In 2008 an insurance company of a 64-year-old woman with lung cancer refused to pay $4,000 a month for chemotherapy but offered instead to pay the $50 charge for drugs for physician assisted suicide. This was just an extreme example of the kinds of unintended consequences which can flow from legislation like Oregon’s Death with Dignity law.
This was the central point of a fascinating talk by Professor Browne Lewis, currently in the UK under the Fulbright Scholarship programme, who was speaking at a Gresham College lecture in London on Monday.
After giving a quick history of euthanasia in the US she explained that subtle changes in terminology as well as other details played a key part in getting assisted death on to the statute books of some states. Groups in favour choose to describe euthanasia as “physician aided death” while opponents call it “physician facilitated suicide”.
Dr Lewis herself has settled on the term “physician assisted suicide” (PAS) because she points out the physician does not actively “facilitate” the process of dying but does assist it by supplying the drugs. And, as the patient is the one dying ultimately by their own hand (a key provision of the law) this is by definition suicide.
Oregon was the first state to pass legislation legalising PAS in a people’s ballot measure in 1994 and it was on this law that Dr Lewis focussed. The key provisions of the Oregon law were that the law permits PAS if the subject is:
- Diagnosed with terminal disease (six months or less to live)
- Making an informed decision
- Making the request for the prescription in writing…
- …which is objectively the same handwriting as usual
- Gets a second opinion
- And waits for the 15-day waiting period
There are several groups included, but without specific protections, and several groups explicitly excluded.
Included but not protected are the:
- Mentally ill
- People of low income
- People of colour
Excluded from the provisions are:
- Under 18s
- Persons predicted to live more than 6 months
- Those suffering from dementia
These provisions throw up some series ethical concerns, argues Dr Lewis.
In the case of the elderly, for example, there is evidence of some old people feeling they almost have a “duty to die” she says. Also they are clearly potentially vulnerable to pressure from relatives, particularly those for example doing the bulk of the caring or who stand to benefit from any inheritance.
In the case of the physically disabled similar concerns raise their heads, in addition to concerns about pressures driven by economic factors: doctors and insurance companies could encourage PAS because of the considerable costs of long term care.
With those of low income this worry is more concrete as the case at the very beginning of this post illustrates. Before PAS was legal the most cost-effective option choice for lung cancer treatment was chemotherapy and the insurer therefore offered to fund it. After PAS was legalised in Oregon there was a cheaper option – the $50 lethal drugs. The poor may find themselves with no options, she argues.
With persons of colour, Dr Lewis says, the worry is that there is considerable evidence that they are not getting appropriate treatment in general at the moment, so if we can’t even ensure this, she argues, then how can we be sure they won’t be encouraged to “self-terminate”.
Another key problem with the Oregon legislation is that, although there is a requirement to seek a second opinion, there is no limit to the number of doctors you can ask. This leads to “doctor shopping” which reduces the protections in the face of the pressures listed above. Dr Lewis says there have been many deaths where the doctor signing off PAS was not the first consulted.
There are other concerns, too. Why six months? What if you are given 12 months but by 6 months your condition will have deteriorated to the extent that you fail the test for informed decision-making or applying in writing?
Also, what about non-terminal cases such as a person suffering from progressive irreversible brain disorder who is not predicted to physically die? Should they not have the same options?
And what about the under-18s. Psychiatrists have argued that a terminally ill 17-year-old is psychologically older than their compatriots.
With this list of reservations you might think Dr Lewis was against the law. In fact she supports it – it’s just that she thinks it’s provisions and safeguards should be tightened up.
She says, as Oregon was the first the enact the legislation the State is very much sought after as a blue print but that because of this there is resistance to making changes which could improve safeguards considerably.
For example, doctor shopping could be protected against if, when one doctor says yes and one says no there was an independent board to adjudicate. She believes the terminality threshold should be updated, too. “I don’t think there is anything magic about six months.”