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Physician-assisted suicide and changing state laws



Under British common law, suicide was a felony if committed by a person "in the years of discretion," in other words, by an adult, who was "of sound mind." An adult who killed himself while insane was not considered a criminal. While the offender obviously could not be punished, he also could not be buried in hallowed ground, and all of his property was seized by the crown. Surviving family members were not allowed to inherit.

While no state defines suicide itself as a crime by statute, there are still common law and statutory prohibitions against aiding or abetting, or encouraging, a suicide. Laws surrounding assisted suicide might seem remote or irrelevant now, but clinicians should be aware that this is changing on an almost monthly basis, and impetus is building through the support of various advocacy groups, such as Compassion & Choices, Final Exit Network,and the Euthanasia Research and Guidance Organization (ERGO).

My own interest in this topic was spurred when a recent Maryland gubernatorial candidate ran on a platform that included a plan to introduce legislation to allow physician-assisted suicide. Presently, our state defines assisted suicide as a felony offense punishable by 1 year of incarceration and a $10,000 fine, and there have been two criminal prosecutions for assisted suicide in recent years.

Nationally, 39 states have prohibitions against assisted suicide defined either by specific statute or contained within the definition of manslaughter. Some states ban assisted suicide by case law, some through the adoption of common law. Presently, five states allow physician-assisted suicide. Oregon, Washington, and Montana were among the first states to allow this. New Mexico and Vermont adopted legislation this year in January and May, respectively.

Most states have modeled their laws after the original physician-assisted suicide law, Oregon’s Death With Dignity Act. For psychiatrists involved in legislative affairs, familiarity with this law is essential.

Under the Death With Dignity Act, a person might be eligible to request physician aid in dying if he is an adult resident of the state, is able to make and communicate medical decisions, and has a 6-month prognosis as medically confirmed by two physicians. The patient must make an initial oral and written request, then repeat the oral request no sooner than 15 days later. The written request must be submitted on a state-mandated form witnessed by two people who can neither be blood relatives nor estate benefactors.

There is a requirement for informed consent, specifically that the person must know his medical diagnosis as well as the risk of taking the life-ending medication and the expected result of this act. There must be documented consideration of alternatives to suicide.

While there is a statutory mandate to refer patients for counseling if depression is suspected, there is no requirement that the patient seeking suicide be screened for this disorder or even have a capacity assessment performed by a psychiatrist.

Out of curiosity, I copied the text of the physician-assisted suicide request form through two text analyzing applications to determine the readability of the document. My two tests revealed that the form required between a 12th grade to college-level reading comprehension level. For comparison purposes, my average prison clinic patient has a 9th-grade education with a 6th-grade reading level.

The most easily understood sentence in the entire document was the instruction at the bottom of the form: "PLEASE MAKE A COPY OF THIS FORM TO KEEP IN YOUR HOME."

This makes sense when you consider the demographics of those who seek physician-assisted suicide in Oregon. Most were white, college educated, over age 65 years, and suffered from cancer or chronic respiratory disease. Since the law was passed, 752 out of 1,173 people, or 64% of those given prescriptions, ended their lives. Only 2 of the 71 people who died in 2013 were referred for psychiatric or psychological evaluation. Most died of suicide within the year; however, some died the following year.

Without discussing the merits and controversy of physician-assisted suicide per se, we can at least identify some obvious weaknesses in copy-and-paste legislation between states. A law that appears tailored for an educated majority culture, which accepts capacity at face value despite clearly concerning circumstances, would at least require substantial revision for a region with high rates of illiteracy or mental illness.

Other questions also are looming on the horizon: Should qualifying conditions be limited to medical conditions only? Could an advance directive include an option to request assisted suicide proactively, prior to a 6-month prognosis, or could it be requested through a designated proxy? If a patient has both a psychiatric disorder and a terminal medical condition, should laws for involuntary psychiatric care still apply?


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