Oregon’s Death with Dignity law

SECTION 1: INTRODUCTION

Unlike most reports generated by the Legislative Council, there is no statutory mandate to study the Oregon Death with Dignity law or the law on euthanasia in the Netherlands nor is there a study committee comprising members of the legislature. The study of Oregon’s law was requested by letter, dated May 13, 2004, from Representative Bill Aswad with 70 additional signatories. The study of the euthanasia law was requested by letter, dated May 19, 2004, from Representatives Haas and Sheltra with 23 additional signatories.

Both letters requested the Council to investigate and report on any factual disputes pertaining to the existing laws and practices, and to attempt to substantiate and reconcile the differing allegations based on empirical evidence. The scope of this report is necessarily limited to the empirical information the Council was able to obtain through its independent research of both primary and secondary sources, attempts to catalogue the areas of dispute, and it indicates where substantiation of the opinions of the proponents and opponents of the laws was not feasible and why. It cannot be overstated that the Council takes no position on the merits or morality of Oregon’s Death with Dignity Act or the Netherlands’ euthanasia law. Moreover, it is not our intent, nor was it our charge, to express any opinion on whether either practice is consistent with public interest or constitutes legitimate medical care.

The Council solicited information about the areas of study from interested parties[1] in Vermont by sending a brief e‑mail questionnaire.[2] We received submissions by e‑mail, as well as three voluminous submissions of materials in hard copy.[3] In addition, we did independent research in order to determine the accuracy of the materials and information submitted. Our research included finding reference materials over the internet and in hard copy and interviews with public officials or national experts where feasible and necessary. We did not create or conduct statistically valid surveys of doctors, patients, or other interested parties in Oregon nor in the Netherlands. In addition, the information we were able to obtain regarding the Netherlands was largely by secondary source due to the lack of English translations of the case law and studies.[4]

SECTION 2: DEFINITIONS AND USE OF TERMINOLOGY

One area of confusion in the debate around the laws in Oregon and in the Netherlands arises because different groups include different medical situations in discussions of “euthanasia” and “assisted suicide.” This section of the report reviews the definitions of these terms in two articles. In other areas of the report, we use the definition of the term contained in the specific law we are reviewing. For instance, when we use the term “assisted suicide” in relation to the Death with Dignity law, we are referring to the situations defined by the Oregon law, not what is defined as “assisted suicide” in the Netherlands, and not the general constructs we are discussing in this section.

Ezekiel J. Emanuel, MD, PhD breaks down the concept of medical decisions which result in death into six categories of activity, based on the physician’s intent, the patient’s ability to consent, and the physician’s actions.[5] His definitions are as follows:

Term	Definition
Voluntary active euthanasia	Intentionally administering medications or other interventions to cause the patient’s death at the patient’s explicit request and with full informed consent
Involuntary active euthanasia	Intentionally administering medications or other interventions to cause a patient’s death when the patient was competent but without the patient’s explicit request and/or full informed consent (e.g. patient was not asked)
Nonvoluntary active euthanasia	Intentionally administering medications or other interventions to cause a patient’s death when the patient was incompetent and mentally incapable of explicitly requesting it (e.g. patient is in a coma)
Terminating life-sustaining treatments (passive euthanasia)	Withholding or withdrawing life-sustaining medical treatments from the patient to let him or her die
Indirect euthanasia	Administering narcotics or other medications to relieve pain with incidental consequence of causing sufficient respiratory depression to result in a patient’s death
Physician-assisted suicide	A physician providing medications or other interventions to a patient with understanding that the patient intends to use them to commit suicide

The Van Der Maas study breaks down the distinctions somewhat differently in an article reporting the results of a national study requested by the Dutch government.[6]Van Der Maas also uses the physician’s actions, his or her intentions, and the patient’s involvement in the decision as benchmarks. The three main types of decisions looked at in the study were defined as follows:

Non-treatment decisions (NTD), the withholding or withdrawal of treatment in situations where the treatment would probably have prolonged life.

