Amicus Curiae Brief — Gonzales v. Oregon

FILED

No. 04-623 JUL 2 1 206

SEFIGE OF THE CLERK

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, Attorney General, et ai.,

Petitioners,

v.

STATE OF OREGON, et ai.,

Respondents.

On WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS”

FOR THE NINTH CIRCUIT

BrieF OF Amicus CuRIAE COALITION OF MENTAL HEALTH

PROFESSIONALS IN SUPPORT OF RESPONDENTS

STEVEN ALAN REISS

Counsel of Record

Harris J. YALE

SAMANTHA G. FISHERMAN

Wel, GoTsHAL & Mances LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Attorneys for Amicus Curiae

Coalition of Mental Health Professionals

195479 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ iil

STATEMENT OF JURISDICTION ............. |

STATEMENT OF ISSUES ..........cccccceees l

STATEMENT OF THE CASE ................. l

CONSENT OF THE PARTIES ................. l

SPUU UD GI FREE cc ccccccccccccceccceces |

SUMMARY OF ARGUMENT ................. 8

hhbek ou se ddese nd esadvadéesene 8

I. ADEQUATE DIAGNOSTIC TOOLS AND

PROTOCOLS ARE AVAILABLE TO

ASSESS THE MENTAL CAPACITY OF A

TERMINALLY ILL PATIENT WHO

DESIRES TO HASTEN DEATH ......... 8

A. Qualified Personnel Have Adequate

Diagnostic Tools to Evaluate Whether a

Patient has the Mental Capacity

to Exercise Their Rights Under the

POO cece ddvesenescndsocecans 8

il

Contents

B. Oregon’s Actual Experiences Establish

that Mental Capacity Evaluations are

Occurring And Not All Requests for

Medication Are Being Approved And/Or

UGG oo cccccosepscéeseseeeeeeee

Il. A TERMINALLY ILL PATIENT CAN BE

CAPABLE OF MAKING A REASONED

DECISION TO HASTEN DEATH ........

A. End-of-Life Decisions by Terminally Ill

Patients Are Not Equivalent to Suicide

by Depressed Individuals ...........

B. Many Terminally Ill Patients Are Not

Clinically “Depressed.” .....ccc0000¢

Ill, INVOLVEMENT OF MENTAL HEALTH

PROFESSIONALS IN SITUATIONS

INVOLVING END-OF-LIFE DECISION-

MAKING, INCLUDING SERVING IN THE

ROLE OUTLINED IN THE ODWDA, IS

CONSIDERED TO BE APPROPRIATE ...

CUOINCLATGIIIN occ cccesceeneseaceuneenee

Page

14

16

16

18

22

a ee re

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Addington v. Texas, 441 U.S. 418 (1979) ........ 10, 12

Compassion in Dying v. Washington, 79 F.3d 790

(9th-Cir.), cert. granted sub nom. Washington v.

Glucksberg, 518 U.S. 1057 (1996), rev'd, 521 U.S.

TC ee ete eeeeceeeeccocececcces 17

Cooper v. Oklahoma, 517 U.S. 348 (1996) ...... 10, 12

Cruzan v. Director, Missouri Dept. of Health, 497

eee sce eeebeceencscecees 10, 12

Medina v. California, 505 U.S. 437 (1992) ...... 10, 12

Oregon v. Ashcroft, 192 F. Supp.2d 1077 (D. Ore.

PPE CEReeebeesbdeenreccoceccccccs 9

Vacco v. Quill, 80 F.3d 716 (2d Cir.), cert. granted,

518 U.S. 1055 (1996), rev'd, 521 U.S. 793 (1997)

EE EE OTT ETT TITTLE Te 5, 17, 27

Washington v. Glucksberg, 521 U.S. 702 (1997) ... 5,27

iv

Cited Authorities

Page

STATUTES

Game Cee BLE GD ccccccccccececcecsce 9

GAR COPED cecceseceecesececeseses 9

GRE CPE cccccnsccccoussccceeees 9

CA SRTPEP OED coccccccccsesooceseesss 13

Gea CP OD ccemcccsscescsceccccecs 13

Cane CPOE ccbecncccccecencééseues 13

MEDICAL & SCIENTIFIC LITERATURE

2005 ACA Code of Ethics Draft, available at http://

www.counseling.org/PDFs/ACA_Code_of_

SE FE EEE wecccesscoceseseseses 4,25

American Psychiatric Association, DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DisorpeRS 327

Dt Pt -vcidectondsedivaennanauean 21

American Psychological Association, TERMINAL

ILLNESS AND HaAsTeNneD DeatH Requests: THE

IMPORTANT ROLE OF THE MENTAL HEALTH

PR CED <cccncéuseesenenennanuy 4,17

Vv

Cited Authorities

Page

American Psychological Association Working Group

on Assisted Suicide and End-of-Life Decisions,

Report to the Board of Directors of the American

Psychological Association, Appendix F: Issues to

Consider When Exploring End-of-Life Decisions,

REPORT TO THE AMERICAN PSYCHOLOGICAL

ASSOCIATION Boarp or Directors (2000) .... 4, 10, 26

Appelbaum & Grisso, Assessing Patients’ Capacities

to Consent to Treatment, 319 New Ena. J. Mep.

SEGRE cecccccestccescecssceesesaees 13

Back, Starks, Hsu, Gordon, Bharucha & Pearlman,

Clinician-Patient Interactions About Requests for

Physician-Assisted Suicide: A Patient and Family

View, 162 Arcu. Int. Mep. 1257 (2002) ........ 18

Back, Wallace, Starks & Pearlman, Physician-

Assisted Suicide and Euthanasia in Washington

State: Patient Requests and Physician Responses,

275 J. Am. Mep. Assoc. 919 (1996) ........... 18

Bascom & Tolle, Responding to Requests for

Physician-Assisted Suicide, 288 J. Am. MeEp.

RENEE. FE GREED cacéccccccescccescsecess 19, 24

Bharucha, Pearlman, Back, Gordon, Starks, & Hsu,

The Pursuit of Physician-Assisted Suicide: Role

of Psychiatric Factors, 6 J. PALL. Mep. 873 (2003)

vi

Cited Authorities

Page

Billings & Block, Palliative Medicine Update:

Depression, 11 J. Patyiative Care 48 (1995).... 21

Block, Assessing and Managing Depression in the

Terminally Ill Patient, 132 ANN. INTERN. MED. 209

PEE ceecnedsdcccecessvedésadedsuvesases 21

Breitbart, Rosenfeld, Pessin, Kaim, Funesti-Esch,

et al., Depression, Hopelessness, and Desire for

Hastened Death in Terminally Ill Patients with

Cancer, 284 J. AM. Mep. Assoc. 2907 (2000) ... 20

Chochinov, Wilson, Enns, Mowchun, Lander, et ai.,

Desire for Death in the Terminally Ill, 152 Am. J.

SY DED a nc ncnceunevoes seuss 20

Cohen, Suicide, Hastening Death, and Psychiatry,

158 Arcnu. INTERN. Mev. 1973 (1998) .......... 26

Cohen, Steinberg, Hails, Dobscha & Fischel,

Psychiatric Evaluation of Death-Hastening

Requests: Lessons from Dialysis Discontinuation,

41 Psycuosomatics 195 (2000) ............... 11

Coombs Lee & Werth, Observations on the First Year

of Oregon's Death with Dignity Act, 6 PsycHoL.,

Pusuic Pouicy & L. 268 (2000) .......... 14, 18-19

~*

SWORE ET ae oe

vii

Cited Authorities

Page

DiPasquale & Gluck, Psychologists, Psychiatrists,

and Physician-Assisted Suicide: The Relationship

Between Underlying Beliefs and Professional

Behavior, 32 Pror. PsycHoLoGy: RESEARCH &

PURGES Foe GHSSED cc cccccccccccoscescoces 23

Drane, The Many Faces Of Competency, 15 Hastincs

CentER Report. No. 2, 17 (1985) ............. 13

Emanuel, Fairclough & Emanuel, Attitudes and

Desires Related to Euthanasia and Physician-

Assisted Suicide Among Terminally Ill Patients

and Their Caregivers, 284 J. AM. Mep. Assoc.

DEEP GEEEED cccccccepsccesocncdctccesseene 20

Farrenkopf & Bryan, Psychological Consultation

Under Oregon’s 1994 Death with Dignity Act:

Ethics and Procedures, 30 Pror. PsyCHOLoGy:

Researcu & Practice 245 (1999) ............ 9,24

Fenn & Ganzini, Attitudes of Oregon Psychologists

Toward Physician-Assisted Suicide and the

Oregon Death with Dignity Act, 30 Pror.

