Oregon's Death With Dignity Act: An In Depth Analysis

By Margaret Dore, Esq.

This article is based on a legal analysis I wrote for a case in South Africa. I hope that you find it helpful. To read my original analysis, please click here, here and here.

I.   OVERVIEW

Oregon’s Death with Dignity Act was passed by a ballot measure in 1994 and went into effect in 1997.[1] The Act had been and is also currently promoted as a type of voluntary physician-assisted suicide.[2] The Act, in fact, also allows euthanasia, on both a voluntary and involuntary basis. 

The Act applies to persons aged 18 and up, predicted to have less than six months to live due to a terminal disease.[3] In practice, some such persons have lived far longer.  

The Act employs euphemistic language. Consider the word, “medication,” normally meaning a substance to cure or treat a disease or condition.[4] Per the Act, medication instead means a lethal dose to end a person’s life (kill the patient).[5] 

II.   DEFINITIONS

 

A.   Physician Assisted Suicide, Assisted Suicide, and Euthanasia 

The Act does not define physician-assisted suicide, assisted suicide or euthanasia.[6] Per the American Medical Association, physician-assisted suicide occurs when “a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[7] For example:

[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[8]

Assisted suicide is a general term in which the assisting person is not necessarily a physician. Euthanasia is the administration of a lethal agent by another person.[9] Euthanasia is also known as mercy killing.[10]

B. Withholding or Withdrawing Treatment    

Withholding or withdrawing treatment (“pulling the plug”) is not euthanasia if the purpose is to remove burdensome treatment, as opposed to an intent to kill the individual. More importantly, the individual will not necessarily die. Consider this quote regarding a man removed from a ventilator:

[I]nstead of dying as expected, [he] slowly began to get better.[11]

III.   FACTUAL AND LEGAL BACKGROUND    
            
A. Assisting Persons Can Have an Agenda

Persons assisting a suicide or euthanasia can have an agenda. Consider Tammy Sawyer, trustee for Thomas Middleton in Oregon. Two days after his death by legal assisted suicide, she sold his home and deposited the proceeds into bank accounts for her own benefit.[12] Consider also Graham Morant, convicted of counselling his wife to kill herself in Australia, to get the life insurance.[13] The Court found:

[Y]ou counselled and aided your wife to kill herself because you wanted ... the 1.4 million.[14]

Medical professionals too can have an agenda. For an example closer to home, consider US physician, Mike Swango, who worked at the Mnene Lutheran Mission in Zimbabwe.[15] He allegedly poisoned patients to get a thrill.[16] He was eventually convicted of killing four patients in the US.[17] Consider also Harold Shipman, a doctor in the UK, who not only killed his patients, but stole from them and in one case made himself a beneficiary of the patient’s will.[18]

B. Most US States Reject Assisted Suicide and Euthanasia

In the US, 42 states do not allow assisted suicide and/or euthanasia. In 2016, the New Mexico Supreme Court overturned a lower court decision allowing physician aid in dying (meaning physician-assisted suicide).[19] In the last ten years, nine states have strengthened their laws against assisted suicide and/or euthanasia.[20]

C. The Swiss Study: PAS Can Be Traumatic for Family

A European research study addressed trauma suffered by persons who witnessed legal physician-assisted suicide in Switzerland.[21] The study found that one out of five family members or friends present at an assisted suicide was traumatized. These people,

experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.[22]

IV.   THE ACT FOR PEOPLE WITH EVEN DECADES TO LIVE

A. Chronic Conditions Can Be Sufficient for Death
    
Oregon’s Act applies to people with a “terminal disease,” which is defined in terms of having less than six months to live. The Act states:  

“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.  (Emphasis added).[23]

In practice, this definition applies to people with chronic conditions such as diabetes, who are dependent on medication such as insulin to live.[24] Oregon doctor, William Toffler, explains:

In Oregon, people with chronic conditions are "terminal," if without their medications, they have less than six months to live. This is significant when you consider that a typical insulin-dependent 20 year-old will live less than a month without insulin. (Emphasis added).[25]

Dr. Toffler adds:

Such persons, with insulin, are likely to have decades to live. (Emphasis added).[26]

B. Doctor Predictions of Life Expectancy Can Be Wrong  

  
Eligible persons may also have years or decades to live because predictions of life expectancy can be wrong, sometimes way wrong. This is due to misdiagnosis and the fact that predicting life expectancy is not an exact science.[27] 

