Amicus curiae brief for the United States Supreme Court on mental health issues associated with "physician-assisted suicide". (Practice & Theory).
In late 1996, amicus curiae ("friend of the Court") briefs for the two cases going before the Supreme Court were filed by a large number of individuals and organizations. The American Psychiatric Association signed onto a brief with, among others, the American Medical Association, opposing physician-assisted suicide and urging the Supreme Court to overturn the two circuit court decisions (Brief for the American Medical Association et al., 1996). On the other hand, a brief was filed by a group of mental health organizations and professionals supporting the circuit courts (Brief for the Washington State Psychological Association et al., 1996--printed at the end of this article). This latter brief was signed by the Washington State Psychological Association (WSPA); the American Counseling Association (ACA); the Association for Gay, Lesbian, and Bisexual Issues in Counseling (AGLBIC); and a Coalition of Mental Health Professionals Supporting Individual Self-Determination in Decisions to Hasten Death (which included 25 psychologists, 13 psychiatrists, 9 social workers, and 4 professional counselors. A list of names can be obtained by contacting the first author.)
One of the primary reasons that the brief was filed was that although nonpsychiatric mental health professionals are not directly involved in providing aid-in-dying, because of their inability to prescribe medications, it was clear to several individuals and organizations that the involvement of such professionals could alleviate many of the concerns associated with aid-in-dying. In other words, it was believed that mental health workers could play a valuable role in protecting the suffering person, the person's significant others, and society as a whole from the potential problems associated with aid-in-dying. Furthermore, a review led to the belief that appropriate mental health literature associated with aid-in-dying had been ignored, misinterpreted, or disavowed.
THE PROCESS OF WRITING THE BRIEF
To meet the requirements for filing briefs at the Supreme Court, the document had to be submitted in early December 1996. However, preliminary writing and searches for potential signers began in August 1996. Basing much of the material on the sole book devoted to the subject of mental health issues and hastened death (Werth, 1996) and subsequent research reports, we provided draft materials to three pro bono attorneys who framed the material so that it addressed the questions before the Supreme Court. As the attorneys worked on the legal document, we used personal and professional networks to identify mental health workers to form a coalition of prominent and qualified professionals. The coalition was made up of 51 professionals from four mental health fields who read the brief and supported its contents. Although it was called a "coalition," the "members" were actually individual professionals who had experience with end-of-life issues and who agreed to sign the brief--no formal organization was created and the signers did not have contact with one another, although they did provide feedback to us.
In addition, professional organizations--including the American Psychological Association, National Association of Social Workers (NASW), ACA, AGLBIC, and WSPA--were contacted and asked to join the brief. It was surprising that the NASW, through its general counsel, decided not to sign the brief. Their refusal was unanticipated because they were initially involved in the process and are the only mental health organization to have a policy statement on end-of-life decisions. NASW's (1994) statement is supportive of social worker involvement with people who are considering hastening their deaths, which was viewed as the central point of the brief. In fact, their policy so closely paralleled and supported the contents of the brief that the NASW statement was included as Appendix B of the brief (it is not reprinted here due to space considerations). The American Psychological Association also decided not to join for a number of reasons, including the lack of discussion of the issues within the membership. Due to the time pressure, ACA discussed the brief among its Executive Committee and decided to sign on because of the counseling profession's support of individual autonomy. Similarly, the WSPA Executive Board, after its Social Issues and Human Rights Committee drafted a statement supporting aid-in-dying, decided to sign onto the brief to endorse self-determination. For these same reasons, and also because of their experience with persons with HIV, the AGLBIC Executive Committee and those members who could be reached voted to join the other organizations and the coalition of 51 professionals.
CONTENT OF THE AMICUS BRIEF
The amicus brief, with its own Appendix and Table of Authorities, is reprinted at the end of the article instead of in this section. Only a few changes have been made to the brief's appendixes. First, the individual signers were deleted from Appendix A to conserve space. Second, as previously noted, the brief contained the NASW statement on end-of-life decisions as Appendix B, but it is also not reprinted here.
AFTERMATH OF SUBMITTING THE BRIEF
The decision to sign or not sign onto the brief was not the end for any of the professional organizations. The ACA has, perhaps, experienced the most negative feedback concerning its involvement. An article about the signing in Counseling Today (Morrissey, 1997) generated six letters to the editor (published in the March 1997 and April 1997 issues) criticizing the Executive Committee's decision. After the initial letters, the Committee wrote a short explanatory note (in the March 1997 issue), and the first author of the present article wrote a letter (in the May 1997 issue) attempting to correct the misperception that the ACA was advocating, through the brief, a position that was counter to the proper role of counselors. Some counselors erroneously believed that they were under legal mandate to hospitalize people who revealed a desire to hasten their deaths (in reality, the state statutes indicate a person must want to harm himself or herself due to mental illness before hospitalization is possible; see Werth, 1996, 2001). A recent study examined the attitudes of professional counselors toward "rational suicide" and found that about 80% of the respondents believed it was possible for a client to make a decision that death was her or his best option (Rogers, Guellette, Abbey-Hines, Carney, & Werth, 2001; see also Dubes, 1999). Rogers et al. concluded that the results validate the ACA Executive Committee's decision to sign on to the amicus brief.
Although affiliated with ACA, AGLBIC did not experience the same type of reaction. There are two possible explanations for this: First, because the group is fairly small, a survey of the membership was attempted; second, the more homogenous nature of the members as well as their experiences may have reduced the possibility of angry reactions. The WSPA anticipated negative feedback, both from the public and from its own members, and had prepared a statement and a spokesperson; however, they did not receive the negative response they had feared (A. Benjamin, personal communication, May, 1997).
Although they were not invited to sign onto the brief because of their partnership with the American Medical Association (AMA) on the issue, the American Psychiatric Association has also faced some repercussions. Six former presidents of the organization made a public statement that they disagreed with the closed Executive Board decision to side with the AMA.
On the other hand, the American Psychological Association had a "Judicial Column" in the organization's monthly newsletter, the Monitor, reviewing the cases and mentioning the lack of involvement. A subsequent letter to the editor, signed by all but one of the psychologist members of the Coalition and the entire WSPA Executive Board, encouraged American Psychological Association involvement. At its February Council of Representatives meeting, the organization agreed to review the issue of aid-in-dying. The Board for the Advancement of Psychology in the Public Interest was assigned the task and, in May, convened a group of research and practicing psychologists to develop a press release reviewing the issue from a psychological perspective. The American Psychological Association, itself, did not take a position on the issue but instead reviewed the matter (American Psychological Association, 1997). A subsequent task force has made recommendations to the Board of Directors about how the American Psychological Association should be involved in the ongoing discussions of end-of-life care and aid-in-dying (Working Group, 2000). As a side note, the American Psychological Association Office on AIDS has been discussing the issue of "rational suicide" since 1994 and has a standardized continuing education workshop on ethical issues associated with counseling persons with HIV, which includes a discussion of hastened death.