Alleviation of pain and symptoms (APS), with opioids in such dosages that the patient’s life might have been shortened.

Euthanasia and related MDEL,[7] the prescription, supply, or administration of drugs with the explicit intention of shortening life, to include euthanasia at the patient’s request, assisted suicide, and life-terminating acts without explicit and persistent request.

Van Der Maas et al., at 670.

As can be seen by this brief comparison, the terms used can be confusing and can include a range of factual situations. When examining the claims of opponents and proponents of the laws in question, it is important to understand what factual situations are included in any statistics or reports on the topic.

SECTION 3: DEATH WITH DIGNITY - OREGON

A. INTRODUCTION

This section of the report details several areas of dispute regarding the Death with Dignity law enacted in Oregon in 1997 and describes the legal developments leading to the passage of the Death with Dignity Act. In each area of factual dispute, we identify the issues, describe the allegations and opinions of both the proponents and opponents, and report any empirical evidence on the topic.

B. DESCRIPTION OF THE DEATH WITH DIGNITY ACT

The Oregon Death with Dignity Act (the Act) is narrowly drawn and encompasses a number of procedural safeguards. This section will outline some of the more significant provisions.[8] A copy of the complete Act, as amended in 1999, is contained in Appendix B.

In order to qualify for physician-assisted suicide, a person must be an Oregon resident, 18 years of age or older, must have decision‑making capacity, and must be suffering from a terminal disease that will lead to death within six months. A patient must make one written and two oral requests for medication to end his or her life, the written one “substantially in the form” provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the patient is “capable, acting voluntarily, and not being coerced to sign the request,” and there are stringent qualifications as to who may act as a witness. The patient’s decision must be an “informed” one, and the attending physician is thus obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the medication to be prescribed, and alternatives, “including but not limited to, comfort care, hospice care and pain control.” Another physician must confirm the diagnosis, the patient’s decisionmaking capacity, and voluntariness of the patient’s decision. There are requirements for counseling if the patient is thought to be suffering from a mental disorder which may impair his or her judgment, for documentation in the patient’s medical record, for a waiting period, for notification of the patient’s next of kin, and for reporting to state authorities. The patient has the right to rescind the request for medication to end his or her life at any time.

Having met the above requirements, the patient is entitled to a prescription for medication to end life. The Act does not “authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing or active euthanasia.” That is, the Act authorizes physician‑assisted suicide by lethal prescription but explicitly rejects active euthanasia.

In response to concerns raised that patients will be motivated by depression to seek a physician’s assistance in ending their lives, the 1999 amendments to the Act added “depression causing impaired judgment” to the generic “psychiatric or psychological disorder” that the attending physician must determine the patient does not have before prescribing medications.

The amendments also added a reporting mandate, requiring that any health care provider who dispenses medications under the Act file a copy of the dispensing record with the state health division. Finally, the Act requires the state health division to issue an annual report summarizing the experience with the statute.

C. LEGAL DEVELOPMENTS

There have been a number of state and federal cases in the United States addressing the legal parameters of end-of-life decisionmaking, generally. This section will describe briefly some of those legal decisions to the extent they shed light on the legal issues that have emerged relative to Oregon’s physician-assisted suicide law. It will be followed by a separate section analyzing the legal issues relating specifically to Oregon’s Death with Dignity Act.

Right to Withdrawal or Withholding of Life-Saving Treatment

In 1976, in the case of Karen Ann Quinlan, In re Quinlan,[9] the New Jersey Supreme Court held that Quinlan’s father could make the decision to turn off the respirator that was keeping his daughter alive. In that case, the patient’s constitutional right of privacy, as asserted by her guardian, outweighed the state’s interest in preserving the sanctity of human life and defending the best judgment of medical professionals. The court recognized that the state’s interest diminished as the potential for life diminished. This was the first of several cases concerning the withdrawal of life support from persons in a persistent vegetative state.

