Oregon Death With Dignity Act: A Policy Analysis

Introduction

The Oregon Death With Dignity Act can be analyzed through David Gil's Policy Analysis Framework (Gil, 1976, pp. 31–56). Gil's framework consists of three main objectives: (1) issues constituting the focus of the policy, including its nature, scope, and theory; (2) the objectives, values, and ideological orientation of the policy, including underlying theories, the target population and the manner in which it is affected, financial costs and benefits, quality of life, historical background, and the size, resources, and values of the group supporting the policy; and (3) alternatives to the policy (Gil, 1992). Policy analysis is an essential tool for understanding any moral or ethical issue that potentially has a significant impact on the public. There is a clear sense that the right to end one's own life has evolved as a cultural ideology, just as many other social issues have. In many ways, there is a sense that the nation and individual states attempt to legislate morality with such acts; but in truth, the Oregon Death With Dignity Act is an affirmation of self-determination rather than a restriction of options. A policy analysis is a first step in understanding the issue as a whole.

Though policy analysis is a substantial informative tool for understanding any given social or legal policy, in this case the analysis raises as many questions as it answers. The Oregon Death With Dignity Act is illuminated and better understood through this framework, yet it also gives rise to ideological, ethical, and moral dilemmas. These include concerns specific to the policy itself — such as the fear of Oregon becoming a destination for death — and concerns specific to the ideology surrounding suicide and euthanasia, such as the apparent contradiction between efforts to prevent suicide and laws that legalize it and reduce culpability for those who participate within the law's guidelines. In short, Gil's policy analysis framework serves both purposes: to illuminate the policy and to raise important social questions surrounding it.

Like prior reformers who successfully argued and mobilized for changes in abortion, gambling, or marijuana laws, proponents of euthanasia legal reform have argued that the use of morphine at the end of life constitutes a form of de facto decriminalization of assisted suicide. Under the "double-effect" theory, doctors are not considered to have acted unethically — nor are they subject to criminal prosecution — if they prescribe or administer potentially lethal levels of drugs with the intent to ease pain rather than cause death. Activist physicians such as Quill aim to bring secret practices into the open, employing a classic argument for converting a de facto practice into a de jure legalized or decriminalized one. In the words of a New York Times editorial, it is only a matter of sanctioning what already happens with a "wink and a nod" ("Assisted Suicide and the Law," 1997, p. A12). Even Congress's Pain Relief Promotion Act of 1999, which undermined Oregon's assisted suicide law, sanctioned the principle of double effect. To date, the authority to define the distinction between killing and letting die has been kept within the boundaries of the medical profession — what sociologists of law call the "medicalized" approach — and this medicalized approach to laws regulating hastened death closely parallels abortion law before Roe v. Wade (1973) (Hillyard & Dombrink, 2001, p. 22).

The foundational debate will likely continue, and this work demonstrates how a clear policy analysis can detail many of the issues surrounding the Oregon Death With Dignity Act and the broader assisted suicide and euthanasia movements. It is not unusual for many ethical and moral issues to achieve success in the United States through progressive legalization and, in the case of healthcare, through medicalization. This emphasis carries both positive and negative effects that will remain part of the fabric of any civil rights action throughout the nation's history.

In an analysis guided by Gil's Policy Analysis Framework, the "focus" of Oregon's Death With Dignity Act is to resolve the inherent potential dispute about what the desires of a terminally ill person truly are. The nature of the theory is to eliminate the uncertainty that frequently surrounds prolonged periods of terminal illness — uncertainty that arises when the terminally ill individual can no longer speak for themselves and therefore lingers past the point they would consider dignified. The goal is to determine, through a structured process, what an incapacitated person truly wants in their current state, rather than relying on others to decide for them.

Focus of the Policy: Nature, Scope, and Theory

Prior to the enactment of this law in Oregon, options were limited: a person could either live in their current state of potentially intractable pain and lingering terminal illness, or attempt to die without legal assistance. The second option was not legal, and so if an individual chose to end their life prematurely, they were forced to do so by their own means, without the assistance of loved ones or a physician. Prior to the legitimization of physician-assisted suicide, anyone who knowingly assisted in the premature death of another person — including a terminally ill person — risked prosecution.

Euthanasia is defined in contrast to physician-assisted suicide: euthanasia generally refers to the active administration of lethal means, sometimes called mercy killing. Under Oregon's law, physician-assisted suicide means only that the physician provides the means for death — such as a prescription for an overdose of medication — but does not administer it. In fact, administration by the physician is still considered illegal. Not to be confused with physician-assisted suicide is "passive euthanasia," which refers to the removal or denial of medical or supportive care known likely to cause death. Physician-assisted suicide stands squarely between these two positions: the physician knowingly prescribes medication that, if taken, will cause death, but does not administer it.