THE SUPREME COURT'S DECISION AND RELATED DEVELOPMENTS
The Supreme Court unanimously held, in both cases, that there is not a constitutional right to aid-in-dying, thus reversing the appeals courts' decisions under consideration. The consensus is that the Supreme Court, through the overall majority opinion and the five separate concurrences for each case, decided to "not preempt" discussion of the issue and instead leave resolution of whether or not to allow physician aid-in-dying to the individual states. In addition, commentators have stated that the Justices seemed to indicate that appropriate and effective palliative care should be available to everyone and that states cannot interfere with provision of such comfort care (Alpers & Lo, 1999; Burt, 1997).
The natural implication of the Court decisions is that the debate about the possibility of, and eligibility for, aid-in-dying is left to each of the states. There are two ways that states can change the status quo (outside of the court system). The first is through the state legislatures. Although some believe this is an effective and appropriate way to enact such changes, this is by no means a majority opinion. The other manner of legalizing aid-in-dying is through the public initiative process. Since 1998, "physician assisted suicide" was officially, legally sanctioned in only one state, although four other states have no specific prohibition on such actions (Merritt et al., 1998).
Through this latter approach, in 1994, Oregon became the first state to allow physicians to aid mentally competent, terminally ill people in hastening their death. However, the initiative, called "Measure 16: The Oregon Death with Dignity Act" (Oregon Death with Dignity Act, 1995) was not implemented until late 1997 due to legal and legislative challenges (Werth, 2000). Since the Act has gone into effect, there have been three official reports on its use (Chin, Hedberg, Higginson, & Fleming, 1999; Sullivan, Hedberg, & Fleming, 2000; Sullivan, Hedberg, & Hopkins, 2001) and two other research reports on the use of the Act (Coombs Lee & Werth, 2000; Ganzini et al., 2000). By all indications, the Act is working well, and there have not been the abuses that opponents had suggested would occur. In November 2000, Maine's proposed Death with Dignity Act was narrowly defeated (Moore, 2000).
IMPLICATIONS OF THE SUPREME COURT DECISIONS FOR PROFESSIONAL COUNSELORS
The overall opinion for each case was written by Chief Justice Rehnquist. The more comprehensive discussion was for the Washington v. Glucksberg (1997) case and in that ruling he waited until the end of his commentary to mention issues of relevance to mental health professionals. In the section on state interests, Rehnquist briefly remarked about the need for suicide prevention and the link between suicidality and depression (he evidently did not place much faith in the amicus briefs counterarguments on this matter or in the possibility that mental health professional involvement could ameliorate the problems associated with mood disorders). He wrote about protecting vulnerable populations from coercion and prejudice, once again apparently not believing sufficiently that mental health workers could be helpful in this area. Finally, he mentioned the concerns about the "slippery slope" from aid-in-dying to involuntary euthanasia.
Five of the justices wrote concurring opinions. Regarding the aforementioned issues, Justice Sourer focused on the need to protect people from pressure to hasten death. He too apparently did not find the briefs arguments that mental health professionals could provide some protection convincing.
Justice Stevens (1997) seemed to place more weight on the brief, citing it in his concurrence. Stevens specifically stated,
I agree that the State has a compelling interest in preventing persons from committing suicide because of depression, or coercion by third parties. But the State's legitimate interest in preventing abuse does not apply to an individual who is not victimized by abuse, who is not suffering from depression, and who makes a rational and voluntary decision to seek assistance in dying. Although, as the New York Task Force report discusses, diagnosing depression and other mental illness is not always easy, mental health workers and other professionals expert in working with dying patients can help patients cope with depression and pain, and help patients assess their options. See brief for Washington State Psychological Association et al. as Amici Curiae 8-10. (p. 4682)
Because only Justice Stevens directly mentioned mental health professionals, there is no Court mandate or recommendation for such workers to change their standards of care. The implications of the decisions are thus limited, except insofar as subsequent discussions, whether legislatively or through public initiatives (such as in Maine) may more directly include mental health professional involvement due to Justice Stevens's mentioning that trained mental health workers can help protect against some of the problems associated with aid-in-dying.
Unfortunately for professional counselors, such involvement may lead to difficulties. Werth (1999) reviewed the public positions of the major national mental health associations and compared them with these organizations' ethics codes. He found that ACA's documents provided inconsistent messages, which would put both the counselor and the client in an uncomfortable position with mainly unsatisfactory options. Specifically, the current ethics code (ACA, 1997) indicates that the general requirement of confidentiality "does not apply when disclosure is required to prevent clear and imminent danger to the client" (B.1.c, p. 3). Werth [1999) indicated that this statement could lead to the inference that "the counselor has a responsibility to intervene to prevent self-harm, if it is `clear and imminent'" (p. 165). It seems that ACA needs to examine the issue of assisted death when it conducts its next revision of the association's ethics code (see also Dubes, 1999). Werth (1999) recommended that amending professional ethics codes as follows could "make it more clear to practitioners what their obligations were and how to fit work with terminally ill clients considering hastening death into more general guidelines for practice" (p. 175). For ACA, Werth's suggested addition would state the following:
Professional counselors providing services to an individual who is considering hastening his or her death due to the effects of a physical condition that is causing irremediable suffering have the option of breaking or not breaking confidentiality depending on the specific circumstances of the situation. (p. 175)
Alternatively, Werth said that if adding an entirely new statement was not possible, the association's existing statement on confidentiality could be revised. For ACA, the revised provision (B.1.c) would read as follows (suggested changes are italicized):
The general requirement that counselors keep information confidential does not apply when disclosure is required to prevent clear and imminent danger to others; when the client's desire to harm himself or herself appears to be impulsive or influenced by a mental disorder, coercion, or impaired judgment; or when legal requirements demand that confidential information be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. (p. 175)
Werth asserted that a clarification such as outlined above would not change practice with the "prototypical suicidal client" but would allow for careful assessment rather than potentially coercive intervention with an individual who is terminally ill and who is considering one or more options that may affect the timing of his or her death. ACA may want to consider convening a group, similar to the American Psychological Association's Working Group on Assisted Suicide and End-of-Life Decisions, that could examine this and other issues to provide direction to the association.