Consider John Norton, who was diagnosed with ALS (Lou Gehrig’s disease) at age 18.[28] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[29] Instead, the disease progression stopped on its own.[30] In a 2012 affidavit, at age 74, he states:

If assisted suicide or euthanasia had been available to me in the 1950's, I would have missed the bulk of my life and my life yet to come.[31]

C. Treatment Can Lead to Recovery

Patients may also have years or decades to live because treatment can lead to recovery. Consider Oregon resident, Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use the Oregon’s Act. Her doctor convinced her to be treated for cancer instead.[32] In a 2019 declaration, she states:

It has now been 19 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[33]   

V.     HOW THE ACT WORKS
    
The Act has an application process to obtain the lethal dose.”[34] Once the lethal dose is issued by the pharmacy, there is no oversight.[35] No doctor, not even a witness, is required to be present at the death.[36]

VI.   THE ACT IS STACKED AGAINST THE INDIVIDUAL

A. Even If the Patient Struggled, Who Would Know?

The Act has no required oversight over administration of the lethal dose.[37] The drugs used are water or alcohol soluble, allowing them to be injected into a sleeping or restrained person without consent.[38] Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:

With assisted suicide laws in ... Washington and Oregon, perpetrators can ... take a “legal” route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration. Even if the patient struggled, “who would know?” (Emphasis added).[39]       

B. Allows Other People to Communicate for Patient

The Act’s definition of “capable” allows other people to communicate on the patient’s behalf during the lethal dose request process. Such persons are not required to be the patient’s designated agent, such as a family member or guardian. The communicating person need only be “familiar with the patient’s manner of communicating.” The Act states:

"Capable" means that in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, . . . a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available. (Emphasis added).[40]

Being familiar with a patient’s manner of communicating is a minimal standard. Consider, for example, a doctor’s assistant who is familiar with the patient’s manner of communicating in Chinese, but the assistant herself does not understand Chinese. That, however, would be good enough for her to communicate (agree to the lethal dose) on the patient’s behalf. Patients are not in control of their fate.

C. Attending Physician Responsibilities

The Act enumerates responsibilities that the attending physician “shall” perform prior to writing a prescription for the lethal dose.[41] These responsibilities include making a determination as to whether the patient has a terminal disease, is capable and has made the initial determination to obtain the lethal dose voluntarily.[42] The Act however, also features a different message, that the attending physician shall:

Ensure that all appropriate steps are carried out in accordance with [the Act]. (Emphasis added) .... [43]

The Act does not define “appropriate” or “accordance.”[44] Dictionary definitions of appropriate include “suitable or proper in the circumstances.” Definitions of accordance include “in the spirit of,” meaning “in thought or intention.”[45] 

With this language, the attending physician’s assessment of what is suitable or proper, or had a thought or intention to do, is good enough. 

VII.    THE ACT ALLOWS EUTHANASIA

The Act refers to the lethal dose as “medication.”[46] Generally accepted medical practice allows doctors and family members to administer medication to a patient.[47] When the medication administered is a lethal dose, this is euthanasia as traditionally defined.[48]

VIII.   OREGON'S ACT AND AMERICANS WITH DISABILITY ACT

The Americans with Disability Act (ADA) is a US federal civil rights law “that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[49] Here, the Oregon Act describes prescribing the lethal dose as part of a medical practice, which renders it a medical service.[50]

Per the ADA, medical care providers are required “to make their services available in an accessible manner.”[51] This includes:

reasonable modifications to policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services (i.e., alter the essential nature of the services). (Emphasis added).[52]

Here, the fundamental nature of the service is the provision of medication (the lethal dose) to end a patient’s life. If for the purpose of argument, the Oregon Act could somehow be read as requiring self-administration, the ADA would require providers to make a reasonable modification of procedures for individuals unable to self-administer, so as to make the service fully available, for example, by providing the assistance of another person to administer the lethal dose. This is euthanasia as traditionally defined. 

IX.   CLINICAL PROBLEMS CAN AND DO LEAD TO EUTHANASIA

In practice, physician-assisted suicide is not always successful to kill patients, which can lead to euthanasia. See, for example, Johanna H. Groenewoud, MD, et. al., “Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands,” New England Journal of Medicine, 24 February 2000. 

X.   DEATHS ARE “NATURAL” AS A MATTER OF LAW

A. Oregon DOH Recommends Reporting Death as Natural

The Oregon Department of Health recommends that deaths per the Death with Dignity Act be reported as “natural.”[53] This result is also required as matter of law, which is explained is in the next section.

