Amicus Curiae Brief — Gonzales v. Oregon

Y Supreme Court. U.S

‘ FILED

No. 04-623 MAY 12 2005

a

ee CLERK

In The

Supreme Court of the Anited States

¢

ALBERTO GONZALES, ATTORNEY GENERAL, et al.,

Petitioners,

Vv.

STATE OF OREGON, et ai.,

Respondents.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

¢

BRIEF FOR AMICUS PHYSICIANS FOR

COMPASSIONATE CARE EDUCATIONAL

FOUNDATION IN SUPPORT OF PETITIONERS

¢

GREGORY P. LYNCH

Counsel for Physicians

for Compassionate Care

Educational Foundation

747 SW Mill View Way

Bend, OR 97702

(541) 408-0122

Attorneys for Amicus Curiae

a ———————E—E—E—E———

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Attorney General has permissibly con-

strued the Controlled Substances Act, 21 U.S.C. 801, et

seq., and its implementing regulations to prohibit the

distribution of federally controlled substances for the

purpose of facilitating an individual’s suicide, regardless of

a state law purporting to authorize such distribution.

ii

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Page

CASES

Washington v. Glucksberg, 521 U.S. 702 (1997)............. 3,8

STATUTES

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TI TIT oc cctrnecsnsnnsersasenassensssscssscoscssessssocetese 3

OTHER AUTHORITIES

Oregon Medical Association, Articles of Incorpora-

tion and Bylaws Oregon Medical Association,

amended November 8, 2004, Chapter XII, 12.030

http://www.theoma.org/Files/BYLAWS%284%29.

GeeBC nate TRB ....2000ccccccscccccscccsscccssccccssccccccccscsessecseseoes 3

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Appendix A, pp. A1-A27 ..........:ccccccceseseereserseeeneeneseesenneenes 4

Seventh Annual Report on Oregon’s Death with

Dignity Act, Department of Human Services Of-

fice of Disease Prevention and Epidemiology,

TTT 4,10

H.R. Re. No. 1444, 91st Cong. 2d Sess. Pt. 1., at 35

Ee 6

Aggpamdlis A, Bp. AIG .....0..000.c0cecoseccsecssccsscveeccscocscvscccscrecesesesees 7

Fromme, E.K., Tilden, V.P., Drach, L.L., and Tolle,

S.W., Increased Family Reports of Pain or Dis-

tress in Dying Oregonians: 1996 to 2002, Journal

of Palliative Medicine 2004; 7(3):431-442..................0006 8

iv

TABLE OF AUTHORITIES — Continued

Chevlien, E.M. and Smith, W.J.: Power over Pain,

Stubenville, Ohio: International Task Force

Department of Health and Human Services:

National Strategy for Suicide Prevention, 2001,

http:/www.mentalhealth.samhsa.gove/publications/

allpubs/SMA01-3417/ ..........ccscsssccvesccssssscessseceesseesesssssee

Ganzini, L., and Farrenkopf, T. Mental Health

Consultation and Referral, The Oregon Death

with Dignity Act: A Guidebook for Health Care

Providers. Edited by Haley, K. and Lee, M. Port-

land, Oregon: Oregon Health Sciences University

TI cncnscsicennenienanupetininnsintsiiunsiitiniaigsiitpaatsiaimatuuemiaaiammiaiemiiaiaias

1

INTEREST OF AMICUS CURIAE

Physicians for Compassionate Care Educational

Foundation is an association of physicians and other

health professionals dedicated to preserving the tradi-

tional relation of the physician and patient as one in which

the physician’s primary task is to heal the patient and to

minimize pain.

The association promotes the health and well being of

patients by encouraging physicians to comfort patients

and to assist those who are dying by support systems,

minimizing pain, and treating depression. The association

affirms the health restoring role of the physician and

works to educate the profession and the public to the

dangers of euthanasia and physician-assisted suicide. As

physicians, we come from primary care specialties as well

as subspecialties. We work to support each other and to

speak out for the inherent value of human life.’

+

ARGUMENT

The Attorney General's interpretation of the Compre-

hensive Federal Statute must prevail over State law that

departs radically from the traditionally accepted legal and

ethical norms of medical practice in this country.

' Physicians for Compassionate Care files this brief with the

consent of all parties. The Letters granting consent of the parties are

attached hereto with the filing of this brief. Counsel for a party did not

author this brief in whole or in part. No person or entity, other than

Amicus Curiae, its members, or its counsel made a monetary contribu-

tion to the preparation and submission of this brief.

2

The Attorney General clearly acted reasonably and

appropriately in concluding that the dispensing of drugs to

assist a person in committing suicide is not a “legitimate

medical purpose”, nor is it “treatment” within the meaning

of the Controlled Substances Act, a conclusion maintained

by 49 States, the federal government, and leading associa-

tions of the medical profession.

Oregon’s Death with Dignity Act (Or. Rev. Stat.

127.800 et seg. (2003)) (the Act) does not allow for doctor-

assisted suicide within the context of a “legitimate medical

purpose.” The Act functions by singling out a particular

class of individuals and excluding them from the normal

protections generally afforded medical patients. In par-

ticular, the Act exempts Oregon doctors who write deliber-

ately lethal prescriptions from meeting the accepted

stande d of care, and otherwise conforming their practice

to the ethical standards of the medical profession. Ore-

gon’s Death with Dignity Act is a radical departure from

the long-accepted legal and ethical norms of the medical

profession and puts a defined group of patients and their

families beyond the protections afforded by these proto-

cols.

Specifically, the Act disallows recourse to malpractice

suits by these patients and their family members in that it

exempts assisted-suicide doctors from the requirement of

meeting the ordinary standards of medical care in like

communities nationally, and instead holds them only to a

“good faith” standard, which is something heretofore

unknown in a medical-legal sense, and inapplicable to any

legitimate medical treatment. ORS 127.885 §4.01(1)

states, “No person shall be subject to civil or criminal

liability or professional disciplinary action for participat-

ing in good faith compliance with ORS 127.800 to

3

127.897.” The statute actually replaces traditional “stan-

dard of care” requirements with a “good faith” standard

that is, in essence, totally subjective, and virtually impos-

sible to evaluate within the established context of medical

practice, and treats assisted-suicide as different from any

legitimate medical purpose or treatment.