Just as the Supreme Court's decision placed the onus squarely on the shoulders of the states to continue the discussion of hastened death, so it is within the mental health professions--we must continue our own discussion so that we can be active members of what will continue to be an important and contentious debate.
Alpers, A., & Lo, B. (1999). The Supreme Court addresses physician-assisted suicide: Can its rulings improve palliative care? Archives of Family Medicine, 8, 200-205.
American Counseling Association. (1997). Code of ethics and standards of practice. Alexandria, VA: Author.
American Psychological Association. (1997, July). Terminal illness and hastened death requests: The important role of the mental health professional. Washington, DC: Author. (Reprinted in Professional Psychology: Research and Practice, 28, 544-547, 1997)
Battin, M. P. (1994). Introduction: The politics of dying. In M. P. Battin (Ed.), The least worst death (pp. 3-29). New York: Oxford.
Brief for the American Medical Association, the American Nurses Association, and the American Psychiatric Association et al. (1996, November). Filed with the Supreme Court of the United States, October, 1996 term.
Brief for the Washington State Psychological Association, American Counseling Association, Association for Gay, Lesbian, and Bisexual Issues in Counseling and the Coalition of Mental Health Professionals Supporting Individual Self-Determination in Decisions to Hasten Death. (1996, December). Filed with the Supreme Court of the United States, October, 1996 term.
Burt, R. A. (1997). The Supreme Court speaks--not assisted suicide but a constitutional right to palliative care. New England Journal of Medicine, 337, 1234-1236.
Chin, A. E., Hedberg, K., Higginson, G. K., & Fleming, D. W. (1999). Legalized physician-assisted suicide in Oregon: The first year's experience. New England Journal of Medicine, 340, 577-583.
Coombs Lee, B., & Werth, J. L., Jr. (2000). Observations on the first year of the Oregon Death with Dignity Act. Psychology, Public Policy, and Law, 6, 268-290.
Dubes, A. B. (1999). A national study of certified gerontological counselors and rational or assisted suicide. Unpublished doctoral dissertation, University of Arkansas, Fayetteville.
Ganzini, L., Nelson, H. D., Schmidt, T. A., Kraemer, D. F., Delorit, M. A., & Lee, M. A. (2000). Physicians' experiences with the Oregon Death with Dignity Act. New England Journal of Medicine, 342, 557-563.
McIntosh, J. (1993). Assisted and rational suicide: The issues will not disappear. Newslink, 19(4), 3-4.
Merritt, D., Fox-Grange, W., Rothouse, M., Lynn, J., Cohn, E, & Forlini, J. H. (1998, June). State initiatives in end-of-life care: Policy guide for state legislators. Washington, DC: National Conference of State Legislatures.
Moore, M. O. (2000, Nov. 9). Voters give ballot questions cold response. Bangor Daily News. Retrieved February 7, 2002 from http:// www.bangornews.com/cgi-bin/article.cfm?storynumber=23658
Morrissey, M. (1997, February). ACA, AGLBIC file amicus brief supporting physician-assisted suicide. Counseling Today, 39(8), 21, 37.
National Association of Social Workers. (1994). Client self-determination in end-of-life decisions. In Social work speaks (3rd ed., pp. 58-61). Washington, DC: National Association of Social Workers Press.
Oregon Death with Dignity Act, Or. Rev. Stat. [subsections] 127.800-127.995 (1995).
Rogers, J. R., Guellette, C. M., Abbey-Hines, J., Carney, J. V., & Werth, J. L., Jr. (2001). Rational suicide: An empirical investigation of counselor attitudes. Journal of Counseling & Development, 79, 365-372.
Stevens, J. P. (1997, June 24). Concurrence in Washington v. Glucksberg United States Law Week, 65, 4679-4683.
Sullivan, A. D., Hedberg, K., & Fleming, D. W. (2000). Legalized physician-assisted suicide in Oregon--The second year. New England Journal of Medicine, 342, 598-604.
Sullivan, A. D., Hedberg, K., & Hopkins, D. (2001). Legalized physician-assisted suicide in Oregon, 1998-2000. New England Journal of Medicine, 344, 605-607.
Vacco v. Quill, 521 US 793 (1997).
Washington v. Glucksberg, 521 US 702 (1997).
Werth, J. L., Jr. (1996). Rational suicide? Implications for mental health professionals. Washington, DC: Taylor & Francis.
Werth, J. L., Jr. (1999). Mental health professionals and assisted death: Perceived ethical obligations and proposed guidelines for practice. Ethics and Behavior, 9, 159-183.
Werth, J. L., Jr. (2000). Recent developments in the debate over physician-assisted death. In R. W. Maris, S. S. Canetto, J. L. McIntosh, & M. M. Silverman (Eds.), Review of suicidology, 2000 (pp. 255-276). New York: Guilford.
Werth, J. L., Jr. (2001). U.S. involuntary mental health commitment statutes: Requirements for persons perceived to be a potential harm to self. Suicide and Life-Threatening Behavior, 31, 348-357.
Working Group on Assisted Suicide and End-of-Life Decisions. (2000). Report to the Board of Directors. Washington, DC: American Psychological Association. Retrieved February 7, 2002, from http://www.apa.org/pi/ aseolf.html
BRIEF FOR THE WASHINGTON STATE PSYCHOLOGICAL ASSOCIATION; AMERICAN COUNSELING ASSOCIATION; ASSOCIATION OF GAY, LESBIAN, AND BISEXUAL ISSUES IN COUNSELING; AND A COALITION OF MENTAL HEALTH PROFESSIONALS SUPPORTING INDIVIDUAL SELF-DETERMINATION IN DECISIONS TO HASTEN DEATH
INTEREST OF THE AMICI
Any consideration of the question before the Court in this case must involve the related issues of (i) whether a mentally competent adult patient would ever freely choose to hasten death, and (ii) whether it is possible to ascertain that a particular patient is mentally competent, adequately advised, and has freely made such an irrevocable choice. The amici are mental health professionals (psychiatrists, psychologists, professional counselors, social workers, and marriage and family therapists) whose training and experience qualify them to provide the Court with insight on these important questions [See Appendix A].
SUMMARY OF ARGUMENT
The decisions of the courts of appeals in these cases limit their holdings to a narrow set of circumstances: cases involving mentally competent, terminally ill adults who have made, or wish to have the option to make, the choice to select the manner and hasten the time of an otherwise quickly and inevitably approaching death. Implementation of either decision therefore depends on the ability to assess whether a terminally ill patient is mentally competent, and whether a particular decision to seek assistance in dying is rational and voluntary. These central issues of the competence, rationality, and voluntariness of end-of-life decisions are ones with respect to which many mental health professionals have special training and experience.