Suicide is frequently a drastic measure and can be associated with prolonged grief as well as significant psychological and practical burdens for those left behind (Mishara, 1995, p. 19). Proponents of the Oregon law contend that allowing people to commit suicide under the described legal conditions will reduce the incidence of violent suicides, which occur frequently and especially among the elderly (Marker, 2006). The scope of the Oregon policy is to remove the burden of care and decision-making from someone other than the person actually experiencing terminal illness, and to reassert the right of the individual to make their own life-and-death decisions. The following legal brief from a 1992 Washington State case illustrates the intent of such laws:

The patient plaintiffs made two claims: first, that they had a right to seek a physician's assistance with suicide without undue government interference, and second, that Washington's ban against assisted suicide unconstitutionally discriminated between assisted suicide and the withholding or terminating of lifesaving medical treatment. Plaintiffs from the Compassion organization claimed that the law put their staff members in jeopardy of criminal prosecution for assisting dying persons as they exercise their constitutional rights of choice in the face of imminent death. The physician plaintiffs alleged claims on behalf of their own patients, as well as on behalf of their own right to practice medicine according to their own consciences and professional judgments. (Hillyard & Dombrink, 2001, p. 126)

The scope of the Oregon law does not extend to other individuals, such as those with vested interests in the termination of an individual's life. It is specific to the terminally ill patient. Though others are clearly affected by the decision, the scope of the policy is to allow the individual — through a structured process — to legally determine their desire to die with the aid of anesthetizing medication. The law's procedural requirements are as follows:

(1) The patient must make two oral requests to the attending physician, separated by at least 15 days; (2) the patient must provide a written request to the attending physician, signed in the presence of two witnesses, at least one of whom is not related to the patient; (3) the attending physician and a consulting physician must confirm the patient's diagnosis and prognosis; (4) the attending physician and a consulting physician must determine whether the patient is capable of making and communicating health care decisions for themselves; (5) if either physician believes the patient's judgment is impaired by a psychiatric or psychological disorder such as depression, the patient must be referred for a psychological examination; (6) the attending physician must inform the patient of feasible alternatives to the Act, including comfort care, hospice care, and pain control; (7) the attending physician must request — but may not require — the patient to notify their next of kin of the prescription request. A patient may rescind a request at any time and in any manner. The attending physician will also offer the patient an opportunity to rescind their request at the end of the 15-day waiting period following the initial request to participate. (Oregon "Death With Dignity" FAQ)

Additionally, there are reporting requirements on the part of the physician. The state has consciously set about tracking utilization of the law and making adjustments accordingly. "Physicians must report all prescriptions for lethal medications to the Department of Human Services, Vital Records. As of 1999, pharmacists must be informed of the prescribed medication's ultimate use." (Oregon "Death With Dignity" FAQ)

The criteria an individual must meet to participate in the Act are as follows: the patient must be (1) 18 years of age or older; (2) a resident of Oregon; (3) capable of making and communicating health care decisions for themselves; and (4) diagnosed with a terminal illness that will lead to death within six months. It is up to the attending physician to determine whether these criteria have been met. (Oregon "Death With Dignity" FAQ)

Functionally — though some would argue not ideologically — the theory behind signing "Death With Dignity" documentation is similar to signing an advanced directive in the form of a "no code" order, where the individual, or their designated signatory, requests that no extraordinary measures be taken to extend the individual's life. In a sense, the legal framework is much the same as a last will and testament, which requires complete lucidity or a signatory aware of the individual's wishes. The difference is that the act of signing away one's life is active rather than passive. Some theorists liken this to Roe v. Wade (1973) (Hillyard & Dombrink, 2001, p. 125), with the exception that the individual is choosing to end their own life — and the "victim," unlike in the abortion debate, is neither nameless nor voiceless. The individual has, for all intents and purposes, lived the full scope of a life, as they must be at least 18 years of age to participate.

Oregon also attempted to limit the state's role as a destination for death by restricting availability of services to Oregon residents (Hillyard & Dombrink, 2001, p. 69). Many are quick to note, however, that there is no formal residency requirement with a minimum time limit; one must simply prove current residence in Oregon (Oregon "Death With Dignity" FAQ). If abuses are identified through the annual tracking conducted by the Oregon Department of Human Services, further stipulations will likely be placed on those qualified to participate.