Furthermore, the Act protects physicians who facili-

tate suicide against any professional discipline, provided

only that the physician act in “good faith”. Specifically, the

Act provides, “No professional organization or association,

or health care provider, may subject a person to censure,

discipline, suspension, loss of license, loss of privileges,

loss of membership or other penalty for participating or

refusing to participate in good faith compliance with ORS

127.800 to 127.897.” ORS 127.885 §4.01(1). At the same

time, the American Medical Association, the American

Nurses Association, and the American Psychiatric Associa-

tion have all stated in a joint brief in Washington v.

Glucksberg, 521 U.S. 702 (1997) that physician-assisted

suicide is “fundamentally incompatible with the physi-

cian’s role as healer”. This statement is derived from the

published ethics of the American Medical Association,

Handbook of Medical Ethics, and emphasizes that as-

sisted-suicide, as determined by the medical profession,

not only falls outside the bounds of ethical medical prac-

tice, it is actually incompatible with medical practice.

Adherence to the ethical standards of the American

Medical Association is also required by and for membership

in the Oregon Medical Association (Articles of Incorporation

and Bylaws Oregon Medical Association, amended Novem-

ber 8, 2004, Chapter XII, 12.030, http://www.theoma.org/

Files/BYLAWS%284%29.doc#Chapter_XIIt). Oregon is the

only state that has so radically departed from accepted

4

standards so as to allow for assisted-suicide, by removing

this specific procedure from the ethical requirements of

the prevailing medical organizations, and which otherwise

apply to all other legitimate medical treatments within its

borders. These facts further demonstrate the reasonable-

ness of the Attorney General’s conclusion based on the

Office of Legal Counsel memorandum, dated June 27,

2001, that assisted suicide cannot be considered a “legiti-

mate medical purpose” or “treatment.”

The case of Michael P. Freeland’ poignantly demon-

strates how Oregon’s radical deviation from the long-

accepted legal and ethical norms has resuited in the abuse

of federally controlled substances to the detriment of

innocent and vulnerable patients. This case is the only

case involving a patient who was prescribed assisted-

suicide drugs in Oregon that is based on an actual outside

examination of medical records, court documents, and

patient and family interviews. The official Oregon reports,

which have been so roundly criticized as more protective of

the Oregon Death with Dignity Act than of the vulnerable

patients derives almost all of its information from the

assisted-suicide doctors themselves.*

Mr. Freeland, an Oregon resident, developed lung

cancer in his early sixties. Suicidal feelings had haunted

him since he wes twenty-one after his mother had died

from a self-inflicted gunshot wound. Freeland actually

* 21 CFR Appendix D.

* Appendix A, pp. Al-A27.

* Seventh Annual Report on Oregon's Death with Dignity Act,

Department of Human Services Office of Disease Prevention and

Epidemiology, March 10, 2005, p. 4.

5

attempted suicide shortly after his mother’s death and was

treated for depression in a psychiatric hospital. Still

preoccupied with suicide, he made at least two additional

suicide attempts. On each occasion, his suicidal despair

was treated according to the generally accepted standards

of medical care: he was deprived access to lethal means; he

was protected until his suicidal impulses abated; and he

was treated for depression and any other factors contribut-

ing to his despair.

With the treatment, Mr. Freeland did reasonably well

until, when in his sixties, he was officially categorized as

“terminally ill” in Oregon. Not surprisingly, his physician

and a consultant chosen by that doctor opined that Free-

land had a “terminal cancer”, as defined by the Act,

because, in their opinion, Freeland may not have more

than six months to live. The Oregon Death with Dignity

Act defines “terminal disease” as an “incurable and irre-

versible disease that has been medically confirmed and

will, within reasonable medical judgment, produce death

within six months (emphasis added). ORS 127.800

s.1.01(12). The fact that this prognosis underestimated

Michael Freeland’s actual longevity by nearly two years

served no protective function for this unfortunate man. He

was, under the Act, technically eligible for formal medical

assistance in killing himself, in lieu of, and instead of

being given the protection and medical treatment he had

successfully received on prior occasions.

The physician, well known for his political activity

promoting legalized assisted suicide, prescribed this

distressed man a lethal overdose of federally controlled

substances without so much as a cursory psychiatric

examination. He did this despite the fact that the primary

care doctor had diagnosed Freeland as depressed and had

6

given him an antidepressant medication for treatment,

and despite the fact that Freeland’s daughter had actually

asked the assisted-suicide doctor if such an examination

might not be in order.

By January 23, 2002, Mr. Freeland had become so

depressed and confused that a doctor hospitalized him

against his will because of suicidal and possibly homicidal

ideation. While efforts were made to remove his guns from

his home before his discharge from the hospital, the lethal

prescription was left available to him. The prescribing

pliysician actually admitted that he had made no attempt

to retrieve these lethal drugs, which were federally con-

trolled substances, even after the Multnomah County

Circuit Court determined on February 12, 2002, that

Freeland was incompetent to make his own medical

decisions and had appointed Freeland a temporary guard-

ian. Under traditional notions of “legitimate medical

treatment,” leaving this depressed, suicidal, confused, and

legally incompetent individual unsupervised, and with

access to a lethal dosage of a federally controlled sub-

stance would have been considered medically negligent

and unethical. Congress referred to the “[mlisuse of a drug

in suicides and attempted suicides” and “injuries resulting

from unsupervised use” as evidence of improper use and of

drug abuse under the CSA’ and pointed to individuals

taking controlled substances in “amounts sufficient to

create a hazard to their health” as further evidence of

misuse of a controlled substance and of “drug abuse.”

However, under the Act, Oregon does not regulate assisted

* HR. Rep. No. 1444, 91st Cong. 2d Sess. Pt. 1., at 35 (1970).

* See id. at 34.

7

suicide in the same way that it regulates medical treat-

ments, presumably because assisted suicide cannot be,

under traditional definitions, considered a medical treat-

ment, even in Oregon.