Two central values for mental health professionals are the intertwined principles of client autonomy and self-determination. Mental health professionals do not promote any particular resolution of the terminal-care issues that may arise near the end of a client's life. Rather, in the context of end-of-life decisions, clients are helped by providing them with the means to make informed choices.
In determining legal competence, courts have inevitably relied on the training, experience, and judgment of qualified mental health professionals to assess an individual's capacity to make reasoned decisions. In the context relevant to these cases, there is no dispute that States may appropriately set high standards for making such assessments. Under existing or suggested standards, an evaluator would focus, for example, on a patient's ability to make a coherent assessment of costs and benefits and to draw conclusions that are logically consistent with his or her own values, rather than on the particular outcome of the patient's deliberation. Once appropriate standards have been set, mental health professionals who have the requisite training, experience, and direct contact with an individual patient will be in a position to assess whether the patient has the capacity to make a reasoned end-of-life decision.
There should be no dispute that, before allowing a physician to assist a terminally ill patient to hasten death, a State may also constitutionally require some particularized assessment of the patient's end-of-life decision. Although some have argued that any decision to hasten the end of one's life must be either irrational or the product of mental illness, that argument is merely conclusory. Evaluation of particular decisions must instead focus first and primarily on the deliberative process involved, not on the decision ultimately made. Similarly, neither research nor experience supports the assertion that decisions to hasten death are so highly correlated with mental illness as to justify a prophylactic rule banning all physician assistance in dying. Rather, research indicating that terminal illness, particularly if accompanied by intractable pain or other special circumstances, presents a special case for rational suicide is reinforced by studies showing that a significant proportion of mental health professionals believe that hastening death can be a reasonable choice. Under proper circumstances, a choice to control the manner and hasten the time of one's own death is neither inherently irrational nor indicative of mental illness.
Mental health professionals who work with terminally ill patients are as concerned as others that decisions to hasten death not be impulsive or ambivalent, and that they be made free from any coercion or undue influence. Such dangers may largely be avoided through appropriate state regulation, including mandatory waiting periods and the involvement of mental health professionals in evaluation and counseling. With a strong commitment to patient autonomy as a guiding principle, mental health professionals are uniquely suited to serve as counselors and advocates for terminally ill patients in the face of any improper pressure. Moreover, appropriate safeguards may be put in place without denying patients who are in a position to make free, informed, and intelligent end-of-life decisions the opportunity to do so.
Frank discussion of end-of-life issues among terminally ill patients, their treating physicians, and appropriate mental health professionals would necessarily raise the issues of capacity, rationality, and voluntariness discussed in this brief. The process of evaluation and counseling that should accompany any end-of-life decision will often lead patients to choose some option other than assisted suicide--even if the patient actively considers that course as one possibility. The cases before the Court involve what is presently, and is likely to remain, a minority of patients who reach a carefully considered decision to hasten the end of life, even after a thorough exploration of the alternatives. Nonetheless, various considerations suggest that protection of the public would be enhanced, not diminished, by bringing physician assistance in dying into the open and allowing for comprehensive legal regulation.
I. RECOGNITION AND IMPLEMENTATION OF THE CONSTITUTIONAL RIGHT AT ISSUE IN THESE CASES DEPENDS ON THE ABILITY TO ASSESS WHETHER A TERMINALLY ILL PATIENT IS MENTALLY COMPETENT AND WHETHER SUCH A PATIENT IS ACTING RATIONALLY AND VOLUNTARILY WHEN HE OR SHE SEEKS ASSISTANCE IN CHOOSING THE TIME AND MANNER OF DEATH.
This case presents the narrow but important question whether a State may constitutionally prohibit physicians, under any set of circumstances, from providing mentally competent, terminally ill adults with the means medically necessary to choose the manner and hasten the timing of their death. In the opinion below in No. 96-106, the Ninth Circuit recognized "a constitutionally protected liberty interest in determining the time and manner of one's own death." Compassion in Dying et al. v. State of Washington et al. 79 F.3d 790, 793 (9th Cir. 1996). The court then held that, in the particular context of a competent, terminally ill patient whose physician is willing to prescribe appropriate medication, that interest outweighs even the State's substantial general interest in preventing suicide. In that context, the court held, "the state has wide power to regulate, but it may not ban" willing physicians from providing medical assistance to a competent patient who chooses to hasten the already fast-approaching end of life.
In No. 95-1858, the Second Circuit reached a similar result through different reasoning. That court first determined that New York law recognizes and respects a terminally ill patient's right to refuse or order the discontinuance of life-sustaining treatment, including artificial nutrition and hydration. Quill et al. v. Vacco et al. 80 F.3d 716, 727-28 (2d Cir. 1996). The court then concluded that the State treats other competent, terminally ill patients unequally, by prohibiting even a willing physician from prescribing appropriate drugs if and when such a patient wishes to hasten the moment of his or her own impending death. Id. at 729. In the limited context of mentally competent, terminally ill patients, the court discerned no rational relationship between that inequality of treatment and any legitimate state interest. Id. at 730-31. The court therefore struck down the State's criminal prohibition on assisting suicide, as applied to "prohibit a physician from prescribing medications to be self-administered by a mentally competent, terminally ill person in the final stages of his terminal illness." Id.
Although the opinions below rest on different legal theories, both are notable for the care they take to limit their holdings to a narrow set of factual circumstances: cases involving mentally competent, terminally ill adults who have made, or wish to have the option to make, the choice to select the manner and hasten the time of a quickly and inevitably approaching death. Whatever the proper legal analysis, both decisions therefore depend on two important factual propositions: that it is generally possible for a competent person to make a reasoned decision to hasten the end of his or her own life, and that it is possible in any given case to assess the decision-making capacity of an individual patient and the soundness of his or her decision-making process.
Moreover, whether the right in question is guaranteed directly by the Constitution, or as a matter of parity with rights already afforded by a State to individuals who wish to terminate life-sustaining care, both decisions seek to protect a sphere of personal autonomy--specifically, an individual's right to choose the time and manner of ending the suffering caused by a terminal illness. That protection is only sensible or desirable, however, if the choice protected is in fact an autonomous decision made by the individual patient. Conversely, the State's interest in regulating, or even prohibiting, end-of-life decisions of this type increases to the extent that there is any uncertainty about whether a particular patient's choice is truly voluntary.
