FROM: BRIEF OF AMICUS CURIAE

PHYSICIANS FOR COMPASSIONATE CARE

IN SUPPORT OF APPELLEE, STATE OF ALASKA

Kevin Sampson and Jane Doe, Appellants, v. State of Alaska, Appellee

SUMMARY OF ARGUMENT

Experience with doctor-assisted suicide in the state of Oregon, as in the Netherlands, reveals that assisted suicide allowed in the medical setting is not a private act. Doctor-assisted suicide takes place in a complex medical, social, and economic system, making the individual patient vulnerable to adverse influence. It creates conditions allowing family members and others to pressure the patient to commit assisted suicide, as has already happened in Oregon. Institutionalization of assisted suicide unfairly discriminates against vulnerable individuals and puts seriously ill individuals contemplating suicide at dangerous and unequal risk of death by failing to provide equal protection of their lives. If Alaska were to relinquish its right to prohibit physician-assisted suicide, one vulnerable class of individuals, those labeled "terminally ill," would thereby be devalued and would no longer be afforded the same protection against assisted suicide which other Alaskans enjoy. This failure to assure equal protection would result in some of the depressed and mentally infirm who are labeled terminally ill receiving assisted suicide instead of medical care, which has already happened in Oregon, and as is common in the Netherlands, even among those who are not labeled "terminally ill."

Institutionalization of assisted suicide not only has an adverse effect on a particular individual who may feel like giving up on life; it also has a harmful effect on society and its general welfare and puts other individuals at risk. The harmful effect on society derives from the fact that physician-assisted suicide is not a private act, but takes place in a complex medical, social, and economic system. Within this delicate, interactional context, as observed in the Code of Medical Ethics, Sec. 2.211, overthrowing laws protecting the public against doctor-assisted suicide is destructive to the doctor patient relationship, proves impossible to control, and poses serious societal risks. It creates an economic environment with institutional incentives favoring suicide over medical care. It is impossible to adequately monitor, as demonstrated by failed attempts to monitor the experience in Oregon. Lacking adequate monitoring, it is impossible to regulate and control.

Any illusion that assisted suicide could be confined to self-administered oral overdose quickly dissipates once the practice is allowed. Lethal injection must necessarily also be allowed for those who cannot quickly swallow the contents of 90 or so capsules it takes to commit assisted suicide or who have failed in their assisted-suicide attempt, as has been demonstrated in the case of Patrick Matheny in Oregon and previously in the Netherlands. The inevitability of the introduction of lethal injection or infusion, once the protection against assisted suicide is overridden for one class of patients, makes it even more clear that institutionalized assisted suicide gives power and control to the doctor and to a complex medical, economic, and social system, not to an individual in an hypothetically "private" and "autonomous" act.

Arguments supporting overthrow of Alaskan law protecting the lives of vulnerable individuals from assisted suicide are to some extent based on a verbal blurring of the clear and rational boundary between "suicide" with "assisted suicide." The interchangeable use of these words and concepts fails to make clear the central issue of what is being done to who by whom. This usage obfuscates the fact that assisted suicide is a complex interaction taking place in a medical, economic and social system and is not an action carried out in a hypothetical "private" setting solely by an "autonomous" individual.

Arguments supporting overthrow of the protections provided by Alaskan law against assisted suicide also rely heavily on the spurious contention that the refusal of an unwanted medical treatment by a patient is somehow equivalent to a doctor carrying out an action clearly intended, not to provide medical care, but to make the patient dead. These arguments again are based on the failure to recognize the social nature of the doctor-patient relationship and to distinguish who is doing what to whom. In one case, a patient is declining to do something, that is, to accept an offer of medical treatment from a different person, the doctor. In the other case, an entirely different person, the doctor, is actively doing something, that is, writing a lethal prescription intended to actively kill the patient. The clear and rational distinction between a patient refusing unwanted medical treatment and a doctor actively and intentionally taking steps to make a patient dead has been upheld by the United States Supreme Court, which stated "we think the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognized and endorsed in the medical profession (n. 6) and in our legal traditions, is both important and logical; it is certainly rational."

Once a patient involves a physician in assisted suicide, it becomes abundantly clear that the assisted suicide is not a "private" and fully "autonomous" action. Doctor-assisted suicide takes place in a complex medical, social and economic setting and opens discouraged or anxious patients to adverse influence and coercion. It discriminates against a vulnerable class of individuals, those labeled "terminally ill." It further endangers the mentally ill and infirm and/or alcoholics and other groups with a differentially high suicide rate. And, it endangers not only the individual contemplating assisted suicide, but also proves harmful to society. It is destructive to the doctor-patient relationship, is impossible to control and poses serious societal risks. Clearly, Alaska has the right and the responsibility to uphold its laws protecting its citizens against the danger doctor-assisted suicide poses to vulnerable individuals and to the general welfare of society.

N. Gregory Hamilton, M.D.

President, Physicians for Compassionate Care

Portland, Oregon

May 14, 2000

Erin Hoover Barnett, Is Mom Capable of Choosing to Die? Oregonian, October 17, 1999 at G1&2.

