TESTIMONY OF N. GREGORY HAMILTON, M.D.

 

Distinguished Fellow of the American Psychiatric Association

Co-founder of Physicians for Compassionate Care

Author of Self and Others, From Inner Sources and The Self and the Ego in Psychotherapy

 

TO

 

THE SELECT COMMITTEEE ON THE ASSISTED DYING FOR THE TERMINALLY ILL BILL

 

LORD MACKAY OF CLASHFERN

THE EARL OF ARRAN

BARONESS HAYMAN

BARONESS JAY OF PADDINGTON

LORD JOFFE

BARONESS FINLAY

LORD McCOLL OF DULWICH

 

 

 

Portland, Oregon

December 10, 2004

SUMMARY STATEMENT

 

As a psychiatrist in the only state to allow assisted suicide and co-founder of Physicians for Compassionate Care, an organization providing education about caring for the seriously ill, I urge defeat of the Assisted Dying for the Terminally Ill Bill.  This bill is quite different from the Oregon assisted-suicide law in that it allows for euthanasia if a patient cannot take an oral overdose, a practice not allowed in Oregon.  Such a practice opens the door to euthanasia without consent as is so common in the Netherlands.  The Assisted Dying for the Terminally Ill Bill, however, is like the Oregon law in that it lacks adequate protections for depressed patients.  Experience in our state clearly demonstrates that once assisted suicide is institutionalized there can be no effective protection for the mentally ill.  The first case of assisted suicide (Hamilton and Hamilton, 1999, attached), the Kate Cheney case (Foley and Hendin, 2002, Hamilton, 2002, attached) and the Michael Freeland case (Hamilton and Hamilton, 2004, attached), among others, demonstrate that mentally ill patients have been given overdoses in Oregon.  Two of those cases were found lacking competence to consent to assisted suicide.  Still, not one instance of assisted suicide being given for actual untreatable pain has been demonstrated.   Psychological and social reasons predominate.  Even if unbearable suffering is to be included as a criterion in the bill under consideration, it serves no protective function.  Experts repeatedly have demonstrated that physical pain can always be relieved using modern pain management techniques.  However, when laws permit assisted suicide, the adequacy of pain care can actually diminish, as scientific reports in the Netherlands and Oregon indicate.   

OREGON LAW ALLOWS ASSISTED-SUICIDE OF THE DEPRESSED

 

Well-respected studies demonstrate that virtually all patients with a high desire for assisted suicide display symptoms of depression or irrational hopelessness (1).  Nevertheless, the Oregon law (2) does not require that the patient receive a psychiatric evaluation.  Only if the doctor intending to write the prescription for overdose or the consultant believes that the patient has seriously impaired judgment due to their mental disorder is there any requirement for referral to a psychiatrist.  In actual practice, few patients requesting assisted suicide are ever referred for such an evaluation.  The percentage sent for mental health consultation prior to assisted suicide in Oregon has steadily dropped over six years to only 5% (3) although it is known that these patients may suffer from depression or other mental disturbance (1).  When such a referral is made, it is made to a psychiatrist or psychologist chosen by the assisted-suicide doctor and the evaluations tend to be pro forma; so they provide no protective function at any rate.  Even if an opinion disallows assisted suicide in a depressed or demented patient, seeking alternative opinions until one that favors assisted suicide can be found is permitted (4-6). Thus, the law provides no effective protection for the mentally ill. 

 

The guidebook for Oregon assisted suicide emphasizes that mental health consultation, when required at all, should be "a form of a competency evaluation, specifically focused on capacity" (7, p 30) to make a decision.  Ganzini and Farrenkopf, who authored the mental health section state, "The evaluation should focus on assessing the patient's competency and factors that limit competency such as mental disorders, knowledge deficits, and coercion" (7, p 30).  When it comes to diagnosing a psychiatric disorder, however, these authors insist that the presence of a mental disorder does not disqualify a patient from assisted suicide.  While acknowledging that depression may affect a patient's judgment about assisted suicide they emphasize, "The presence of depression does not necessarily mean that the patient is incompetent" (p 31).  This opinion is at variance with the majority of forensic psychiatrists, who believe "that the presence of major depressive disorder should result in an automatic finding of incompetence" (8, p595) to make decisions about assisted suicide.

 

In Oregon, as in the Netherlands, there is no obligation to treat depression or any other mental illness even when one is found.  The guidebook concludes, "If the mental health professional finds the patient competent, refusal of mental health treatment by the patient does not constitute a legal barrier to receiving a prescription for a lethal dose of medication" (7, p31).