PsyCHOLOGY: RESEARCH & Practice 235 (1999) ... 23

Freedman, Competence, Marginal and Otherwise:

Concepts and Ethics, 4 Int’. J. L. & Psycuiatry

if PPPPrrrrrrrrrrrrrr er te 13

Ganzini & Dobscha, /f it isn't Depression... ,

6 J. Patt. Mep. 927 (2003) .........-220 eee 19, 22

vill

Cited Authorities

Page

Ganzini & Dobscha, Clarifying Distinctions between

Contemplating and Completing Physician-

Assisted Suicide, 15 J. Cin. Ernics, 119 (2004)

Ganzini, Dobscha, Heintz & Press, Oregon

Physicians’ Perceptions of Patients Who Request

Assisted Suicide and Their Families, 6 J. PA.

es Be GED Sh ecco ccnnvesvecdcanesess 15, 18

Ganzini, Fenn, Lee, Heintz & Bloom, Aftitudes of

Oregon Psychiatrists Toward Physician-Assisted

Suicide, 153 Am. J. Psycuiatry 1469 (2002) .... 23

Ganzini, Harvath, Jackson, Goy, Miller & Delorit,

Experiences of Oregon Nurses and Social Workers

with Hospice Patients who Requested Assistance

with Suicide, 347 New Ena. J. Mev. 582 (2002)

Ganzini & Lee, Psychiatry and Assisted Suicide in

the United States, 336 New Ena. J. Mep. 1824

EPOED ceccccedcsdoceuedeucesoutesssdsees 26

Ganzini, Lee & Schmidt, Letter to the Editor, 343

New Ena. J. Mep. 152 (2000) ................ 16

Ganzini, Leong, Fenn, Silva & Weinstock,

Evaluation of Competence to Consent to Assisted

Suicide: Views of Forensic Psychiatrists, 157 Am.

SC ss 11, 23

ix

Cited Authorities

Page

Ganzini, Nelson, Schmidt, Kraemer, Delorit & Lee,

Physicians’ Experiences with the Oregon Death

with Dignity Act, 342 New Ena. J. Mev. 557 (2000)

WTTTTITIT TTT TTT TIT TTT TT TTT TTT 14, 15, 18

Hendin & Klerman, Physician-Assisted Suicide: The

Dangers of Legalization, 150 Am. J. Psycuiatry

PEPEUEEED cvdsetoccssécdvcveseéscesceses 16

Jones & Dilley, Rational Suicide and HIV Disease,

8 Focus: A Guipe to AIDS RESEARCH AND

COUNSELING (July 1993) ....... ccc ecceeeeeee 20

Kade, Death with Dignity: A Case endl 132 ANN.

INTERN. Mep. 504 (2000) ..........%-550005- 19

Kleespies & Mori, Life-and-Death Decisions:

Refusing Life-Sustaining Treatment, EMERGENCIES

IN MENTAL HEALTH PRACTICE: EVALUATION AND

MANAGEMENT (1998) ..........0cceeeceeees ll

Lavery, Boyle, Dickens, Maclean & Singer, Origins

of the Desire for Euthanasia and Assisted Suicide

in People with HIV-1 or AIDS: A Qualitative

Study, 358 Lancet 362 (2001) ..........0005. 18

Miller, Mesler & Eggman, Take Some Time to Look

Inside Their Hearts: Hospice Social Workers

Contemplate Physician Assisted Suicide, 35(3)

Soc. Work IN HeaAttH Care 53 (2002) ......... 24

x

Cited Authorities

Page

Mishara, Synthesis of Research and Evidence on

Factors Affecting the Desire of Terminally Ill or

Seriously Chronically Ill Persons to Hasten

Death, 39 OmEGA 1 (1999) .............000.. 20

National Association of Social Workers, Client Self-

Determination in End-of-Life Decisions, SOCIAL

Work Speaks (6th ed. 2003) ............... 4,6, 10

Ogden & Young, Euthanasia and Assisted Suicide:

A Survey of Registered Social Workers in British

Columbia, 28 Britisu J. Soc. Work 161 (1998) ... 24

Oregon Dept. of Human Services, SEVENTH ANNUAL

REPORT ON OREGON’S DEATH WITH DiGNity ACT

id ke he ee ie a 14,19

Quill & Cassel, Professional Organizations’ Position

Statements on Physician-Assisted Suicide, 138

ANN. INT. Mep. 208 (2003) .................- 4

Quill, Coombs Lee & Nunn, Palliative Treatments

of Last Resort: Choosing the Least Harmful

Alternative, 132 ANN. INTERN. MEp. 488 (2000) ... 3

Reagan, Helen, 353 Lancet 1265 (1999) ... 14, 19

Rogers, Guellette, Abbey-Hines, Carney & Werth,

Rational Suicide: An Empirical Investigation

of Counselor Attitudes, 79 J. CouNSELING &

DEVELOPMENT 365 (2001) .............eeeeee 24

xi

Cited Authorities

Page

Rosenfeld, Assisted Suicide, Depression and the

Right to Die, 6 PsycHo., Pus. Poticy & L. 467

GE o66b ce nicesnvedeesceseucheseeususe 20

Rosenfeld, Breitbart, Stein, Funesti-Esch, Kaim,

et al., Measuring Desire for Death Among Patients

with HIV/AIDS: The Schedule of Attitudes Toward

Hastened Death, 156 Am. J. Psycuiatry 94 (1999)

Roth, et al., Tests Of Competency To Consent To

Treatment, 134 Am. J. Psycuiatry 279 (1977) ... =13

Smith & Pollack, A Psychiatric Defense of Aid in

Dying, 34 ComMMUNITY MENTAL HEALTH J. 547

SEE Ssdcneustdvddcenssedeseesneuauenuns 11

Sullivan, Ganzini & Youngner, Should Psychiatrists

Serve as Gatekeepers for Physician-Assisted

Suicide, HastinGs CENTER Report 24 (July/August

SE 6 eed nceevensedesonseeevesesedeesees 13

Sullivan & Youngner, Depression, Competence, and

the Right to Refuse Lifesaving Medical Treatment,

151 Am. J. Psycuiatry 971 (1994) ............ 13

Tepper & Elwork, Competence To Consent To

Treatment As A Psycholegal Construct, 8 Law &

HuMAN BEHAVIOR 205 (1984) ..............4-. 13

xii

Cited Authorities

Tolle, et al., Characteristics and Proportion of Dying

Oregonians Who Personally Consider Physician-

Assisted Suicide, 15 J. Cuin. Etuics 111 (2004) ...

Werth, The Relationships Among Clinical Depression,

Suicide, and Other Actions that may Hasten

Death, 22 Benav. Sci. & L. 627 (2004) ........

Werth, The Appropriateness of Organizational

Positions on Assisted Suicide, 10 Etuics & BEHAV.

Pe eee Ter eT ee Tree

Werth, RATIONAL SuiciDE? IMPLICATIONS FOR MENTAL

HEALTH PROFESSIONALS 94 (1996) ............

Werth, Benjamin & Farrenkopf, Requests for

Physician-Assisted Suicide: Guidelines for

Assessing Mental Capacity and Impaired

Judgment, 6 PsycHoL., Pus. Poticy & L. 348

DE cntdcnaehcasatenuvedseadeousnes aes

Werth & Holdwick, A Primer on Rational Suicide

and Other Forms of Hastened Death, 28

COUNSELING PsycHoLoaist 511 (2000) .........

Werth & Liddle, Psychotherapists’ Attitudes Toward

Suicide, 31 PsychOTHERAPY: THEORY, RESEARCH &

ee ee i eae «

Page

15

xii

Cited Authorities

Page

Werth & Wineberg, A Critical Analysis of Criticisms

of the Oregon with Dignity Act, 29 DeatH STubiEs

DUD db we kecestecuacdensccesadasouns 15, 19

Wilson, Scott, Graham, Kozak, Chater, et al.,

Attitudes of Terminally Ill Patients Toward

Euthanasia and Physician-Assisted Suicide, 160

ARCH INTERN. Mep. 2454 (2000) .............. 20

Wilson, Viola, Scott & Chater, Talking to the

Terminally Ill About Euthanasia and Physician-

Assisted Suicide, 5 CANADIAN J. CLINICAL MED. 68

SE SUED 4:6 000804546 tense dkanekedanieas 18

Wineberg & Werth, Physician-Assisted Suicide in

Oregon: What are the Key Factors?, 27 Deatu

ED 0. kn cbc cudanevunkbeuwaens 15, 19

Zaubler & Sullivan, Psychiatry and Physician-

Assisted Suicide, 19 CONSULTATION-LIAISON

Pe ee ED 6 0 0:45.6446600460008085 13

|

STATEMENT OF JURISDICTION

Amicus, Coalition of Mental Health Professionals, adopts

Plaintiffs/Appellees’ Statement of Jurisdiction.