Wesley J. Smith, Suicide Unlimited in Oregon. WEEKLY STANDARD, November 8, 1999, at 11-14.

Catherine Hamilton, The Oregon Report: What's Hiding Behind the Numbers, BRAINSTORM, March 2000 at 36-38 (appended).

Washington v. Glucksberg, 117 S.Ct. 2258 (1997). United States v. Rutherford, 442 U.S. 544, 558 (1979) "...Congress could reasonably have determined to protect the terminally ill, no less than other patients, from the vast range of self styled panaceas that inventive minds can devise"; N. Gregory Hamilton, MD, The Doctor-Patient Relationship and Assisted Suicide: A Contribution from Dynamic Psychiatry, 19 AM. J. FORENSIC PSYCHIATRY (1998) 59, (appended).

Hamilton, supra note 2 at 70.

AS 11.41.120.

Glucksberg, supra note 2, "Those who attempt suicide--terminally ill or not--often suffer from depression or other mental disorders."

Herbert Hendin, MD et al., Physician-Assisted Suicide: Reflections on Oregon's First Case, 14 ISSUES IN LAW &MED. 243-269 (1998).

N. Gregory Hamilton, MD et al., Therapeutic Response to Assisted Suicide Request, 63 BULL. MENNINGER CLIN. 191-201 (1999).

Kathleen Foley et al. The Oregon Report: Don't Ask, Don't Tell, HASTINGS CENTER REPORT, May-June, 1999 at 37;

Wesley J. Smith, J.D., Storm Warning over Oregon 171 WESTERN J MED. 220 (1999).

New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (1994) 13-22, 126-128. Herbert Hendin, SEDUCED BY DEATH: DOCTORS, PATIENTS, AND ASSISTED SUICIDE (1998).

Washington v. Glucksberg, supra note 2.

Ravin, 537 P.2d at 504. ("Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor..." State v. Erickson, 574, p.2d 1 (Alaska 1978).

American Medical Association, Code of Medical Ethics (1997) at 56-57.

N. Gregory Hamilton, MD, Testimony of Dr. N. Gregory Hamilton to the Subcommittee on the Constitution of the House Committee on the Judiciary, 106th Cong., (June 24, 1999). See also Joe Rojas-Burke, Oregon's Poor Slip from Safety Net of Health Coverage: Although More Money Went to the Oregon Health Plan, the Percentage of Uninsured Poverty-Level Residents Climbed Last Year to 23 Percent, OREGONIAN, March 29, 1999, A1; Joe Rojas-Burke, Insurers Still Unfair with Mentally Ill, Study Says: Despite a Law Meant to Curb Coverage Bias, the Share of Plans Limiting Office Visits and Hospital Stays for Mind Disorders Jumps, OREGONIAN, April 30, 1999, D1; Joe Rojas-Burke, Senate Bill Proposes Increase in Mental Health Benefits, OREGONIAN, June, 19, 1999, D1; Theodore C. Falk, What Price Dying? The Debate over How to Die Now Can Shift to How Much Money We Think It's Worth, OREGONIAN, December 31, 1997; Kathleen Foley, A 44-Year-Old Woman with Severe Pain at the End of Life, 281 JAMA 1937 (1999); Jeanette Hamby, The Enemy Within: State Bureaucratic Rules Threaten the Spirit of Oregon Health Plan's Founding Principles, OREGONIAN, January 21, 1998.

Hamilton, supra note 1; Foley, supra note 5. See also Glucksberg supra, note 2. ""Thus, it turns out that what is couched as a limited right to 'physician assisted suicide' is likely, in effect, a much broader license, which could prove extremely difficult to police and contain." See also Charles T. Canady, Physician Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d, 10-11 (Comm. Print 1996); Hendin supra note 6; New York State Task Force supra note 7; American Medical Association supra note 10.

See appended letter of Oregon Deputy Attorney General David Schuman to Oregon state Senator Bryant, claiming that "persons who are unable to self-medicate will be denied access to a 'death with dignity," therefore making Oregon's "Death with Dignity Act" vulnerable to challenge under "title II of the Americans with Disabilities Act..." -- a challenge which would allow for lethal injection for those who cannot swallow. See also Catherine Hamilton, supra note 1; N. Gregory Hamilton, supra note 11.

Canady, supra note 13.

Opening Brief of Appellants (fn4) states "Alaska criminalizes suicide in two separate statutory provisions: AS 11.41.100 and AS 11.41.120. The ban against physician assisted dying is codified in AS 11.41.120 (a) provides that any person who 'intentionally aids another person to commit suicide'" and also later states "the challenged statute outlawed suicide for all Alaskans. Exc. 11, pp. 26-27. The court found the primary reason for the categorical prohibition against assisted suicide ..." (emphasis added).

Vacco v. Quill, 117 S.Ct. 2293 (1997). See also American Medical Association Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229 (1992).

See supra note 2. See also, Hendin supra note 7, at 199-202.

See supra notes 5-7.

See Eve K. Moscicki, Identification of Suicide Risk Factors Using Epidemiologic Studies, 20 PSYCHIATRIC CLIN. N. AM. 499 (1997).

See supra note 10.

See Id.