While pain control initially did not present a problem

for Mr. Freeland, it did in the final weeks of his life.

During a home visit on November 17, 2002, volunteers

from Physicians for Compassionate Care Educational

Foundation found that he was taking very little or no pain

medication. He said that he was desperate because of the

pain and was on the verge of killing himself with a pre-

scription that had been previously provided, and disclosed

that the prescribing physician had actually offered to sit

with him while he took the lethal drugs.’ Instead, these

volunteers insisted that this vulnerable and confused man

be provided with the accepted standard medical care, and

at the same time encouraged Mr. Freeland to take his pain

medications. It was actually the volunteers who insisted

that Mr. Freeland be provided with an intravenous infu-

sion pump to administer adequate doses of opioid medica-

tions in order to control pain, and despite the fact that

earlier a hospital palliative care consultant had found the

need for attendant care to be a “moot point” since Mr.

Freeland had available to him “life-ending medications.”

The consultant’s comments, and the prescribing physi-

cian’s deliberate failure to arrange for competent atten-

dant care, quite clearly suggests that the availability of

federally controlled substances for the purpose of facilitat-

ing Mr. Freeland’s suicide actually interfered with his

receiving adequate pain care, which care would otherwise

” Appendix A, p. A16.

8

have been given as consistent with the generally accepted

medical standard of care and practice. Moreover, there is

reason to believe that such attitudes have, in fact, contrib-

uted to the reported decrease in the adequacy of pain care

among Oregon terminally ill patients since the implemen-

tation of Oregon’s Death with Dignity Act." Simply stated,

there was absolutely no excuse for allowing this man to

suffer with untreated pain after providing him with the

means of killing himself by prescribing a lethal dose of a

federally controlled substance instead of pain care.

At a number of Physicians for Compassionate Care

Educational Foundation palliative pain conferences,

numerous experts have taught that no one needs to die in

unrelieved suffering. Noted national pain care expert, Eric

Chevlen, has, along with others, explained how a vast

array of treatments, including long-acting opiods, every-

day nonsteroidal anti-inflammatories, sophisticated spinal

infusion pumps, surgical procedures, and even therapeutic

radio nucleotides, along with a host of other treatments,

can and will relieve the suffering of patients.’ Clearly

Justice O’Connor in her concurring opinion in Glucksberg,

supra, recognized that “The parties and amici agree that

... @ patient who is suffering from a terminal illness and

who is experiencing great pain has no legal barriers to

obtaining medication from qualified physicians to alleviate

that suffering, even to the point of causing unconscious-

ness and hastening death”. Washington v. Glucksberg, 521

* Fromme, E.K., Tilden, V.P., Drach, L.L., and Tolle, S.W., Increased

Family Reports of Pain or Distress in Dying Oregonians: 1996 to 2002,

Journal of Palliative Medicine 2004; 7(3):431-442.

* Chevlen, E.M. and Smith, W.J.: Power over Pain, Steubenville,

Ohio: International Task Force (2002).

9

U.S. 702, 736-737 (1997). In every state in this country,

including Oregon, and without recourse to assisted sui-

cide, patients can receive pain care sufficient to relieve

their suffering, even in the rare instance such treatment

may unintentionally hasten death. In Michael Freeland’s

case, adequate pain care that did not hasten death was

readily available, and the failure to provide that care in a

timely fashion was unconscionable.

Not only was the prescription of a lethal dose of a

federally controlled substance to Mr. Freeland the likely

cause of his failure to receive timely and adequate pain

management, the failure to treat this man’s depression

and suicidal despair according to locally an’ nationally

accepted standards of medical care arose explicitly from

the nature of the Oregon Death with Dignity Act and its

implementing guidelines. Clearly Michael Freeland did

not receive the consistent treatment of his suicidal despair

that all medical standards of care require. He was not

protected against access to lethal means, a crucial element

in the accepted standard of practice when dealing with

suicidal intentions.” Instead, he was actually provided

access to a lethal overdose which, outside of the Act, would

have been seen as medical malpractice and unethical

behavior in any state. Even in Oregon, such a practice

would otherwise be considered a form of medical negli-

gence and would have been reportable to the Board of

Medical Examiners as unethical behavior, without the

protections and exemptions provided for in Oregon’s Death

with Dignity Act. For good reason, less than 0.5% of

** Department of Health and Human Services: National Strategy

for Suicide Prevention, 2001, http://Awww.mentalhealth.samhsa.gove/

publications/allpubs/SMA01-3517/.

10

Oregon’s 10,000 doctors were found to have engaged in

such behavior, which is so incompatible with the physi-

cians role as healer.”

Frightening, but not surprising, published guidelines

for implementing the assisted-suicide law actually provide

that, “If the mental health professional finds the patient

competent, refusal of mental health treatment by the

patient does not constitute a legal barrier to receiving a

prescription for a lethal dose of medication”” In such a

case, assisted suicide is offered not as a legitimate medical

and psychiatric treatment of suicidal despair as required

by the rest of the country, but instead as an alternative to

treatment. In every state in this country, including Ore-

gon, the leading associations of the medical profession

deem assisted suicide outside the scope of legitimate

medical practice. Even the Oregon Death with Dignity Act

does not define assisted suicide as a legitimate medical

practice. It simply exempts that practice from the rules

and regulations that otherwise define and control the

practice of medicine within its boundaries.

¢

“ Seventh Annual Report on Oregon’s Death with Dignity Act,

Department of Human Services Office of Disease Prevention and

Epidemiology, March 10, 2005, p. 4.

” Ganzini, L. and Farrenkopf, T. Mental Health Consultation and

Referral, The Oregon Death with Dignity Act: A Guidebook for Health

Care Providers. Edited by Haley, K. and Lee, M. Portland, Oregon:

Oregon Health Sciences University (1998) p. 31.

11

CONCLUSION

Clearly, the Attorney General acted reasonably in

concluding that dispensing drugs to assist » person to

commit suicide is not for a “legitimate medical purpose” or

“treatment”, within the meaning of the Controlled Sub-

stance Act.

Respectfully submitted,

HURLEY, LYNCH & Re, P.C.

