Update 035: Volume 20, Number 1 (2006)

Attorneys in Gonzales v. Oregon take battle to U.S. Supreme Court

On October 5, 2005, after four years of contentious litigation, the case involving the use of federally-controlled drugs for the practice of physician-assisted suicide (PAS) in Oregon was argued before this country’s highest court. Gonzales v. Oregon—previously known as Oregon v. Ashcroft—involves a 2001 directive written by former U.S. Attorney General John Ashcroft and the question of whether a state can prevent the federal government from interpreting and enforcing its own regulations.

The Ashcroft Directive

Three years after Oregon enacted the only PAS law in the country, then U.S. Attorney General John Ashcroft issued a directive stating that the practice of assisted suicide is not a medically “legitimate” use of barbiturates under the federal Controlled Substance Act of 1970 (CSA). Moreover, he determined, doctors who prescribe, dispense, or administer federally-controlled drugs to assist suicide violate the CSA and risk losing their federally-issued prescribing licenses. Ashcroft based his directive on legal precedent and an analysis by the Office of Legal Counsel. [Ashcroft, “Dispensing of Controlled Substances to Assist Suicide,” 11/6/01, p. 1. Hereafter cited as Directive.]

Essentially, the Ashcroft ruling reaffirmed a 1997 determination by then DEA Administrator Thomas Constantine that narcotics and other dangerous drugs controlled by federal law could not be dispensed to assist suicide anywhere in the United States. [Constantine, Letter to Rep. Henry Hyde, 11/5/97] But, U.S. Attorney General Janet Reno reversed Constantine’s determination on June 5, 1998, much to the delight of assisted-suicide advocates in Oregon. Reno found that doctors in Oregon who write prescriptions for lethal overdoses of barbiturates do not violate federal law, but doctors in other states where assisted suicide is not legal would be in violation of the CSA. [Reno, Letter to Rep. Henry Hyde, 6/5/98, pp.1,3]

Ashcroft rejected Reno’s rationale, concluding instead that, under the federal CSA, “controlled substances may not be dispensed to assist suicide,” and that prohibition “applies regardless of whether state law authorizes or permits such conduct….” [Directive, p. 1] In other words, federal law trumps state law.

Lower court rulings

Oregon Attorney General Hardy Myers had anticipated Ashcroft’s ruling. On the very day Ashcroft released his directive, Myers announced his intention “to take legal action in federal district court to protect Oregon’s physician assisted suicide law.” [OR Dept. of Justice, Press Release, 11/6/01]

Two days later, U.S. District Court Judge Robert Jones issued a restraining order, requested by the State of Oregon, barring the U.S. Drug Enforcement Agency (DEA) from taking action against Oregon doctors who prescribe lethal barbiturates, or any federally controlled substance, for assisted suicides. After hearing the case, Judge Jones issued a strongly worded, 30-page decision in favor of Oregon. The judge held that it is up to individual states to determine “what constitutes a legitimate medical practice or purpose” in that state. Furthermore, he wrote, “State statutes, state medical boards, and state regulations control the practice of medicine. The CSA was never intended, and the USDOJ [U.S. Dept. of Justice] and the DEA were never authorized, to establish a national medical practice or act as a national medical board.” [Oregon v. Ashcroft, Civil No. 01-1647-JO (D. Ore. 2002)]

Undaunted, U.S. Assistant Attorney General Robert McCallum said that the Justice Department “remains convinced that its interpretation of the Controlled Substances Act as prohibiting the use of federally controlled drugs to assist suicide is correct.” [Dept. of Justice Press Release, 4/17/02] A month later, the Justice Department announced that an appeal of Judge Jones’ ruling would be filed with the Ninth Circuit Court of Appeals in San Francisco. [AP, 5/24/02]

