|
|
|
 |  |
 |
 |
WSBA Info | |
|
For Lawyers | |
|
For the Public |  |
 |
For the Media |  |
|
CLE |  |
| | Bench Bar Guidelines | News Releases | Publications | |
|
|
April 2009The Washington Death with Dignity Act: History and Implementationby Pamela J. Hanlon Several weeks ago, a woman hospitalized in Washington with terminal cancer told her husband that Jesus asked her to join him that very night. Pursuant to her request, the husband gave her an overdose of pain medicine. Upon discovery of his actions, he was arrested and his wife was transferred to the Intensive Care Unit for treatment of the overdose. Could this painful scenario have been prevented if the Washington Death with Dignity Act (WDDA) had been in place as an option for this couple? Perhaps. Based on reports from its clients, Compassion & Choices of Oregon credits the Oregon Death with Dignity Act, upon which the Washington Act is modeled, with preventing at least three homicides and 140 violent suicides over the last 11 years.[1] Implemented on March 4, there are still many questions regarding the scope of the WDDA and its legal ramifications. The following is an overview of the historical context and the basic tenets of the WDDA, and their practical application as seen in Oregon's decade-plus of experience. Historical Context Prior to World War II, the vast majority of Americans died in their homes.[2] Those fortunate enough to afford medical care were given opiates for pain control, usually administered by a family member or caretaker. With the rapid medical advances and proliferation of hospitals after WWII, the norm shifted to hospital deaths.[3] The inception of Critical Care Units in the 1960s and early 1970s made prolongation of life with respirators, medications, and advanced procedures possible for even the most severely ill. Lengthened lives, however, did not always mean quality lives. Patients existing in persistent vegetative states, defined by the National Institute of Neurological Disorders and Stokes as "[i]ndividuals who have lost their thinking abilities and awareness of their surroundings, but retain non-cognitive function and normal sleep patterns," were kept alive for weeks, months, and even years.[4] When the end did come, it was usually in a medical institution, battling an overwhelming infection. These developments prompted a national dialogue on the quality of death and the rights of dying patients in the 1970s. It was the legal system, however, that provided the primary guidance regarding life-sustaining technologies. The first case involving what is now referred to as the "right to die" was the Karen Ann Quinlan case, decided by the New Jersey Supreme Court in 1976.[5] Kept alive by a respirator and a feeding tube, 21-year-old Quinlan was in a persistent vegetative state with no reasonable medical probability of regaining consciousness. Her father, a devout Catholic, asked her physician to disconnect her respirator. When the doctors and hospital refused to honor the request, Quinlan's father turned to the legal system. Quinlan's physician argued that because she was not brain-dead, both medical standards and ethics required him to continue treating her, with the respirator being part of that treatment. The government also intervened, arguing that the state's interest in protecting the sanctity of life must be protected and that removing the respirator was tantamount to criminal homicide. The New Jersey Supreme Court rejected both arguments, holding that refusal to withdraw life support violated Quinlan's state-constitutional right to privacy.[6] The court rejected the idea that the medical profession was required to use all means at its disposal to keep such patients alive. Rather, the "focal point of the decision [to terminate treatment] was whether the patient would return to a 'cognitive and sapient life' or remain in a 'biological vegetative existence.'"[7] Although the court recognized that the state had an interest in preserving life, it found that interest "weaken[ed] and the individual's right to privacy [grew] as the degree of bodily invasion increases and the prognosis dims."[8] This case prompted legislation addressing the rights of individuals to determine the circumstances surrounding their death. The Natural Death Act, passed by the Washington Legislature in 1979, enables a competent adult to sign a directive, witnessed by two disinterested parties, which requires the removal or withholding of his or her life sustaining treatment where such treatment only serves to artificially prolong the moment of death, made imminent by an incurable injury, disease, or illness.[9] This Act codified Advanced Directives and the designation of a Durable Power of Attorney for Health Care.[10] Fourteen years after Quinlan, the U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health, 497 US 261 (1990) found that the Fourteenth Amendment to the Constitution, which provides that persons may not be deprived of their liberty without due process of law, included a liberty interest in refusing heroic medical measures. The Supreme Court confirmed its approval of the right to refuse life-sustaining treatment in the 1997 decisions of Washington v. Glucksberg and Vacco v. Quill.[11] A majority of the justices clearly prohibited the states from obstructing adequate palliative care, especially for the alleviation of pain.[12] Palliative care is defined as replacing curative measures as a primary goal with measures to alleviate pain. The Court's approval of palliative care — "[t]here is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths" — also included approval of the practice of terminal sedation.[13] Terminal sedation, which is administering continuous pain medicine until all indicators of pain are gone, even if it hastens death, is part of palliative care. While the actual phrase "terminal sedation" appears only in a footnote concerning sedation while withdrawing ventilator support in the Quill majority opinion, Justice O'Connor wrote favorably of "relieving pain even to the point of unconsciousness," and Justice Breyer noted the "need for sedation which can end in coma."