STATEMENT OF ISSUES

Amicus, the Coalition, adopts Plaintiffs/Appellees’

Statement of Issues.

STATEMENT OF THE CASE

Amicus, the Coalition, adopts Plaintiffs/Appellees’

Statement of the case.

CONSENT OF THE PARTIES

This amicus brief is filed with the consent of the parties.

INTEREST OF AMICI'

This case presents the narrow but important question of

whether the Attorney General of the United States has the

authority to take an action that will render Oregon’s twice-passed

Death with Dignity Act (““ODWDA\” or the “Act”) ineffective.

Under this Act, certain terminally ill patients who are Oregon

residents may request, and if they meet all criteria, receive,

medication that will hasten their death and allow them to

1. This brief has been authored in its entirety by undersigned

counsel for the amicus curiae. No person or entity, other than the named

amicus and its counsel, made any monetary contribution to the

preparation and submission of this brief. The parties have consented to

the filing of this brief and their letters of consent are being lodged

herewith.

2

maintain their mental and emotional dignity in their last days.

The Department of Justice (“DOJ”), however, asserts that the

Controlled Substances Act (the “CSA”) permits the federal

government to prevent physicians from assisting patients’

exercise of t >ir rights under the ODWDA because the

medications are not allegedly being prescribed for a “legitimate

medical purpose.” DOJ argues that patient utilization of the

ODWDA is a threat to public health. DOJ’s argument is based,

in part, on the erroneous notion that patients choosing to exercise

their rights under the ODWDA must be suffering from impaired

judgment. This argument nevertheless presumes that mental

health issues are an important part of the present case; therefore,

the views of mental health professionals such as amici and the

weight of research on mental health issues are highly relevant.

The Coalition urges affirmance of the Court of Appeals’

decision, and submits that consideration of the question before

the Court involves the related issues of the ability to assess:

(i) whether adequate diagnostic tools exist to determine the

absence or presence of mental capacity and/or impaired

judgment, and (ii) whether a terminally ill patient who makes a

request under the ODWDA can be capable of making a reasoned

decision based on judgment that is unimpaired by a psychiatric

or psychological disorder. Amici who submit this brief are an

ad hoc group of individual social workers, psychologists, and

psychiatrists and related professional groups working as

academicians, private practitioners, agency clinicians,

administrators, and consultants (the “Coalition”). These mental

health professionals have relevant training and experience that

makes it appropriate for them to offer their views on terminally

ill patients’ decision-making capacity in the context of this case.

All individual Coalition members have extensive

experience providing psychotherapy, often to persons who are

LPS RE ge rs

3

terminally ill, and/or strong records of research and writing on

end-of-life decision-making, depression, grief, or suicide. As

mental health professionals, they help patients explore,

ameliorate, and/or cope with issues regarding the patient’s

quality of life. The Coalition submits, however, that supporting

the provision of such services to individuals considering

hastening death does not signify supporting the hastening of

death itself. In fact, it has been argued that organizations

comprised of professionals who provide services to clients

should not take any position that explicitly argues for or against

“assisted suicide,”* but should instead focus on the ways the

group’s members can help people improve their quality of life

and make the best decisions possible given their individual and

particular circumstances.’ A list of Coalition members is attached

to this brief as Appendix A.

2. We place assisted suicide in quotation marks here and elsewhere

to indicate that we are using the term (or “rational suicide” when

applicable) because it was used by the authors of the sources we cite.

However, we agree in principle with the position taken by Quill, Coombs

Lee, and Nunn who stated that: “. . . we do not believe the term ‘suicide’

accurately reflects the meaning of this action, nor does it necessarily

differentiate this practice from other last-resort practices. ... The term

‘suicide’ also connotes an act of self-destructiveness by a person with

mental illness, whereas [in other end-of-life situations], death [can be]

viewed by the patients as a form of self-preservation. We must ensure

that politicized public discussion about the legalization of physician-

assisted suicide does not lead to distortion of the issues and ultimately

to uninformed decision making.” Quill, Coombs Lee & Nunn, Palliative

Treatments of Last Resort: Choosing the Least Harmful Alternative,

132 ANN. INTERN. Mep. 488, 489 (2000).

3. Werth, The Appropriateness of Organizational Positions on

Assisted Suicide, 10 Ernics & Benav. 239 (2000). See also, National

Association of Social Workers, infra note 7 and associated text;

Washington State Psychological Association, et al., infra note 4 and

(Cont'd)

4

Organizational members of the Coalition are: Washington

State Psychological Association (“WSPA”), a non-profit

professional association of approximately 900 doctoral-level

psychologists and other related mental health practitioners. The

(Cont'd)

associated text; American Counseling Association, 2005 ACA Code of

Ethics raft, available at http://www.counseling.org/PDFs/

ACA_Code_of_Ethics_2005_Draft.pdf; American Psychological

Association, infra note 7; American Psychological Association, infra

note 22 and associated text. For example, the National Association of

Social Workers issued a policy statement in 1994, and reconfirmed it in

1999, entitled “Client Self-Determination in End-of-Life Decisions”

which stated that

social workers should not promote any particular means

to end one’s life but should be open to full discussion of

the issues and care options. . .. Social workers should be

free to participate or not participate in assisted-suicide

matters or other discussions concerning end-of-life

decisions depending on their own beliefs, attitudes, and

value systems.

National Association of Social Workers, infra note 7, at 48.

The American Counseling Association’s draft revision of that

organization’s ethics code contains this section: Quality of Care.

Counselors take measures to ensure that clients: (1) receive high quality

end-of-life care for their physical, emotional, social, and spiritual needs,

(2) have the highest degree of self-determination possible, (3) are given

every opportunity possible to engage in informed decision making

regarding their end-of-life care, and (4) receive complete and adequate

assessment regarding their ability to make competent, rational decisions

on their own behalf from a mental health professional who is experienced

in end-of-life care practice; see also infra note 43 and accompanying

text. A similar position was taken by Quill and Cassel, who argued that

medical associations should take “a position of studied neutrality” on

“physician-assisted suicide.” Professional Organizations’ Position

Statements on Physician-Assisted Suicide, 138 ANN. INT. Mep. 208, 210

(2003).

5

WSPA’s mission is to support, promote, and advance the science

and practice of psychology in the public interest. Many WSPA

members work with clients who are considering end-of-life

decisions and assist terminally ill patients and their families

with their problems on a regular basis. WSPA members routinely

assess the mental capacity, the possibility of impaired judgment,

and the presence of clinical depression among many clients,

including those who are terminally ill and those contemplating

suicide. The WSPA filed an amicus curiae brief with the U.S.

Supreme Court in the two “assisted suicide” cases, Washington

v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S.

793 (1997).*

Oregon Psychological Association (“OPA”). OPA is anon-

profit professional association of approximately 840 doctoral-

level psychologists and other related mental health practitioners.

The OPA joins this Brief to underscore the scientific support

for determining competence, impaired judgment, and clinical

depression for patients who are terminally ill and for the

subgroup of patients who may contemplate using the ODWDA.

Many OPA members work with clients who are considering

end-of-life decisions and assist terminally ill patients and their

families with their problems on a regular basis. OPA members

routinely assess the mental capacity, the possibility of impaired

judgment, and the presence of clinical depression among many

clients, including those who are terminally ill and those

4. Brief Amici Curiae for the Washington State Psychological

Association, et al., in Washington v. Glucksberg, 521 U.S. 702 (1997);

Vacco v. Quill, 521 U.S. 793 (1997). The WSPA’s briefs focused on the

roles mental health professionals could play in situations involving

“assisted suicide” (rather than arguing that it should be a constitutional

right), because the mental capacity of terminally ill individuals can be

reliably assessed — the same reasons why it has signed on to the present

Brief.

6

contemplating suicide. By reason of the skills, training, and

experience of its members, OPA can provide meaningful insight

into the mental capacity of terminally ill patients and into the

diagnostic and evaluative resources available to verify such

Capacity.

