Physician-assisted suicide is now legal in several states. But none of the state statues mandates a mental health evaluation by a psychiatrist or psychologist before the writing of a lethal prescription by an attending physician.
Although the election of Donald Trump on November 8, 2016, garnered the most intense attention nationally and globally, other noteworthy election results occurred that day. Specifically, Colorado became the latest state to legalize physician-assisted suicide (PAS) for terminally ill, competent adults. PAS is also variously called, depending on one’s perspective on the matter, “Physician Assisted Dying,” “Aid in Dying,” “Death With Dignity,” “Right to Die,” or simply “End of Life Option(s).”
By a 2:1 margin, Colorado voters passed the End of Life Options Act (Proposition 106), becoming the sixth state in which PAS is legal via a state law (Oregon, Washington, Vermont, and California) or through a court decision (Montana). Washington, DC, has also passed a “Death with Dignity Act,” and PAS legislation is making its way through state legislative processes in Hawaii, Maine, and numerous other states.
The Colorado legislature had previously considered aid in dying legislation on several occasions (1995, 1996, 2015, and 2016), but these legislative efforts were unsuccessful. Thus, the Colorado ballot initiative was a strategic success for aid in dying advocacy organizations. As described on one such organization’s website: “Compassion & Choices lent its policy know-how and deep understanding of aid-in-dying laws to work with petitioners to draft the proposed statute, while the Compassion & Choices Action Network provided important financial resources to foster an effective on-the-ground advocacy effort.”1 As in California, the legislation was modeled closely on the wording of the Oregon law. Of note, in California the law was passed during a special legislative session, and thus enacted without a vote by the general public.
Related content: Mini Quiz: Physician-Assisted Suicide
Aid in dying and the role of psychiatrists
In every state where PAS has been or is being considered, proponents of PAS argue that there are adequate safeguards in place to protect patients who might be driven by mental illnesses such as depression to request PAS. However, when I talk to psychiatrists and non-psychiatrists alike, most people are surprised to learn that none of the current state statutes specifically mandate a mental health evaluation by a licensed psychiatrist or psychologist prior to the writing of a lethal prescription. Instead, the laws place the responsibility for determining the requesting patient’s decision-making capacity and mental health status on the “attending physician.”
In the words of California’s End of Life Option Act, “If there are indications of a mental disorder, the physician shall refer the individual for a mental health specialist assessment.”2 In other words, patients do not ever have to talk to a psychiatrist or psychologist unless their attending physician believes they should. This leads to an obvious, empirical question. In states where PAS is legal, how many patients who request and receive a prescription under the law have actually been referred to a mental health specialist for evaluation before receiving a prescription for the lethal drug? The answer: very few.
Oregon’s Death With Dignity Act (DWDA, enacted in 1997) requires the state to track a number of relevant statistics, and these reports are publicly available.3 Based on the 2015 report, which provides detailed annual data and summarizes cumulative data from 1998 through 2015, out of a total of 991 patients who died by ingesting the prescribed DWDA medication, 52 (5.3%) were referred for psychiatric or psychological evaluation. In 2015, 218 prescriptions were written (by a total of 106 physicians). Of those who received prescriptions in 2015, only 5 were referred for psychiatric or psychological evaluation. The patients’ “end-of-life concerns” (ie, reasons why they sought a lethal prescription) are also summarized in the report.
Although limited by the method used to ascertain this information (ie, the prescribing physician completes a standardized, after-the-fact questionnaire about the patient’s concerns), these data suggest that intolerable pain is not among the top reasons for seeking PAS. Instead, “Similar to previous years, the three most frequently mentioned end-of-life concerns were: decreasing ability to participate in activities that made life enjoyable (96.2%), loss of autonomy (92.4%), and loss of dignity (75.4%).”3 To psychiatric ears, these sound like the kinds of concerns we are trained to address.