[14] That same year, the Oregon Death with Dignity Act (ODDA) was implemented after surviving three years of legal challenges from private-interest groups, federal legislators, and a former U.S. attorney general. Under the ODDA, mentally competent individuals who have less than six months to live may be eligible to receive a prescription from their primary physician for self-administration of a medication to control the time, place, and manner of his or her impending death.[15] While closely watching Oregon's results, care of terminally ill individuals became a topic of public discussion and legislative action. Congress passed the Patient Self-Determination Act (PSDA) in 1991, requiring healthcare facilities/agencies to discuss advance directives with all adult patients as they enter their systems. To facilitate compliance with advance directives, Washington is one of the few states to implement a free online Living Will Registry (www.doh.wa.gov/livingwill). Maintained by the Department of Health, it contains advance directives, Durable Power of Attorney for Health Care forms, and Physician Orders for Life-Sustaining Treatment (POLST) forms, which are immediately available to all healthcare facilities. The POLST forms summarize the wishes of an individual regarding life-sustaining treatment as physician orders that govern care in a healthcare facility. In Oregon, referral of patients to hospice care and physician enrollment in continuing education courses on how to treat pain and symptoms associated with terminal illness increased dramatically after passage of the ODDA.[16] A study conducted by the Oregon Health Sciences University found that 88 percent of respondent physicians provided better comfort care to their patients as a direct result of the ODDA.[17] A survey of hospice nurses and social workers in Oregon revealed that they observed an increase in physician knowledge of palliative care and willingness to refer and care for hospice patients from 1998 to 2003.[18] Over the past 11 years, Oregon physicians wrote 541 prescriptions pursuant to the ODDA; 341 of them were actually used.[19] The main motivating fears that prompt requests for hastened death were loss of autonomy, dignity, and the ability to engage in life.[20] The patients who died from taking the medication were between 55 and 84 years of age (77 percent), white (97 percent), well-educated (79 percent had some college), and had terminal cancer (82 percent). Last year, four major national medical and health-policy organizations adopted formal policies in support of aid in dying based on the Oregon experience.[21] In this environment of increased public awareness, the success of Oregon's experience and increased organizational support, voters in Washington adopted its Death with Dignity Act on November 4, 2008, by a margin of 59 percent to 41 percent.[22] Practical Application of the Washington Death with Dignity Act Stringent criteria govern the small patient population who can utilize the option offered by the WDDA: Adult Residents The non-medical criteria are in place to prevent what was feared to be a migration of persons moving into the state solely to take advantage of the Act. This fear was not realized in Oregon, as an average of 30 terminally ill adults every year have actually gone through the entire process.[23] For example, in 2008, 31,000 people died in Oregon; of those, 60 people exercised their rights pursuant to the ODDA. This amounts to only 0.002 percent of the total deaths in 2008.[24] Additionally, the average length of time from the actual request until utilizing the prescription was three to four months.[25] Although there are mandatory waiting times within the Act — 15 days between the first oral request and writing the prescription, verification of prognosis by two physicians prior to the second oral request, and 48 hours between the written request and the writing of the prescription — the process of working through the procedural mandates of the Act, such as hospice and mental-health referrals, took much longer. For example, in 1998, 20 of the patients had been residents of Oregon for longer than six months when they received their prescriptions.[26] Terminal diagnosis with a six-month prognosis Under the WDDA, a physician must determine that the patient has a life expectancy of less than six months.[27] Based on the Oregon experience, these physicians are usually specialists, such as oncologists.[28] Terminal patients frequently ask these physicians about assistance with death; however, the majority of specialists defer this discussion to the primary-care physician.[29] Family practice and internal medicine physicians make up the majority of the prescribing doctors in Oregon, while oncologists and other specialists frequently serve as a "consulting physician" as described in the Act.[30] The "consulting physician" is required by the Act to not only confirm the prognosis but also to "verify" in writing that the patient is "competent, acting voluntarily, and has made an informed decision."[31] "Informed decision" is defined by the Act as one that is made only after "[t]he feasible alternatives including, but not limited to, comfort care, hospice care, and pain control" have been reviewed with the patient."[32] The Oregon experience shows that nine out of 10 patients, who decided not to obtain and/or use a prescription after qualification, did so after going into hospice care.[33] Of the 341 patients who died after ingesting the prescribed medication, 85.8 percent were in hospice, and 99.1 percent had insurance that covered hospice care.