These central issues concerning the competence, rationality, and voluntariness of end-of-life decisions are ones with respect to which many mental health professionals have special training and experience. Moreover, the mental health professions have long grappled with the ethical issues that arise in this context. The amici offer the following observations to the Court in the hope that they will be helpful in informing the Court's decision on the important question presented by these cases.
II. MENTAL HEALTH PROFESSIONALS ARE GUIDED IN THEIR APPROACH TO END-OF-LIFE ISSUES BY ETHICAL PRINCIPLES THAT INCLUDE PATIENT AUTONOMY AND SELF-DETERMINATION, BALANCED BY LEGAL NORMS AND CONCERN FOR PUBLIC WELFARE.
The analysis provided in this brief is grounded in underlying ethical principles that guide the work of mental health professionals. Mental health professionals accord appropriate respect to individuals fundamental interests in privacy, self-determination, and autonomy, while remaining mindful that those interests may conflict with legal and other obligations. When conflicts occur, professionals attempt to resolve them and to perform their roles in a responsible fashion that avoids or minimizes harm. They are aware of their professional and scientific responsibilities to the communities and society in which they work and live. Professionals apply and make public their knowledge of mental health in order to contribute to human welfare. They work to identify and mitigate the causes of human suffering.
Two central values for mental health professionals are the intertwined principles of client autonomy and self-determination. In the context of end-of-life decisions, clients are helped by providing the means for them to make informed choices. Mental health professionals do not promote any particular resolution of the terminal-care or other issues that may arise near the end of a patient's life. Rather, mental health workers who have appropriate training and immediate involvement with those suffering from terminal illnesses can help patients to explore, ameliorate, cope with, or solve problems that interfere with the patient's own control over his or her life and death.
Professionals can, for example, help patients to address issues such as pain, depression, dignity, tranquility, financial concerns, and the effectiveness or futility of available medical treatments. In addition, they can assist the patient to communicate with other health care providers, family members, social service providers, or others concerning the patient's needs, concerns and preferences, to help ensure that the patient receives necessary support and that the treatment provided comports with the patient's wishes. Finally, professionals can promote and monitor appropriate involvement by significant others in a patient's end-of-life decisions, and they can counsel both patients and survivors in the inevitable process of grieving. See generally, e.g., National Association of Social Workers, Client Self-Determination in End-of-Life Decisions, in Social Work Speaks: NASW Policy Statements 60 (3d ed. 1994) "NASW Statement." [Reader's Note: This statement was included in its entirety as Appendix B of the actual brief.] In all these roles, mental health professionals seek to advance the ideals of client autonomy and self-determination, subject to the requirements of the law and concern for the general public welfare.
III. IT IS POSSIBLE TO ASSESS WHETHER OR NOT A TERMINALLY ILL PATIENT WHO HAS REQUESTED ASSISTANCE IN HASTENING DEATH IS MENTALLY COMPETENT AND HAS MADE A REASONED, INFORMED, AND VOLUNTARY DECISION TO SEEK SUCH ASSISTANCE.
A. Assessing Capacity to Make Reasoned Decisions
Both decisions below begin with the assumption that a terminally ill patient who seeks assistance in choosing the means and time of his or her own death must be "mentally competent" to make that final decision. Similar situations involving the assessment of mental competence or capacity arise in a variety of legal contexts, from competence to stand trial to competence to make a valid will. See, e.g., Cooper v. Oklahoma, 116 S. Ct. 1373 (1996) (competence to stand trial); Addington v. Texas, 441 U.S. 418 (1979) (involuntary civil commitment); Cal. Prob. Code [section] 812 (West Supp. 1996) (specifying criteria to be used in determining legal incapacity to perform various acts, including "to contract, to make a conveyance, to marry, to make medical decisions, to vote, or to execute wills or trusts."). Competence is a legal question, which, when disputed, must ultimately be resolved by the courts. In deciding such issues, however, courts have inevitably relied on the training, experience, and expert judgment of qualified mental health professionals to assess a given individual's capacity to make reasoned decisions. See, e.g., Medina v. California, 505 U.S. 437, 450 (1992); see also id. at 465 (Blackmun, J., dissenting).
Particular legal standards of competence vary depending on the rights and interests at stake in a given context. See, e.g., Cooper, 116 S. Ct. at 1383-1384 (contrasting standards for involuntary commitment and for competence to stand trial). In the context of patients' end-of-life decisions, there is no dispute that the standards for assessing decision-making capacity and legal competence may appropriately be set high. Cf. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 282-284 (1990); Addington, 441 U.S. at 423 ("The function of a standard of proof ... is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" While each State could establish its own standards and procedures for such cases, the mental health literature suggests that an appropriate standard would require that a terminally ill patient be able to:
(a) understand and remember information relevant to an end-of-life decision;
(b) appreciate the consequences of the decision;
(c) indicate a clearly held and consistent underlying set of values that provide some guidance in making the decision; and
(d) communicate the decision and explain the process used for making it.
See J. Werth, Rational Suicide? Implications for Mental Health Professionals 94 (1996). (1) A strict standard might also require that
"once understanding [of the information relevant to an end-of-life decision] has been attained, the patient's rational manipulation of information [must take] place in the context of the patient's appreciation of the nature of his situation." Appelbaum and Roth, Competency to Consent to Research, 39 Archives Gen. Psychiatry 951, 954 (1982).
Under this type of standard, a mental health professional evaluating decision-making capacity would examine a patient's "chain of reasoning," and would seek to determine whether the patient can "indicate the major factors in his decisions and the importance assigned to them." Appelbaum and Grisso, Assessing Patients' Capacities to Consent to Treatment, 319 New Eng. J. Med. 1635, 1636 (1988). The evaluation would focus on the patient's ability to make a coherent assessment of costs and benefits, and to draw conclusions that are logically consistent with his or her own values or other stated premises for the decision, rather than on the outcome of the patient's deliberation. See also Annas and Densberger, Competence to Refuse Medical Treatment: Autonomy vs. Paternalism, 15 U. Tol. L. Rev. 561,568 (1984). (2)
Once an appropriate standard has been set, mental health professionals who have the requisite training, experience, and direct contact with an individual patient will be in a position to assess, in the first instance, whether a patient has the capacity to make a reasoned end-of-life decision. (3) Many mental health professionals have extensive experience in making both formal written evaluations and ongoing, informal assessments of decision-making capacity and rationality during the course of psychotherapy, counseling, or psychiatric consultation in medical settings. Indeed, professional evaluation occurs continuously during therapy and within the context of hospital or outpatient consultations. Is the client sensing, perceiving and comprehending information regarding his or her situation accurately? Is the client realistically formulating and utilizing this information? Are the client's perceptions being unduly influenced by mental disorders, prescribed medications, substance abuse, or external social or economic pressures? Overall, is the client fully informed and rational? General criteria exist, and specific criteria may be adopted, for making such evaluations in the case of terminally ill patients who seek physician assistance in controlling the manner and timing of their deaths. See, e.g., J. Werth, supra, at 94-95. Specification and refinement of those criteria, and their application in particular instances, are well within the competence of the mental health profession.