The issue was addressed 14 years later by the United States Supreme Court in the case of Cruzan v. Director, Missouri Department of Health.[10] In that case, Nancy Cruzan sustained brain injuries resulting in a persistent vegetative state, and when it became apparent that she had virtually no chance of regaining her mental faculties, her parents asked the hospital to remove the artificial nutrition and hydration which sustained her. The hospital refused to act absent a court order.

The Cruzan Court specifically found that the right of an individual to refuse life‑sustaining medical treatment derived from the common law doctrine of informed consent and has a constitutional basis:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits and assault.” Thus, under common law, a patient can consent to, or, conversely, refuse medical treatment. Since the patient can refuse treatment at any time, the patient can have treatment withdrawn even after it has been initiated.[11]

The Court held that under the Due Process Clause of the Fourteenth Amendment, a competent person has a constitutionally protected liberty interest in the right to refuse treatment; however, a state can restrict the ability of others to exercise that right on behalf of an incompetent person. Specifically, a state may require that an incompetent person’s wish to have life-support withdrawn be proven by clear and convincing evidence. Absent such evidence, a state has a legitimate interest in the protection and preservation of human life. One notable consequence of this decision was a rise in the use of advance directives as a means of meeting the required clear and convincing standard.

Physician-Assisted Suicide

No American jurisdiction currently treats suicide or attempted suicide as a crime.[12] There is very little case law, however, on whether assisting suicide is a crime under the common law. There is no right to assisted suicide under the United States Constitution.[13] The right may exist under a specific state constitutional provision, though to date no courts have so held, and two state supreme courts have refused to strike down state laws banning assisted suicide on grounds that they violated privacy clauses in their respective state constitutions.[14]

The two most significant cases that addressed the issue of whether there was a federal constitutional right to assisted suicide arose from challenges to state laws banning physician‑assisted suicide brought by terminally ill patients and their physicians: Washington v. Glucksberg[15] and Vacco v. Quill.[16]

In Glucksberg, the Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The majority distinguished the facts and rationale of Cruzan: “The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct.”[17] Upon determining that a fundamental liberty interest was not at stake, the Court went on to conclude that the Washington statute being challenged was rationally related to five legitimate governmental interests: protection of life, prevention of suicide, protection of ethical integrity of the medical profession, protection of vulnerable groups, and protection against the “slippery slope” toward euthanasia.[18] The Court then noted that perhaps the individual states were more suited to resolving or at least addressing the myriad concerns raised by both proponents and opponents of physician-assisted suicide: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”[19]

In Vacco, the Court ruled that New York’s ban on assisting suicide does not violate the Equal Protection Clause of the U.S. Constitution. As in Glucksberg, the Court recognized a distinction between refusing lifesaving medical treatment and taking lethal medication. The Court disagreed “with the Second Circuit’s submission that ending or refusing lifesaving medical treatment ‘is nothing more nor less than assisted suicide.’”[20] Rather, it determined that “[t]he distinction between letting a patient die and making that patient die is important, logical, rational, and well established . . . [and] comports with fundamental legal principles of causation . . . [T]he line between the two acts may not always be clear, but certainty is not required, even were it possible.”[21] Thus, New York may ban the latter without violating the Equal Protection Clause. The Court then concluded that the New York law, like Washington’s, is rationally related to legitimate state interests: namely, prohibiting intentional killing and preserving life, preventing suicide, maintaining physicians’ role as their patients’ healers, protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives, and avoiding a possible slide toward euthanasia.

