# Amicus Curiae Brief — Gonzales v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0051%3A24

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 243

## Text

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 COST TEIITO ccccecencecccesssvtstnee ii
TABLE OF AUTHORITIEG...........c.ccsscsscesessesseseeseeees iii
INTEREST OF AMICUS CURIAE............e:c0cseseee000 1
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TABLE OF AUTHORITIES

Page
CASES
Washington v. Glucksberg, 521 U.S. 702 (1997)............. 3,8
STATUTES
ee 2
a 2,3
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
BE GRE Repent DD .nnn00.0cccececcccceccscsscccssscccccccccccccccccccesoseeoees 4
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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A23

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A24

Hamilton NG: The Self and the Ego in Psychotherapy
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A25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0051%3A24. Public record. Not legal advice.