B. The Death Must Be Reported as Natural

Oregon’s death certificate statute has six categories for reporting the manner of death, five of which are substantive: (1) natural; (2) accidental; (3) suicidal; (4) homicidal; and (5) legal intervention.[54] Legal intervention means an execution pursuant to ORS 137.463 (death warrant hearing) and other legal uses of force resulting in death.[55]

Per the Death with Dignity Act, death occurring in accordance with the Act does not constitute suicide or homicide as a matter of law.[56] The death is also not an accident or legal intervention. This leaves natural. The manner of death is natural as a matter of law.

XI.   DR. SHIPMAN, A CALL FOR DEATH CERTIFICATE REFORM

Per a 2005 article in the UK’s Guardian newspaper, there was a public inquiry regarding Dr. Shipman’s conduct, which determined that he had “killed at least 250 of his patients over 23 years.”[57] The inquiry also found:

that by issuing death certificates stating natural causes, the serial killer [Shipman] was able to evade investigation by coroners. (Emphasis added).[58]         

Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety.[59] Oregon instead has moved in the opposite direction to require that deaths be reported as natural.

XII.   OREGON RESIDENTS ARE SUBJECT TO PREDATORS 

Per Oregon inheritance law, a “slayer” of the decedent is not allowed to inherit from a person that he or she kills.[60] The rational is that a criminal should not be allowed to benefit from his or her crime.[61]  Under the Oregon Death with Dignity Act, however, a person who intentionally kills another person is allowed to inherit. This is due to the death being certified as natural.

With the passage of the Act, Oregon residents with money, meaning the middle class and above, have been rendered sitting ducks to their heirs and other financial predators.    

XIII.   CONCLUSION

In the event this court recognizes the proposed right to die, the right will necessarily include involuntary euthanasia. This will similarly be true in the event this court would order the adoption of an Oregon-style Death with Dignity Act.

Assisting persons, including doctors and family members, can have an agenda, with the more obvious reasons being inheritance and life insurance, but also, as in the case of Dr. Swango, the thrill of seeing someone die. 

I urge you to reject the proposed right to die. 

Dated this 29th day of January 2021,

                   /s/

Margaret Dore, Esq., MBA

Endnotes: 

To view original memo, click here. To view the memo's appendix, click Part 1 pages 1-43 and Part 2 to page 84. 

[1]  “Oregon’s Death with Dignity Act: The First Year’s Experience,” 18 February 1999, excerpts attached at appendix pages 1 to 3.  Information about the initiative is attached at page 3. 

[2]  Appendix page 3, third paragraph, last sentence.

[3]  Appendix pages 4 to 13. 

[4]  See “What is Medication?,” appendix page 14.

[5]  See the Act: “Written Request for Medication to End One’s Life ....,” at  appendix page 5.

[6]  See the Act in its entirety, appendix pages 4 to 13.

[7]  The AMA Code of Medical Ethics, Opinion 5.7, appendix page 15.

[8]  Id.

[9]  The AMA Code of Medical Ethics, Opinion 5.8, appendix page 16.

[10] See mercy killing definition, appendix page 17.

[11] Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live.  But what if they're wrong?,” The Seattle Weekly, 13 January 2009; in the appendix, beginning at page 18; quote at appendix page 20.

[12] "Sawyer Arraigned on State Fraud Charges," KTVZ.COM, 07 September 2011, appendix page 22.

[13] R v Morant [2018] QSC 251, Order, 2 November 2018, excerpts available at appendix pages 23 and 24. Full opinion available here: https://archive.sclqld.org.au/qjudgment/2018/QSC18-251.pdf 

[14] Id. at appendix page 24, ¶ 78. 

[15] Joseph Geringer, “Michael Swango: Doctor of Death,” Crime Library on truTV.com, 27 June 1997, posted https://www.davidcoltart.com/1997/06/michael-swango-doctor-of-death

[16] Id. 

[17] Cf. Charlie Leduff, “Prosecutors Say Doctor Killed to Feel a Thrill,” The New York Times, 7 Sept 2000, appendix pages 25 to 27, https://choiceisanillusion.files.wordpress.com/2019/03/ny-times-killed-to-feel-a-thrill-1.pdf (“Basically, Dr. Swango liked to kill people.  By his own admission in his diary, he killed because it thrilled him.”) 

[18] David Batty, “Q & A: Harold Shipman,” The Guardian, 25 August 2005, at https://www.theguardian.com/society/2005/aug/25/health.shipman and appendix pages 28 to 30.

[19] Morris v, Brandenburg, 376 P.3d 836 (2016).

