result?
For now, the fate of the terminally ill patient under the Act in such a situation is murky (although the prescribing physician is protected). It is true that the Act invalidates certain contractual obligations of the patient that would affect, or be affected by, a request for a lethal prescription.45 The Act also provides that the actual ingestion of the medication shall have no "effect" on life insurance policies.46 These provisions alone, however, do not mean that the patient has a legally enforceable right to take the medication. The Act also states that the request for a prescription shall not be "the sole basis for the appointment of a guardian or conservator" (emphasis added),47 but this indicates only that the request is not immaterial to such an appointment and thus that it would be relevant if the patient's capacity is challenged. The implication, of course, is that the capacity of the requesting patient may be challenged.
The Act's only other potential source of an enforceable right of the patient to ingest the requested medication is the provision that "[a]ctions taken in accordance with this Act shall not, for any purpose, constitute suicide . . . under the law."48 It would be ill-advised to rely on this language alone as the fount of a new right to suicide. As an initial matter, the "actions" the Act addresses are only the substantive and procedural requirements for the procurement of the prescription, not for its subsequent ingestion. While the Act clearly anticipates ingestion of the medication, it only specifically regulates the effect of the completed suicide on the physician's liability and the patient's life insurance, but remains tellingly mute on the procedural and substantive requirements for accomplishing the ingestion.
In any event, even if one concludes that ingestion is directly regulated by the Act, there is the manifest absence of logic in reading this provision as granting a right to commit suicide. It certainly does not explicitly state that the patient has the right to complete his suicide. Instead, it declares that certain "actions" formerly considered "suicide" in Oregon can no longer be legally labeled as suicide. This protection, however, would only apply after the actions have been "taken in accordance with" the Act. In other words, the patient does not have an antecedent right to commit suicide, but rather the patient's actions, once they have been completed, no longer "constitute" suicide.
This is an astonishingly backhanded way to grant an affirmative and enforceable right to die by one's own hand. Furthermore, if this is the provision's intended meaning, such a reading is difficult to reconcile with the provision that allows the request for a prescription to be admissible in considering the appointment of a guardian or conservator for the patient, and it renders redundant other immunity provisions of the Act. Indeed, if this provision has such a sweeping scope that it expunges a form of self-destruction from the legal lexicon, it would mean that the survivors of a deceased individual could bring a defamation action against a newspaper that haplessly described the decedent's final actions as "a suicide taken in accordance with the Death With Dignity Act."
This does not mean that the provision is meaningless. One reasonable interpretation, for example, is that it shields parties not listed in other portions of the Act from criminal and civil responsibility for participating in the procedures specifically described in the Act. Accordingly, the Oregon law cited above that makes assisted suicide a crime49 should not apply to a pharmacist who fills the requested prescription.
In sum, there is nothing in the Oregon Act to the effect that the terminally ill patient has an independent and enforceable right to ingest the requested medication after he has met the mandated criteria for obtaining the prescription. Thus, the Act appears to do little more than shield physicians from liability for a practice they previously engaged in behind closed doors while it overlooks the rights of the patients, who were the apparent intended beneficiaries of the legislation. As a last resort, it could be argued that the patient has an implied right under the Act to take his own life. The courts have occasionally and unpredictably "uncovered" an unstated right lurking in legislative interstices. Without a favorable court ruling, however, an implied right is a cruelly slender reed to hold out to the terminally ill, who presumably seek to end their lives with dignity, without controversy, and undoubtedly without litigation. This uncertainty is unacceptable, given the interests at stake, and for this reason alone the Oregon Act in its present form is dangerously flawed.
Is it rational to assume that suicide is a rational act in the absence a psychiatric evaluation?
The Oregon Act does not require that the terminally ill individual who requests a lethal prescription undergo a psychiatric evaluation. The attending or consulting physician is to refer the patient for counseling only if he suspects that the patient's judgment is impaired by a psychiatric disorder. Thus, under the Act, suicide is presumptively a rational decision. If one accepts, as a majority of Oregon voters did, that under certain conditions suicide is worthy of legal protection, it is nonetheless highly unlikely that the Act will filter out those persons acting rationally from those who are suffering from depression or some other psychiatric condition. Indeed, the Act's level of confidence in the judgment of terminally ill patients and in the psychiatric savvy of their physicians could in practice shield, or even promote, "irrational" suicide.
An examination of the literature concerning rational suicide is beyond the scope of this discussion. It is sufficient at this point to acknowledge that powerful arguments have been mustered on both sides of the debate.50 If one believes that suicide is never appropriate, no amount of restructuring will rescue the Oregon Act. If one accepts the concept of rational suicide, however, the incidence and nature of all forms of suicide need to be considered before passing judgment on the Act. Such an investigation reveals that rational suicide is clearly the exception, not the rule.
In this culture, suicide approaches crisis proportions in all age groups.51 The highest suicide rates and the greatest number of suicides occur in the portion of the population over fifty years of age, and suicides by individuals over sixty-five (12% of the population) account for fully one-fifth of all suicides each year.52 Thus, the patient population that presumably has the highest percentage of terminally ill individuals also has the highest suicide rate.