GREGORY P. LYNCH OSB 75234

Of Attorneys for Amicus Curiae

Al

APPENDIX A

COMPETING PARADIGMS OF RESPONDING

TO ASSISTED-SUICIDE REQUESTS IN OREGON:

CASE REPORT

(Revised May 3, 2004)

By

N. Gregory Hamilton, M.D.

and

Catherine Hamilton, M.A.

(PUBLISHED VERSION IN PRESS AS: HAMILTON,

N.G. AND HAMILTON, C.A., AMERICAN JOURNAL

OF PYSCHIATRY [sic] 2005;162(6):666-671)

Presented at:

American Psychiatric Association Annual Meeting

Symposium on Ethics and End-of-Life Care:

New Insights and Challenges

New York City

May 6, 2004

Corresponding author:

N. Gregory Hamilton, M.D.

2250 N.W. Flanders, Suite 306

Portland, Oregon 97210

(503) 276-1293

nghamil@comcast.net

INTRODUCTION

Legalization of assisted suicide in Oregon ushered in a

new approach to evaluating suicidal patients with serious

medical illnesses. Two competing paradigms — the tradi-

tional clinical (1-3) and the assisted-suicide competency (4)

models — now exist. No more dramatic illustration of the

A2

inconsistencies in these differing approaches can be found

than the case of Michael P. Freeland.

This sixty-three-year-old lung cancer patient was

admitted to Providence Hospital in Portland, Oregon, after

he developed depression and was thought to have both

suicidal and homicidal ideation. Before discharge from the

hospital the attending psychiatrist noted in the medical

record, “The guns are now out of the house, which resolves

the major safety issue.” The same summary also stated

that the patient still had in his possession a legally pre-

scribed, lethal dose of barbiturates, which he “keeps safely

at home.” When he returned home, he retained this means

of suicide. While removal of guns may have resolved at

least one safety issue, it did nothing to address another

important safety concern; a lethal prescription intended

for the purpose of suicide remained in the home of this

depressed patient. This inconsistency very likely did not

arise from any oversight on the psychiatrist’s part, but

from the competing paradigms informing his decisions.

This paper compares the traditional clinical approach

to evaluating and treating suicidal symptoms with the

assisted-suicide competency model delineated in an

assisted-suicide guidebook (4) used in Oregon, the only

state where such a practice is legal. The case of Michael

Freeland illustrates these competing paradigms. This is

the first reported case of a patient legally prescribed

assisted-suicide drugs for which medical records have been

made available. The patient, Michael Freeland, out of a

wish to help others, agreed to numerous prospective

interviews and generously provided his written consent for

release to the authors of all medical records from Provi-

dence Portland Medical Center. And he granted permis-

sion for publication of his case without disguise.

A3

CLINICAL MODEL

“No group of suicidal patients has been more ignored

than those who become suicidal in response to serious or

terminal illness” (1, p558), concludes the “Suicide, Assisted

Suicide, and Euthanasia” section of The Harvard Medical

School Guide to Suicide Assessment and Intervention.

Herbert Hendin, author of this chapter, [and our discuss-

ant in this Symposium] points out that these individuals

are no different from other suicidal individuals. While

physical illness may be a precipitating cause of despair,

these patients usually suffer from a treatable depression,

he reminds us. Patients considering assisted suicide are

deeply ambivalent about their desire for death, just as are

other suicidal patients. This conclusion is consistent with

evidence that poor health is not an independent risk factor

for death by suicide but is correlated with depression or

other mental illness as a key intervening variable (3,5). A

noted, large scale study [published in JAMA] demon-

strates that seriously ill individuals expressing an interest

in assisted suicide all suffered from symptoms of depres-

sion or irrational hopelessness (6). Kissane (7) [who gave

us such a lucid discussion earlier this afternoon] termed

this later factor demoralization syndrome and found that

hopeless feelings and depression were major contributing

factors in the Australian assisted-suicide deaths during

his country’s brief experiment with the practice.

The clinical approach to dealing with assisted-suicide

requests, as with other suicidal symptoms, begins with

assessment. After a more open-ended portion of the inter-

panera te Nay peer emg Arye ingens pee porno

doctor typically inquires about the onset and recurrence

of psychiatric symptoms, previous similar episodes and

treatments, recent stresses, social and economic difficulties,

A4

and religious or spiritual concerns (3). Symptoms of

depression and substance abuse are noted. In this popula-

tion, the clinician must pay particular attention to medica-

tions that can cause or exacerbate psychiatric disturbance,

cancers or other illnesses known to cause depression or

anxiety, the adequacy of pain control, and whether or not

the patient has been reassured about the effectiveness of

aggressive pain management and other palliative care

interventions.

Thoughtful clinicians consider it equally important to

explore sources of hope, self-esteem, and strength. At some

point, the clinician directly asks about the seriousness and

urgency of suicidal intent and the availability of means,

including access to firearms and potentially lethal medica-

tions. The doctor must also explore the patient’s ambiva-

lence about dying, which is virtually always present (1).

When it comes to treatment, the approach in this

population emphasizes an effort to “understand and

relieve the desperation that underlies the request for

assisted suicide” (1, p 553). To do so the clinician must

resist assuming the role of “gatekeeper,” who would focus

on issues of competence alone (1,7,8). Such patients often

suffer from feelings of worthlessness, demoralization, or

guilt and may be making a plea for reassurance (1,7).

Depressed patients may indulge in rigid, black-and-white

thinking and overlook possible solutions to problems. They

often have complex fantasies about their doctors; for

instance, they might see the doctor from whom they are

requesting suicide as a savior with whom they will unite

in death or as an executioner or in any number of other

roles (1). Exploring such feelings and fantasies and what-

ever other concerns arise can be reassuring and validating

A5

for the patient and can go a long way toward dispelling

feelings of demoralization and worthlessness.