 

The guidebook mentions the importance of determining the presence or absence of coercion as a part of competence determination.  As these guidelines are applied, however, coercion is narrowly defined.  Such was the case in the widely discussed assisted suicide of Kate Cheney (4-6), an eighty-five-year old cancer patient with growing dementia, whose psychiatrist believed she was being pressured by her family; nevertheless, she was given assisted suicide in Oregon.

 

 

MISTREATMENT OF PSYCHIATRIC PATIENTS UNDER OREGON LAW

 

The inevitable mistreatment of psychiatric patients once assisted suicide is legalized can be illustrated best by the case of Michael Freeland (9).  This is the first reported case of a patient legally prescribed assisted-suicide drugs for which medical records were made available.  A complete copy of the medical paper presented at the American Psychiatric Association scientific meeting, May, 2004, is appended to this testimony.

 

Mr. Freeland, a man in his early 60's, reported that he recently had been diagnosed with terminal lung cancer.  He felt devastated and said he might as well begin planning his funeral.  He had a long history of serious depression and previous suicide attempts.  While he was diagnosed with depression, given antidepressant medications, and even placed in a psychiatric hospital against his wishes by some doctors, another doctor, an assisted-suicide activist, gave this man deadly overdose drugs without even a cursory psychiatric examination and did nothing to retrieve those drugs after a county court declared him incompetent to make his own medical decisions.  All these rather shocking facts are documented in his medical record and in the Multnomah County Court.  Yet, no mention of this abuse of assisted suicide appeared in the Oregon Department of Human Services (DHS) report, a report judged by many as entirely lacking in providing effective oversight (4-6).

 

Meanwhile, the adequacy of his pain and palliative care deteriorated to the point he experienced excruciating pain, became dehydrated and delirious, and could not care for himself.  When Physicians for Compassionate (PCC) care volunteers checked on him, he reported that his assisted-suicide doctor had offered to sit with him while he took the overdose.  It was the volunteers who had to insist that he receive adequate pain care, including an infusion pump and 24-hour attendant care.  With this help, his suffering abated as did his wish to take the overdose the assisted-suicide doctor had left with this confused and desperate man.  Had it not been for the intervention of  PCC volunteers, he may well have taken the overdose has have other depressed and demented patients, such as the first case of assisted suicide and Kate Cheney.

 

OTHER MENTALLY ILL PATIENTS GIVEN ASSISTED SUICIDE

 

Mr. Freeland's case serves as only one illustration of a much more widespread problem.  The problem initially appeared with the very first reported case of assisted suicide.  This woman with a decades-long history of breast cancer requested assisted suicide.  Her own doctor did not think such an action would be appropriate, so she was referred to another doctor known to be open to the possibility of assisted suicide.  This doctor diagnosed her with depression and prescribed antidepressant medications.  Rather than allowing this potentially helpful treatment to proceed, however, the family found a politically active assisted-suicide doctor, who gave this unfortunate woman a lethal overdose after having known her little more than two weeks.  She did not receive adequate psychiatric care, as described in the medical literature (10).

 

Unlike the first assisted suicide reported, in the case of Mrs. Kate Cheney, who also carried a diagnosis of mental illness, a psychiatrist actually found her demented and lacking competence to consent to assisted suicide.  That psychiatrist said seeking a lethal overdose was the daughter's, not the patient's, agenda.  When the daughter became angry, it was she who demanded another opinion from Kaiser Permanente health maintenance organization, which, like publicly funded clinics in any country, could benefit financially when patients receive overdoses instead of living out their years.  At any rate, a clinic administrator funded another opinion.  This psychologist admitted Mrs. Cheney could not even remember when she was diagnosed with terminal cancer although it had only been within the last three months.  She also wrote that the patient's decision may have been influenced by her family's wishes and her daughter may have been coercive.  Nevertheless, she approved the assisted suicide.  Mrs. Cheney also died by a lethal overdose.

 

OHD reports did not reflect these abuses of the assisted-suicide law.  In fact, the official enthusiasm for protecting the assisted-suicide law and its practitioners (11) has left the depressed and mentally ill without any protection.

 

ASSISTED SUICIDE IS NOT NEEDED TO ALLEVIATE SUFFERING

 

The truth is that assisted suicide and euthanasia are simply not needed.  So, why put the mentally ill and vulnerable at risk?  And, why risk allowing individuals to be given a lethal injections against their will as commonly happens in the Netherlands (12)?