Two years later, a Ninth Circuit three-judge panel issued a 2-1 decision upholding Judge Jones’ ruling. According to the majority opinion, “[T]he Ashcroft Directive is unlawful and unenforceable because it violates the plain language of the CSA, contravenes Congress’ express legislative intent, and oversteps the bounds of the Attorney General’s statutory authority.” [Oregon v. Ashcroft, No. 02-35587, 2004 (9th Cir May 26, 2004), Vol. 1, p. 6607]

In his lengthy dissent, Judge J. Clifford Wallace wrote, “General Ashcroft acted well within the scope of his statutory authority,” and the CSA contains “ample evidence that Congress was concerned not only with street-variety drug trafficking and abuse but also with any other improper drug use.” The CSA’s legislative record “specifically identifies ‘suicides and attempted suicides’ as a ‘[m]isuse of a drug.’” [Oregon v. Ashcroft (9th Cir May 26, 2004), Vol. 2, pp. 6636-6640]

On July 12, 2004, the Justice Department petitioned the Ninth Circuit to rehear the case. The court refused. The Justice Department then petitioned the U.S. Supreme Court to hear the case (now called Gonzales v. Oregon, after Alberto Gonzales, the new U.S. attorney general). The court agreed.

Case argued before high court

Gonzales v. Oregon was the first case before the Supreme Court justices in the new 2005 term. It was also the first case argued with newly installed Chief Justice John Roberts on the bench.

According to the Associated Press, “Roberts laid a barrage of questions on Oregon Senior Assistant Attorney General Robert Atkinson before he could finish his first sentence.” [AP, 10/5/05] But Roberts was not the only justice asking tough questions of the lawyer seeking to gut federal authority over controlled substances.

A telling question and answer exchange occurred after Atkinson opined that, in a prior case, Washington v. Glucksberg (in which Justice Sandra Day O’Connor referred to states as laboratories for “liberty issues”), the Supreme Court “recognized that this specific subject, physician-assisted dying, is one that is for the States to regulate.”

(The following questions and answers are excerpted from the court’s official transcript. See reference below.)

Justice Stephen Breyer: “[S]uppose that some State said that, ‘We think doctors can prescribe, for people who want to take it, morphine for recreational use?’”

Atkinson: “[T]aking the hypothetical you’ve offered, specifically, we think that the answer would have to be that Congress intended to leave the definition of what is a legitimate medical practice to the States.”

Justice Breyer: “No matter what?”

Atkinson: “Yes.”

Minutes later…

Chief Justice Roberts: “[T]he supposition is that the State legal judgment is… that it’s legitimate medical practice to make patients feel better, and morphine does that; and so, the State can allow them to prescribe morphine to make people feel better. And I understand your position to be that that would be permissible?

Atkinson: “Yes.”

Justice O’Connor: “And you say the Attorney General of the United States could not deem it to be drug abuse under the Act [CSA] if a State allowed that for recreational use or to cure depression or — how about steroids for bodybuilders? — and decided that’s perfectly okay. Now, can the Attorney General find that that’s drug abuse?”

Atkinson: “Not if it is permitted by and regulated by State law.”

Minutes later…

Chief Justice Roberts: “What does that do to the effectiveness of regulation under the Controlled Substances Act? If one State can say it’s legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn’t that undermine the uniformity of the Federal law and make enforcement impossible?”

Atkinson: “I don’t believe it does, Chief Justice…. We think it’s clear from the text of the statute that Congress intended to leave the definition of what is, or is not, a legitimate medical practice in the hands of the States.”

Chief Justice Roberts: “But focus on the particular question. If you have one State that allows the use of a drug that the Federal Government has determined is illegal, and is illegal everywhere else because other States haven’t done it, how is the Federal Government supposed to enforce that prohibition?”

Atkinson: “Well, I don’t think the Federal Government is supposed to enforce that prohibition if the prohibition — if we’re dealing with a schedule 2, 3, or 4 or 5 substance.”

(Editor’s Note: Drugs used for PAS—barbiturates—are schedule 2 drugs.)

