A Grand Illusion: Oregon's Attempt to Control Death Through Physician-Assisted Suicide
by Jerome R. Wernow
2002
A contemplative of old, François Fenelon, once remarked, "Death only troubles the carnal." By voting for a policy that would allow an individual to commit suicide with the help of a physician, a majority of the Oregon public sought to secure personal control over this "troublesome enemy." Opponents of physician-assisted suicide (PAS) contend that its legalization only increases such trouble by, for example, paving the way for eventual social acceptance of legalized involuntary euthanasia of the weaker members of society. Following the November 1994 vote, opponents launched many challenges to the legalization of PAS, forestalling its actual legal practice. These challenges include the initial district court test in 1994, its eventual Supreme Court defeat as a state's rights issue in 1997, a second state initiative in 1997 (Measure 51), an initial challenge and loss by DEA Administrator Thomas Constantine in 1999 (in the DEA's attempt to regulate the use of controlled substances), and the overturning of a challenge by U.S. Attorney General John Ashcroft earlier this year. Euthanasia advocates have responded to such challenges by framing the debate as a matter of individual and state autonomy rights over against an imposition of Christian pro-life morality. The short reflection that follows comes to you by way of observations from a local in the debate a local who is more convinced than ever that the so-called dignified and autonomous decision of PAS remains a grand illusion and that those who promote and participate in this practice fail to escape the troubling reality that they so intend to control.
Current Law
Physician-assisted suicide has been practiced legally in Oregon for four years. Current law permits state residents to self-administer lethal doses of medications prescribed by their physicians for the purpose of terminating life. The law in no way permits any form of euthanasia or lethal injection in which someone else is directly involved in ending a patient's life. In order to receive a lethal prescription, a person must be capable of making health care decisions, capable of self-administering the lethal dose, and expected to die within 6 months. Other legislative and administrative criteria may be found at http://www.ohd.hr.state.or.us/chs/pas/pas.htm.
The Barbarity of PAS
As a pharmacist, my first area of concern is with the safety and efficacy of PAS. In 1997, an entire anti-PAS campaign focused solely on whether lethal doses of oral barbiturates were truly a 100% "safe and effective means" of terminating a person's life. In September of 1997, Barbara Combs-Lee, leader of the pro-PAS movement, cleverly paraded statistics of "safety and efficacy" in the first major debate promoting legalization of the practice. Neither the press nor the moderators of the debate seemed to note, or were willing to entertain questions (including mine) regarding, the drug failure rates for which Combs-Lee failed to account. Unfortu-nately, the illusion of efficacy persists in spite of four years of statistics that demonstrate the inefficacy of oral barbiturates as life-ending agents.
The peak activity of short-acting barbiturates should kill a patient within 30 minutes to 3 hours. Patients who "linger" beyond six hours die from something other than the primary desired effect of lethal respiratory depression, and those who endure such a prolonged dying process often suffer great trauma. Although measures for 12 of the 91 cases from 1998 – 2001 were not even recorded, at least 7 failures of drug safety and efficacy occurred based on normal standards of PAS as practiced in the Netherlands. Also of concern is the fact that once the drug of choice (secobarbitol) is discontinued by the manufacturer, the second drug of choice (oral pentobarbitol) is typically also unavailable from the manufacturer. When these medications cannot be obtained, PAS practitioners will need to resort to medications unproven in their lethality–or perhaps to lethal injection under the guise of palliative sedation.
The illusion that PAS is a safe and effective practice arises from conceptualizing safety and efficacy apart from considerations of the peacefulness of death. Proponents of PAS assert that no adverse effects occurred to patients using the drugs of choice; however, they do not consider the barbarity and trauma of lingering death as constituting an adverse effect. The trauma experienced by now deceased ALS patient Pat Matheny and his brother-in-law raises questions about the efficacy of PAS. Details of Matheny's death are not clear, but the flurry of reports in The Oregonian cast doubts that his demise was a peaceful one. Unfortunately, the portrayal of the nature of Matheny's death as unusual served to further the illusion that an individual has autonomy over the time and manner of death.
Informed Consent Questioned
Anecdotal evidence, such as the Kate Cheney case in which questions regarding mental competence and possible coercion by family members were raised, creates doubt that the criteria of informed consent is readily met in PAS cases. According to The Oregonian, one psychiatrist felt that Ms. Cheney suffered from dementia and that her daughter's agenda may have overshadowed the will of her mother. The pro-PAS bias of the journalist was evident as she went to great lengths to demonstrate the presence of mother-daughter love, as well as to portray the psychiatrist's opinion as an infringement upon Ms. Cheney's autonomous right to PAS.
