Considering Gorsuch’s critique of Oregon’s DWDA

In his 2006 book about death with dignity and the right to die (The Future of Assisted Suicide and Euthanasia), Neil Gorsuch leveled several criticisms, by implication, against Oregon’s Death With Dignity Act (DWDA), a law that deals not at all with assisted suicide or euthanasia.  Under the Oregon law, a person desiring a hastened death in the face of terminal illness may take his own life with a lethal prescription drug or drugs, unassisted by another person.  Nevertheless, Gorsuch argues that we can’t determine the value of the DWDA for other jurisdictions without knowing how Oregon’s law is working in practice, and he asserts that we don’t have enough information about that.

Gorsuch wants more information about patient depression, alternatives to using the law, the role of families in a patient’s choice, the role of physicians and psychologists in implementing the DWDA, and the potential financial conflict of interest of health maintenance organizations’ (HMOs) in the implementation of the law.  In this post, I will focus primarily on his concerns about depression and alternatives to the right to die, and I will suggest a way to improve the Oregon DWDA.

Patient depression

According to psychiatrists and other professionals at Harvard Medical School writing in a “Special Health Report” on depression, there are three main types of depression:  major depressive disorder, persistent depressive disorder, and bipolar disorder.  While nearly one in ten US adults has one of these mood disorders, only one in fifteen has major depression, and in only one-third of this group is the condition considered severe.  

Oregon’s DWDA does not make distinctions among the kinds of depression.  It requires both the attending physician and the consulting physician to form an opinion about whether “a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment,” in which case “either physician shall refer the patient” to a counselor, who must determine there is no mental condition, including depression, that is “causing impaired judgment” before a lethal prescription can be provided.

I have never seen evidence that ordinary medical practitioners or specialists have any greater expertise is assessing depression in their patients than the average person, though they may use a questionnaire or checklist to do a preliminary assessment of a patient’s mental status.  The purpose of this mental health assessment seems to be to prevent significantly depressed individuals, or those with psychiatric disorders, from using the law to hasten their deaths.  (Remember, they have to be within six months of dying to qualify for the DWDA.)  But depression is, by far, the most commonly discussed condition that is considered in the DWDA process.

Assuming that a patient is depressed, does depression or terminal illness play the most significant role in the patient’s decision to use the DWDA?  Gorsuch thinks the law should require that doctors determine the degree that each condition plays in the patient’s decision. Whether this is a 70% versus 30% calculation or the reverse is likely impossible to assess to a reasonable degree of medical certainty.  It is an impossible demand, but the kind that those opposed to patient autonomy in dying frequently raise.

In my experience, terminally ill patients who have not accepted their prognosis frequently appear depressed.  On the other hand, I have seen many people with terminal illnesses, who have reconciled themselves to their fate, make significant end-of-life arrangements–updating their wills and advance directives, making body disposition arrangements, putting their financial affairs in order with instructions to family members, transferring volunteer duties to others, saying their goodbyes to family and friends.  In such people, I have rarely detected signs of depression, though I have seen some anxiety, which is often difficult to separate from depression.

As an attorney for forty years, my concern about clients taking such end-of-life actions was focused on whether they were competent to do so–whether they had the requisite decision-making capacity to understand the consequences of their decisions–and whether they were acting voluntarily.  If they could explain to me what they were doing and why they were doing it, and could express accurately the result and effect of their actions, I was satisfied that they had sufficient voluntary decision-making capacity, even if they appeared depressed.  In the face of a medically expected death, depression might even be considered normal, and anxiety about the process of dying–wondering whether they would have a good death or a horrible death–might look like depression.  

With a less than six-month terminal prognosis, assuming its accuracy, I’m not sure depression is relevant.  Yet Oregon’s DWDA requires that a person requesting a lethal prescription not be depressed to the point that it impairs judgment.  That sounds like a question more of competence than of a psychiatric disorder that distorts thought processes.

A case to consider

By way of example, let’s assume that a 70-year old retired patient with stage IV pancreatic cancer, who has been through a clinical trial and had a nine-month remission, followed by rapid spread of the disease, has applied for a lethal prescription under Oregon’s DWDA, and has decided against further treatment, opting for palliative care.  The person exhibits signs of depression when meeting with his physician: loss of interest in normal activities, sadness most of the time, low energy, poor or sluggish thinking, weakness, no interest in eating, weight loss, digestive problems, pain in the abdominal area and back, and regular thoughts about the impending death.

Almost all of these signs can be symptoms of both the pancreatic cancer and clinical depression.  If anyone knows how to distinguish whether they result from the cancer or depression, it would be a remarkable feat for which the individual should receive a prestigious award. 

My point is that Gorsuch and others like him ask too much of medical science as a way to disguise their true motivation, which is to oppose personal autonomy in deciding when and how to die of a terminal disease or condition.

Gorsuch also wants to be sure that all alternatives are discussed with the patient.  In the example, alternatives could include further clinical trials, should one be available for which the patient will qualify, which is highly unlikely given the usual protocols of such trials.  That leaves the option of treating the depression with prescription drugs or talk therapy.  At this point in the patient’s journey through the medical system, he is likely unwilling to reconsider his decision to forego further treatment, a rational decision considering all the prodding and sticking and testing and body intrusions he has already endured, as well as the virtually certain death that may be just a few weeks away.

The numerous medical appointments that many people endure in their mid to late sixties and into their seventies (not to mention eighties) often get so tiresome that alone they can be a reason to want to give up and accept one’s fate.  For someone dealing with stage IV pancreatic cancer, those appointments can become exhausting, even with the unwavering support of compassionate family members and other caregivers.

Knowing the alternatives, including palliative care, which this patient has accepted, is important, but it is not something that is likely to have escaped the notice of the patient and his doctor(s).  In fact, the most frequent inquiry by all patients may be, “What can be done?” or “What are my choices (or alternatives)?” The DWDA suggests alternatives, such as “comfort care, hospice care and pain control.”

But Gorsuch wants to keep beating this drum by asking “Were the doctors who prescribed death even knowledgeable about the alternatives?”  This is another example of special pleading that, while perhaps not unjustified, is mainly a red herring, the most common fishy argument made by opponents of the right to die.

An alternative to administering a DWD law

There are many deficiencies in Oregon’s DWDA.  The one that I have several times pointed out is putting doctors in charge of the process.  From my perspective, clinical social workers are a better choice for gatekeepers to implement this law.  They are trained far more thoroughly than medical doctors to assess mental status in patients.  Social workers’ primary goal is to help people in need, to challenge social injustice (such as inadequate medical resources), to respect the inherent dignity and worth of the person, and to recognize the central importance of human relationships.  See the National Association of Social Workers Code of Ethics and the Clinical Social Work Association Code of Ethics.

Social workers are also bound by that same Code of Ethics to promote the well-being of clients, to respect and promote the right of clients to self-determination by assisting clients in their efforts to identify and clarify their goals, to focus on the client’s valid informed consent, and to consult and collaborate with other professionals to further their clients’ interests.  

In short, clinical social workers possess the best qualifications to serve as gatekeepers for implementing a DWD law.  Medical doctors have an important role to play, but do not have the training necessary for all that they have been tasked to do in implementing Oregon’s DWDA.

Everyone should be interested in improving the DWDA, but contributions from opponents of the right to die should be viewed with skepticism, remembering that they are likely to want to make the law difficult to use, thereby discouraging qualified people from finding the good death they seek and deserve.