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By Richard Karel
This is the conclusion of a two-part series begun in the December 19, 1997, issue.
As soon as the Oregon Death With Dignity Act passed in 1994, opponents began working for its reversal. Those efforts culminated unsuccessfully in this November’s repeal referendum, leaving physician-assisted suicide legal in Oregon.
One outspoken opponent was then Area 7 Trustee Robert George, M.D. Distressed that the Oregon district branch was not uniting in opposition to assisted suicide, George went to the APA Board of Trustees in December 1996 to ask for a resolution demanding that the Oregon Psychiatric Association (OPA) go on record in opposition to the 1994 law. The Board ultimately did not support that resolution.
"If [the Trustees] had done that, it would have totally backfired because of the idea that they were trying to force us to take a position," said OPA member David M. Smith, M.D., a strong supporter of a right to physician-assisted suicide.
Although the Board demurred, said George, they would have been within their rights to enforce compliance from the OPA. There is no precedent for a district branch publicly endorsing an ethical stance clearly opposed to the national APA code of ethics, George commented.
According to APA legal counsel JoAnn Macbeth, J.D., George is technically correct, but under the legal construction of the Oregon Death With Dignity Act, a physician cannot be held to be acting unethically for helping a patient die.
The law specifically states that "actions taken in accordance with this act shall not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law."
"APA’s bylaws provide that every member of APA shall be bound by the AMA’s Principles of Medical Ethics, which are annotated for psychiatrists by APA," Macbeth told Psychiatric News. "As each OPA member is a member of APA, it would seem that each is required to abide by the AMA’s ethical code. However, Oregon’s statute apparently prohibits the OPA, like every other professional organization in the state, from finding a member unethical for conduct that would be legal under the statute."
Peter Gruenberg, M.D., chair of the APA Ethics Committee, commented on the controversy over the Oregon law.
Although the passage and upholding of the Oregon law have generated heated debate within APA and elsewhere, it is good if "this debate will have heightened the medical community’s awareness of end-of-life care," said Gruenberg. "My outrage over the past 35 years has been at the inappropriate end-of-life care that people are given. It’s atrocious."
Given the reality of the law, it is important for APA members to recognize that "medical ethics are evolving," observed Gruenberg. "They evolve according to societal changes. They evolve at different speeds, but they evolve."
The APA Ethics Committee has two charges, he said. First, it promulgates ethics principles for members to consider. Second, it has procedures to deal with possible violations of these principles. "Oregon has said we are not going to deal with that procedurally," he pointed out. "So what we’ve done is promulgate a principle here. The Ethics Committee can’t solve social dilemmas for society."
Despite the OPA’s failure to take a forceful public stance on the issue, APA joined the AMA and several other organizations in signing on to a full-page ad in the Portland Oregonian opposing assisted suicide a week before the election.
"The people who opposed aid in dying outraised Death With Dignity 5 to 1," raising $4 million, said Smith. The money was used to air hard-hitting political advertisements.
"This issue, perhaps more than any other, lends itself to political advertising," said Smith. Some ads were so misleading that television stations refused to air them. The ads misrepresented what would happen if people didn’t die immediately from a barbiturate overdose, he said.
The Portland Oregonian ran a series of editorials opposing physician aid in dying "and repeatedly urging repeal of the act," Smith noted. The supporters of repeal "had everything going for them, and they lost in a landslide. It’s because this issue has been brought out of the closet, people are educated about it, they know what their family and friends have gone through in the dying process, and they feel this should be a right," said Smith.
Although the United States Drug Enforcement Administration (DEA) has threatened to prosecute any physician who prescribes a controlled drug to help a patient die, the DEA was rebuffed by Attorney General Janet Reno.
"The latest feeling is that the DEA is backing off and [is] not really on solid ground," Smith commented. Physicians and attorneys familiar with precedent believe that the DEA would have no standing in disciplining physicians acting in compliance with state law, according to Smith.
Each psychiatrist must decide for him- or herself how to deal with this, said James Boehnlein, M.D., who chaired an OPA task force on the ethics of physician-assisted suicide. "I could not be a consultant in cases where this was the primary question. I have to go back to my roots as a doctor and as a psychiatrist," he said.
Suicidal ideation may be "a reasonable thought based on the circumstances the patient is experiencing," said Boehnlein. Wondering if life "has meaning or purpose is a very reasonable existential dilemma. . . . But to support suicide as a valid action is to ignore the life-affirming aspects of the patient."
OPA President Richard Angell, M.D., noted that Oregonians have a tradition of using the political process to confront difficult ethical issues. Oregon is the only state to implement a system of medical rationing, although the reality is that medical rationing is universal, albeit rarely acknowledged. Similarly, physicians throughout the nation have quietly helped patients die by prescribing lethal medication, but the underground nature of this has made it impossible to know the extent of the practice. Thanks to the citizens of Oregon, said Angell, it will now be possible to document how frequently physician-assisted suicide occurs there.
Barbara Coombs Lee is the executive director of Compassion in Dying, the organization that sponsored two cases that the United States Supreme Court let stand this June (Psychiatric News, November 7, 1997). The movement withstood a $4 million campaign to overturn the Death With Dignity Act, she noted. The voters have said that "they knew exactly what they were doing" when they approved Measure 16 in 1994, she added.
The overwhelming defeat of the repeal referendum is "a turning point," said Lee. "Democracy prevailed in this election. Largely because of their own personal experiences, Oregon citizens have opted for control and choice at the end of life."
Eli Stutsman, J.D., defended the Death With Dignity Act before the Supreme Court. Only two weeks prior to the defeat of the repeal referendum, the high court refused to consider the issue, in effect letting the original measure stand. The court said that while there was no federal constitutional right to physician aid in dying, the issue should be left to the individual states to decide.
Glen Gordon, M.D., is a physician from Eugene, Ore., and a past president of the Oregon Medical Association. An activist in favor of assisted suicide, Gordon pointed out that 400 Oregon physicians publicly supported upholding the right to physician aid in dying. As a thoracic surgeon with 50 years’ experience, said Gordon, "I speak from experience when I say that many patients have a terrible experience in the last days and weeks of life." Many patients told him they would have liked the choice to end their lives in a dignified fashion, said Gordon.
The furor over assisted suicide is reminiscent of disputes 15 years ago over advance directives and living wills, observed Gordon. These are now widely accepted, and eventually assisted suicide will also be viewed in a less controversial light, he said.
The majority of Oregon physicians are supportive, he said. They will "make sure it works properly."
The Oregon Medical Association has stated publicly it will not counsel physicians on how to assist in suicide. But Gordon said that "some protocols have been developed," including one by the Oregon Health Sciences University.
Michigan may be the next battleground for the assisted-suicide movement, said Lee. Activists there are now gathering signatures to place an assisted suicide measure on a future ballot.