Most states have addressed the issue of assisted suicide legislatively. Forty states have enacted laws which explicitly make it a crime to provide another with the means of taking his or her life.[22] Oregon is the only state presently permitting assisted suicide by statute. Vermont has no statute specific to assisted suicide. It is unclear how a Vermont court would apply the common law in an assisted suicide case.

legal challenges to the Death with Dignity Act

As mentioned, Oregon is the only state to date with a statute affirming and regulating the right to physician-assisted suicide. Oregon voters approved the Death with Dignity Act by referendum (Ballot Measure 16) in 1994. The Act immediately was challenged in federal District Court, and implementation was delayed for three years as the case made its way through the federal court system until 1997 when the United States Supreme Court declined to review the case on appeal.[23] (While the litigation was in progress, the Oregon legislature approved legislation to permit the electorate to vote to repeal the Death with Dignity Act. Repeal was defeated by a 60 – 40% margin.)[24] Shortly after the law’s implementation in 1997, the compliance with the Act was again challenged, this time by the federal Department of Justice, which issued a directive calling for the prosecution of health care professionals who participated in the assisted-suicide program. The federal challenge, likewise, has proved unsuccessful to date. A more detailed description of these legal developments follows.

Lee v. Oregon

The initial challengers of the Act consisted of terminally ill patients, physicians, and residential care facilities. They argued that the Act violated their equal protection and due process rights under the Fourteenth Amendment, their free exercise of religion and freedom of association rights under the First Amendment, and their statutory rights under the Americans with Disabilities Act (ADA) of 1990, the Rehabilitation Act of 1973, and the Religious Freedom Restoration Act (RFRA) of 1993. The Oregon District Court granted summary judgment for plaintiffs on their equal protection claim and issued a permanent injunction against the Act’s enforcement on August 3, 1995. The court found that the Act violated the Equal Protection Clause because it provided insufficient safeguards to prevent against an incompetent (i.e., depressed) terminally-ill adult from committing suicide, thereby irrationally depriving terminally-ill adults of safeguards against suicide provided to adults who are not terminally ill.[25]

The court did not decide plaintiffs’ other claims for relief. However, a description of those claims will be reviewed here in the interest of providing a brief overview of the legal challenges to the Act. The due process claim was based on the allegation that the Act deprives persons who are disabled due to a terminal disease of protections for their right to live and, moreover, violates plaintiffs’ liberty interests because it does not guarantee sufficiently that the choice to end life will be both informed and voluntary.[26] Plaintiffs’ ADA claim was based on the argument that the Act unlawfully deprives persons who are disabled due to a terminal disease of protection afforded other persons under Oregon law in violation of the ADA and, to the extent the statute applies to federally funded programs, Section 504 of the Rehabilitation Act of 1973.[27] Defendants countered that the Act does not require any individual with disabilities to use assisted suicide but rather provides the option of assisted suicide as a benefit under the law; and, accordingly, no person with disabilities is deprived of legal protections against suicide.[28] Plaintiffs also argued that the Act was unconstitutionally vague particularly in regard to the definition of “terminal illness.” Finally, plaintiffs argued that the Act required health care professionals to act in a manner inconsistent with their religious and moral convictions and in violation of the free exercise clause and freedom of association protections of the First Amendment and the RFRA. Again, the court did not determine the merits of these claims.

The case was appealed to the Ninth Circuit. The Ninth Circuit vacated and remanded with instructions to dismiss the case for lack of jurisdiction. The court determined that it lacked Article III jurisdiction because all of the plaintiffs lacked standing,[29] and the claim of the doctors and health care facilities, in particular, was not ripe.[30] Specifically, the patients had not displayed an “injury-in-fact” because the asserted injury—the possibility that the plaintiff would commit suicide as a result of inadequate detection of her depression—was too speculative and not actual or imminent. The doctors and health care facilities, on the other hand, failed to show both that their alleged forced participation was a “concrete and particularized” injury and that their claim was “ripe” because the Act does not penalize a health care worker or facility for not participating.[31] And, in any event, the alleged forced association with those who do follow the Act also failed to show an “injury in fact.”