B. Assessing the Rationality of a Decision
Even if a person generally has the capacity to make reasoned judgments, he or she may make particular choices that are unduly influenced by factors not associated with rational decision-making, such as coercion, inadequate treatment, prescribed medications, drugs, alcohol, or mental disorders. There should be no dispute that, before allowing a physician to assist a terminally ill patient in selecting or hastening the moment of death, a State may constitutionally require not only an assessment of general mental capacity, but some particularized assessment of the patient's end-of-life decision. If allowed to address the issue openly, without fear of legal or ethical repercussions, mental health professionals can provide such assessments. See, e.g., Holtby, Social Work, Suicide, and Self-Deliverance, 1 National Social Work AIDS Network Readings and Writings No. 3, 30 (1996); Quill et al., Proposed Clinical Criteria for Physician-Assisted Suicide, 327 New Eng. J. Med. 1380, 1381-82 (1992); J. Werth, supra, at 55-80. Moreover, the involvement of mental health professionals and the use of open discussion and evaluation can facilitate the sort of full consideration that leads to an informed and deliberate decision, whatever it may ultimately be.
1. "Inherent irrationality"
It may be argued that any decision to hasten the end of life must be either irrational or a product of mental illness. See, e.g., Brief for the American Suicide Foundation, Amicus Curiae, Supporting Reversal (Case No. 96-110) 5-11, 13 ("Am. Cur. Br. for the ASF"). That argument, however, assumes its conclusion. For example, one of the guiding principles for mental health professionals is client autonomy--allowing and encouraging clients to take control of their lives and assume responsibility for their decisions. In the argument for the inherent irrationality of suicide, however, a patient who chooses to forgo medical treatment is said to make only "a judgment about how to live before one dies," id. at 13, while a patient who desires to exercise essentially the same control over the final portion of his or her life by choosing the time and manner of death is characterized as "afflicted" by a "rigidity" that reflects "impaired thought processes and irrationality," id. at 8. Similarly, the right to forgo treatment is treated as "rooted in our abhorrence of the violence inherent in forcing medical interventions on unwilling, competent adults," but the essentially identical choice to avoid the same "intense burdens, such as pain, bodily invasion, and the emotional suffering that can accompany ... a course of treatment" by an active hastening of death is dismissed as necessarily a product of "mental impairment." Id. at 13-14. Thus, the argument succeeds only because it defines a request for active assistance in dying as "irrational."
As with determinations of competency and decision-making capacity, evaluation of a particular end-of-life decision must instead focus first and primarily on the deliberative process involved, not on the decision ultimately made. "If the reasoning process flows logically from its starting premises, though the result might be rejected by most people (e.g., a person refusing potentially life-saving medical treatment), we cannot say that rational manipulation is impaired." P. Appelbaum and T. Gutheil, Clinical Handbook of Psychiatry and the Law 223 (1991). A patient who is fully informed, realistic, stable, and not mentally impaired--as determined, for example, by professional observation of the patient's behavior and ability to interact and communicate--may make a knowing and intelligent decision to decline (or accept) treatment, or to request (or decide against)assistance in dying. That is true even if the decision is based in part on irrational' or super-rational factors, such as religious beliefs or other transcendent moral values.
To be sure, assessing the soundness of a terminally ill patient's decision to hasten death will sometimes present special challenges. In cases of terminal illness, the criteria for measuring the existence of mental disturbance are particularly likely to be confounded by the effects of the physical disease itself. For similar reasons, it may be difficult to differentiate between normal grief--a reaction to actual or prospective loss--and clinical depression. See R. Neils, Dying Well Network: Death with Dignity FAQs (Frequently Asked Questions) [section] 4.18 (a copy of which has been lodged with the Clerk). Indeed, of the nine standard criteria for diagnosing a "major depressive episode," several may be present simply because of physical illness, and six may appear in a terminally ill patient simply because of natural grieving over the functional impairment caused by serious illness and over the impending loss of his or her life. (4)
With training and experience, however, a professional can distinguish clinical depression from physical illness or grief, for example on the basis of a patient's feelings of worthlessness or excessive guilt. An individual's sense of self-worth is typically unaffected by physical illness or grief, but significantly impaired in cases of clinical depression. Thus, a depressed patient might inappropriately request suicide precisely because of feelings of worthlessness and guilt. For a terminally ill patient, on the other hand, being able to assert some modicum of control over the course of an inevitable final illness, by choosing at least the time and manner of death, may be a final act of will that reflects--indeed, affirms--self-esteem and individual dignity. The differences between these situations may sometimes be subtle, but they are real, and mental health professionals who work with the terminally ill are qualified to assess them.
An assessment of any particular end-of-life decision should take into account not only the patient's ability to reason coherently, but also the information that the patient has considered in reaching his or her decision. Even if a patient receives fully adequate medical care, his or her physicians may be focused on the details of particular medical problems, rather than on the patient's entire circumstances. The patient will also inevitably be under considerable mental and physical stress. Mental health professionals can provide objective information and counseling about the patient's overall situation, including alternatives of which neither the patient nor his or her attending physicians may be aware. See Peruzzi et al., Ethics and Behavior, 6, 353 (1996); NASW Statement, supra, at 60. They may, for example, be able to provide information about alternatives such as hospice programs, independent or assisted living arrangements, and potential sources of financial or other assistance. They can act as liaisons or patient advocates in coordinating comprehensive care. They are also well positioned to assess the patient's overall psychological state, and to recognize signs of misunderstanding, clinical depression, or other factors which suggest that the patient's decision-making ability may be compromised. They can offer the patient a sympathetic sounding-board, identify the factors that appear to be driving an end-of-life decision, and offer either confirmation that the facts are as the patient perceives them to be, or new or different information that may change or help to inform the patient's decision.