The clear purpose of the law — to allow dying patients the right to choose an early termination of their life with the assistance of a physician's prescription — can be complicated by situations where court-appointed guardians have potential conflicts of interest. Though in Oregon the physician does not administer the lethal medication (a variance from legislative attempts in California and Washington State), and the patient must self-administer, legal implications remain because the physician and, by necessity, the pharmacist become the avenue through which the lethal medication is obtained. Many of these issues will continue to be played out in courts and legislatures for some time to come.

The values and ideological orientation of the statute appear to be grounded in non-discrimination, civil rights, and self-determination. Studies of patient attitudes toward assisted suicide and euthanasia indicate that a patient's interest in physician-assisted suicide is a function of psychological stress and social factors. Worldwide, approximately one million people commit suicide annually, and the U.S. Surgeon General has actively campaigned to reduce this rate. "An estimated 765,000 Americans attempt suicide each year, according to the AAS [American Association of Suicidology]" (Wetzstein, 2000, p. 2). Though only a portion of those attempts are successful — and more women than men attempt suicide, while more men succeed — certain demographic groups are at higher risk, including the elderly. The national and international efforts to prevent suicide are longstanding. Ideologically, these efforts have evolved from viewing suicide as an unforgivable act to treating it as a preventable crisis requiring intervention (Wetzstein, 2000, p. 2). It would seem, then, that accepting the right to die is incongruent with the overall standard of attempting to reduce suicide rates. The results of a 2006 Gallup poll reflect the breadth of ethical and moral opinions on the issue:

Gallup Poll Question 1: "Next, I'm going to read you a list of issues. Regardless of whether or not you think it should be legal, please tell me whether you personally believe that in general it is morally acceptable or morally wrong. How about… suicide?"

Gallup Poll Question 2: "Next, I'm going to read you a list of issues. Regardless of whether or not you think it should be legal, please tell me whether you personally believe that in general it is morally acceptable or morally wrong. How about… doctor-assisted suicide?" (Public Agenda, 2006)

Objectives, Values, and Ideological Orientation

The moral dilemma is vast, but it holds true that civil rights and individual rights are an equally pressing part of the ethical equation as are personal feelings regarding terminal illness and suffering. Most individuals over the age of 30 have been affected by the death of loved ones and have watched others struggle with decisions regarding the lives of the gravely ill. A 2005 Time magazine poll found a clear indication that at least one third of Americans have had to make life-or-death health care decisions for loved ones:

Time Magazine Poll Question: "Have you personally been in a situation with a parent or other loved one in which you had to make a choice about using extraordinary measures to keep them alive?"

A 2005 Pew Research Poll similarly found that many people expressed a desire to stop treatment if they were ever injured or ill to a degree that they would not recover, or would become entirely dependent upon family members:

Pew Poll Question: "If you had an illness that made you totally dependent on a family member or other person for all of your care, would you tell your doctor to do everything possible to save your life, or would you tell your doctor to stop treatment so you could die?"

Many people expressed a desire to be able to make such decisions for themselves. It is therefore not incongruent to simultaneously discourage suicide in general while supporting the right to physician-assisted suicide under specific, terminal circumstances. Ultimately, this is a civil rights issue — not unlike debates over the death penalty or abortion rights. The public holds a wide range of opinions and therefore demands a wide range of alternatives.

The underlying theory of the Death With Dignity Act is that certain individuals afflicted with terminal illnesses should have the legal right to hasten their death. As a result, individuals facing a lingering and perhaps painful future may view death as a viable alternative. Yet euthanasia and assisted suicide are not purely private acts; they involve one person facilitating the death of another. "This is a matter of public concern, since it can lead to tremendous abuse, exploitation and erosion of care for the most vulnerable" (Marker, 2006). The care taken by the framers of the Oregon law will likely continue to be assessed and strengthened to ensure the safety of the most vulnerable. Yet, as with any policy, abuses may occur and choices may in some cases not reflect the best intentions.

The danger of defining "terminal" through time limits is that different doctors may apply these limits differently. In the Netherlands, "terminal" is simply understood as a "concrete expectancy of death," and time limits have been fastidiously avoided to protect both patients and physicians (Marker, 2006). In Oregon, the legal definition of "terminal disease" is "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months" [1995 c.3 s.1.01; 1999 c.423 s.1] (Oregon Death With Dignity Legal Statute, Definitions, (12)).