Federal Challenges to Death with Dignity

Soon after the Oregon Death with Dignity Act went into effect, members of the United States Congress suggested that physicians who participated under the law’s guidelines would be in violation of the federal Controlled Substances Act (CSA).[32] Attorney General Janet Reno agreed to review the matter and, in June 1998, announced that the Department of Justice would not prosecute physicians who complied with the Oregon law. Attorney General Reno concluded that the CSA did not support the ban on the use of legitimate drugs for an approved medical purpose.[33]

Later that year, a congressional bill known as the Lethal Drug Abuse Prevention Act of 1998 was introduced, proposing to block the use of controlled substances in physician-assisted suicide, euthanasia, or mercy killing.[34] It failed to pass the 105^th Congress. It was revised and resubmitted to the 106^th Congress as the Pain Relief and Promotion Act, but it too failed to pass.[35]

In November 2001, Attorney General John Ashcroft issued an interpretive rule reversing the position of his predecessor.[36] He directed the Justice Department to pursue action under the CSA against physicians and pharmacists who prescribed, filled, or dispensed drugs under the Death with Dignity guidelines; the so-called Ashcroft Directive. The state of Oregon immediately filed suit seeking to enjoin the federal government from enforcing the Ashcroft Directive.[37] The federal district court ruled in favor of Oregon, and the Justice Department appealed to the Ninth Circuit.

On May 26, 2004, the Ninth Circuit issued an opinion affirming the lower court’s ruling.[38] Specifically, the court held that Attorney General Ashcroft exceeded his authority under the CSA when he adopted the directive declaring physician-assisted suicide in violation of the CSA. Congress had intended to limit the CSA to problems associated with drug abuse and addiction, and physician-assisted suicide was not a form of drug abuse that Congress intended to cover. Rather, physician-assisted suicide is a general medical practice to be regulated by state lawmakers in the first instance. The CSA did not give Attorney General Ashcroft unmistakably clear authority to exercise control over an area of law traditionally reserved for state authority; and, furthermore, the court held the directive violates the plain language of the CSA by not reflecting the standards and requirements of the federal statute.[39] On November 9, 2004, the Justice Department appealed that decision to the United States Supreme Court.

D. UTILIZATION AND PATIENT CHARACTERISTICS

The Oregon Department of Human Services is required by the Act to issue an annual report including statistics on the usage of the Act. This section of our report includes a summary of this information and the results of studies in Oregon regarding patient views, characteristics, and utilization of the Act. The factual disputes identified in this area are the reasons a patient would choose physician‑assisted suicide, whether the rates of utilization are underreported, and concerns over utilization by people with disabilities or depression.

REQUESTS AND UTILIZATION

One survey of Oregon physicians in 1999 reports that 5% of practicing physicians received at least one request by a patient for a lethal prescription under the Death with Dignity law.[40] The total number of requests received was 221, several of which appeared to be duplicate requests by patients.[41] Of the 165 patients for which physicians included outcomes in the questionnaire, 29 received prescriptions. Of the 29 patients with prescriptions, 17 (59%) took the prescription, 11 (38%) died from other causes, and one was still alive at the time of the survey.[42] Of the 136 patients who did not receive prescriptions, 27 (20%) died prior to the time the provisions of the law were met, 21 (15%) did not meet the legal criteria, and 21 (15%) changed their minds.[43] In 30 (22%) of the cases, the physician was not willing to provide the prescription, and the physician was not willing to provide a prescription in any circumstance in 40 (29%) of the cases.[44]

The Oregon Department of Human Services is required under the law to collect information on the utilization of and compliance with the Death with Dignity law. Although the law allows the Department to review a sample, due to the low utilization rates, the Department reviewed all the mandated physician and pharmacy reports.[45] Below is a table showing the utilization rates in Oregon since the law went into effect:[46]

	1998	1999	2000	2001	2002	2003
Number of Prescriptions written	24	33	29	44	58	67
Number of those with prescriptions who used medication	16	27	27	21	38	42
Number of deaths pursuant to DWD law/per 10,000 total deaths in Oregon	5.5	9.2	9.1	7	12.2	14