What strikes me as most peculiar about the Oregon Health Department Reports is the infrequency with which patients requesting PAS undergo psychiatric evaluation. This lack of evaluation is odd, given the plethora of studies suggesting that physicians not trained in psychiatry are often unable to diagnose depression accurately. The absence of routine psychiatric evaluation and the very real possibility of depression also renders the provision of informed consent uncertain.
Autonomy: A Dangerous Appeal
A major rationale behind the defense of PAS is the radical individualism that is part of the Oregon culture. The "sacred cow" at issue is concern for loss of autonomy. Other top motivators such as "loss of bodily control" and being a "family burden" are easily subsumed under the autonomy category. The loss of a utilitarian valued "pleasurable state of consciousness" proved to be a popular concern as well. (Interestingly, "pain control," which was originally a major argument for permitting PAS, was only a minor category of concern over the last four years.)
It is my contention that the many challenges to PAS have unfortunately resulted in increased support of the practice by those Oregonians who were originally unsure of their position. Such persons often have shifted their concern from the possible abuse and lack of safety of PAS to an issue of the state's rights and citizens' autonomy. Opponents who outspokenly equate PAS with murder tragically misread the cultural contours of an ethically relativistic and largely unchurched populous.
Calling for the radically individualistic citizens of Oregon to waive their autonomy or forfeit their voting choice in favor of a federal court decision resulted in a significant reduction in public opposition to PAS. Clearly, the landslide loss of Measure 51 (60%-40%) versus the 51%-49% vote of the original Measure 16 should be a lesson of how not to overturn a law in Oregon. Will to power and the imposition of rules upon the fiercely individualistic Oregon residents shift the argument from the theater of reason to the stage of emotion, where myth or illusion will dominate any appeal to fact or rationality.
Take, for example, the nearly forgotten involuntary active euthanasia of an unconscious Corvallis woman brought into an Oregon ER in February of 1997. Following pleas from the woman's daughter, numerous procedures were used to end the woman's life, culminating in the lethal injection of succinylcholine. The attending physician did not deny the act, and a public emotional outcry in support of this practitioner led the prosecuting attorney to conclude that he would not be able to find a jury who would convict the physician of wrongdoing. He was probably correct, and that is my point. The discussion of PAS is so emotionally laden with pro-choice autonomy language that there is little, if any, resolve in the legal community to prosecute even the most blatant of violations–violations which, ironically, may rob patients of their autonomy.
Conclusion
After four years of the "Oregon Exper-ience," I am more convinced than ever that Oregon's "sacred cow" of radical autonomy expressed in a suicidal "death with dignity" is nothing more than a grand illusion. It is, after all, a grand illusion to believe that one can really control the time and means of his or her death. This illusion has been borne out repeatedly, as problems with the safety and efficacy of PAS, as well as with obtaining truly informed consent for such a procedure and ensuring that it is performed only voluntarily, have been documented. Instead of embracing autonomy, we would all do well to recognize that the death we die is a result of the death lived throughout one's life whether it is a death to self or a death for self.
Note from the Center for Bioethics and Human Dignity: The U.S. Department of Justice has issued the most recent challenge to physician-assisted suicide in Oregon. The Department plans to appeal the April 2002 override of Attorney General John Ashcroft's declaration that doctors who write lethal prescriptions for their patients would lose their license to prescribe controlled substances. Ashcroft's declaration would have essentially rendered physician-assisted suicide in Oregon illegal.
A 1984 amendment to the Controlled Substance Act permits federal authorities to take action against physicians who endanger their patients' health even if the means by which they do so are allowed by state law. Citing this Act, the Department of Justice maintains that assisted suicide is not a legitimate act of medicine and that federal authority to regulate drugs supersedes state legislative rights. The Department also issued a fact sheet listing moral objections to physician-assisted suicide, which include the American Medical Association's position that assisted suicide is "fundamentally incompatible with the physician"s role as a healer.
Jerome R. Wernow, Ph.D., R.Ph. is Executive Director of the Northwest Center for Bioethics in Portland, Oregon
This article originally appeared in Dignity, Summer 2002. Copyright 2002 by The Center for Bioethics and Human Dignity
Reprinted with Permission
©2002 The Tocquevillian Magazine