A consistent precedent has been established in the United States that six months — based on physician knowledge and assessment — is a standard time frame for many legal and insurance determinations. There are clear indications that some states and authorities wish to broaden such definitions to allow patients with chronic debilitating diseases and a known limited life expectancy to receive care, such as hospice, more easily. Michigan Bills 781 and 782, for example, allow documentation to read "patient with reduced life expectancy due to advanced illness" rather than "terminally ill." Federal statute defines terminal illness as a life expectancy of less than six months, and this is the qualifying factor for receiving hospice benefits through Medicaid or Medicare (Michigan, 2001). Palliative care at home may in fact be far less costly than inpatient care at an institution where aggressive measures are being taken to prolong the end of life.

The foundations of the hospice movement reject the highly clinical assumption that medical care should, at all costs, forestall the possibility of death and work without fail to save lives — even when doing so dramatically reduces quality of life, or when the financial burden of such care leaves a legacy of debt. Traditional medical care has been fighting this battle since the formalization of the medical care system in the United States and continues to do so as it moves toward what is frequently called complementary care (Starr, 1982, p. 47). The hospice movement embodies central concerns of the death and dying movement:

"A rigid medical model of dying is challenged; caring replaces curing as a fundamental treatment modality. Pain management medications that preserve alertness for a death of one's own but end the cycle of fear and acute pain are pioneered. Holistic approaches to patient and family dominate." (Heinz, 1999, p. 23)

Conclusion

In a death-denying society, hospice care remains underutilized, though it is growing in popularity as more people learn of its provisions through personal exposure. The service has historically been underutilized for two related reasons: the cultural bias associated with the human desire never to give up — as if accepting death and palliative care represents failure — and the fact that physicians are trained primarily to save lives rather than to counsel patients toward accepting the end of life. Traditional medical care has long prioritized intervention, and this orientation persists even as the system moves toward a model that frequently includes complementary care (Starr, 1982, p. 47).

The legal alternative to the Oregon Death With Dignity Act would be to revert to an environment in which those suffering unendurable pain may not end their suffering legally. This seems an unlikely scenario, although even Supreme Court decisions can be revisited when the social and cultural climate of a governing body changes. The Death With Dignity Act has been challenged repeatedly but upheld in every legal battle to date. Were a reversal to occur, it would likely resemble the ongoing debate over Roe v. Wade. The Supreme Court, as it stands, has protected physicians rather than establishing a universal individual right to choose suicide; it reaffirmed the state's right to allow for the prescription of medication to end one's life, without creating a federally guaranteed individual right.

As a result of the enactment of this law, the number of physician-assisted suicides will likely continue to grow, and disability-rights supporters will continue to protest and raise public awareness. It is likely that the movement will expand to other states following the Supreme Court ruling. This expansion will occur in conjunction with a greater emphasis on advanced directive formulation — formerly called living wills — that express the individual's wishes in the event they cannot speak for themselves in a medical crisis. There is considerable evidence that hospice, currently an underutilized program, will gain in awareness, acceptance, and use as a result of the public debate regarding assisted suicide and euthanasia. There is also evidence that the pressures of an aging society will continue to stress the nation's medical care costs and force alternatives for end-of-life care — a shift already visible in the emergence of new care options for the aging parents of the baby boom generation.

Within this work is an attempt at a comprehensive, research-based policy analysis of the Oregon Death With Dignity Act, conducted through the utilization of Gil's guidelines. Though not all issues related to the Act have been addressed, many of the most important ones have been. Gil's analysis framework consists of three main objectives: (1) issues constituting the focus of the policy, including its nature, scope, and theory; (2) the objectives, values, and ideological orientation of the policy, including underlying theories, the target population, financial costs and benefits, quality of life, and historical background; and (3) alternatives to the policy (Gil, 1992). Policy analysis is an essential tool for understanding any moral or ethical issue with significant public impact.

There is a clear sense that the right to end one's own life has evolved as a cultural ideology, just as many other social issues have. In many ways there is a sense that the nation and individual states attempt to legislate morality with such acts, but in truth the Oregon Death With Dignity Act is an affirmation of self-determination rather than a restriction of options. Though a policy analysis is a substantial informative tool, in this case the analysis raises as many questions as it answers. The policy is illuminated and better understood, yet it is accompanied by ideological, ethical, and moral dilemmas — including those specific to the policy, such as the fear of Oregon becoming a destination for death, and those specific to the broader ideology surrounding suicide and euthanasia. Gil's policy analysis framework serves both purposes: to illuminate the policy and to raise important social questions surrounding it.

There is no doubt that this issue will continue to be debated and expanded upon. Oregon's Act can serve as a guide for both the successes and failures associated with physician-assisted suicide legislation. As a monumental and historical decision that has been upheld repeatedly, it will also serve as a guide for future changes — potentially even on a national level.