[Supreme Court Transcript, Oral Arguments, Gonzales v. Oregon, no. 04-623, 10/5/05, pp. 30-38. Hereafter cited as Transcript. See: www.supremecourtus.gov/oral_arguments/argument_transcripts.html (transcript no. 04-623-2)]

U.S. Solicitor General Paul Clement, arguing in support of the Ashcroft Directive, also faced some tough questions from the justices. The following exchange occurred in response to Clement’s point that the Ashcroft Directive does not overturn Oregon’s PAS law or “foreclose the issue of assisted suicide.” There are other ways, he said, to ends lives without using controlled substances like barbiturates.

Justice David Souter: “Well, they say that, in practical terms, that is exactly what it does, because the only way they can administer their law sensibly is by using these kinds of drugs, scheduled drugs.”

Clement: “Well, Justice Souter, we don’t have a factual record on that question. I think it’s not clear that that’s the case, because, I mean, proponents of physician-assisted suicide have identified alternative methods. Perhaps the most notorious proponent of physician-assisted suicide, Dr. Kevorkian, operated without a federal controlled-substance license for the last six years before his conviction.”

Justice Souter: “Well, did he use a controlled substance?”

Clement: “He did not. He did not, which is why he could do that. So, it just goes to prove that physician-assisted suicide and the use of federally controlled substances for physician-assisted suicide are not coextensive.”

Justice Ruth Ginsburg: “But we’re told that those methods are less gentle to the patient. The methods that the State of Oregon has authorized its physicians to prescribe, we are told, at least in some of the briefs, that, from the patient’s point of view, it’s much less upsetting.”

Clement: “Justice Ginsburg, we operate without a factual record on that point. In doing some outside reading, it seems that some of the other methods are actually disapproved, not because they’re more painful, but because it’s more obvious that it’s a suicide, in certain cases, and the adminstration of scheduled drugs sort of blurs that line.” [Transcript, pp. 10-11]

Clement concluded his allotted rebuttal time with the following:

Clement: “I want to remark and focus for a minute on what an odd statute Oregon has passed. The practitioner respondents point out it is a prescribing law only. And Oregon itself points out that what’s allowed here is the prescription, but not the administration, of these substances.

“Even what Oregon does, does not purport to be medicine, as one traditionally understands it. I can think of no other medical substance where a doctor can prescribe it, but not administer it. And I think if you look at that aspect of the statute, what becomes clear is that Oregon is not regulating medicine, it’s purporting to basically take a Federal regulatory regime that allows doctors the ability to get at schedule 2 substances.” [Transcript, p. 60]

Reaction outside the court

Immediately after the oral arguments ended, legal commentators began speculating as to the ultimate Supreme Court ruling in the case. Most said it was too close to call, quoting Justice Anthony Kennedy’s comment during the hearing that “it’s a hard case.” [Transcript, p. 14]

Also making speculation difficult is the question of who will actually be voting on the case. Justice O’Connor has announced her plans to retire if and when her nominated replacement, Judge Samuel Alito, is confirmed by the Senate. Should her successor be confirmed before the court issues its ruling, O’Connor’s vote would not count. Further, if the vote among the remaining justices is a tie, 4 to 4, the court would likely have to schedule a new hearing, once the new justice is confirmed and seated on the bench. [AP, 10/5/05]

Oregon would like to have O’Connor’s vote count since, according to Kevin Neely, a spokesman for the Oregon Department of Justice, “We think Justice O’Connor is likely an advocate for the state’s position, and to that extent, if she is, it may well be a benefit to have her continue on the court as long as possible.” Veteran PAS attorney Kathryn Tucker, legal affairs director for Compassion & Choices, agrees: “I suspect most people believe that O’Connor would vote to affirm” the Oregon law. [Register-Guard, 10/28/05]

Tucker has also expressed concern that Oregon’s oral arguments didn’t go as well as PAS advocates had hoped. She told the Register-Guard (a Eugene, Oregon, newspaper) that she was optimistic when Clement was met with “a barrage of hostile questions” from the justices, but was far less optimistic after they grilled Atkinson. “I thought he missed some opportunities to make the case,” she said. [Register-Guard, 10/6/05] (More on Gonzales v. Oregon)

Physician-assisted suicide advocates: Don’t call it “suicide”

In yet another example of assisted-suicide activists manipulating language to camouflage their agenda, members of Compassion & Choices (formerly the Hemlock Society) and Californians for Compassionate Choices recently held a national news teleconference to try and convince the media that what they are pushing is not suicide.