National Association of Social Workers. With 153,000

members, the National Association of Social Workers

(“NASW”) is the largest organization of professional social

workers in the world. Created in 1955, the purposes of NASW

include improving the quality and effectiveness of social work

practice in the United States and developing and disseminating

high standards of social work practice, concomitant with the

strengthening and unification of the social work profession as a

whole. In furtherance of these purposes, NASW promulgates

professional standards and criteria. Additionally, NASW

conducts research, prepares studies of interest to the profession,

and enforces the NASW Code of Ethics, which NASW members

are required to honor. NASW’s members are highly trained and

experienced professionals who counsel individuals, families,

and communities in a variety of settings, including schools,

hospitals, mental health clinics, senior centers, and private

practices. The practice of social work requires knowledge of

human development and behavior; social, economic and cultural

institutions; and of the interaction of all of these factors. The

NASW policy, Client Self-Determination in End-of-Life

Decisions, states “Social workers have an important role in

helping individuals identify the end-of-life-options available to

them. ... A key value for social workers is client self-

determination. Competent individuals should have the

opportunity to make their own choices but only after being

informed of all options and consequences. . . . without coercion.”

Social Work Speaks: NASW Policy Statements (2003 - 2006).

7

Oregon Chapter, National Association of Social Workers.

This is a professional association with approximately 1,700

members in Oregon, affiliated with the NASW. Most members

have advanced degrees (at least master’s level) in social work.

Oregon Chapter NASW members are involved in hospice care

and end-of-life decisions for their clients, including decisions

related to ODWDA. The national association has adopted a

strong policy statement in favor of client self-determination in

end-of-life decisions, which is binding upon and supported by

the Oregon Chapter. As advocates and counselors for their

clients, Oregon Chapter NASW members have interest and

expertise in issues concerning end-of-life decisions, including

the mental status of terminally ill patients.

Clinical Social Work Federation (“CSWF”). Anon-profit

professional organization of approximately 3000 members, the

CSWF membership is comprised of licensed or certified clinical

social workers with MSW, or PhD./DSW degrees. Members of

the CSWF provide mental health services for the diagnosis,

treatment, and prevention of mental, bel:avioral, and emotional

disorders. Members work in a variety of settings including those

that serve terminally ill individuals and their families and those

contemplating end-of-life decision making for other reasons.

Clinical social workers have the ability to determine mental

capacity, impaired judgment, and executive functioning, and to

diagnose clinical depression. The CSWF does not adhere to the

belief that either terminal illness or clinical depression prevents

an individual from making informed decisions.

Amici offer the following observations to assist the Court

in ruling on the important questions presented in this case.

8

SUMMARY OF ARGUMENT

The ODWDA was approved by the voters of Oregon to

allow an opportunity for terminally ill patients to end their lives

with dignity and respect. The DOJ assertion that the CSA permits

the federal government to deprive the citizens of Oregon from

exercising its rights under the ODWDA because such law

presents a risk to the public health is seriously flawed. The DOJ’s

argument is based, in part, on the erroneous idea that patients

choosing to exercise such rights must be suffering from impaired

judgment. However, not all terminally ill patients are mentally

impaired and it is possible for some terminally ill patients to

make a reasoned decision that is not a product of depression or

psychiatric illness to hasten their death and end their lives with

dignity.

ARGUMENT

I. ADEQUATE DIAGNOSTIC TOOLS AND

PROTOCOLS ARE AVAILABLE TO ASSESS THE

MENTAL CAPACITY OF A TERMINALLY ILL

PATIENT WHO DESIRES TO HASTEN DEATH

A. Qualified Personnel Have Adequate Diagnostic

Tools to Evaluate Whether a Patient has the Mental

Capacity to Exercise Their Rights Under the

ODWDA.

In order to receive medication under the ODWDA, a

terminally ill Oregon resident must follow a specific and detailed

procedure and must be deemed “capable” by the attending

physician and a consulting physician, or, if a referral is made by

one of those physicians for further mental health evaluation, a

licensed psychologist or psychiatrist. The Act clearly provides

9

that any patient wishing to exercise their rights under the Act

must demonstrate the requisite capacity and sets forth how this

is to be shown. O.R.S. 127.805 § 2.01; 127.820 at § 3.02;

127.800 at § 1.01 (3). If there is any question about the patient’s

Capacity to request medication under the ODWDA, because the

patient may be suffering from impaired judgment, the statute

explicitly requires that a licensed psychologist or psychiatrist

be consulted, and prohibits any medication from being

prescribed until a determination regarding the presence or

absence of impaired judgment is made. O.R.S. 127.805 § 2.01.

The statute itself builds in a first-level safeguard to ensure that

if there is a question about mental capacity being impaired by

psychological or psychiatric disorder, no medication shall be

given until an assessment is performed by a licensed

psychologist or psychiatrist.°

The Coalition respectfully submits that the weight of

scientific and medical research supports the proposition that

adequate diagnostic tools exist for mental health professionals

to assess the mental capacity of a terminally ill patient. Detailed

protocols are available for evaluating a patient’s capacity and

potentially impaired judgment, including guidance specifically

for use with the ODWDA.° Such protocols and tools allow

trained and qualified professionals to assess the accuracy of the

patient’s understanding of his or her medical condition, including

5. Id.; see also Oregon v. Ashcroft, 192 F. Supp.2d 1077, 1081-82

(D. Or. 2002).

6. Farrenkopf & Bryan, Psychological Consultation Under

Oregon's 1994 Death with Dignity Act: Ethics and Procedures, 30 Pror.

PsycHOLoGy: ResearcuH & Practice 245 (1999); Werth, Benjamin &

Farrenkopf, Requests for Physician-Assisted Suicide: Guidelines for

Assessing Mental Capacity and Impaired Judgment, 6 PsyCHoL., Pus.

Pouicy & L. 348 (2000).

10

the prognosis and treatment alternatives; review the quality of

the patient’s deliberative process; identify the presence of major

depression or another psychological condition; and, therefore,

evaluate the soundness of the patient’s decision.’

Mental health professionals who have the requisite training,

experience, and direct contact with an individual patient are in

a position to make such an evaluation and assess whether a

patient has the capacity to make a reasoned end-of-life decision.*®

7. Reflective of the fact that many mental health professionals

believe that people can make well-reasoned decisions that death is their

best option, whether assisted by a physician or not, some of these

assessment outlines have been developed by national mental health

organizations or working groups of such organizations. See American

Psychological Association Working Group on Assisted Suicide and End-

of-Life Decisions, Report to the Board of Directors of the American

Psychological Association, Appendix F: Issues to Consider When

Exploring End-of-Life Decisions, in Report TO THE AMERICAN

PSYCHOLOGICAL ASSOCIATION BoarD oF Directors 79-86 (2000); National

Association of Social Workers, Client Self-Determination in End-of-

Life Decisions, in SociaL Work SPEAKS: NATIONAL ASSOCIATION OF SOCIAL

Workers Po.icy STATEMENTS, 2003-2006 46 (6th ed. 2003).

8. Tnis Court has commented that “the subtleties and nuances of

psychiatric diagnosis render certainties virtually beyond reach in most

situations.” Medina v. California, 505 U.S. 437, 451 (1992), quoting

Addington v. Texas, 441 U.S. 418, 430 (1979); see also Cooper v.

Oklahoma, 517 U.S. 348, 365-66 (1996). In this context as in other

areas of law (or medicine), however, the impossibility of certainty does

not obviate the need to evaluate the mental state of the patient. /d.

The nature of end-of-life decisions would certainly justify use of a

standard under which close cases are resolved in favor of preserving

the medical status quo. See Cruzan v. Director, Missouri Dept. of Health,

497 U.S. 261, 283 (1990). But the inevitability of close cases cannot,

by itself, justify imposing a flat prohibition that will apply even in cases

where the evidence of mental capacity is clear.

11

Such evaluations are typical and common in the practice of

mental health professionals.’ Indeed, “psychiatrists and other

physicians [as well as psychologists, social workers, and other

qualified mental health professionals] have been successfully

conducting such evaluations for years when persons request

discontinuation of life sustaining treatment.” '° Moreover, such

assessments commonly arise in a variety of legal contexts, from

9. Many mental health professionals have extensive experience

in making both formal written evaluations and ongoing, informal

assessments of decision-making capacity and rationality during the

course of psychotherapy, counseling, or psychiatric consultation in

medical settings. Indeed, professional evaluation occurs continuously

during therapy and within the context of hospital or outpatient

consultations.

