"Terminal sedation" is a phrase that is relatively new. It did not even appear in medical literature until the 1990s. Even today, there is not a clear definition of the term.(87)
It has long been recognized that, in the very rare case when symptoms cannot be relieved in any other way, sedation can be administered even if it renders a patient unconscious. The use of such sedation is not limited to dying patients, but is sometimes used temporarily in trauma or burn cases. And it has been traditionally understood that, even if such an intervention carries the risk of death, it is appropriate and ethical under the principle of double effect. (It should be noted that, contrary to widespread belief, medication – morphine, for example – gradually increased to even extremely high doses to control pain, does not hasten death.(88) And sedation to the point of unconsciousness may even slightly prolong the life of a dying patient.)(89)
Medical professionals have found the principle of double effect immensely useful as a guide for ethical decision-making.
The principle of double effect is based in Catholic tradition,(90) but it has long figured prominently as a guide to ethical decision-making in secular settings.(91) According to the principle of double effect, it is morally permissible to perform an act that has both a good effect and a bad effect if all of the following conditions are met:
It is the third requirement – the intent aspect – that assisted suicide proponents have seized on as the Achilles heel in the principle, claiming that a physician who intended to kill a patient could escape scrutiny by claming the death was unintended.
Distorting
the Principle of Double Effect
In its later-overturned Compassion
in Dying ruling, the Ninth Circuit sided with this viewpoint, saying
that the "euphemistic use of ‘possible’ and ‘may’ [as in may cause death]
may salve the conscience of the AMA, but it does not change the realities of
the practice of medicine…."(93) The Court claimed that
"in the case of ‘double effect’ we excuse the act," not by
sugarcoating the act itself but by hiding the intent behind the facade of the
double effect.(94) As an example, the Court referred
to providing a morphine drip for a patient and erroneously stated that such an
intervention "will indubitably hasten his death."(95)
Dr. Thomas Preston agreed with the Court’s statements,(96) but his stance was not surprising. Two years earlier,
while the case was wending its way to the Ninth Circuit,
However,
The
claims made in
Nonetheless, assisted suicide leaders continue to blur the lines between killing patients and killing pain. They persist in declaring that sedation is "slow euthanasia."(102)
By distorting both the practice of sedating patients and the principle of double effect, assisted suicide advocates are attempting to persuade the public that it is unreasonable to continue to prohibit such deaths. As Dion Aroner said in a public presentation to gather support for her "Death with Dignity" bill, "I don’t see the difference between terminal sedation and physician assisted dying except that the patient has control of one and not the other."(103)
It is likely that assisted suicide proponents will use this obfuscation as they continue in their attempts to gain public support.
Appealing
to the Public
Among the most effective ways to influence
public opinion are declarations issued in conjunction with major events and
guest columns in newspapers where the
terminal-sedation-as-a-cruel-hypocritical-practice theme has recently been
found.
At an international right-to-die conference held in
We are
health-care professionals attending the biennial Conference of the World
Federation of Right to Die Societies being held in
On this occasion, we wish to draw public attention to the practice of "terminal sedation" or "slow euthanasia" which is performed extensively today throughout the world in hospitals, nursing homes, hospices and in private homes. This is carried out under the doctrine known as "double effect" by which a physician may lawfully administer increasing dosages of regular analgesic and sedative drugs that can hasten someone’s death as long as the declared intention is to ease pain and suffering. Of course, the key word is "intention." Compassionate physicians without publicly declaring the true intention of their actions, often speed up the dying process in this way.
Many thousands of terminally ill patients are so helped globally every year. We feel that the only real difference between "terminal sedation" and a rapidly effective lethal dose is one of time – a slow death, over a few days, with life-shortening palliative drugs, versus a more dignified and peaceful death, because it is not prolonged, and is determined by the patient. We urge other medical professionals worldwide to be more open about this form of physician-assisted dying.(104)
[T]here is a medical solution known as "terminal sedation." This involves putting the patient into a drug-induced coma that is maintained until the patient withers away and dies. This can take weeks. Religious spokesmen consider this a ‘natural’ death, and therefore do not oppose it.(105)
Within the span of a few years, a rarely used treatment to alleviate uncontrollable pain has come to be depicted as an optional method of intentionally causing death. If such erroneous impressions are not refuted effectively, the confusion that will exist in the mind of legislators, judges and the general public could be devastating.