2. "Correlation with mental illness"
Even if some decisions to request assistance in dying may be fully informed and intelligently made, it may be argued that a decision to hasten death is so highly correlated with mental illness that the State is justified in enacting a prophylactic rule banning all physician assistance in dying. Cf. Black and Winokur, Suicide and Psychiatric Diagnosis, in Suicide Over The Life Cycle: Risk Factors, Assessment, and Treatment of Suicidal Patients 135, 139 (S. Blumenthal and D. Kupfer eds., 1990) ("few suicides occurred in persons judged not mentally ill, suggesting that the `rational' suicide is uncommon."). In fact, the correlation between all suicide and mental illness may be overstated. (5) Even if the correlation holds for suicides in general, however, the argument for a prophylactic ban is not persuasive in the context of end-of-life decisions by terminally ill patients. In that context, physician-assisted "suicide" is far less akin to what is commonly termed suicide--typically a violent self-destructive act related to feelings of worthlessness--than it is to the thoughtful decision to decline life-sustaining treatment. The latter is a choice that upholds and affirms the dignity of a fully lived life, and one that many States, including New York and Washington, have already recognized as worthy of legal recognition. See, e.g., Compassion in Dying, 79 F.3d at 817-20; Quill, 80 F.3d at 727-28.
In fact, a number of researchers and clinicians have recognized that terminal illness, particularly if accompanied by intractable pain or other special circumstances, presents a special case for "rational" suicide. See, e.g., Siegel, Rational Suicide: Considerations for the Clinician, 54 Psychiatric Quarterly 77, 78 (1982) ("We need not argue the issue whether it is rational for an individual with painful terminal illness to refuse extraordinary life-saving measures or to more actively arrange to end his life. Most would agree it is rational."); Quill, Physician-Assisted Death: Progress or Peril?, 24 Suicide and Life-Threatening Behavior 315 (1994). (6) Moreover, research on suicide among the terminally ill must be interpreted with caution, because the cases likely to be studied are those that can be readily identified as "suicides," whereas other research indicates that many hastened deaths among terminally ill patients are never documented as such. S. Jamison, Final Acts of Love: Families, Friends, and Assisted Dying 5-6 (1995); R. Ogden, Euthanasia, Assisted Suicide, and AIDS 71-83 (1994). As a result, the research cited by opponents of hastened death must be viewed within an appropriately restrictive context, and it must be realized that it may not be possible to generalize the results. Several of the Coalition members listed in Appendix A have experience with literally hundreds of individuals who have died of terminal illnesses, and each could relate numerous stories of assisted deaths that were not reported as suicides. These professionals and the others who are members of the Coalition have chosen to join in this submission in part because their work has convinced them that the assertion that anyone, including terminally ill individuals, who wishes to hasten his or her own death must be depressed or otherwise mentally impaired is simply not borne out by either research or experience.
Recent research has found that a significant percentage of mental health professionals believe that hastening death can be a reasonable choice, and even have experience working with individuals who have made such decisions. In a national survey of a random sample of members of the American Psychological Association's Division of Psychotherapy, 81% of the respondents (with a 50 response rate) stated that they believed that an individual could make a rational decision to control the time and manner of his or her own death. Werth and Liddle, Psychotherapists' Attitudes Toward Suicide, 31 Psychotherapy: Theory, Research and Practice 440 (1994). In another study, using a sample of psychologists who were members of the National Register of Health Care Providers in Psychology, 86% of the respondents (again with a 50% response rate) indicated that they believed in rational suicide. J. Werth, supra, at 47. Twenty percent of the participants in the latter study stated that they had worked with patients whose hastened deaths could be considered "rational" suicides in the sense described above. J. Werth, supra, at 53; see also Pope et al., Ethics of Practice: The Beliefs and Behaviors of Psychologists as Therapists, 42 Am. Psychologist 993, 1003 (1987).
Similar results have been found in surveys of psychiatrists. One study of physicians in Washington State found that of five categories of physicians, "psychiatrists were most supportive of' assisted suicide and euthanasia. Cohen et al., Attitudes Toward Assisted Suicide and Euthanasia Among Physicians in Washington State, 331 New Eng. J. Med. 89, 91-92 (1994) (especially graphs). A more recent report found that two-thirds of the respondents to a survey of Oregon psychiatrists (with a 77% response rate) "endorsed the view that a physician should be permitted, under some circumstances, to write a prescription for a medication whose sole purpose would be to allow a patient to end his or her life." Ganzini et al., Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide, 153 Am. J. Psychiatry 1469, 1469 (1996).
For these reasons, we think it must be accepted that a decision by a terminally ill patient to hasten his or her own death may be carefully considered and fully rational--just as it may be ill informed or the product of impaired reasoning. Given the opportunity, mental health professionals are capable of assessing the nature and quality of a patient's decision-making process, and therefore of helping to determine that any decision that is implemented is a product of the patient's knowing and intelligent choice.
The decisions below would permit, perhaps for the first time, a process of free and open discussion and consultation among patients, their physicians, and mental health professionals concerning all end-of-life options. Indeed, States could and should, in our view, require such consultation in any case in which the patient's ultimate choice is to select or hasten the moment of death. (7) The mental health professionals involved would be in a position to assess the accuracy of the patient's understanding of his or her medical condition, including the prognosis and treatment alternatives; to review the quality of the patient's deliberative process; and therefore to evaluate the psychological soundness of his or her final choice. Under proper circumstances, a choice to control the manner and hasten the time of death is neither inherently irrational nor indicative of mental illness. Rather, such a choice may be the final expression of a terminally ill patient's individual autonomy.
C. Assessing the Voluntariness of a Decision
The mental health professionals who work with terminally ill patients are as concerned as others that those patients who decide to hasten their own deaths make that decision free of any form of coercion or undue influence. They are equally concerned that a patient's choice may be merely impulsive, or that the patient may be so ambivalent that the simple passage of time is likely to change his or her mind. See, e.g., Am. Cur. Br. for the ASF 9-10. Although these dangers are real, they may largely be avoided by appropriate state regulation of the process by which such individuals request and receive physician assistance, including mandatory waiting periods and the involvement of mental health professionals in the sorts of evaluations and counseling described above. (8) This may be accomplished without, at the same time, denying patients who are in a position to make free, informed, and intelligent decisions the opportunity to do so. Indeed, the active and open involvement of mental health professionals in counseling terminally ill patients about end-of-life issues may well be the best guarantee that all such patients will have the information and support necessary to make their own decisions, based on their own values, about the course of their own treatment and, ultimately, their own manner of dying.