One concern raised by opponents of the law is whether the statistics accurately reflect any violations or utilization of the law because the information is self-reported by physicians.[47] One argument presented is that physicians do not have first‑hand knowledge of what occurred during the patient’s death because the medication is self-administered, and there may be unreported clinical problems or violations of the law.[48] The Oregon Department of Human Services reported that in the year 2000, physicians were present at 14 of 27 deaths.[49] There is no empirical evidence specifically on underreporting, although studies done on the Oregon law have surveyed hospice nurses and hospice social workers, in addition to physicians, and have found similar utilization statistics among these provider groups who are often at the death of a patient.[50] Although there is no study specifically on underreporting, one recent study of family members of deceased Oregonians did not identify any unreported cases of assisted suicide.[51]

There is also a criticism of the statistics gathered by the Department of Human Services because the data is based only on reported cases. The criticism is that there may be underreporting by physicians and that, because of patient confidentiality, there is insufficient information about physician-assisted suicide. There is no way for this office to determine if physicians in Oregon are or are not underreporting patient deaths under the Death with Dignity Act. The law does require that the death be reported, and failure to do so is a legal violation. Although the law does not state a specific penalty for failure to report, the general penalties apply.[52] The physician could be prosecuted under Oregon law or be reported to the professional conduct board if a case is not reported, as he or she would not have met the statutory requirements for legally assisting in a suicide.[53] It is also important to note that academic studies interviewing physicians, hospice nurses, and hospice social workers come to similar conclusions as the state studies.[54] Of course, it can be argued that a physician who was unwilling to report the death to the Department of Human Services may also not report the death in an academic study. Underreporting has been documented by studies in the Netherlands; it is difficult to determine if the incidence of underreporting in another country is comparable to the situation in Oregon due to cultural differences and the difference in how the law in the Netherlands arose. See generally Section 4 of this report on the Netherlands.

A concern raised by the proponents of the law is that the opponents often use the percentage increase in deaths, in lieu of the actual number of deaths, in Oregon.[55] The percentage change of deaths by lethal medication between 1998 and 2003 is dramatic, approximately 275%; this percentage represents a shift from 16 to 42 deaths.[56] The number of deaths in 2003 (42) is approximately 1/7 of 1% of all deaths in Oregon, still a small number of total deaths in that state.[57]

PATIENTS’ REASONS AND VIEWS

The characteristics and views of patients and their families who use Oregon’s Death With Dignity law have been studied by questionnaires and interviews with physicians, nurses, social workers, psychiatrists, and psychologists working with this population. Overall, the patients choosing assisted suicide are described as independent, determined, and inflexible.[58] Fifty-seven percent of patients requesting a lethal prescription cited a loss of independence as an important reason in the patient’s decision, 55% cited poor quality of life (current or future concern of), 54% cited a readiness to die, and 53% cited a desire to control the circumstances of death.[59] In a study of hospice nurses, it was reported that among patients who had received prescriptions for lethal medications from a physician, the most important reasons cited for wanting assistance with suicide were a “desire to control the circumstances of death, a desire to die at home, the belief that continuing to live was pointless and being ready to die.” Ganzini et al., “Experiences of Oregon Nurses and Social Workers with Hospice Patients who Requested Assistance with Suicide,” N Engl J Med 347, No. 8, (2002): 584. The Department of Human Services in Oregon found similar results with losing autonomy, less able to engage in activities making life enjoyable, and loss of dignity cited as the primary end of life concerns.[60] In addition, a study of those patients who died in 1999 in which family members were interviewed found similar reasons, including concern about loss of control of bodily functions (68%), loss of autonomy (65%), physical suffering (53%), an inability to participate in activities that make life enjoyable (47%), and concern about being a burden on others (47%).[61]

One area of concern is that patients may be requesting a lethal prescription because of financial or family pressures. One study found that 11% of patients requesting a lethal prescription cited a perception of a financial burden as a reason for the request and 6% of these patients said they lacked social support. [62] Nearly one‑third (38%) of patients cited a concern about burdening others as a reason, but only three of these patients actually received a prescription.[63] This study looked at patient requests, not only at those patients who actually received or used the medication, which is a smaller number of patients. Also, a study of hospice nurses and social workers found that lack of social support and concern about finances were relatively unimportant to the patients who actually had received a lethal prescription.[64]