As our co-presenter, Brian Kelly, so clearly demon-

strated in the chapter he wrote with Varghese, “Counter-

transference and Assisted Suicide,” physicians typically

must deal with their own feelings of helplessness in the

face of death (1,2,7,9). Various authors (2,10-12) have

discussed the process of containing the feelings of trou-

bling patients requesting assisted suicide through em-

pathic listening, accepting whatever feelings of

helplessness or other feelings that may arise, reflecting

upon those feelings, and offering back to the patient

understanding and meaning in the form of a comment or

gesture.

Underlying physical illness may contribute to depres-

sion and must be treated if possible. While depression and

fear, not pain, are the most frequent motivating factors for

assisted suicide requests (2,3,6,13), pain care often can be

improved. Antidepressant, antianxiety, or psychostimulant

medication can play a crucial role in alleviating underly-

ing depression or fear leading to desperation. Most psy-

chiatrists have heard a patient convincingly describe a

seemingly hopeless circumstance only to find the patient’s

perception of the very same circumstances entirely

changed after a successful course of antidepressant medi-

cation.

While many patients with suicidal symptoms can be

treated as outpatients, sometimes psychiatric hospitaliza-

tion is required to protect the patient while treatment is

initiated. Hospitalization may also be needed in those

requesting assisted suicide.

A6

A thorough assessment of patients nearing the end of

life is often organized around a palliative care model that

explores physical, psychological, social, and spiritual (14)

contributions to symptoms. Palliati care specialists

routinely perform this evaluation, but most experts agree

that when requests for assisted suicide arise a psychiatric

consultation is required (14, p2901).

The traditional clinical approach described here

assumes that suicidal symptoms in the seriously ill should

be evaluated and treated as they are in all other patients

(15) and that such evaluation and treatment can be

extremely helpful, often lifesaving.

ASSISTED-SUICIDE COMPETENCY MODEL

In contrast to the traditional clinical approach just

described, the guidebook for Oregon assisted suicide

emphasizes that mental health consultation, when re-

quired at all, should be “a form of a competency evalua-

tion, specifically focused on capacity” (4, p 30) to make a

decision. Ganzini and Farrenkopf, who authored the

mental! health section state, “The evaluation should focus

on assessing the patient’s competency and factors that

limit competency such as mental disorders, knowledge

deficits, and coercion” (4, p 30). When it comes to diagnos-

ing a psychiatric disorder, however, these authors insist

that the presence of a mental disorder does not disqualify

a patient from assisted suicide. While acknowledging that

depression may affect a patient’s judgment about assisted

suicide they emphasize, “The presence of depression does

not necessarily mean that the patient is incompetent”

(p31). This opinion is at variance with the majority of

forensic psychiatrists, who believe “that the presence of

A7

major depressive disorder should result in an automatic

finding of incompetence” (16, p595) to make decisions

about assisted suicide. A more nuanced approach proposed

by Kissane (17), which includes assessment of demoraliza-

tion in determining competency for assisted suicide, is not

in use among Oregon assisted-suicide practitioners.

In the assisted-suicide competency model, as used in

Oregon, there is no obligation to treat depression or any

other mental illness even when one is found. The guide-

book concludes, “If the mental health professioral finds

the patient competent, refusal of mental health treatment

by the patient does not constitute a legal barrier to receiv-

ing a prescription for a lethal dose of medication” (4, p31).

The guidebook mentions the importance of determin-

ing the presence or absence of coercion as a part of compe-

tence determination. As these guidelines are applied,

however, coercion is narrowly defined. Such was the case

in the widely discussed assisted suicide of Kate Cheney

(18-20), an eighty-five-year old cancer patient with grow-

ing dementia, whose psychiatrist believed she was being

pressured by her family; nevertheless, she was given

assisted suicide in Oregon.

The Oregon law requires that the patient who makes

an initial assisted-suicide request be judged to have less

than six months to live. A second physician must confirm

the prognosis. The assisted-suicide doctor typically chooses

this consultant. There must be a second assisted-suicide

request after a fifteen day waiting period, and one of the

requests must be in writing. There is no requirement for a

psychiatric evaluation. Only if the doctor intending to

write the prescription for overdose or the consultant

believes that the patient has seriously impaired judgment

A8

due to a mental disorder is there any requirement for

referral to a psychiatrist. In actual practice, few patient’s

requesting assisted suicide are ever referred for such an

evaluation. The percentage sent for mental health consul-

tation prior to assisted suicide in Oregon has steadily

dropped over five years to only 5% (21).

REQUEST FOR ASSISTED SUICIDE

BY A PSYCHIATRIC PATIENT

These two distinct paradigms for dealing with suicidal

ideation in the seriously ill can become competing ap-

proaches as illustrated by the care of a single individual,

Michael Freeland.

Just after receiving a cancer diagnosis, this 62-year-

old man made a telephone call to Physicians for Compas-

sionate Care (PCC), a medical group dedicated to improv-

ing the care of the seriously ill withou': ever resorting to or

condoning assisted suicide or euthanasia. He seemed to be

asking about how to get the process of assisted suicide

started. Although he did not say so, he may have intended

to call the Compassion in Dying Federation (CDF), a

politically active group that shepherds over three quarters

of assisted suicides in Oregon. Or, this weil informed man

may have known about PCC and called this organization

as a cry for help. At any rate, the call was answered by a

volunteer, my co-author, Cathy Hamilton, who was trained

in counseling and helping the seriously ill and who is

opposed to the practice of assisted suicide.

Mr. Freeland sounded distraught. He explained that

he saw no purpose in undergoing chemotherapy. Although

he had just received his prognosis, he was already making

funeral arrangement, he said, and added, “I might as well

A9

just end it.” When Cathy empathized with how upset he

must be, just having received such a dire prognosis, he

became tearful. He said he did not want to tell his daugh-

ter about his cancer because she was moving to another

state to attend graduate school and he did not want to

interfere with her education. He lived alone.

Cathy explained her views on assisted suicide and

assured him that with good palliative care his symptoms

could be addressed. As she would have with any other

suicidal individual, she told him she did not want him to

kill himself and offered to help him find treatment for his

depression. She promised to advocate for him and find a

doctor who could treat any pain he might have or address

other symptoms.