10. Smith & Pollack, A Psychiatric Defense of Aid in Dying, 34

Community MENTAL HEALTH J. 547 (1998). See also Kleespies & Mori,

Life-and-Death Decisions: Refusing Life-Sustaining Treatment, in

EMERGENCIES IN MENTAL HEALTH PRACTICE: EVALUATION AND MANAGEMENT

at 145 (1998); Cohen, Steinberg, Hails, Dobscha & Fischel, Psychiatric

Evaluation of Death-Hastening Requests: Lessons from Dialysis

Discontinuation, 41 PsycHosomatics 195 (2000); Ganzini, Leong, Fenn,

Silva & Weinstock, Evaluation of Competence to Consent to Assisted

Suicide: Views of Forensic Psychiatrists, 157 Am. J. Psycuiatry 595,

597 (2000) (surveyed Board-certified members of the American

Academy of Psychiatry and the Law and found that 74% of the

respondents “had evaluated the competence of a patient whose refusal

of treatment would have resulted in the patient’s death”). Although it is

certainly true that psychologists and psychiatrists may be asked to make

assessments of mental capacity in situations where other end-of-life

decisions are being made (e.g., discontinuation of life support), in such

situations there is no mandatory requirement for a mental health

assessment nor that a diagnosable depression be ruled out before the

patient’s wishes can be acted upon.

12

competence to stand trial to competence to make a valid will."

In deciding the legal issue of “competence” in these contexts,

courts have inevitably relied upon the training, experience, and

expert judgment of qualified mental health professionals to

assess a given individual’s capacity to make reasoned

decisions. '”

Although the particular legal standard of competence varies

depending upon the-rights and interests at stake in a given

context,'*® there is no dispute that such standard may

appropriately be set at a high level for assessing decision-making

capacity in the end-of-life context.'* The mental health literature

suggests that one appropriate standard for determining capability

would require that a terminally ill patient be able to:

(a) understand and remember information relevant

to an end-of-life decision;

(b) appreciate the consequences of the decision;

11. See, e.g., Cooper, 517 U.S. at 348 (competence to st»nd trial);

Addington 441 U.S. at 418 (involuntary civil commitment).

12. See, e.g., Medina, 505 U.S. at 450. See also Addington, 441

U.S. at 465 (Blackmun, J., dissenting).

13. See, e.g., Cooper, 517 U.S. at 367-68 (contrasting standards

for involuntary commitment and for competence to stand trial).

14. Cf. Cruzan, 497 U.S. at 282-284 (1990); Addington, 441 U.S.

at 423 (“The function of a standard of proof . .. is to ‘instruct the

factfinder concerning the degree of confidence our society thinks he

should have in the correctness of factual conclusions for a particular

type of adjudication.’”) (quoting Jn re Winship, 397 U.S. 358, 370 (1970)

(Harlan, J., concurring).

13

(c) indicate a clearly held and consistent underlying

set of values that provide some guidance in making

the decision; and

(d) communicate the decision and explain the

process used for making it.'°

Using these criteria, a mental health professional evaluating

decision-making capacity would examine a patient’s “chain of

reasoning,” and would seek to determine whether the patient

can “indicate the major factors in his decisions and the

importance assigned to them.”'® Similar requirements are set

out multiple times under the Act, mandating that a patient,

among other things, make “an oral request and a written request,

and reiterate the oral request to his or her attending physician

no less than fifteen (15) days after making the initial oral request”

(O.R.S. 127.850 § 3.08, O.R.S. 127.840 § 3.08), and be given

an opportunity to rescind the request (O.R.S. 127.845 § 3.07).

15. Werth, et al., supra note 6. See also, e.g., Drane, The Many

Faces Of Competency, 15 Hastincs CENTER Report No. 2, 17, 19 (1985);

Freedman, Competence, Marginal and Otherwise; Concepts and Ethics,

4 Int’L J. L. & Psycuiatry 53, 59-60 (1981); Roth, et al., Tests Of

Competency To Consent To Treatment, 134 Am. J. Psycuiatry 279, 280-

282 (1977); Sullivan, Ganzini & Youngner, Should Psychiatrists Serve

as Gatekeepers for Physician-Assisted Suicide, HASTINGS CENTER REPORT

24 (July/Aug 1998); Sullivan & Youngner, Depression, Competence,

and the Right to Refuse Lifesaving Medical Treatment, 151 Aw. J.

Psycuiatry 971 (1994); Tepper & Elwork, Competence To Consent To

Treatment As A Psycholegal Construct, 8 Law & HuMAN BeEHAvior 205;

Werth, RATIONAL SUICIDE? IMPLICATIONS FOR MENTAL HEALTH PROFESSIONALS

94 (1996); Zaubler & Sullivan, Psychiatry and Physician-Assisted

Suicide, 19 CONSULTATION-LIAISON PsyCHIATRY 413 (1996).

16. Appelbaum & Grisso, Assessing Patien.s’ Capacities to

Consent to Treatment, 319 New Enc. J. Mep. 1635, 1636 (1988).

14

Thus, the diagnostic tools for an effective evaluation exist,

and qualified professionals are able to use them to make this

evaluation regarding a terminally ill patient’s mental capacity.

The expertise of and tools available to physicians and mental

health professionals work cohesively with the safeguards

incorporated into the ODWDA to allow those terminally ill

patients who possess unimpaired judgment to exercise their

rights and maintain their dignity throughout their lives.

B. Oregon’s Actual Experiences Establish that Mental

Capacity Evaluations are Occurring And Not All

Requests for Medication Are Being Approved And/

Or Used.

Oregon’s actual experience with ODWDA demonstrates

that capacity evaluations are being performed, and that not all

requests for medication are approved, and of those approved,

not all are ultimately used.'’ In a survey of Oregon physicians

17. The ODWDA has been in effect since late 1997 and seven

annual official reports have been issued by the Oregon Health Division.

In 2004, the most recent year for which the Oregon Health Division has

released statistics, 60 physician prescriptions for such medication were

written, but only 37 individuals ingested medication prescribed under

the provisions of ODWDA. See Oregon Dept. of Human Services,

SEVENTH ANNUAL REPORT ON OREGON’S DeaTH wiTH Dionity Act (2005).

Each of these individuals had to be screened by an attending physician

and a consulting physician to ensure that the individual’s judgment was

not impaired by psychological or psychiatric disorder, as required by

the statute. Jd. See also Coombs Lee & Werth, Observations on the

First Year of Oregon’s Death with Dignity Act, 6(2) PsycHoL., PuBLic

Poticy & L. 268 (2000); Ganzini, Nelson, Schmidt, Kraemer, Delorit &

Lee, Physicians’ Experiences with the Oregon Death with Dignity Act,

342 New Enc. J. Mep. 557 (2000); Reagan, Helen, 353 Lancet 1265

(1999); Ganzini, Harvath, Jackson, Goy, Miller & Delorit, Experiences

(Cont'd)

15

who had experience with the ODWDA, responses indicated that

165 people had requested medication under the Act from these

physicians during the first two years the law was in effect.'* Of

these 165, only 29 (18%) actually received a prescription, and

of these 29, only 17 individuals used it."

The survey also demonstrates that physicians are making

determinations of ineligibility based on impaired judgment —

they are not freely writing prescriptions to every patient who

asks for it. Physicians reported that 17% of the individuals

requesting medication had “a mental disorder such as depression

which impaired his/her judgment.” None of those patients were

given a prescription under the Act. The results of the study led

the authors to conclude that “[the] data simply do not support

the hypothesis that among patients eligible for assistance

with suicide under the [ODWDA\], vulnerable groups,

including mentally ill patients, request assistance with suicide

(Cont'd)

of Oregon Nurses and Social Workers with Hospice Patients who

Requested Assistance with Suicide, 347 New Ena. J. Mep. 582 (2002);

Ganzini, Dobscha, Heintz & Press, Oregon Physicians’ Perceptions of

Patients Who Request Assisted Suicide and Their Families, 6 J. PAL.

Mep. 381 (2003); Wineberg & Werth, Physician-Assisted Suicide in

Oregon: What are the Key Factors?, 27 Deatx Stupies 501 (2003);

Werth & Wineberg, A Critical Analysis of Criticisms of the Oregon with

Dignity Act, 29 DeatxH Stupies | (2005); Tolle, et al., Characteristics

and Proportion of Dying Oregonians Who Personally Consider

Physician-Assisted Suicide, 15 J. Cun. Ernics 111 (2004); Ganzini &

Dobscha, Clarifying Distinctions between Contemplating and

Completing Physician-Assisted Suicide, 15 J. Cun. Eruics, 119 (2004).