The study also reported information on the health insurance status of those requesting the prescription for lethal medication. The results are as follows:

Health Insurance by Type	No. (%) Total responses received: 143
Medicare	63 (44)
Health maintenance organization	23 (16)
Other managed care	20 (14)
Fee for service	17 (12)
Oregon Health Plan (Medicaid)	11 (8)
Military coverage	4 (3)
None	3 (2)
Unknown	18 (13)

Ganzini et al., “Physicians’ Experiences with the Oregon Death with Dignity Act”, N Engl J Med 342, No. 8 (2000): 561.

The study determined that the demographic characteristics of the patients who requested the lethal prescription were “nearly identical to those of members of the general population of Oregon who died.” Id. at 562. In addition, the type of health insurance was not correlated with whether the patient received a lethal prescription nor with whether another type of intervention, such as a referral to hospice, was made by the physician.[65]

A recent study of family members of deceased patients with a terminal illness found that “dying Oregonians were approximately 100 times more likely to consider [assisted suicide] than to follow through with obtaining a lethal prescription.”[66] The study also determined that those with a high school education were as likely to personally consider assisted suicide as those with post‑baccalaureate education, but those with post‑baccalaureate education were significantly more likely to get a lethal prescription.[67]

CHARACTERISTICS OF PATIENTS REQUESTING A LETHAL PRESCRIPTION

The mean age of the patients who requested lethal prescriptions from physicians was 68 years; 52% were men and 97% were white.[68] Forty-six percent of those who requested lethal medications were married or living as married.[69] Ninety-three percent of these patients were competent, and 20% had symptoms of depression.[70] Thirty‑two percent of the patients were currently enrolled in a hospice program at the time of the request.[71] Seventy‑six percent had an estimated life expectancy of less than six months and in 41% of the cases, the request followed an acute deterioration in the person’s medical condition.[72] It is important to note that not all the patients who requested the lethal medications received the prescription from the physician. In addition, not all patients who received the prescription filled it or used it.[73]

DEPRESSION

Depression in patients is a concern often cited in regard to the law, because physicians who are not psychiatrists under-diagnose depression, and because the number of patients who received a lethal prescription in Oregon in 2003 and were referred for psychiatric evaluation was about 5%.[74] Under Oregon law, a psychological evaluation is required when the attending or consulting physician believes that the patient may suffer from a “psychiatric or psychological disorder or depression causing impaired judgment.”[75] The legal purpose of this safeguard is to ensure that the patient is competent to make an informed choice.

In 70% of all suicides over the age of 60, medical illness is an important factor.[76] One study determined that the incidence of depression in those patients requesting assistance with suicide[77] in Oregon is 20% and reported the incidence of depression among dying cancer patients to be between 59-100% based on other studies.[78] In addition, 11% of the patients who requested a lethal prescription in Oregon who had symptoms of depression changed their mind about their request after receiving a trial of medication for depression or anxiety or after evaluation by a mental health expert.[79] Patients who received comprehensive palliative-care services through a hospice program, whether depressed or not, were more likely to change their minds about assisted suicide than those who did not receive these services.[80] A study of patients with amyotrophic lateral sclerosis (ALS) found that depression was not linked to a desire to participate in assisted suicide, but that a feeling of hopelessness was.[81] Patients with depression often have feelings of hopelessness, but patients may be hopeless without being depressed.[82]

There is not much clinical research on depression in dying patients nor on the effectiveness of treatment of depression in dying patients.[83] One study of patients in four inpatient palliative care units in England given common medications to treat depression found that 75% of patients died within two weeks, prior to the time the medication was effective. [84] Another study of 24 hospice inpatients found that if patients were given a specific, quick acting drug, 46% improved.[85] Only 7% of the patients improved, however, if they were within the last six weeks of death.[86]