In subsequent conversations, he mentioned that he

had felt haunted by suicidal feelings ever since his mother

died from a self-inflicted gunshot wound when he was

twenty-one. Shortly after her death, he attempted suicide

himself and was treated for depression in a psychiatric

hospital. He made at least two other suicide attempts and

remained preoccupied with the possibility of suicide, he

explained. Later, he developed alcoholism but joined

alcoholics anonymous and remained sober for over twenty

years. Despite intermittent depression, he was able to

work as an electronics technician for a local television

station. He was divorced and had a daughter and a few

friends. For unknown reasons, he did not allow his daugh-

ter or friends into his home, and he kept elaborate surveil-

lance cameras trained on the perimeter of his property.

Cathy keyi frequent contact with Mr. Freeland during

the next year. With encouragement, he did undergo

Al0

chemotherapy and radiation treatment for his cancer,

which alleviated his symptoms significantly.

Near the anniversary of his receiving a terminal

prognosis, however, he announced, “I have the pills.” He

received the prescription from Doctor Peter Reagan, an

assisted-suicide advocate who was associated with CDF.

Doctor Reagan had already described in Lancet (22) giving

an overdose to another patient diagnosed with depression

(2,23). He referred that woman for a competency evalua-

tion (2,20,23), which cleared her for assisted suicide

approximately two weeks after he met her. In contrast to

that case, Reagan commented that he did not think a

psychiatric consultation would be “necessary” for Mr.

Freeland, according to his daughter who accompanied him

to an appointment.

Mr. Freeland mentioned that another member of

Compassion in Dying had been calling him regularly to

talk with him about the assisted-suicide option. He had

seen her on a television show, which he said “convinced me

it [assisted suicide] was the way to go.” When asked if that

doctor knew about his depressions and suicide attempts,

Freeland said, “She didn’t get into that. Our conversations

have been superficial.”

With urging, the patient finally let his daughter know

about his cancer. She gladly postponed her graduate

studies and returned to care for him. Cathy urged him to

take the 50 mg. of sertraline his primary care doctor

prescribed for his depression. While he continued to be

suspicious, kept a variety of loaded assault weapons in his

home, and used his surveillance cameras as always, he did

begin to allow a few people, including his daughter and

Cathy, into the house for the first time. Cathy received

All

permission to communicate with his primary care doctor

and initiated home visits in an effort to help him overcome

his depression and his fears of the dying process.

Six months later, Mr. Freeland could not be reached

for several days. The doctor’s office mentioned that their

patient had begun having more “mental problems” and

had been admitted to the hospital psychiatry ward. After

his ex-sister-in-law began pursuing guardianship, accord-

ing to a psychiatric report, he grew upset. He had saved a

substantial amount of money, and it was important to him

to retain control of his resources. His doctor became

worried that the patient was increasingly suicidal, or even

homicidal, and he arranged for the patient to be placed on

an involuntary hold.

The emergency room physician’s report showed that

she evaluated him for “possible suicidal or homicidal

ideation.” A psychiatric social worker and a mental health

technician both described possible suicidal and homicidal

ideation. The social worker report mentioned that threats

may have been made toward a hospice nurse and toward

his daughter. Both reports documented the history of a

previous overdose, following his mother’s suicide. When he

was admitted to the hospital and evaluated by the inpa-

tient psychiatrist, however, possible homicidal comments

were featured prominently in the chief complaint and

suicidal intentions were all subsumed under discussion of

an interest in assisted suicide. The psychiatrist’s report

denied a history of suicide attempts, without any attempt

to reconcile this comment with documentation from

emergency room personnel that there was a history of

suicide attempts. Other than these two omissions and the

failure to account for the paranoia mentioned by the

Al12

emergency room doctor, the psychiatric record was fairly

consistent with the known history.

The inpatient psychiatrist noted that the patient had

diminished appetite and had lost 70 pounds, but his sleep

was adequate with the numerous sedative medications he

was taking. He reported confusion and some memory

problems. In addition te sertraline, medications listed,

without the dose, included diazepam, temazepam, hydro-

morphone, morphine oral solution, rofecoxib, salmeterol

inhaler, pirbuterol inhaler, choline, and laxalose.

The mental status report described him as thin and

tearful. His speech was clear. His affect was discouraged.

His thought processes were well organized, and he denied

thoughts of harming himself or others. Paranoia was not

mentioned in the psychiatric examination. He was alert

and oriented and judged to have above-average intelli-

gence. Laboratory studies showed hemoglobin was mildly

low (12.4 g/dL), but his blood count and chemistry screen

were otherwise normal.

The psychiatrist diagnosed him with depression not

otherwise specified as the primary diagnosis, chronic

adjustment disorder with depressed mood, probable

intermittent delirium, narcissistic personality traits, and

metastatic lung cancer with guarded prognosis.

During the patient’s inpatient stay, a social work

home visit revealed that his home was uninhabitable -

with heaps of clutter, rodent feces, ashes extending two

feet from the fireplace into the living room, lack of food

and heat, etc. Thirty-two firearms and thousands of

rounds of ammunition were removed by the police. The

lethal medications, however, were left. Although the

Al13

psychiatrist noted in the discharge summary that the

patient would continue to be subject to intermittent

delirium, he did not seem to consider the presence of a

lethal overdose in the house potentially problematic.

Concerning the need for attendant care, a palliative care

consultation obtained by the psychiatrist said the fact that

the patient had “life-ending medications” may make that

problem “a moot point.”

The day after discharge, the same psychiatrist wrote a

letter to the court supporting guardianship by saying he

“is susceptible to periods of confusion and impaired judg-

ment.” He concluded that Mr. Freeland was unable to

handle his own finances and that his cognitive impair-

ments were unlikely to improve.

At a subsequent home visit, Mr. Freeland reminded

Cathy that he had already far outlived the original six

months to live prognosis; and he added that the assisted-

suicide doctors gave him a new six months to live progno-

sis so his assisted suicide would be “legal.” That was at

least ten months prior to his eventual death, which took

place nearly two years after he was first given a prognosis

of less than six months to live.

Cathy redoubled her efforts to stay in contact with

him and encourage him. Fortunately, so did some old

friends from AA and others, who began to visit him daily.