Along
with their representation of terminal sedation as "slow euthanasia,"
right-to-die leaders are depending on what they call the "
The
As
discussed earlier, supporters of
With
the failure to advance their agenda in
Oregon’s
Law
Its advocates give solemn assurances that
Oregon’s Death with Dignity law is tightly written; is limited to specifically
qualified, terminally ill patients; has stringent safeguards; and is carefully
monitored to prevent any possibility of abuse. But, under close scrutiny, the
actual content of the law raises a number of concerns:
Even then, the law does not preclude people who are depressed or who have psychiatric or psychological disorders from obtaining a prescription for lethal drugs as long as a mental health professional determines that the person’s judgment is not impaired.
Neither early dementia nor other cognitive problems automatically prevent a patient from being "qualified" for assisted suicide.(110) Practice guidelines on implementation of the Oregon law indicate that a person for whom the court has appointed a guardian or conservator can still qualify for assisted suicide. The guidelines merely suggest that doctors notify (not obtain permission from) the guardian or conservator regarding the request for lethal drugs.(111)
A psychiatrist found that Mrs. Cheney was not eligible for assisted suicide since she was not explicitly pushing for it, her daughter seemed to be coaching her to do so, and she couldn’t remember important names and details of even a recent hospital stay.
Mrs. Cheney was then taken to a psychologist who said she was competent but possibly under the influence of her daughter who was "somewhat coercive." Finally, a managed care ethicist who was overseeing her case determined that she was qualified for assisted suicide, and the lethal drugs were prescribed.(112)
Doctor-shopping played a role, as well, in the case of another elderly woman whose assisted suicide death was showcased by CID. Two doctors -- including her own physician who believed that her request was due to depression -- refused to prescribe lethal drugs for this woman in her mid-80s who had been battling breast cancer for twenty-two years.
But then, CID became involved. Dr. Peter Goodwin, the group’s medical director, determined that the woman was an "appropriate candidate" for death and referred her to a doctor who provided the lethal prescription. In an audio-taped statement, made two days before her death and played at a press conference called by CID, the woman said, "I will be relieved of all the stress I have."(113) [CID later revealed that, of the 15 reported deaths during the statute’s first year, it had "helped" 11 (73.3%) of those who died.(114)]
Furthermore, the waiting period may not withstand a court challenge. The required fifteen day time lapse between the first and second oral requests was included in the Oregon law as a direct result of the failure of the Washington and California initiatives. Speaking at a 1997 conference in Seattle, Tucker explained that the waiting period was inserted into the Oregon proposal to make it palatable to voters, but she opined that the waiting period would be found unconstitutional if it is subjected to a court challenge:
In my view, the Oregon measure, in some sense, became overly restrictive. It has a fifteen-day waiting period. And my own view of the federal constitutional claim is that a fifteen-day waiting period would be struck down immediately as unduly burdensome. But in the legislative forum, to pass, you need to have measures that convince people that it’s suitably protective so you see a fifteen day waiting period."(117)
Moreover, even the requirement that the patient’s judgment not be impaired refers only to the time between the patient’s first request for assisted suicide and the doctor’s writing the prescription. Nothing in the law requires that the patient be competent at the time the deadly overdose is taken.
In a 1997 Oregon Bar Association publication about Oregon’s "Death with Dignity" law, CID’s Barbara Coombs Lee and her co-authors wrote, "The Act merely regulates the conduct of all parties up to the point of the drug prescription."(118)
Thus, a doctor who negligently "participates"(120) in an assisted suicide cannot be held accountable so long as he or she claims to have acted in "good faith." On the other hand, a doctor who negligently provides other medical interventions can be held legally accountable in civil court regardless of his or her "good faith."
This lessening of the standard of care for assisted suicide could serve as an inducement for doctors to recommend assisted suicide over palliative care at the end of life.
After passage of Oregon’s law, supporters said the new law would permit the types of activities carried out by Jack Kevorkian. In an appearance on Nightline, Geoffrey Fieger (Kevorkian’s attorney) and Peter Goodwin (CID’s medical director) both agreed that the new law would permit use of a death-inducing device such as that developed by Kevorkian.(121)
Speaking at the Ninth National Hemlock Conference on Physician Aid-in-Dying, Tucker said that assisted suicide under the Oregon law "can take many forms" beyond swallowing pills. "I think that technology can make self-administration possible for a very broad range of patients who would not have the wherewithal to self-administer otherwise," she said. "For example, there are certainly technologies that permit patients to do things by voice activation of a computer that could generate an infusion of medication. That can be self-administration."(122)
Like the law itself, the official reports deserve attention.