[20] Margaret Dore, “U.S. States Strengthen Their Laws Against Assisted Suicide, April 2, 2019, appendix page 31.

[21] “Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf  

[22] Id.

[23] Or. Rev. Stat. 127.800 §1.01(12), appendix page 5.

[24] See excerpt from Oregon’s annual report for year 2019 (listing “diabetes” as an underlying illness sufficient for death via the Act). Available at appendix page 34.

[25] Declaration of William Toffler, MD, 20 April 2017, appendix pages 35 to 39; the quote is set forth at appendix page 36, ¶ 5.

[26] Id., ¶ 6. 

[27] Cf. Jessica Firger, “12 million Americans misdiagnosed each year,” CBS NEWS, 17 April 2014, attached hereto at appendix page-40; and Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?,” The Seattle Weekly, 14 January 2009.  (Excerpts available at appendix pages 18 to 21).

[28] Affidavit of John Norton, ¶ 1 (Attached hereto at appendix pages 41-43).

[29] Id., ¶ 1.

[30] Id., ¶ 4.

[31] Id., ¶ 5.

[32] Declaration of Kenneth Stevens, MD, appendix pages 44 to 46; Jeanette Hall discussed at 44 and 45.  Hall declaration available at appendix page 47. 

[33] Attached hereto at appendix page 47.

[34] The Act, 127.805 § 201 to 127.860 § 310, at appendix pages 5 through 8.

[35] See the Act in its entirety, at appendix pages 4 to 13.

[36] Id.

[37] See the Act in its entirety, at appendix pages 4 through 13.

[38] See Oregon report excerpt at appendix page 48 (listing Secobarbital and Phenobarbital as drugs used to kill patients in Oregon). Per Drugs.com, Secobarbital is both water and alcohol soluble, while Phenobarbital is soluble in alcohol. Supporting documentation in appendix pages 49 and 50.

[39] Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010.

[40] The Act, Section 1, 127.800 § 1.01(3), at appendix page 4.

[41] See the Act, Section 3, attached at appendix page 6.

[42] Id., 127.815 § 3.01(1)(a) 

[43] The Act, Section 3, 127.815 § 3.01 (1)(k), appendix page 6. 

[44] See the Act in its entirety, appendix pages 4 to 13.

[45] Definitions attached at appendix pages 51 and 52.

[46] See, for example, the Act, 127.805 § 2.01 (describing “medication” as being “for the purpose of ending [the patient’s] life”). Appendix page 5. 

[47] Declaration of Kenneth Stevens, MD, 6 January 2016, ¶¶ 9-10, appendix page 46.

[48] Cf. AMA Code of Medical Ethics, Opinion 5.8, appendix page 16 (“Euthanasia is the administration of a lethal agent by another person”).

[49] U.S. Department of Justice, Civil Rights Division, Disability Rights Section and the U.S. Department of Health and Human Services, Office for Civil Rights, “Americans with Disabilities Act: Access to Medical Care for Individuals with Mobility Disabilities,” July 2010, excerpts at appendix pages 53 and 54.  Also available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm 

[50] See the Oregon Act, located at appendix pages 4 to 13.

[51] U.S. Department of Justice, supra, attached hereto at appendix page 54.

[52] Id.

[53] See Oregon Health Authority website FAQ, as of 24/01/21 (stating: “The Oregon Health Authority, Center for Health Statistics recommends that physicians record the underlying terminal disease as the cause of death and mark the manner of death ‘natural.’”), available at https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/faqs.aspx#deathcert 

[54] OR Rev Stat § 146.003, appendix page 57.

[55] Id.

[56] The Act, 127.880 § 3.14 states:
    
        Actions taken in accordance with [the Act] shall not, for any            purpose, constitute suicide, assisted suicide, mercy killing or            homicide, under the law. (Emphasis added)

 

[57] David Batty, “Q & A: Harold Shipman,” The Guardian, 08/25/05, at https://www.theguardian.com/society/2005/aug/25/health.shipman. (Attached hereto in the appendix at pages 58 to 60). 

[58] Id., appendix page 60.

[59] Press Association, “Death Certificate Reform Delays ‘Incomprehensible,” The Guardian, 21 January 2015, appendix pages 61 and 62.

[60] ORS 112.465, “Slayer or abuser considered to predecease decedent,” copy available at appendix page 63.

[61] Cf. Ilene S. Cooper and Jaclene D'Agostino, "Forfeiture and New York's 'Slayer Rule', NYSBA Journal, March/April 2015