18. Ganzini, Nelson, et al., supra note 17.

19. Id.

16

disproportionately or receive lethal prescriptions in place of

palliative care.” ”

ODWDA creates a system in which only adults who are

capable of making a reasoned judgment about their desire to

make a request under the Act and the consequences thereof are

eligible for the option provided thereunder, and those with

impaired judgment may be determined and screened from

receiving the requested medication.

II. A TERMINALLY ILL PATIENT CAN BE CAPABLE

OF MAKING A REASONED DECISION TO HASTEN

DEATH

Defendants’ argument regarding an alleged threat to public

health rests upon an erroneous comparison of hastened death

under the ODWDA to “suicide,” and an erroneous assumption

that a terminaliy ill patient’s decision to hasten death must be

the result of a mental disorder which impairs judgment.

A. End-of-Life Decisions by Terminally Ill Patients Are

Not Equivalent to Suicide by Depressed Individuals.

Using a model of suicide as the proxy for a desire to hasten

death is extremely problematic, given the assumption of

irrationality due to mental illness in instances of suicide. Even

those who oppose “assisted suicide” acknowledge that a blanket

statement cannot be made about people who may want to hasten

death when they are dying of a terminal illness.”!

20. Ganzini, Lee & Schmidt, Letter to the Editor, 343 New Ena. J.

Mep. 152, 152 (2000).

21. See, e.g., Hendin & Klerman, Physician-Assisted Suicide:

The Dangers of Legalization, 150 Am. J. Psycuiatry 143, 145 (1993)

(“We are likely to find that those who seek to die in the last days of

terminal illness are a quite different population from those whose first

response to the knowledge of serious illness is to turn to suicide.”).

17

End-of-life decisions by terminally ill patients are not akin

to what is commonly termed “suicide,” which is considered to

be a self-destructive act often related to feelings of depression.

These decisions to hasten death are more accurately paralleled

to a patient’s thoughtful decision to decline life-sustaining

measures: a product of judgment and reason, based on the desire

to maintain one’s dignity in a period where death in pending.

A working group of the American Psychological Association

stated that: “It is important to remember that the reasoning on

which a terminally ill person (whose judgments are not impaired

by mental disorders) bases a decision to end his or her life is

fundamentally different from the reasoning a clinically depressed

person uses to justify suicide.” ” In contrast to suicide, refusal

of life-sustaining treatment by terminally ill patients is often

seen as an affirmation of their dignity in a fully lived life, a

concept that many states, including Oregon, have already

deemed worthy of legal recognition.”

Thus, medical and scientific research have found that many

individuals facing certain death, along with the possibility of

physical pain and loss of dignity —- which are not factors for

those who choose to commit suicide in response to emotional

and mental distress — may desire to hasten death free from

judgment impaired by depression or other mental disorder. The

comparison to “suicide” is simply inapposite.

22. American Psychological Association, TERMINAL ILLNESS AND

HAsTenep DeatH Requests: THE IMpoRTANT ROLE OF THE MENTAL HEALTH

PROFESSIONAL | (1997).

23. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790,

817-20 (9th Cir.), cert. granted, 518 U.S. 1055 (1996), rev'd, 521 U.S.

793 (1997); Vacco v. Quill, 80 F.3d 716, 727-28 (2d Cir.), cert. granted

sub nom. Washington v. Glucksberg, 518 U.S. 1057 (1996), rev'd, 521

U.S. 702 (1997).

18

B. Many Terminally Ill Patients Are Not Clinically

“Depressed.”

The weight of medical and mental health research and

experience indicates that terminally ill people who have a desire

for death in general, or, more particularly, who wish to hasten

death through use of the ODWDA, are not incapable of making

healthcare decisions, suffering from impaired judgment, or

experiencing major depression.” In fact, research and experience

demonstrate that a personal sense of autonomy, control, and

dignity are typically the most influential reasons why terminally

ill people in general want to hasten death” and why terminally

ill Oregonians want to use the ODWDA.” Based on their

24. Werth, The Relationships Among Clinical Depression, Suicide,

and Other Actions that may Hasten Death, 22 Benav. Sci. & L. 627

(2004).

25. Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide

and Euthanasia in Washington State: Patient Requests and Physician

Responses, 275 J. AM. Mep. Assoc. 919 (1996); Lavery, Boyle, Dickens,

Maclean & Singer, Origins of the Desire for Euthanasia and Assisted

Suicide in People with HIV-1 or AIDS: A Qualitative Study, 358 LANCET

362, 362 (2001) (for 32 people with HIV disease “Euthanasia and

assisted suicide were seen by participants as a means of limiting loss of

self.”); Wilson, Viola, Scott & Chater, Talking to the Terminally Ill About

Euthanasia and Physician-Assisted Suicide, 5 CANADIAN J. CLINICAL MED.

68 (April 1998); Back, Starks, Hsu, Gordon, Bharucha, & Pearlman,

Clinician-Patient Interactions About Requests for Physician-Assisted

Suicide: A Patient and Family View, 162 Arcu. Int. Mep. 1257 (2002);

Bharucha, Pearlman, Back, Gordon, Starks, & Hsu, The Pursuit of

Physician-Assisted Suicide: Role of Psychiatric Factors, 6 J.P ALL. MED.

873 (2003); Werth, supra note 24.

26. Ganzini, Nelson, et al., supra note 17; Ganzini, Harvath,

et al., supra oote 17; Ganzini, Dobscha, et al., supra note 17; Coombs

(Cont'd)

19

experience with many individuals who have died of terminal

illnesses, and upon the scientific and medical research available,

the Coalition strongly opposes the assertion that a terminally ill

patient "s dasize to hasten Geath ascsssastiy inveives Copeetien

or other mental disorder.”

Indeed, medical and scientific studies confirm that unlike

with suicide, many terminally ill patients can and do make

“rational” decisions, free of depressive or other mental disorder,

regarding whether or not to hasten death. For example,” in one

(Cont'd)

Lee & Werth, supra note 17; Reagan, supra note 17; Wineberg & Werth,

supra note 17; Werth & Wineberg, supra note 17; Oregon Dept. of

Human Services, supra note 16; Kade, Death with Dignity: A Case

Study, 132 ANN. INTERN. Mep. 504 (2000); Ganzini & Dobscha, /f it isn't

Depression ..., 6 J. Patt. Mep. 927 (2003); Bascom & Tolle,

Responding to Requests for Physician-Assisted Suicide, 288 J. AM. MED.

Assoc. 91 (2002); L. Ganzini, personal communication by e-mail to J.

Werth, Jr., January 7, 2002.

27. Thus, the description of the case of Michael P. Freeland, set

forth in an appendix to the amicus brief of Physicians for Compassionate

Care Educational Foundation, is fundamentally flawed for at least two

reasons. First, there is no external verification of incapacity or impaired

judgment; in fact, several physicians determined Mr. Freeland had

capacity, and an attempt to have him ruled incompetent was dropped

after the discovery phase. Second, the description glosses over the fact

that Mr. Freeland died of natural causes, without taking the medication

prescribed under ODWDA - the very choice the ODWDA is intended

to provide. We are confident that more thorough rebuttals of the claims

in that Appendix will appear in the professional literature.

28. For examples of other recent studies that examined the presence

of diagnosable depression among terminally ill individuals who desired

a hastened death — all of which found that a significant percentage were

(Cont'd)

20

study, only 31 of 159 terminally ill patients who had an interest

in “physician-assisted suicide” or euthanasia were considered

to be depressed; only 2 of 11 patients who had discussed

euthanasia or “physician-assisted suicide,” collected medication

for “assisted suicide,” or had caregivers discuss euthanasia with

physicians had “depressive symptoms.” In one survey of 39

HIV-positive individuals, researchers concluded that more than

two-thirds had rationally contemplated ending their life and that

the desire to hasten death was not directly related to clinical

depression as measured by the Beck Depression Inventory (the

most widely used rapid screening test for the presence of major

depression).*° Depression is a distinct and serious disorder that

(Cont'd)

not depressed — See Breitbart, Rosenfeld, Pessin, Kaim, Funesti-Esch,

et al., Depression, Hopelessness, and Desire for Hastened Death in

Terminally Ill Patients with Cancer, 284 J. AM. Mep. Assoc. 2907 (2000);

Chochinov, Wilson, Enns, Mowchun, Lander, et al., Desire for Death

in the Terminally Ill, 152 Am. J. Psycuiatry 1185 (1995); Rosenfeld,

Breitbart, Stein, Funesti-Esch, Kaim, et al., Measuring Desire for Death

Among Patients with HIV/AIDS: The Schedule of Attitudes Toward

Hastened Death, 156 Am. J. Psycniatry 94 (1999); Wilson, Scott,

Graham, Kozak, Chater, et ai., Attitudes of Terminally Ill Patients Toward

Euthanasia and Physician-Assisted Suicide, 160 Arc. INTERN. MED.