The
Oregon Assisted-Suicide Reports
As previously discussed, passage of the
Oregon law provided an extremely important tool for assisted suicide proponents
to use in their quest to spread legalized assisted suicide across the country.
And they have used the official reports from Oregon to refute concerns that the
law would result in deaths of vulnerable people who are depressed, under
pressure from others, living in poverty, or lacking adequate health care.
If assessment of Oregon’s experience with assisted suicide depended solely on official reports, those concerns have, indeed, been found to be without merit. However, reliance on those official reports for an accurate portrayal of assisted suicide in Oregon is imprudent.
Physician
Noncompliance
Although descriptions of the law have
consistently stated that the law requires physicians to report involvement in
assisted suicide, it actually requires only that prescribing doctors maintain
documentation in patients’ medical records.(123) The
actual "reporting requirements" are directed only at the Oregon
Health Division (OHD) which must make rules to facilitate information
collection, review a sample of records and issue an annual statistical
report.(124)
The OHD has the mandate of requiring health care providers to file a copy of dispensing records.(125) However, the law contains no penalties for health care providers who fail to report prescribing lethal doses for the purpose of suicide. Moreover, according to Dr. Katrina Hedberg, co-author of Oregon’s three official reports, the OHD has no regulatory authority or resources to ensure compliance with reporting requirements.(126)
Questionable
Data
The OHD acknowledges that information on
which its official reports are based may be incomplete and inaccurate. The only
physicians interviewed for either report were those who had acknowledged
prescribing lethal drugs. The first report stated that among its limitations
was the fact that "the possibility of physician bias must be
considered."(127) In addition, the OHD conceded, "[W]e cannot
detect or collect data on issues of noncompliance with any accuracy"(128) and "We do not know if covert
physician-assisted continued to be practiced in Oregon in 1998."(129)
This situation did not change for subsequent reports. The second official report noted, "Underreporting cannot be assessed, and noncompliance is difficult to assess because of the possible repercussions for non-compliant physicians reporting data to the division."(130)
The OHD has even admitted that reporting physicians may have fabricated their versions of the circumstances surrounding the prescriptions written for patients: "For that matter, the entire account could have been a cock-and-bull story. We assume, however that physicians were their usual careful and accurate selves."(131)
Over the course of the first three years of legal physician-assisted suicide in Oregon, 70 deaths were reported.(132) But there is no way to know how many such deaths actually took place. Nor is it possible to determine the circumstances surrounding those deaths.
Questions
and More Questions
Nonetheless, some information that does
appear in the Oregon reports raises as many questions as it answers. For
example, one patient was reported to have taken the lethal dose more than eight
months after receiving the prescription.(133) Lethal prescriptions
under Oregon’s "Death with Dignity Act" are supposed to be limited to
patients who have a life expectancy of six months or less. However, the OHD is
not authorized to investigate how physicians determine their patients’
diagnoses or life expectancies.(134)
Official reports from Oregon also indicate that at least 59% of patients did not receive their lethal drug prescriptions from the first physician they asked.(135) Since the refusing physicians were never interviewed by the OHD for the official reports, there is no way to know why these doctors refused to prescribe or why they determined that the patient was not qualified for an assisted suicide death under the Oregon law.
Was it because the patient was not terminally ill? Was it because the physician was personally opposed to assisted suicide? Or was it because the doctor knew the patient was subtly being pressured or encouraged by others to opt for an early death? The answers to these questions will never be known.
The OHD’s figures also indicate that some patients knew their doctors for only two weeks before the lethal dose was prescribed.(136)
Since at least two weeks must elapse between the first and last requests for the lethal dose, it appears that, in these cases, the physician-patient relationship was established for the specific purpose of obtaining the drugs for assisted suicide.
There
are other omissions in the reports that raise even more questions. For example,
the reporting doctors stated that none of the patients expressed financial
concerns as a reason for wanting to die from assisted suicide. Yet 14.3% of
those who died were on Medicaid,(137)
Among others whose deaths were reported, there remains a question about financial concerns that may not have been discussed with the prescribing physician (or may have been discussed, but not reported).
The
In fact, in the absence of the ability to afford such services, being "informed" about them is useless, if not cruel. Even among Oregonians who are covered by private medical insurance, coverage for hospice services is often woefully inadequate. For example, QualMed Oregon Health Plan (created out of a merger of two HMOs) covers assisted suicide "as a prescription" while the plan’s "value option" has a $1000 limit on hospice care for terminally ill patients.(139)