“’Suicide,’ or ‘assisted-suicide,’ or ‘physician-assisted suicide’ are loaded, pejorative terms that paint terminally-ill patients in the same negative light as terrorist bombers,” explained Barbara Coombs Lee, Compassion & Choices co-president. “Using the term [suicide] has negative impacts on terminally-ill patients, their families and survivors,” she added. “It’s not accurate and its not fair.”

Public opinion researcher David Binder, hired to test the reaction of California voters to various euthanasia and assisted-suicide terms, said, “Respondents have a negative impression of the term ‘assisted-suicide,’ as it carries loaded connotations that it is a crime.” Based on Binders research, euphemisms that assisted-suicide activists want the media to use are “Death with Dignity,” “End of Life Choices,” “Compassionate Choices,” “Choice and Control at the End of Life,” to name a few. [Californians for Compassionate Choices Press Kit, 9/28/05]

Essentially, they want the media to be complicit in fooling the public about what it is the activists want to legalize. “If a movement cannot win a public policy debate because accurate descriptions and language hurt their cause,” explained ITF legal consultant Wesley J. Smith, “then there is definitely something wrong with the agenda. Or to put it another way: It isn’t the words; it’s the killing.” [wesleyjsmith.com web log, “Secondhand Smoke,” 9/29/05]

Possible “Katrina” euthanasia cases being investigated

Louisiana authorities are investigating whether severely ill hospital patients were euthanized during and after hurricane Katrina devastated the New Orleans area.

Autopsies on almost 100 patients resulted in tissue samples being sent for toxicology testing. Most bodies were in advanced stages of decomposition. “There were only small cases where blood samples were available,” said Dr. Cyril Wecht, a noted forensic pathologist. Wecht said that the tissue tests will show the amount of drugs in the patient’s system and whether any drug caused the patient’s death. [AP, 12/3/05]

Euthanasia allegations arose after the London Daily Mail quoted an anonymous woman doctor, on staff at a New Orleans hospital, as saying: “I injected morphine into those patients who were dying and in agony. If the first dose was not enough, I gave a double dose.” She admitted that, “Under normal circumstances, some could have lasted several days.” [Daily Mail, 9/11/05]

Later, on a CNN report, New Orleans physician Dr. Bryant King revealed that, in the dire aftermath of Katrina, a conversation allegedly occurred between a Memorial Medical Center administrator and a female doctor discussing the need to euthanize some patients. King also said that, about three hours later, he spied Dr. Anna Pou with “a handful of syringes.” He did not know what they contained. The medical center administrator has accused King of lying. [CNN, 10/13/05 & 12/22/05]

Awareness studied in unconscious patients

Incredible stories of brain-damaged, non-responsive patients suddenly waking up after years of unconsciousness have been in the news lately.

Take, for example, Sarah Scantlin, who at the age of 18, was hit by a drunk driver as she walked across the street. Her brain damage was so severe that the doctor told her father, “The daughter you had is gone.” Many neurologists now would have said she was in a persistent vegetative state (PVS). For 20 years, all she could do was blink her eyes in response to questions, but caregivers doubted she really understood what they were saying. Then suddenly, last February, she started to talk, surprising her family with a phone call to say “Hello” and to request some make-up. When asked about 9/11, an event that occurred while she was “unconscious,” she said, “Bad, airplane, fire, building, hurt people.” All those years, Sarah had been paying attention to the TV in her room. [CBS Transcripts, “The Early Show,” 8/4/05, 8/5/05]

Then there’s Donald Herbert, a N.Y. fireman who suffered brain damage after a roof collapsed on him. For 10 years, he was in a near persistent vegetative state, unable to see, speak, or move. Then, suddenly last April, he told a nursing home staffer, “I want to talk to my wife.” [NY Times, 5/3/05]

For years, medical types down-played cases like these, since there was no scientifically plausible explanation for such “awakenings.” But, now, technology is giving researchers the tools to actually peek into workings of the unconscious brain.

