Advocates typically maintain that abuse of physician-assisted suicide (PAS) laws is extremely difficult, and when it comes to the legalization of PAS, we have nothing to worry about. Despite the fact that safeguards designed to prevent abuse are wholesale neglected in other areas of the world where PAS and/or euthanasia have been legalized for any substantial amount of time, supporters of the practice cling relentlessly to the notion that we here in the United States can better regulate and monitor the safeguards against abuse.
One of the safeguards that often gets touted is the idea that persons with mental illness cannot access PAS. Last year, as I was testifying in opposition to a bill to legalize PAS here in Nebraska, this point was made clear. The sponsoring senator looked right at the person on the stand and stated that persons with mental illness were unable to attain prescriptions for life-ending medications.
Fact check: False
While this senator would have us believe that persons with mental illness are prohibited from acquiring life-ending medications, no such prohibition exists. But not only that, the laws themselves do a dreadfully inadequate job of prescribing protocol in the cases of mental illness. This ultimately leads to an inadequate screening process for mental health problems prior to accessing PAS.
In order to see this, one can look at some of the bills that have gone into effect in the United States.
Oregon was the first state to legalize PAS back in 1994. One should look to their legislation first because many of the bills currently being proposed are based on Oregon’s Death with Dignity Act, a fact that is verified by the advocacy group Compassion and Choices. Here is the wording in section 3.03 of Oregon’s law:
If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient’s life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. (Emphasis mine.)
For another example, here is the wording from section 5 of the legislation that just went into effect in the District of Columbia.
If in the opinion of the attending physician or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient to counseling.
No covered medication shall be prescribed until the patient receives counseling and the psychiatrist or psychologist performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. (Emphasis mine.)
Under the legislation in both Oregon and the District of Columbia, counseling is defined as:
[O]ne or more consultations as necessary between a [state] licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. (Emphasis mine.)
It’s clear from reading the legislation that the prohibition is for those with impaired judgment, not for those diagnosed with a mental illness. Unless one is willing to stand behind the reckless assertion that all persons with mental illness are suffering from impaired judgment, the claim that persons with mental illness cannot access PAS is entirely false. They most certainly can access PAS, provided they have a terminal illness and meet the other criteria.
Perhaps more importantly, the physician does not even need to refer for counseling if he or she does not suspect impaired judgment, a concept which the laws do not define and which is left to the discretion of the physicians and a mental health specialist. A simple glance at the yearly reports show that the number of individuals being referred for counseling is extremely low.
For example, the state of Oregon just released its yearly report for 2016. Of the 133 patients who received a prescription under the Death with Dignity Act, only 5 of them were referred for counseling. The latest yearly report available for Washington state, from 2015, shows that of the 213 patients who received a prescription for lethal medication, only 8 were referred for counseling. That is under 4 percent in both states. Certainly it is not true that only 4 percent of persons seeking a prescription for assisted suicide are suffering from a mental illness. That would be a rate nearly six times less than that of the general population.
Yet in their yearly reports, both states provide a list of end of life concerns. In both cases, the top five items in each list are nearly identical. They include concerns such as losing autonomy, being unable to enjoy activities of life, and being a burden to their families or caregivers. In the normal course of events, one would identify these concerns as being risk factors for, or perhaps even direct causes of, impaired judgment. At the very least, the concerns speak to an emotional anguish at one’s present situation. It would seem that a referral for a mental health specialist would be in order to ensure that judgment was not impaired on account of any of these other factors. Setting aside the dubious assumption that the presence or lack of sound judgment could be determined in one consultation, this would at least give the patient a chance to visit with a mental health specialist and air any concerns which a physician might not be able to detect.
Conversely, inadequate pain control was identified as a concern in only one quarter to one third of cases, indicating that most persons are seeking PAS for reasons other than inability to handle physical pain. If this is the case, one should see more referrals for mental health assessments. After all, if the chief concerns are not physical, there is a strong possibility that they are the product of one’s psyche. If this is true, it’s not difficult to imagine the clouding of one’s judgment by these same concerns.
But given the lack of referrals, it appears that the physicians doing the prescribing of lethal medications do not feel the same way. One of the larger injustices related to PAS laws is that ultimately, there is nobody to hold the physicians accountable. If they determine that there is no need to refer for a mental health assessment, there is nobody to assert otherwise. This allows far too much latitude for physicians to insert their own opinions and ideologies into their practice, and ultimately confers a major disservice upon those suffering with comorbid terminal illness and mental health problems.
The way the current laws are written, mental health concerns are of less importance than physical health concerns. Physicians are under no obligation to request referrals if they do not see fit. As a function of this, and as the yearly reports verify, mental health problems are not adequately screened for or addressed prior to attaining a prescription for life-ending medication.
The inadequate assessment of mental health prior to irreversible action is just one reason that the legalization of physician-assisted suicide is a terrible idea, and it’s an important one that is frequently overlooked. It inadvertently contributes to the ways in which mental health problems are ignored, and ignoring these problems is one more potential way that PAS laws can be abused.