Recently, bills aimed at allowing for physician-assisted suicide – also referred to as “Death With Dignity” laws – have been introduced in New Jersey, the District of Columbia, Maryland, Colorado, California, and Hawaii. Debates over the issue of end-of-life care are contentious and distressing, often accompanied by the tearful testimony of those who have cared for a family member throughout a long terminal illness. It’s hard to listen to these stories and not be moved personally, and to draw upon one’s own life experience with bereavement after a loved one’s suicide or disease.
For psychiatrists, the challenge is to think about assisted suicide not in terms of what we would want for ourselves, but what is best for our patients and the medical profession. Proponents argue that respect for patient autonomy should take priority, even if by respecting autonomy the end result is death. Opponents believe that by granting a request to die to a few people, many more vulnerable people may be abused or harmed inadvertently.
In my opinion, after extensive review of the bills and the effects of existing laws in Oregon and Washington , there are too many problems with assisted-suicide laws to safeguard or regulate this practice effectively.
The chief issue is that there is no mandate for any mental health evaluation for any qualified patient who requests assisted suicide. The primary physician and consulting physicians who certify competence may refer to a psychiatrist or psychologist, but this is only if there is a suspicion of incapacity. In Oregon, where this has been legal for 18 years, less than 5% of patients are referred for a competency assessment by a mental health professional although as many as 25% of terminally ill individuals may be suffering from clinical depression. In Oregon, individuals with HIV are 18 times more likely to die of assisted suicide than natural illness, which is particularly concerning given that HIV is known to affect the brain, and is associated with an increased risk of clinical depression and mania. The law allows a qualified patient to bar physicians from contacting or notifying family, which would make a psychiatrist’s competency assessment difficult if not impossible when the patient is suffering from a condition like dementia and can’t give a history himself.
The assisted-suicide process contains no mechanism to challenge the adequacy of the nonpsychiatrist’s assessment of capacity and noncoercion. There is no mechanism for judicial oversight, no mechanism to allow an interested party to raise the question of incompetence, and no existing standard of care for the assessment of capacity in this situation. Some bills protect the identity of the physicians and the patient, or bar medical records from subpoena or discovery, which would make any investigation for civil or criminal purposes difficult. In Oregon, 18 physicians were referred for board investigation, but none were sanctioned because the law required no more than “good faith” compliance with procedures – essentially only a requirement that the proper forms be filled out and filed promptly. This level of review is clearly inadequate when the process involves the death of an individual.
Some evidence suggests that having a physician-assisted law on the books may affect suicide rates in the general population. In Oregon, the suicide rate has risen out of proportion to the rest of the country, even excluding assisted-suicide deaths. (All laws require that assisted deaths be reported as a death from natural illness rather than suicide.) No formal study has been made of this issue, but there should be some provision to review and suspend the practice if this turns out to be the case.
All existing assisted-suicide laws recommend but do not require that a death be attended. Thus, despite the intent of the law, there is no way to ensure that the suicide is actually voluntary once the lethal medication is in hand. The law allows a physician to dispense medications to facilitate the ingestion of pentobarbital. This is necessary, because some patients have been unable to ingest the volume of liquid necessary to take the whole dose and have regurgitated the medication. Allowing premedication with an antiemetic is sometimes necessary. In theory, this aspect of the law could allow a health care practitioner to inject the antiemetic – an active involvement that would cross the line into euthanasia.
With regard to institutionalized patients, psychiatrists would be in a particularly challenging position. Presently, all patients admitted to hospitals are offered an opportunity to sign medical advance directives. At our forensic hospital in Maryland, admitting physicians assess the patient’s capacity to sign these directives. In theory, an insanity acquittee or long-term patient with a serious medical illness could request assisted suicide if competent. By law, the primary physician – a ward psychiatrist – would ultimately be required to write the lethal prescription or refer to another physician who would. If the patient were incompetent to request assisted suicide, the ward psychiatrist would be required to treat the mental illness knowing that it could eventually lead to the patient’s death. This situation is analogous to the dilemma of the correctional psychiatrist who treats an incompetent death row inmate.
There are many other problems with assisted-suicide legislation. At the very least, states should require a formal certification process to ensure that physicians who provide lethal medication have adequate training and experience to administer and interpret screening tests for psychiatric disorders, to do capacity assessments, and to make prognostic decisions relevant to their board certification and training. In all existing assisted-suicide bills and laws, the only requirement for a physician to provide lethal medication is that he or she must have the “qualifications and experience” to make a diagnosis and prognosis. There is no specific requirement that the attending or consulting physician actually be board certified to treat the illness in question. Thus, in theory, an attending or consulting physician could certify terminal illness without proven competence to do so.
Also, no clear safeguard exists to detect, investigate, and prosecute a hypothetical malicious or unscrupulous physician. In Oregon, three physicians write 20% of lethal prescriptions. It only takes one physician to do a lot of harm.
The American Medical Association has had a position statement on this topic for more than 20 years. The AMA takes the position that physician-assisted suicide is categorically unethical and bars doctors from participation. This, from the standpoint of a state health department, is probably the key issue: Should a legislature have the authority to allow physician behavior that a licensing board and professional organizations already have held to be unethical and not the practice of medicine? One of the core characteristics of a profession is the ability to monitor, police, and ensure the integrity of its members. Legislatures are unwise to undermine this.
Dr. Hanson is a forensic psychiatrist and co-author of “ Shrink Rap: Three Psychiatrists Explain Their Work ” (Baltimore: The Johns Hopkins University Press, 2011). The opinions expressed are those of the author only, and do not represent those of any of Dr. Hanson’s employers or consultees, including the Maryland Department of Health and Mental Hygiene or the Maryland Division of Correction.