This conjunction of terminal illness rates and suicide rates, without more evidence, does not justify the Act's simplistic approach, which not only assumes that the presence of a terminal illness is an effective proxy for rational behavior, but also that the treating physician (no matter what his area of clinical expertise) is qualified and motivated to identify impaired, i.e., "irrational," judgment. This is wishful thinking, to say the least. As one researcher has pointed out, "the fraction of suicide victims struggling with terminal illness at the time of their death is in the range of 2% to 4%."53 In fact, two-thirds of those who commit suicide in their sixties, seventies, and eighties are "in relatively good physical health."54 In the words of another psychiatrist, "there are more suicides by people who wrongly believe themselves to be suffering from [a terminal illness] than there are suicides by those who actually have [the illness]."55 Conwell and Caine noted that "90 to 100 percent of the victims die while they have a diagnosable psychiatric illness, an observation that is equally true in suicides among the elderly."56 Other researchers have reported similarly high rates of psychiatric disorders.57
The dilemma is further confounded by the fact that depression is often difficult to identify in the elderly and the infirm. Studies have shown that 80 to 91 percent of depression in medically ill older patients goes undiagnosed.58 One reason for this discrepancy is that many manisfestations of medical disease are similar to those of depression. By way of example, chronic pain may be accompanied by sleeplessness, fatigue, decreased concentration, and other findings that are clinically indistinguishable from those of an affective disorder that could substantially impair judgment and reasoning. Furthermore, depression in the elderly may present without dysphoria or sadness.59
In sum, given that suicide "almost always occurs in the setting of a psychiatric disorder,"61 the insouciance of the Oregon Act concerning psychiatric counseling is unwarranted. In view of the high correlation between mental illness and suicide, a law granting a right to suicide in any form should require an independent psychiatric evaluation as a matter of course to determine that the patient is not acting "irrationally" because of impaired judgment secondary to a psychiatric disorder. Without such a screening procedure, irrational suicide will be permitted, and perhaps even inadvertently encouraged, because depressed patients may believe that the mere existence of such a law legitimizes their desire to die. The lack of a mandatory psychiatric evaluation, therefore, represents another fundamental defect in Oregon's physician-assisted suicide law that will undermine rather than advance the interests of terminally ill patients.
What does a voter initiative dictating procedures and standards for physician-assisted suicide indicate about the public's perception of the standard of care for the terminally ill?
The Oregon Act was passed in the form of a voter initiative. Such measures serve an important function in that they allow the electorate to bypass recalcitrant branches of the government. For that same reason, however, they do not provide for legislative investigation, debate, or amendment prior to becoming law. In addition, they are susceptible to reductive sloganeering from the electronic and print media.62 This potentially superficial treatment means that thoughtful and thorough public discussion may be squelched in the attendant cacophony.
In view of the risks of sensationalistic campaigning and incomplete consideration, initiatives are more useful in the context of relatively straightforward issues. They are rarely the appropriate method for enacting untested or complex provisions. By way of example, breast cancer is unquestionably an important health-care topic, but a voter initiative dictating the acceptable methods for diagnosis and treatment of that disease would be problematic at best. This is no less the case for an initiative like Oregon's that sets forth the standards and procedures for physician-assisted suicide.
However, instead of railing against the perceived shortcomings of the political process that brought about the passage of the Oregon Act, it seems more productive to consider the assessment of the medical profession that the Act represents. It takes little analysis to recognize that the electorate's message is one of frustration and disillusionment with the standard of care for the terminally ill. Indeed, the Oregon Act appears to be motivated by the public's pervasive and primal fear that physicians are not providing the terminally ill with the care and comfort they deem essential. As a result, patients are commandeering from their physicians the power to dictate their final prescription in order to end their lives to avoid the possibility of inadequate and insensitive treatment.
Opinion polls since the 1950s have shown that, in the context of terminal illness, the public is deeply concerned with dignity, autonomy, and analgesia.63 For those outside the medical profession, however, it appears that physicians are not attuned to these issues and that many practitioners consider the terminally ill patient a sinking ship that must be abandoned. Death, without regard to whether it was "easy" or "difficult" for the patient, is the dreaded outcome physicians seek to avoid, and they are apparently communicating that outlook to the public while failing to provide an adequate level of palliative and comfort care to the terminally ill.64 Consequently, the voters have elected to do an end run around their health-care providers.
One need not be intimately familiar with medical education or the practice of medicine to appreciate that, although reductive, the public's perception of physicians' attitudes towards death and terminal illness is worth heeding. As an initial matter, there is no reason why medical school applicants should be inherently more adept at coping with mortality than their future patients. Medical training cloaks death and disease with soothing euphemisms and sterile linen. At the same time, the indoctrination for the initiates, either explicit or implicit, is that death should be staved off with "heroic interventions" and that, when all hope is lost, the physician's work is done and he should move on to those who "can be saved."65 As a result, the focus in practice too often remains tightly fixed on the practitioner's, rather than the patient's, perspective. The irony, of course, which is not lost on the public, is that physicians are the self-appointed sentries at the gate between life and death.