In California, the PAS law is so new that we have minimal data to examine at this point. However, newspaper reports (and anecdotal information) support the observations that while many physicians are uneasy about the new law, patients are actively seeking out willing physicians, and hospital systems have had to write new policies to deal with the law and its implications.4 The Mercury News reported that many patients and families are distraught to learn that the “right to die” does not automatically mean the state will find you a doctor to help you implement the “right.” The newspaper story continues, “It’s a scene being played out throughout California, as scores of terminally ill patients are learning to their dismay-and outrage-that the state’s new aid-in-dying law comes with no guarantee of finding a doctor.”
However, the same story reports on a physician in Berkeley, California, who has devoted his practice to evaluating patients for eligibility. Personally, our clinic has had experience with at least one patient (an older adult with several difficult-to-treat psychiatric disorders, who is not terminally ill, but who does have several serious medical conditions) who is now actively looking for a doctor who will consider her request for PAS. I worry she will find one before we find ways to improve her quality of life.
The politics of suicide
But let’s rejoin now-President Trump. Shortly after his inauguration, on January 31, 2017, President Trump nominated Judge Neil Gorsuch to fill the vacancy on the United States Supreme Court left by Justice Antonin Scalia’s death in February 2016. Judge Gorsuch happens to be an expert on the legal and moral arguments for and against assisted suicide and euthanasia. He even thoughtfully provided us with an in-depth analysis of these issues in his book, The Future of Assisted Suicide and Euthanasia,5 published nearly a decade ago, as the assisted suicide issue and ensuing debate were emerging in several states.
Psychiatrists interested in all sides of this evolving issue might want to read Gorsuch’s book, as he thoroughly reviews (and eventually rebuts) arguments for legalized PAS as well as euthanasia. He also provides a comprehensive historical overview of the euthanasia movement and its evolution, which readers will find eye-opening. The facts are disturbing. Gorsuch raises the precise issues that are attracting the notice of many of us who are concerned about the broadening “indications” for PAS and euthanasia in several European countries, and which are now being debated in Canada.
As the push for legalized PAS expands into more states, many worry about the slippery slope, or “foot in the door” problem-namely, that once PAS for terminally ill individuals becomes legal, there will be pressure (couched in the language of discrimination and equal rights) to expand the “right to die” to persons who suffer from psychiatric illnesses. And what about patients who suffer from dementia, who are no longer decisionally capable? Why, the argument goes, should these individuals not have the same “rights”? Indeed, autonomy-based arguments are commonly used to defend even involuntary euthanasia of individuals who are no longer able to express their preferences. As Gorsuch describes:
In assessing the rights of those severely suffering from Alzheimer’s, [bioethicist] Dan Brock argues that they “approach more closely the condition of animals” and therefore “lack personhood.” He suggests “assimilating . . . into the category of voluntary euthanasia” cases where the patient is incapable of consent but there exists convincing evidence supporting the supposition that a patient in his or her shoes would, if able, express a wish to be killed-that is, effectively endorsing a form of nonvoluntary euthanasia.5
Compassion and psychiatry
Another reason psychiatrists should be interested in understanding the arguments for and against PAS and euthanasia is our fundamental mission to promote the well-being of those whose illnesses leave them vulnerable. We value our patients’ lives as a natural, intrinsic good, even when they themselves may not. We try-sometimes with great effort-to provide therapeutic optimism, rather than a hopeless nihilism. We are trained to analyze our own countertransference when patients push our buttons. It is reasonable to ask whether physicians (including psychiatrists) are adequately prepared to address their own feelings when a patient asks for help in ending his or her life. As Muskin argues, “It is crucial to examine the underlying meaning of a patient’s request to die, yet the debate over PAS and euthanasia has largely ignored the issue.”6