In a recent study published in Neuropsychological Rehabilitation, positron emission tomography (PET) scans were performed on a patient in a persistent vegetative state (PVS) and on healthy, conscious subjects. The scans showed that, when English sentences where spoken, the reactions within certain brain regions were the same in both the PVS patient and the conscious subjects. Subsequently, functional magnetic resonance imaging (fMRI) done on the PVS patient showed that his cortex responded to semantically ambiguous sentences, a response usually indicative of higher levels of speech comprehension. [The Scientist, 9/12/05]

Another study, published in Neurology, used fMRI technology to examine cortical networks in two minimally conscious state (MCS) patients. The researchers found “active cortical networks that serve language functions,” indicating that “some MCS patients may retain widely distributed cortical systems with potential for cognitive and sensory function despite their inability to follow simple instructions or communicate reliably. [N.D. Schiff et al., “fMRI reveals large-scale network activation in minimally conscious patients,” Neurology, 2/05: 514-523]

Dr. Joseph Fins, chief of medical ethics at NY Presbyterian Hospital, found the study exciting. “This study gave me goose bumps,” he said, “because it shows the possibility of this profound isolation, that these people are there, that they’ve been there all along, even though we’ve been treating them as if they’re not.” [NY Times, 2/8/05]

Colleen Clements, associate professor of psychology at the Univ. of Rochester, N.Y., also applauded the new research being done and posed a critically important question for all brain-damaged patients: “Has bioethics been making a terrible mistake to listen to advocates of either euthanasia or cost-cutting through patient termination?” [Medical Post, 9/20/05]

Switzerland being considered as base for European right-to-die groups

According to euthanasia guru Derek Humphry, author of the suicide manual, Final Exit, Switzerland is now being considered as a suicide home base for European right-to-die groups in countries that prohibit euthanasia and assisted suicide. Swiss law allows assisted suicide as long as it is deemed justified and done altruistically. Euthanasia, however, is considered a crime.

The idea of foreign assisted-suicide groups sharing a Swiss facility where lives can be ended was proposed during a Right-to-Die-Europe meeting in Turin, Italy, on October 15, 2005. Members of the Italian delegation—knowing that Italy would not be legalizing euthanasia anytime soon—pushed for Belgium and the Netherlands to expand their euthanasia services to foreign Europeans. But, Belgian and Dutch delegates quickly dismissed the idea, saying European Union laws do not allow people to go from country to country to avoid prosecution for criminal actions. Furthermore, their euthanasia laws prohibit doctors from killing patients they have not known for awhile.

“You can’t come in on Monday and get euthanasia on Friday,” explained Belgian delegate, Jacqueline Herremans. “There must be a strong relationship between patient and doctor, with requests for assisted death repeated. There is the language barrier, too,” she added.

Focus then switched to Switzerland after the president of Geneva’s French-speaking Exit, Dr. Jerome Sobel, told the delegates, “You could set up your own organization in Switzerland. We have enough to do.” Both the French-speaking Exit and the German-speaking Exit restrict their death services to Swiss citizens. Only the Zurich group, Dignitas, accepts foreigners for assisted suicide, but it’s a small group, and its case load is limited.

It soon became apparent to many in attendance that Switzerland would be the ideal death haven because it was not a European Union member, and it allowed both physician-assisted and non-physician assisted suicide. Foreign right-to-die groups could reserve time in a rented Swiss apartment for their members to be helped to die.