What can be done to improve matters? Two themes consistently arise in opinion polls concerning suicide in the context of a terminal illness. The first is that terminally ill patients will opt for death, because they do not want to be a financial burden on their families.66 This concern highlights the inequitable distribution of health-care resources in this country. A restructuring of the health-care system is a long-term project that is beyond the direct control of physicians. Nonetheless, absent a cataclysmic change in this culture, physician-assisted suicide as a "cost-cutting method" is unacceptable and should not be countenanced on any level. Physicians need to communicate this support to their terminally ill patients and remain vigilant for signs that a patient is motivated to end his life because of financial worries.
The second recurrent theme is a fear of intolerable pain with loss of dignity and autonomy.67 Here, fortunately, much can be done to improve both the treatment of the terminally ill and the public's perception of the quality of that treatment. As Koenig observed:
Such research and treatments will require funding and training, and thus may result in a greater expenditure of time and money for the medical profession in the short-term than would simply collaborating with the patient in a "quick fix" for a set of complex problems.69 Cost is a primary consideration in determining the standard of care, to be sure, but the accounting needs to be a forthright and exhaustive examination of the relevant factors rather than a post hoc rationalization for professional inaction and indifference. Accordingly, one must balance the increases in research and training costs against, for example, the costs to the patients, their families, and society of the excess suffering, unnecessary psychic trauma, self-destructive behaviors, public disillusionment, defensive doctoring, inappropriate medication, and futile treatments that result from the current standard of care for the terminally ill.
It is likely, at the very least, that the gains in more humane treatment protocols, a better quality of life for the terminally ill, and improved public confidence will more than offset the initial research and training expenses. In any event, self-serving cost estimations will not suffice, because the public is calling for changes in the standard of care, and the medical profession ignores these demands for action at its own peril.
CONCLUSION
The debate concerning physician-assisted suicide for the terminally ill patient has taken on a new character with the passage of Oregon's Death With Dignity Act. For better or for worse, this legislation is the yardstick against which future efforts will be measured. This state of affairs is unfortunate, because the Act does not confront difficult issues that necessarily arise in allowing patients to end their lives in collaboration with their treating physicians. The lack of consideration evident in the Act compromises its effectiveness and calls into question its propriety.
Three issues stand out. First, the Oregon Act does not address whether the terminally ill patient has an enforceable right to complete his suicide. Moreover, it appears from other sources of the law that the patient does not have an independent and affirmative right to take his own life. Thus, the Act may be an illusory guarantee for the terminally ill seeking "death with dignity."
Second, the Act's refusal to acknowledge the prevalence of depression and other psychiatric illnesses in the setting of terminal illness is insupportable. According to the research and clinical experience in this area, physicians should assume that such patients are suffering from impaired judgment. To ignore the need for an initial psychiatric evaluation undercuts, rather than bolsters, the validity of the Act. Rather than dodging this issue, the Oregon Act, and any other measure designed to serve a similar function, should mandate psychiatric evaluations.
Finally, there is the procedure pursuant to which the Act was passed. Voter initiatives can be effective for comparatively uncomplicated matters. They are, however, less effective for matters that require research, evaluation, and compromise. Nonetheless, given that the Oregon Act is an accomplished fact (at the time of this writing), it seems more productive for the medical profession to parse through the message inherent in the Act rather than to denigrate the legislative procedure that brought it about.
The message is loud and unequivocal. The public has weighed the current standard of care for the terminally ill in the balance and found it wanting. Rather than forfeit control over this issue, however, physicians need to begin an open and forthright collaboration with the terminally ill patients to improve their comfort care and emotional support. Physicians need to recognize their own vulnerability in the face of death and to acknowledge the higher therapeutic value that lies in the acceptance, rather than the denial, of the ultimate outcome for every patient. Freud remarked that, because of our "civilized" attitude towards death, we are "living psychologically beyond our means."70 The Oregon Act indicates that medicine can no longer afford that luxury. Much ground has been lost, but the issues concerning the terminally ill can be turned into a collaborative dialogue between physicians and their patients rather than an incomplete and self-defeating public mandate.
One final question arises that is perhaps more challenging than any of those addressed above: Do we actually need legislation dictating the standards and procedures for allowing the terminally ill to end their lives? Death is an intensely personal event. All of us come to it from different perspectives, with different illnesses, and with different needs. The most humane treatment of all would seem to be an individualized and supportive dialogue among the physician, the patient, and those parties the patient desires to include that would produce a consensus on a course of action for the patient that is tailored to, and respectful of, his unique circumstance. Furthermore, it should be these individuals who decide what to memorialize in writing about that course of action and what instead to preserve in their hearts and memories.
This type of care, of course, requires mutual trust among all parties, as well as maturity, compassion, and competence on the part the practitioner. It seems a function uniquely suited to the traditional role of the physician. One has to wonder how we arrived at a point where many consider the paradigm of individualized treatment left to the judgment of the patient and his doctor to be a bankrupt anachronism that should be supplanted by a governmental fiat.
From the Columbia University College of Physicians and Surgeons, Class of 1996. University of Chicago Law School, J.D. 1984. Address correspondence to author (email address: jrc16@columbia.edu).
REFERENCES