2454 (2000). See also Mishara, Synthesis of Research and Evidence on

Factors Affecting the Desire of Terminally Ill or Seriously Chronically

Ill Persons to Hasten Death, 39 Omeca | (1999); Rosenfeld, Assisted

Suicide, Depression and the Right to Die, 6 Psycuo., Pus. Pouicy & L.

467 (2000).

29. Emanuel, Fairclough & Emanuel, Attitudes and Desires

Related to Euthanasia and Physician-Assisted Suicide Among Terminally

Ill Patients and Their Caregivers, 284 J. AM. Mep. Assoc. 2460, 2464,

2467 (2000).

30. Jones & Dilley, Rational Suicide and HIV Disease, 8 Focus:

A Guiwe To AIDS REesearck AND CouNSELING 5 (July 1993).

21

can be identified and diagnosed.*' The American Psychiatric

Association’s DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

Disorpers lists nine criteria for identifying a Major Depressive

Episode.** Under the diagnostic model, five of these criteria —

one of which must be either depressed mood or loss of interest

or pleasure — must manifest during any single two-week period.

If fewer than five criteria are present, or they do not occur within

this time frame, then “depression,” as a psychological disorder,

is not present.*

Scientific and medical research establish that it is not

appropriate to assume that any decision to hasten death must be

motivated by depression or other mood disorders. Indeed, in a

variety of studies of terminally ill patients, a majority of those

studies found that less than half of the terminally ill patients

studied could be diagnosed with major depression.* At the very

least, a large group of individuals who might medically qualify

under the ODWDA were not suffering from judgment impaired

by depression. Moreover, a recent study of hospice nurses and

social workers in Oregon led the lead author to conclude that

“the data do not support that depression is an important

31. For example, the literature shows that clear distinctions can

be made between depression and grief. See Block, Assessing and

Managing Depression in the Terminally Ill Patient, 132 ANN. INTERN.

Mep. 209 (2000).

32. American Psychiatric Association, DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL Disorpers 327 (4th ed. 1994).

33. Billings & Block, Palliative Medicine Update: Depression,

11 J. Pavuiative Care 48, 48 (1995).

34. Block, supra, note 31.

22

contributor in patients who received a lethal prescription.” *

Similarly, a study in Washington examining the role of clinical

depression and other psychiatric conditions on a person’s pursuit

of physician-assisted suicide found that depressive symptoms

did not appear to be an influential factor in decision-making

and none of the participants appeared to have depression-related

decisional incapacity.*°

Thus, an assumption that all terminally ill patients are per

se suffering from major depression is simply unsupportable and

no blanket statements regarding their judgment properly can be

made.

Il, INVOLVEMENT OF MENTAL HEALTH

PROFESSIONALS IN SITUATIONS INVOLVING

END-OF-LIFE DECISION-MAKING, INCLUDING

SERVING IN THE ROLE OUTLINED IN THE

ODWDA, IS CONSIDERED TO BE APPROPRIATE

Because psychologists and psychiatrists are specified in the

ODWDA as the professionals to whom the attending or

consulting physician must refer a person if either of them has

concerns about the possible presence of impaired judgment, the

viewpoints of Oregon psychologists and psychiatrists concerning

the ODWDA are important to consider. A survey of Oregon

35. L. Ganzini, personal communication by e-mail to J. Werth,

Jr., January 7, 2002. See Ganzini, Harvath, et al., supra, note 17 at 582

(“A very important reason for the request [to use the ODWDA] was to

control the circumstances of death. The least important reasons included

depression, lack of social support, and fear of being a financial drain on

family members.”).

36. Bharucha et al, supra, note 25; Ganzini & Dobscha, supra,

note 26.

23

psychiatrists found that two-thirds of the respondents “endorsed

the view that a physician should be permitted, under some

circumstances, to write a prescription for a medication whose

sole purpose would be to allow a patient to end his or her life.” ”

A more recent survey of Oregon psychologists found that

78% supported the enactment of the ODWDA and 91%

supported both “rational” and physician-“assisted suicide” more

generally. Thus, a significant percentage of psychologists and

psychiatrists in Oregon believe that a decision by a terminally

ill patient to hasten his or her own death may be carefully

considered and fully rational.”

37. Ganzini, Fenn, Lee, Heintz & Bloom, Attitudes of Oregon

Psychiatrists Toward Physician-Assisted Suicide, 153 Am. J. PSYCHIATRY

1469, 1469 (1996).

38. Fenn & Ganzini, Attitudes of Oregon Psychologists Toward

Physician-Assisted Suicide and the Oregon Death with Dignity Act, 30

Pror. PsyCHOLOGY: ReseARCH & Practice 235, 236, 237 (1999).

39. These attitudes are similar to those found in other surveys of

psychologists, counselors, and social workers. See, e.g., DiPasquale &

Gluck, Psychologists, Psychiatrists, and Physician-Assisted Suicide:

The Relationship Between Underlying Beliefs and Professional

Behavior, 32 Pror. PsyCHOLOGY: RESEARCH & Practice 501 (2001) (75%

of responding psychologists and psychiatrists in New Mexico thought

physician-“assisted suicide” should be legal); Ganzini, et al., supra note

10 at 597 (80% of respondents thought suicide was ethical in some or

all circumstances, 66% believed physician-“assisted suicide” was

ethical); Werth & Liddle, Psychotherapists’ Attitudes Toward Suicide,

31 PsyCHOTHERAPY: THEORY, ReseEARCH & Practice 440 (1994) (81% of

the respondents from a national sample of the American Psychological

Association’s Division of Psychotherapy stated that they believed that

an individual could make a rational decision to die by “suicide”); Werth,

supra note 15 at 47 (86% of the respondents to a survey of members of

the National Register of Health Service Providers in Psychology believed

(Cont'd)

24

In addition, Oregon mental health professionals believe that

they can provide appropriate and effective services under the

ODWDA and guidelines have been provided for their use in

such situations.” Similarly, several organizations representing

mental health professionals have taken positions that support

the involvement of their members in providing services to

individuals who are making end-of-life decisions, including

considering whether to request and receive medication such as

is offered under the ODWDA; however, as noted at the

beginning of this Brief, supporting involvement should not be

necessarily interpreted as support for assisted suicide in general

or the ODWDA in particular.

In 1998, the American Psychological Association (“APA”)

convened a Working Group on Assisted Suicide and End-of-

Life Decisions which issued an extensive Report to the Board

(Cont'd)

in “rational suicide”); Rogers, Guellette, Abbey-Hines, Carney & Werth,

Rational Suicide: An Empirical Investigation of Counselor Attitudes,

79 J. CounseLinc & DeveLopment 365 (2001) (surveyed members of

the American Mental Health Counselors Association and found 81% of

respondents believed in the idea of “rational suicide”); Ogden & Young,

Euthanasia and Assisted Suicide: A Survey of Registered Social Workers

in British Columbia, 28 BrimisH J. Soc. Work 161 (1998) (nearly 80%

of responding social workers believed that “assisted suicide” should be

legal in some circumstances); Ganzini, Harvath, et al., supra note 17

(66% of hospice social workers support or strongly support the ODWDA,

only 12% oppose or strongly oppose); Miller, Mesler & Eggman, Take

Some Time to Look Inside Their Hearts: Hospice Social Workers

Contemplate Physician Assisted Suicide, 35(3) Soc. Work tN HEALTH

Care 53 (2002).

40. Farrenkopf & Bryan, supra note 6; Werth, et al., supra note 6;

Bascom & Tolle, supra note 26.