The Turin meeting ended without a final decision on the Swiss “time-share” proposal. Delegates opted to return home and discuss the matter with their respective group members. [D. Humphry, ERGO email news list, 11/3/05]

Dignitas opens branch office in Germany

Despite strong German opposition, the Swiss assisted-suicide group, Dignitas, has opened its first foreign office in Hanover, a city of about 500,000 located in central Germany.

Dignitas is the only Swiss right-to-die organization which helps foreigners commit suicide. According to the group’s founder, Ludwig Minelli, over 450 people have been killed with Dignitas’ help, the majority (253) coming from Germany where the practice is illegal. The new German branch office will only dispense information and advice, Minelli said. People would still have to travel to Zurich to receive their lethal barbiturate overdose.

Lower Saxony Justice Minister Elisabeth Heister-Neumann plans to introduce legislation to ban Dignitas and other right-to-die groups from Germany if they charge fees for helping to kill people. Currently Dignitas charges around €1100 ($1300) plus any additional costs for an assisted suicide.

Minelli has admitted that the ultimate goal for opening the German office is to put pressure on the German government to legalize assisted suicide. But any move to allow euthanasia or assisted suicide conjures up the horrors of the Nazi regime when approximately 275,000 disabled adults and children were killed as a matter of state policy. “That is the danger of an organization like this,” explained Heister-Neumann. “We see such a group as a one-way street to death.”

German doctors have uniformly opposed Dignitas’ move to their county. “The patient has a right to a dignified death, but does not have the right to be killed,” said German Medical Association President Jörg-Dietrich Hoppe. “We therefore categorically reject assisted suicide.” [Washington Post,11/1/05; British Med. Journal, 10/29/05; Duetsche Welle, 10/12/05, 9/29/05; Daily Telegraph, 10/2/05; Swissinfo, 9/28/05]

Dignitas investigated

German and Swiss authorities are investigating Dignitas regarding the death of a healthy German woman in May of this year.

The 69 year-old woman obtained a false medical report from her Augsburg doctor, stating that she had a terminal case of cirrhosis of the liver. The doctor later said that he had no clue why she wanted the erroneous report.

The woman then traveled to Zurich and gave the report to Dignitas director Ludwig Minelli, who arranged for a Swiss doctor to prescribe her a fatal dose of sodium pentobarbital. An autopsy found no liver damage, and the Dignitas doctor subsequently killed himself.

Minelli has denied any wrongdoing. “Every person in Europe has the right to choose to die, even if they are not terminally ill,” he proclaimed. [London Times, 11/11/05]

Dutch formalize death for infants and the mentally disabled

While infanticide will remain illegal, the Dutch government has formalized plans to allow the practice by setting up a “vetting” commission—consisting of three doctors, a lawyer, and an ethicist–— to review infanticide cases postmortem and to refer cases for possible prosecution if doctors have not followed guidelines outlined in the “Groningen Protocol.” [AP, 9/29/05]

The protocol was created last year by doctors at the Groningen Academic Hospital and the government’s Prosecutor’s Office. The protocol was developed primarily to change the law so that doctors who kill severely disabled newborns would have legal protection. Infanticide is a clear violation of the existing euthanasia law, which requires competent patients to voluntarily request death.

Under the protocol, infants would qualify for euthanasia if:

their suffering is severe,

there is no hope of a future and no possibility of a cure or alleviation with drugs or surgery,

the parents give their consent, and

an independent doctor’s second opinion is obtained.

Among those babies who would most often qualify for death are those with severe brain damage, spina bifida, or hydrocephalus. [Groningen Hospital Press Release, 12/10/04] But, the protocol would also endanger all cognitively disabled patients, such as dementia patients, older children, the mentally retarded, comatose, and PVS patients.