[34] Capable and competent to make, orally and in writing, two requests The WDDA requirement of competency at the time of the request effectively excludes persons with diseases such as Alzheimer's; Parkinson's; and chronic heart, lung, and neuromuscular diseases, as competency is usually lost long before a terminal prognosis. Competency, as with all other medical informed consent determinations, is a finding only a physician can make when discussing treatment options with a patient. If either the attending or the consulting physician has concerns that the individual seeking to exercise his or her rights under the WDDA is "suffering from a psychiatric or psychological disorder or depression causing impaired judgment," a psychiatric consult must be obtained.[35]Given the difficulty of differentiating between mourning a terminal diagnosis and depression, psychiatric evaluations are prudent. Concerns have been raised by the failure of Oregon physicians to obtain psychiatric referrals.[36] Indeed, none of the 85 persons who received prescriptions in 2007 were referred for psychiatric evaluation.[37] In addition to being competent, an individual must be able to make two oral and one written requests. On its face, this requirement excludes individuals who are unable to communicate through speech and writing. This exclusion was not tested in Oregon, as none of the individuals seeking to invoke the ODDA were unable to speak and write. The first oral request must be made to the patient's attending physician. That physician, regardless of whether or not the request is honored, must document it. At least one-third of all physicians asked in Oregon refused such a request.[38] A 2000 survey of Oregon physicians found that they granted one in six requests to use the ODDA and that only one in 10 requests resulted in hastened death.[39] Signature of the written request, which can only be made after concurrence by two physicians of the prognosis and competency of the individual, must be witnessed by at least two individuals. One of the witnesses must be a person who is not: 1. A relative by blood, marriage, or adoption; Although the majority of persons invoking the ODDA died at home (93.5 percent), there is a requirement for a designated witness to be present if the death occurs in a long-term care facility.[41] These witnesses must attest that the patient is competent, acting voluntarily, and not being coerced to sign.[42] Impact on Healthcare Providers The WDDA requires the physician honoring a request to document the elements of an informed decision in the patient's medical chart as follows: 1. Diagnosis; The attending physician must recommend that the patient discuss his/her intentions with close relatives. The physician must advise the patient to take the medication with another person in attendance in a non-public site.[43] The physician must also state and document mandatory reminders to the patient of his or her "Right to Rescind" the request at any time, which are when the patient makes the first oral request, at the end of the 15-day waiting period, and immediately before writing the prescription.[44] Very few Oregon physicians actually wrote prescriptions pursuant to the ODDA. Those who did write the prescriptions, wrote between one and 10 per year.[45] For example, only 45 physicians wrote the 85 prescriptions in 2007.[46] These physicians have been primarily family practice doctors (57 percent), oncologists (22 percent), and internal medicine specialists (21 percent).[47] Many of these physicians were present at the time of administration.[48] To facilitate compliance with the Act, standardized forms promulgated by the Department of Health will be available in the Washington Administration Code Chapter 246-978. The use of these forms also assists with the mandatory data collection and reporting required by the Department of Health. As in Oregon, the Washington Department of Health must generate an annual report that is available for public scrutiny.[49] The Oregon Health Sciences University drafted a guidebook specific to the ODDA that proved to be an invaluable resource for Oregon physicians.[50] Recently updated, it is available online at www.ohsu.edu/ethics/guidebook.pdf. Conclusion If the WDDA had been in place for the couple referred to in the opening paragraph, there would have been a greater probability that they would have been more aware of their choices and would not have to risk violating the law for a "humane and dignified" death.[51] Because of the emotional, ethical, and religious issues attached with the WDDA, it is of vital importance that accurate language and complete information is available to Washington citizens, physicians, and their attorneys. In 2006, the Oregon Department of Human Services rejected using the term "assisted suicide" or "physician-assisted suicide."[52] Profound psychological differences distinguish suicide from actions under WDDA.[53] The American Psychological Association has recognized: "It is important to remember that the reasoning on which a terminally ill person (whose judgments are not impaired by mental disorders) bases a decision to end his or her life is fundamentally different from the reasoning a clinically depressed person uses to justify suicide."[54] Medical and legal experts have recognized that the term "suicide" or "assisted suicide" is inappropriate when discussing the choice of a mentally competent, terminally ill patient to seek medications that he or she could consume to bring about a humane and dignified death.[55] The eyes of the nation are watching how Washington, with its 6.5 million citizens compared with Oregon's 3.7 million, will treat the estimated 48,000 to 50,000 persons facing death each year. The Oregon experience has shown that responsible discussions will provide improved end-of-life care for all those with terminal conditions, not only for those few who choose to exercise their choice for a "humane and dignified" death under the Act. As attorneys, it is our responsibility to remain educated regarding the choices available to our clients by the Washington Death with Dignity Act.
NOTES
|