His house was cleaned up and refurbished; and his mood

brightened. Cathy encouraged him to relinquish his lethal

barbiturate prescription, but he refused to do so.

Two months later he entered the hospitai briefly to

be treated for dyspnea. The medical record described him

as tearful and as having labile affect. He was thought to

have “steroid psychosis” and was tapered off of steroid

Al4

medication. This confused man was sent home, once again,

with the lethal drugs in his possession.

Over the coming months, he received antidepressants,

social and spiritual support, and encouragement. A friend

spent most days with him. His few friends were clear that

they valued him and did not want him to kill himself.

Hospice, however, remained “neutral” on this issue, and he

grew suspicious of that organization. As he put it, “I’m

going to get rid of hospice. I don’t trust them. Then there’s

the morphine. I’m not in any pain. I don’t know why they

want me to take all this morphine.” He dismissed hospice,

decreased the pain medication, and both his mood and

cognitive clarity improved for several months.

Three weeks prior to his death, however, pain became

a significant factor again. As his pain increased, he used

more controlled-release oxycodone, which contributed to

constipation, which in turn became excruciating in itself.

Because of abdominal discomfort, he stopped drinking

fluids, as well as eating, and became confused and more

suspicious again. He now wondered what might be in the

liquids people gave him and in the pain medications, so he

didn’t take them. At a home visit by Cathy and me, his

medication tray showed that he was taking minimal, if

any pain medication. He said that he was desperate

because of the pain and was on the verge of killing himself

with the overdose and that Doctor Reagan had recently

offered to sit with him while he took it.

We explained that he was frightened because of his

confusion, but that pain medication and fluids, aloag with

24-hour care, would help him. Fluids might also help

alleviate his constipation, which had become so painful.

We handed him the controlled-release oxycodone tablets

Al5

from his bedside stand, and he took them as prescribed for

the first time in days. Cathy then insisted that his doctor

should prescribe a morphine pump to be delivered the next

day so his confusion would not interfere with his receiving

needed pain relief. She also arranged for a 24-hour atten-

dant care, which he could readily afford. With these

interventions his confusion cleared, his pain abated, and

he felt much relieved during the remaining two weeks of

his life, even while his physical condition deteriorated.

During this time, which he had been on the verge of

cutting short, he was able to express his gratitude to and

say goodbye to the many people who had helped him. Most

important, he was able to reconcile with his daughter,

from whom he had been alientated since the psychiatric

hospitalization. She enthusiastically renewed her relation-

ship with him. This opportunity was very meaningful to

her as well as to him.

DISCUSSION

Removing lethal means is central to the clinical

treatment of suicidal symptoms; but providing lethal

means is central to the assisted-suicide model. These and

other differing approaches of the competing paradigms

revealed themselves in different ways among the many

individuals involved in Michael Freeland’s care.

Cathy, who was a volunteer for Physicians for Com-

passionate Care, and members of Compassion in Dying

Federation (CDF) took openly competing approaches.

Cathy considered the patient’s current depression central

to his motivation to kill himself. She took his suicide

threats seriously, especially in light of his having made

previous attempts prior to developing a life threatening

Al6

illness. She recommended psychiatric evaluation and

treatment; and, when he refused referral to such treat-

ment, she spent long hours talking with him about his

fears of death, his spiritual concerns, the trauma of his

mother’s suicide, his ieutification with his deceased

parent, his depression and paranoid fears, and his past

accomplishments and hopes for the future. She called the

primary care doctor and encouraged him through commu-

nication with his nurse to provide antidepressant medica-

tion. She interacted with those who could visit with him.

When he became desperate because of apparent delirium

and poorly treated pain in the last few weeks, she made

certain he received the pain care he needed and arranged

for intensified palliative care, including 24-hour attendant

care. She consistently reminded him that she did not want

him to kill himself.

In contrast, according to the patient, neither CDF

doctor seemed “very interested” in his psychiatric history

and previous suicide attempts. Doctor Reagan, who pre-

scribed the assisted-suicide drugs, told the patient and his

daughter that even a psychiatric evaluation would not be

“necessary.” Perhaps the issue of whether or not Mr.

Freeland was depressed or had made previous suicide

attempts seemed irrelevant to CDF doctors, because, as

the guidelines recommend, it is only competency to make

decisions that is required legally. Doctor Reagan did offer

to make a home visit and sit with the patient while he

took the overdose, but he apparently was not aware of the

patient’s plight when he was delirious and desperate and

not receiving enough pain medication. Neither did he seem

aware that the inpatient psychiatrist did not consider Mr.

Freeland competent to handle his own affairs and had

Al7

written a letter to that effect prior to the patient's six-

months-to-live prognosis being renewed.

Other clinicians, however, took different approaches.

The emergency room doctor, along with the social workers

and court investigators at his psychiatric admission,

considered his depression and previous suicide attempts

most seriously. They discussed his physical illness as a

complicating diagnosis. Even these notes, however, skirted

the issue of his possessing a lethal overdose and focused

more directly on homicidal than suicidal ideation, al-

though the danger of suicide was clear. The health care

professionals seemed placed in a clinical bind when

presented with a suicidal mentally ill patient, who had

been given an overdose by another doctor.

The inpatient psychiatrist seemed to mix both the

traditional clinical approach and the assisted-suicide

competency model with predictably mixed results. He did

an evaluation, diagnosed the depression and intermittent

delirium, and attempted to treat the depression. He

protected the patient from danger to himself or others

through inpatient treatment for over a week and recom-

mended antidepressant medication and social support. He

tock care to make sure guns were removed from the home

prior to discharging the patient. All of this is consistent

with the traditional clinical model. In deference to the

assisted-suicide competency model, however, he noted that

the patient had been given a lethal prescription and left

that prescription in his possession, despite having kept the

patient hospitalized to protect him from harm to self or

others. Perhaps his attempt to mix both approaches is

what led him to list only homicidal danger in his notes

without mentioning the history of suicide attempts or

threats, except in the context of mentioning that he was

Al18

interested in assisted suicide and had received a lethal

prescription.