 

Since implementation of doctor-assisted suicide in Oregon, on average 99.9% of patients die without recourse to taking an overdose; and the other 0.1% could, too, without uncontrollable pain, given modern palliative care techniques.  Not one case of assisted suicide has been documented as resulting from actual untreatable pain (3).  High on the list of reasons for assisted suicide are psychological and social concerns-fear that being less functional means they are less valuable as human beings, fear that people who care for them may find them a burden and so on.  As a large study conducted by a world-famous cancer institute reported in the Journal of the American Medical Association, "Among patients who were neither depressed nor hopeless, none had high desire for hastened death" (1, p2910).

 

When fear of possible pain is listed in the Oregon statistics, the report (3) buries in a footnote the fact that patients are not necessarily in pain at all; they merely fear future pain.  It seems curious that the assisted suicide doctors have not reassured these individuals that their pain can be treated, as has Doctor Chevlin, a nationally noted palliative care doctor, in his book, Power over Pain (13).  As the American Medical Association stated concerning the reasons Oregon assisted-suicide doctors said their patients gave for taking an overdose,  ".the issues expressed by patients in Oregon can be addressed without physician-assisted suicide" (14).  However, as the Freeland case demonstrates, the assisted-suicide doctors do not seem to be in the business of addressing these concerns.  In fact, since implementation of assisted suicide in Oregon, an important scientific report has demonstrated a decrease in the quality of pain care in this state (15), a failure which is similar to that in the Netherlands (12).

 

Assisted suicide simply is not needed and it puts vulnerable individuals at risk of their lives.  That is why over ten states have strengthened their laws against assisted suicide and not one state has followed Oregon into this unnecessary and risky practice.  That is why I urge you to defeat this misleading and dangerous Bill, the Assisted Suicide for the Terminally Ill Bill, because it is unnecessary-and it is dangerous.

REFERENCES

 

1.   Beitbart W, Rosenfeld B, Pessin H, Kaim M, Funesti-Esch J, Galietta M, Nelson CJ, Brescia R:  Depression, hopelessness, and desire for hastened death in terminally ill patients with cancer.  JAMA 2000;284:2907-2911

2.  Oregon Revised Statute 127.800-127.995

3.  Oregon Health Division:  Sixth annual report on Oregon's Death with Dignity Act, Oregon Health Division, March 10,2004, Worldwide web @ http://www.ohd.hr.state.or.us/chs/pas/ar-index.cfm

 4.   Hamilton CA:  The Oregon report.  Brainstorm NW, March 2000, pp 36-38

5.   Foley K and Hendin H:  The Oregon experiment, in The Case Against Assisted Suicide for the Right to End-of-Life Care.  Edited by Foley K and Hendin H (Baltimore:  Johns Hopkins Press), 2002, pp 144-174

6.   Hamilton NG:  Oregon's culture of silence, in The Case Against Assisted Suicide for the Right to End-of-Life Care.  Edited by Foley K, Hendin H (Baltimore:  Johns Hopkins), 2002, pp 173-191

7.   Ganzini L, Farrenkopf T:  Mental health consultation and referral, in The Oregon Death with Dignity Act: A Guidebook for Health Care Providers.  Edited by Haley K, Lee M (Portland, Oregon; Oregon Health Sciences University), 1998, pp 30-32

8.   Ganzini L, Leong GB, Fenn DS, Silva JA, Weinstock R:  Evaluation of competence to consent to assisted suicide:  Views of forensic psychiatrists.  Am J Psychiat 2000;157:595-600

9.  Hamilton NG, Hamilton CA:  Competing paradigms of responding to assisted-suicide requests in Oregon.  American Psychiatric Association Annual Meeting Symposium on Ethics and End-of-Life Care:  New Insights and Challenges, New York City, May 6, 2004

10. Hamilton NG, Hamilton CA:  Therapeutic response to assisted suicide request.  Bull Menninger Clin  1999;63:191-201

11.  Foley K, Hendin H:  The Oregon report: Don't ask, don't tell.  Hastings Center Report  1999;29:37-42

12.  Hendin H:  Seduced by Death:  Doctors, Patients, and Assisted Suicide  (New York, Norton), 1998

13.  Chevlin EM, Smith WJ:  Power over Pain (Steubenville, Ohio:  International Task Force), 2002

14.  American Medical Association:  When pain trails other concerns.  American Medical News, March 19, 2001

15.  Fromme EK, Tilden V, Drach LL, Tolle SW:  Increased family reports of pain or distress in dying Oregonians:  1996-2002.  J Palliative Med 2004;7:431-442