Some advocates for PAS elide the moral distress that doctors experience when they passively agree to, help facilitate, or actively participate in a patient’s death. It has been reported that in some European countries, at least some physicians hesitate to acknowledge their true feelings about physician-assisted death for fear of being viewed negatively by their peers.7 While PAS alone (not euthanasia) is the current focus of laws in the US, the experiences of European clinicians are important for us to examine. For instance, the European Institute for Bioethics in Brussels has been actively collecting reports on the effects of euthanasia on hospitals and nursing homes:
In such institutions, as the (Institute) sees it in Belgium, there are doctors, on the one hand, who accept performing euthanasia and, on the other hand, those who do not. Within a same ward, it is well known who is in favour of euthanasia and who is not. Doctors must take position, they are under pressure and what the (Institute) hears more and more often is that the doctors who do not perform euthanasia have the reputation of being the “bad guys” who lack compassion.8
Also less often discussed is the possibility that legalized PAS, contrary to those who argue it will lead to reduced overall suicide rates, will actually normalize suicide and lead to a contagion effect. My patient (described earlier) who now seeks a willing physician to help her end her life may be an example of this. There are some indications that this may already be occurring in the US, although further data will be needed to identify emerging trends as PAS laws expand. In his praise for Gorsuch’s book, columnist Michael Gerson writes:
Gorsuch’s fine book is a sustained explanation of how and why our most basic conceptions of liberty matter so much. If a suffering cancer patient can rightfully ask a doctor to end his or her life, why not a depressed 21-year-old? Or a widow in despair? If autonomy is the rule, there can be no limit, save individual will.9
In the Netherlands, Kim and colleagues10 vividly describe how psychiatric patients can and do ask doctors to end their lives. Some doctors comply, including some psychiatrists. Of the 66 cases reviewed by the authors, most were women, the age range was broad, and they had “various chronic psychiatric conditions, accompanied by personality disorders, significant physical problems, and social isolation or loneliness.” The descriptions written by the physicians who granted these patients’ requests are riveting. One patient was described as “an utterly lonely man whose life had been a failure.”
As psychiatrists, we may be unlikely to be asked our opinion about the mental health or capacity status of a patient who requests PAS. However, this should not deter us from promoting and protecting the interests of the vulnerable patients we see every day. We have an obligation to be informed about the issues at stake; to understand the legal landscape as it exists currently and as it evolves; to watch out for the slippery slope that many of us are concerned about; and to educate our colleagues, trainees, and the general public about psychiatry’s values with respect to preventing suicide.
Dr. Dunn is Professor of Psychiatry and Behavioral Sciences, and Director, Geriatric Psychiatry Fellowship Training Program, Department of Psychiatry and Behavioral Sciences, Stanford University, Stanford, CA.
Dr. Dunn reports no conflicts of interest concerning the subject matter of this article.
1. Compassion & Choices. https://www.compassionandchoices.org/colorado/. Accessed March 28, 2017.
2. California Legislative Information. Assembly Bill No. 15. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520162AB15. Accessed March 28, 2017.
3. Oregon Death With Dignity Act: 2015 Data Summary. https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf. Accessed March 28, 2017.
4. Seipel T. Why few California doctors are assisting deaths for terminally ill. Mercury News. September 17, 2016. http://www.mercurynews.com/2016/ 09/17/terminally-ill-californians-struggling-to-find-doctors-to-help-with-aid-in-dying/. Accessed March 28, 2017.
5. Gorsuch N. The Future of Assisted Suicide and Euthanasia. Princeton, NJ: Princeton University Press; 2009.
6. Muskin PR. The request to die: role for a psychodynamic perspective on physician-assisted suicide. JAMA. 1998;279:323-328.
7. Stevens KR. Emotional and psychological effects of physician-assisted suicide and euthanasia on participating physicians. Issues Law Med. 2006; 21:187-200.
8. Brochier C, for the European Institute of Bioethics. Communication to the Health Committee of the Parliament of New Zealand. 2017. Belgium. [Email communication provided by Carine Brochier.]
9. Jones DA, Paton D. How does legalization of physician-assisted suicide affect rates of suicide? South Med J. 2015;108:599-604.
10. Kim SYH, De Vries R, Peteet JR. Euthanasia and assisted suicide of patients with psychiatric disorders in the Netherlands 2011 to 2014. JAMA Psychiatry. 2016;73:362-368.