25

of Directors two years later.*' In 2001, the APA passed a

resolution, which neither endorsed nor opposed “assisted

suicide,” but stated that “psychologists have many areas of

competence, including assessment, counseling, teaching,

consultation, research, and advocacy skills that could potentially

enlighten the discourse about “assisted suicide,” end-of-life

treatment, and support for dying persons and their significant

others.” ”

Similarly, in the American Counseling Association’s 2005

ACA Code of Ethics Draft, there is a new section entitled “End-

of-Life Care for Terminally Ill Clients” that includes sections

on Quality of Care; Counselor Competence, Choice, and

Referral; and Confidentiality.” Regarding competence, the

organization stated, “Recognizing the personal, moral, and

competence issues related to end-of-life decisions, counselors

may choose to work or not work with terminally ill clients who

wish to explore their end-of-life options. . . .” Specifically related

to assisted death, in the Confidentiality section, the draft code

41. Available at http://www.apa.org/pi/aseolf.html.

42. In the “assisted suicide” resolution, it was further resolved

that the APA should

Encourage psychologists to identify factors leading to

assisted suicide requests (including clinical depression,

levels of pain and suffering, adequacy of comfort care, and

other internal and external variables) and to fully explore

alternative interventions (including hospice/palliative care,

and other end-of-life options such as voluntarily stopping

eating and drinking) for clients considering assisted suicide.

Id.

43. American Counseling Association, supra note 3: see also note

3 for the entire Quality of Care section.

26

specifies that, “Counselors who provide services to terminally

ill individuals who are considering hastening their own deaths

have the option of breaking or not breaking confidentiality,

depending on the specific circumstances of the situation and

after seeking consultation or supervision.”

It is clear that individual mental health professionals and

several of their professional associations allow involvement in

situations where clients are considering end-of-life issues,

including “assisted suicide.” A mental health professional can

not only conduct an evaluation for capacity or impaired judgment

to satisfy the letter of the law, but can also assist in identifying

and ameliorating issues that are compromising the quality of

life of the dying person and her or his loved ones.* Professionals

can, for example, help patients address issues such as pain,

depression, dignity, tranquility, financial concerns, and the

effectiveness or futility of available medical treatments;

communicate with other health care providers, family members,

social service providers, or others concerning the patient’s needs,

concerns, and preferences, to help ensure that the patient receives

necessary support and that the treatment provided comports with

the patient’s wishes; and promote and monitor appropriate

involvement by significant others in a patient’s end-of-life

decisions. This position was endorsed by Supreme Court Justice

Stevens in his concurrence for both Washington v. Glucksberg

and Vacco v. Quill, when he wrote:

44. American Psychological Association Working Group, supra

note 7; Cohen, Suicide, Hastening Death, and Psychiatry, 158 Arcu.

INTERN. Mep. 1973 (1998); Ganzini & Lee, Psychiatry and Assisted

Suicide in the United States, 336 New Ena. J. Mep. 1824 (1997); Werth

& Holdwick, A Primer on Rational Suicide and Other Forms of Hastened

Death, 28 COUNSELING PsycHoLocist 511 (2000).

TTF

SOP eel Met OR er eee gee

27

I agree that the State has a compelling interest in

preventing persons from committing suicide because

of depression, or coercion by third parties. But the

State’s legitimate interest in preventing abuse does

not apply to an individual who is not victimized by

abuse, who is not suffering from depression, and

who makes a rational and voluntary decision to seek

assistance in dying. Although, as the New York Task

Force report discusses, diagnosing depression and

other mental illness is not always easy, mental health

workers and other professionals expert in working

with dying patients can help patients cope with

depression and pain, and help patients assess their

options.**

Thus, although the Coalition does not take a position here

on either the general issue of “physician-assisted suicide” or

the more particular issue of the legitimacy of prescribing

controlled substances under the ODWDA, its members strongly

believe the Court will gain substantial benefit by taking into

account the substantial literature and experience set forth herein,

as elsewhere, which demonstrates that the desire for death is

not necessarily pathological. Moreover, the literature establishes

that if there is impaired judgment or lack of capacity, these

individuals or symptoms can be detected and interventions can

be implemented.

45. Washington v. Glucksberg, 521 U.S. at 735-36; Vacco v. Quill,

521 U.S. at 746-47.

28

CONCLUSION

The Coalition respectfully submits that the DOJ’s reasoning

for how the ODWDA’s implementation leads to a threat to public

health is flawed and misinformed. Many terminally ill patients

are capable adults who are able to make a decision regarding

use of the ODWDA free from impaired judgment, and adequate

diagnostic tools are available for use in screening out those

individuals who are not capable of making such a judgment.

Respectfully submitted,

STEVEN ALAN REIss

Counsel of Record

Harris J. YALE

SAMANTHA G. FISHERMAN

Welt, GotsHAL & Mances LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Attorneys for Amicus Curiae

Coalition of Mental Health

Professionals

la

APPENDIX — COALITION MEMBERS

Individuals’ affiliations are provided for identification

purposes only. The views expressed are those of individual

Coalition members and not necessarily those of any

institution or organization with which they may be affiliated.

Sandra C. Anderson, Ph.D.

Professor

Graduate School of Social Work

Portland State University

Portland, Oregon

G. Andrew H. Benjamin, J.D., Ph.D.

Affiliate Professor of Law, University of Washington

Affiliate Professor of Psychology, Antioch University

Past President, Washington State Psychological Association

Advisory Board Member, American Psychological

Association Ad Hoc Committee on End-of-Life Issues

Council Member, American Psychological Association

Seattle, Washington

Sarah Bradley, MSSW, LCSW

Licensed Clinical Social Worker

Faculty, Portland State University

Graduate School of Social Work

Portland, Oregon

Daniel Coleman, MSW, Ph.D.

Assistant Professor

Portland State University

Graduate School of Socia! Work

Portland Oregon

2a

Appendix

M. Vicky East, Ph.D.

Licensed Psychologist, Private Practice

Member, Washington State Psychological Association

End-of-Life Task Force

Seattle, WA

Judith R. Gordon, Ph.D.

Licensed Psychologist, Private Practice

Clinical Professor of Psychology, University of Washington

Co-Chair, Washington State Psychological Association

End-of-Life Task Force

Advisory Board Member, American Psychological

Association Ad Hoc Committee on End-of-Life Issues

Seattle, Washington

Renee S. Katz, MSW, Ph.D.

Licensed Psychologist, Private Practice

Co-Chair, Washington State Psychological Association

End-of-Life Task Force

Chair, Ethics and Professional Standards Committee,

Association for Death Education and Counseling

Mercer Island, Washington

Elizabeth E. Landrum, Ph.D.,

Clinical Psychologist

Member, Washington State Psychological Association

End-of-Life Task Force

Edmonds, Washington

3a

Appendix

David Lester, Ph.D.

Professor of Psychology, Richard Stockton College

Past President, International Association for

Suicide Prevention

Blackwood, New Jersey

E. James Lieberman, M.D., M.P.H.

Clinical Professor of Psychiatry

George Washington University School of Medicine

Washington, DC

Andrew McCormick, MSW

Licensed Independent Clinical Social Worker

Social Worker, Harborview Medical Center

Seattle, WA hee caaenammeaammam

Russell D. Miars, Ph.D.

Licensed Psychologist

Portland, Oregon

Paula B. Mike, ACSW, LCSW

Diplomate in Clinical Social Work

Assistant Professor

Portland State University

Graduate School of Social Work

Portland, Oregon

Pamela J. Miller, M.S.W., Ph.D.

Associate Professor

Portland State University

Graduate School of Social Work

Portland, Oregon

da

Appendix

Matthew J. Modrcin, Ph.D.

Licensed Clinical Social Worker

Lake Oswego, Oregon

Nico Peruzzi, Ph.D.

Partner, Outsource Research Consulting

Santa Clara, California

Paul A. Spiers, Ph.D.

Neuropsychology Associates, PC

Assistant Professor, Boston University School of Medicine.

Visiting Scientist, Massachusetts Institute of Technology

Boston, MA

James L. Werth, Jr., Ph.D.

Licensed Psychologist, Consultant - AIDS Holistic Services

Assistant Professor of Psychology, The University of Akron

Member, American Psychological Association Ad Hoc

Committee on End-of-Life Issues

Akron, Ohio

Kathleen Worsley, PhD

Licensed Psychologist

Member, Washington State Psychological Association

End-of-Life Task Force

Redmond, WA

Dr. Norman L. Wyers

Professor Emeritus, Portland State University

Graduate School of Social Work

Portland, Oregon

Sa

Appendix

Clinical Social Work Federation

National Association of Social Workers

Oregon Chapter, National Association of Social Workers

Oregon Psychological Association

Washington State Psychological Association