The Dutch Health Ministry has proposed infant and child euthanasia before, and each time postponed action because of strong international criticism and outrage. However, now the ministry appears resolute and wants to control the flow of information released to the public. There has been little Dutch media coverage of the government’s plans to make infant euthanasia a “necessary” medical treatment. [AP, 9/29/05]

Earlier this year the Dutch Pediatric Society backed the Health Ministry by voting unanimously to adopt the Groningen Protocol as the official national guidelines for infanticide. The vote was called a “confirmation of the acceptability” of a still illegal act. [British Medical Journal, 7/16/05]

In a letter to the Dutch Parliament, Justice Minister Piet Hein Donner and Junior Health Minister Clemence Ross-van Dorp wrote, “We wanted to respond to the needs of doctors to create clarity in how to deal with ending the life of seriously suffering newborns….” [Reuters, 11/29/05] The government, they said, hopes that the creation of the new commission will encourage doctors to report infanticide/euthanasia cases to the Public Prosecutor’s Office. [Expatica, 11/29/05]

But, history has shown that easing the way for doctors to kill a wider range of patients and setting up token “vetting” commissions does not prevent non-reporting. In 2002, after euthanasia was legalized and oversight commissions were created to increase reporting, more than half the doctors failed to report euthanasia deaths as mandated.

Dutch find depression & euthanasia related

Dutch researchers have found that late stage cancer patients with depression were four times more likely to request euthanasia than those who were not depressed. The study, published in the Journal of Clinical Oncology, was the first to examine the possible connection between depression and death requests in cancer patients with an estimated life expectancy of three months or less.

The researchers admitted that their findings were not what they expected:

[W]e hypothesized that depressed mood would show an inverse association with requests for euthanasia. Our clinical impression was that such requests were well-considered decisions, thoroughly discussed with healthcare workers and family. We thought the patients requesting euthanasia were more accepting [of] their impending death and we therefore expected them to be less depressed. To our surprise, we found that a depressed mood was associated with more requests. [M. van der Lee et al., “Euthanasia and Depression: A Prospective Cohort Study Among Terminally Ill Cancer Patients,” Journal of Clinical Oncology, 9/20/05, 6607-6612]

In an accompanying editorial, Dr. Ezekiel J. Emanuel, clinical bioethicist at the National Institutes of Health in Bethesda, MD, points out that many people erroneously think that intolerable pain is the main reason behind euthanasia and physician-assisted suicide (PAS) requests. “Most, if not all, studies that have examined this question,” he wrote, “reveal that psychological distress, including depression and hopelessness, are significantly associated with patients’ interest in hastening their own death through euthanasia and/or PAS.” In other words, it’s “psychological distress rather than rational choices” that guide patients’ death requests.

Emanuel finds this fact “especially worrisome” since research indicates that 15%-25% of cancer patients are depressed, and around 80% of euthanasia and PAS requests come from cancer patients.

Furthermore, doctors are generally poor at recognizing and diagnosing depression, especially in terminally-ill patients who are expected to be sad and emotionally down. But, says Emanuel, “physicians should recognize that there is a difference between sadness, adjustment disorders, and full depression….” A psychiatric evaluation should be strongly considered if a patient expresses interest in euthanasia or assisted suicide. [E. Emanuel, “Depression, Euthanasia, and Improving End-of-Life Care,” Journal of Clinical Oncology, 9/20/05, 6456-6458]

British MP drops euthanasia for Oregon-style assisted suicide

In October, during a fierce debate in the House of Lords on the issues of euthanasia and assisted suicide, Parliament member Lord Joel Joffe announced that he was revising his “Assisted Dying for the Terminally Ill Bill” by making it an assisted-suicide only measure modeled after Oregon’s laws permitting that practice. The version of his bill that expired earlier this year in the House of Lords would have legalized both euthanasia and assisted suicide in England and Wales.