It is even more perplexing to consider how the psy-

chiatrist could leave the lethal drugs with his depressed

patient, apparently believing he had a right to the over-

dose, and then could write a letter to the court only a day

later, claiming the patient was not competent to make his

own decisions. Perhaps he concluded he could not make

decisions about finances but could make them about

assisted suicide. Perhaps he felt it was within Doctor

Reagan’s purview to address that issue because he was the

assisted-suicide doctor. He did not clarify his thinking

about this issue in the medical record.

Not only did the mixing of models affect the psychiat-

ric response, it also affected planning for adequate pallia-

tive care after discharge from the hospital. Following a

detailed discussion of Mr. Freeland’s medical history and

condition, a hospital consultant asked to make recommen-

dations for further medical and palliative care predicted

that the patient most likely would be further incapacitated

in a “matter of weeks” but that, because he has “life-

ending medications,” providing for additional care may be

“a moot point.” Those were the final words of the report

and the consultant made no specific recommendations for

further care. As a result, no attendant care was provided.

A most interesting clinical dilemma appears present

for the primary care doctor. He initially used a mixed

model but eventually switched to a clear, traditional

clinical approach. He diagnosed depression early on and

treated it with medication. While he did not provide

assisted suicide himse f, he willingly collaborated with the

assisted-suicide doctors, thereby giving the patient a

Al9

mixed message. The patient said it was this primary care

doctor who gave the six-months-to-live prognosis, which is

needed to proceed with the assisted-suicide protocol — he

did so twice. This approach is entirely consistent with the

assisted-suicide competency model, which admits that

that the doctor can help him commit suicide anyway.

When the patient became more desperate and confused,

however, this doctor changed models and had him hospi-

talized against his wishes. This doctor’s attempt to strad-

die both approaches, to create a kind of neutral zone,

broke down in the end; and he was released from the case

because of the patient’s heightened distrust.

This case illustrates how difficult it is to combine the

two paradigms of responding to suicidal ideation. Attempts

to mix the clinical and the assisted-suicide competency

models in this case resulted in perplexing clinical inter-

ventions, inconsistent approaches, and attempts to switch

models during times of crisis.

We believe that the two approaches are incompatible,

tions. The traditional clinical approach assumes that

suicidal seriously ill individuals are no different from any

other suicidal patient, and the wish for death is considered

symptomatic of underlying psychiatric illness to be evalu-

ated and treated. This treatment usually should be pro-

vided voluntarily, but when the danger is great, it can be

provided involuntarily. The patient’s life is always consid-

ered worth protecting and talk of suicide is considered a

plea for help. The assisted-suicide competency approach

agrees with the above underlying assumptions for all

patients who are judged to have more than six months to

live. Once patients are judged to have less than six months

A20

to live, however, they are treated differently. At this point,

according to the competency model, not only does the

clinician no longer have an obligation to treat the suicidal

symptom as a cry for help and to protect the patient, the

doctor actually has the right to help the patient in killing

themselves. It is interesting in this case that the legality

of using the assisted-suicide competency model turned on

the crucial issue of how much time the patient might live,

when that fact could not be accurately determined — he

was given multiple prognoses of only six months to live -

and out lived all of them, the most recent one by nearly

half a year. In total he lived more than two years beyond

the initial predictions of rapid death.

This case demonstrates that the attempt to use

competing or mixed paradigms can result in mentally ill

patients being given lethal prescriptions in Oregon as they

have in the Netherlands (1); but that fact would not have

been revealed in the official statistics. Had Mr. Freeland

taken his overdose, he would have only been listed in the

state report as another patient who did not need to be

referred for psychiatric evaluation. The fact that he had a

pre-existing psychiatric disorder and previous suicide

attempts would not have been revealed, because the

Oregon Health Division (OHD), which is responsible for

protecting the public by overseeing assisted suicide, does

not ask such questions. OHD would have only gathered

information from Doctor Reagan, the assisted-suicide

doctor, who did not consider psychiatric consultation

necessary. As it was, he was only listed in the statistics

published March 6, 2003 (23) as a patient who obtained an

overdose but did not take it.

A21

This case where assisted-suicide drugs were actually

prescribed is the only one for which medical and psychiat-

ric records have been made available. Even with this

information, many unanswered questions remain. Would

the patient have killed himself with the lethal overdose

had friends and volunteers not attempted to dissuade

him? Did the involuntary hospitalization and mental

health treatment prevent assisted suicide or even a

homicide? Was this man, who may have had a character

disorder along with depression, engaging in splitting and

projective identification (10-12) to further polarize views of

him? Were the doctors involved swept up in acting out a

countertransference reaction to a character disordered

patient’s lethal projections? Or was this case simply one of

poor medical care?

These and other questions concerning similar cases

can only be answered more fully through systematic and

careful, independent review of cases prospectively or, at

least, by retrospective review of medical and psychiatric

records. Such studies, including review by multiple clini-

cians with differing viewpoints of all psychiatric records

with identifying data of assisted-suicide patients masked,

have been proposed to OHD. OHD, however, has refused

access even to masked records for any independent review.

So the information available will remain based on OHD

reports, which rely on the assisted-suicide doctors them-

selves, and on the records of individual patients who are

willing to release their medical records independently. To

date, Michael Freeland is the only person in over 250 cases

prescribed overdoses to do so.

A22

CONCLUSIONS

The legalization of doctor-assisted suicide in Oregon

has resulted in the introduction of competing paradigms —

the traditional clinical approach and the assisted-suicide

competency model — for responding to suicidal thoughts

and behaviors in seriously ill individuals. Careful exami-

nation of events leading up to the death of the only case in

which assisted-suicide drugs were legally prescribed for

which medical records are available demonstrates that

different models were «ised by some clinicians and others

attempted to mix riode!s, resulting in a confused and

confusing approach to a life threatening symptom. These

competing models appear to be based on incompatible

underlying assumptions about the value of protecting

human life depending on predictions of how long a patient

might live, a prediction which cannot be made accurately.

We conclude that the attempt to mix models is confusing

to both clinicians and patients and endangers seriously ill

patients, particularly those with a history of pre-existing

mental illness.

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