At Law: Sledding in Oregon

Abstract

On 8 November, voters in Oregon made their state first in nation to legalize physicians' directly helping patients to die. By a 32,000 vote margin (51 to 49 percent) they approved Measure No. 16, which removes criminal penalties for physicians who prescribe drugs to enable people to take their own lives. Eight days later, a jury in Saskatchewan found Robert Latimer guilty of second degree murder for killing his severely handicapped daughter Tracy.[1] Though circumstances in that case seem a world away from new Oregon law, changes in community and professional norms inherent in Oregon act may well push law beyond its enacted confines with profound consequences for future Latimer-type cases. Ballot Measure 16 Oregon was third state to have a Death with Dignity Act on its election ballot in this decade. Initiative measures with same names were defeated in Washington State in 1991 and California in 1992, both by 54 to 46 percent, despite repeated polls that show strong public support for physician assistance to bring a speedy and pain-free death. Analyzing those prior votes, proponents concluded that die electorate wanted stronger safeguards and more limited power for physicians. Giving doctors a lesser role than had neighboring states' proposals (which allowed active euthanasia), Oregon act legalizes physician-assisted suicide but leaves patients to perform final act. The law applies only to residents of Oregon eighteen years of age or older who have the ability to make and communicate health care decisions, including communication through persons familiar with [their] manner of communicating if those persons are available [section] 1.01 (6)]. To be qualified to receive a lethal prescription, person must also be suffering from a terminal disease, which is defined as incurable and irreversible disease that has been medically confirmed and will, within reasonable medical produce death within six (6) months [section] 1.01(12)]. Beyond these requirements, statute contains four principal safeguards. First, attending physician must convey information not only about diagnosis and prognosis and risks and results of taking prescribed medication, but also the feasible alternatives, including, but not limited to, comfort care, hospice, and pain control [section] 3.01 (2)]. The physician must ask patient to notify next of kin of his or her plans but may not deny request for medication because a patient declines or is unable to do so [section] 3.05]. Second, a consulting physician must confirm that patient has a terminal illness, is capable, and has made a voluntary and informed decision [section] 3.02]. Third, if either attending or consulting physician thinks patient suffers from a psychiatric disorder, including causing impaired judgment, patient must be referred for counseling. Lethal medication may then not be prescribed until a licensed consultant rules out such a disorder or depression [section] 3.03]. Finally, a person wishing to commit suicide must make a series of oral and written requests to that effect. At least fifteen days must elapse between initial oral request and one that immediately precedes writing of prescription, and sometime between two oral requests - and no less than forty-eight hours before prescription - patient must execute a written request for medication, witnessed by at least two people who can attest to patient's apparent decisionmaking capacity and voluntary, uncoerced decision. Mirroring advance directive statutes, Oregon law proscribes attending physician's being a witness, and at least one of witnesses must be disinterested, in sense of not being a relative, someone entitled to a portion of estate, or an owner or employee of a health care facility where patient resides or receives care [section] 2. …