“I have listened to the views in parliament and among medical professionals.” Joffe said, “and believe there is more support for a law which requires the patient to take the final act. This seems to reassure doctors,” he added, “that the patient is exercising a choice and is less difficult to them on a personal level.” [British Medical Journal, 11/1/05]

Speculating on the impact of his assisted-suicide measure, Joffe told the Lords, “Extrapolating from experience in Oregon, that would be likely to result in about 650 deaths a year.” [Daily Telegraph,10/11/05]

While patterned after the Oregon law, the provisions of Joffe’s bill are not identical to the Oregon template. For example, Oregon’s law allows doctors to prescribe fatal overdoses of drugs that the patient self-administers. The law does not stipulate any specific delivery method for the overdose (although the presumption has been by oral means). However, the Oregon law does specifically forbid lethal injections.

Joffe’s bill, on the other hand, allows any “means of self-administration” for a patient “for whom it is impossible or inappropriate orally to ingest that medication.” [Assisted Dying for the Terminally Ill Bill (HL), Sec. 1(a). Hereafter cited as Bill.] Consequently, lethal injections would be permitted as long as patients self-administered them.

In a move aimed at eliminating objections to his bill from healthcare providers, Joffe added a “conscientious objection” clause allowing individuals and facilities opposed to assisted suicide to opt out of “any diagnosis, treatment or other action authorized by this Act.” [Bill, Sec. 7(1) & 7(2)]

International news notes . . .

Canada’s Bill C-407, a dangerously far-reaching bill which would have legalized both euthanasia and assisted suicide, is currently dead due to the collapse of Canada’s liberal government last November. Opposition to the bill had been strong. Even the governing party opposed the measure, calling it too wide-ranging. But, Alex Schadenberg, executive director of the Canadian group, Euthanasia Prevention Coalition, warns that the bill will probably resurface in 2006, after the newly elected parliament is seated in the spring. Only this time, Schadenberg told the ITF, the bill’s sponsors will likely narrow its scope to allow only assisted suicide in the hopes of garnering the votes needed to pass the measure—much like the tactic taken by Britain’s Lord Joel Joffe in the House of Lords.

Members of the Scottish Parliament have refused to even debate a proposed euthanasia bill authored by Liberal Democrat Jeremy Purvis. Purvis needed to get only 18 members to sign on in favor of the debate, but he was only able to garner 5 such signatures. “I’m really disappointed that not enough MSPs were able to sign,” Purvis said. He attributed the defeat to the fact that some members opposed euthanasia, while others were “fearful that there would be a reaction against it.” Purvis explained he would continue efforts to get his proposal debated in a parliamentary committee, a preliminary step toward a full-fledged bill. [The Scotsman, 12/16/05]

Australia’s Dr. Death, Dr. Philip Nitschke, plans to move to New Zealand and take his euthanasia-promoting organization, EXIT, his web site, and all his death-producing gadgets with him. Nitschke can no longer operate in his homeland because Australia has banned most of what Nitschke and Exit do. As of January 6, 2006, using the Internet to inform people about suicide methods or to instruct them on how best to kill themselves will incur fines up to A$110,000 (US$85,000) for individuals and up to A$550,000 (US$425,000) for organizations like EXIT. The laws also apply to other means of communication, such as telephones and faxes. “The climate is a lot less oppressive in New Zealand,” Nitschke said. [Sydney Morning Herald, 11/28/05]

But New Zealand may want to become more “oppressive” after Nitschke starts holding his workshops on how to make a lethal “peaceful pill” (really a barbiturate-like cocktail distilled into crystals). He ran his first such weekend workshop last October in Australia at an uninhabited sheep farm in rural New South Wales. There, 20 elderly and terminally-ill individuals spent 3 days in a tent next to an old shed, using a “Vegemite jar, an old frying pan and a plastic container of cooking oil,” along with other ingredients, to produce deadly crystals that still needed more processing. [The Bulletin, 11/2/05] One American right-to-die observer called Nitschke’s press release on the workshop, “a bit starry-eyed.” He also said the crystal-making process was “very touchy” and “very complicated—nothing for the average Joe.” [G. Exoo, ERGO Right-to-Die email list, 11/4/05]