Assessments of whether a particular decision reflects independent determination or improper outside influence, like assessments of capacity to make reasoned decisions, are as familiar to mental health professionals as they are to the law. Mental health professionals are used to working, in a wide variety of contexts, with individuals who may be susceptible to pressure, suggestion, or intimations of authority. With a strong commitment to patient autonomy as a guiding principle, mental health professionals are uniquely suited to serve as counselors and advocates for terminally ill patients to protect against any improper pressure on this most sensitive of decisions. That is true whether the pressure in question arises from physicians, hospital administrators, third-party payers or "managed care" controllers, family members, or other inappropriate or treatable sources such as clinical depression, feelings of worthlessness, transient mental disorders, the effects of alcohol or other drugs, financial concerns, inadequate palliative care, or a lack of social support.
Concerns with respect to voluntariness and the risk of coercion apply equally in the case of terminally ill individuals who refuse, or request the discontinuation of, life-sustaining treatment. Those choices have nonetheless been made available to patients, under whatever safeguards individual States have deemed appropriate. Indeed, it is possible that recognition of the right at issue in these cases, together with the sort of independent counseling requirements that the States might be expected to enact in this context, would increase the level of information and support available to all patients, and thereby actually decrease the number who choose to end their own lives. In any event, open discussion of end-of-life issues, and active involvement by mental health professionals, would significantly enhance confidence that any patient who requests assistance in hastening the end of his or her life does so as a matter of free choice. (9)
Recognition of a right to physician assistance in dying might well decrease those suicides that are of greatest legitimate concern to the State. Frank discussion of end-of-life issues between terminally ill patients, their treating physicians, and appropriate mental health professionals would necessarily raise the issues of capacity to make reasoned decisions, rationality, adequate information, exploration and availability of alternatives, and voluntariness discussed in this brief. Informed exploration of those issues might lead to the provision of appropriate treatment where all available methods have not been tried, and to the prevention of irrational and coerced deaths by those individuals who are not competent or rational (and whom the State has the greatest interest in protecting).
Similarly, because it is generally not legal to assist a patient to die, patients who wish to control their own deaths often reflect and act alone, without the benefit of counseling. They often believe that they must protect others by killing themselves in isolation, or earlier than they might otherwise choose, so they can be sure that they will still be able to carry out their own decision; or they may involve significant others, while feeling torn because doing so puts those individuals at risk both legally and emotionally. In either case, the results are often tragic. S. Jamison, supra, at 120-54; R. Ogden, supra, at 89-90. Drugs taken to hasten death, for instance, may not be properly absorbed, putting the patient at risk of further disability or prolonged suffering as a result of liver or kidney failure. Significant others may then be forced to become deeply involved. In desperation, they may even resort to violent measures, in which case the resulting post-traumatic stress compounds the tragedy. Holtby, Social Work, Suicide, and Self Deliverance, in 1 National Social Work AIDS Network Readings and Writings No. 3, 30 (1996). The availability of legal, regulated means for seeking assistance in dying, including the involvement of mental health professionals, would reduce these problems, and would allow professionals to deal openly with issues of emotional closure with a patient's family and helping the family to support the suffering individual. See, e.g., Lester, Easing the Legacy of Suicide: Counselor Assisted Suicide, in Changes (forthcoming 1997); J. Werth, supra, at 100. Protection of the public would thus be enhanced, not diminished, by bringing physician assistance in dying under the scrutiny of the law.
The process of discussion and counseling that should accompany any end-of-life decision often does lead patients to choose some option other than assisted suicide--even if the patient actively considers that course as one possibility. In fact, anecdotal reports and some recent research suggest that giving some patients a credible option, or even the means, to hasten death if they decide to do so in the future may decrease the patient's desire to die immediately, and even enhance the quality of the patient's remaining life, thus reducing the risk that a patient will act impulsively or prematurely. See Back et al., Physician-Assisted Suicide and Euthanasia in Washington State: Patient Requests and Physician Responses, 275 JAMA 919, 922 (1996); Block and Billings, supra, at 2045; See M. Battin, The Death Debate-Ethical Issues in Suicide 202 (1996), quoting C. Owens et al., Cancer Patients' Attitudes to Final Events in Life: Wish for Death, Attitudes to Cessation of Treatment, Suicide and Euthanasia, 3 Psycho-Oncology 1 (1994). It is worth emphasizing that the cases before this Court involve what is presently, and is likely to remain, a minority of patients who reach a carefully considered decision to hasten the end of life, even after a thorough exploration of the alternatives.
As mental health professionals, we have no interest in "promoting" assisted suicide. Our interest lies, instead, in the promotion of patient autonomy, balanced by concern for the welfare and protection of the public, and in the sound development of the law to that end.
The judgments of the courts of appeals should be affirmed.
(1) See also, e.g., Drane, The Many Faces Of Competency, 15 Hastings Center Report No. 2, 17, 19 (1985); Freedman, Competence, Marginal and Otherwise; Concepts and Ethics, 4 Int'l J.L. and Psychiatry 53, 59-60 (1981); Roth et al., Tests Of Competency To Consent To Treatment, 134 Am. J. Psychiatry 279, 280-282 (1984); Tepper and Elwork, Competence To Consent To Treatment As A Psycholegal Construct, 8 Law and Human Behavior 205.
(2) Compare Cal. Prob. Code [section] 813 (West Supp. 1996):
A person has the capacity to give informed consent to a proposed medical treatment if the person is able to do all of the following:
(a) Respond knowingly and intelligently to queries about that medical treatment.
(b) Participate in that treatment decision by means of a rational thought process.
(c) Understand all of the following items of minimum basic medical treatment information with respect to that treatment:
(1) The nature and seriousness of the illness, disorder, or defect that the person has.
(2) The nature of the medical treatment that is being recommended by the person's health care providers.
(3) The probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person's health care providers, and the consequences of lack of treatment.
(4) The nature, risks, and benefits of any reasonable alternatives.
See also Calif. Prob. Code [section] 1881 (West Supp. 1996) (standards of informed consent for conservatees).
(3) This Court has commented that "the subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations." Medina, 505 U.S. at 451, quoting Addington, 441 U.S. at 430; see also Cooper, 116 S. Ct. at 1382. In this context as in other areas of law (or medicine), however, the impossibility of certainty does not obviate the need to decide. Id. at 1382-83. The nature of end-of-life decisions would certainly justify a State in adopting a legal standard under which close cases are resolved in favor of preserving the medical status quo. See Cruzan, 497 U.S. at 283. But the inevitability of close cases cannot, by itself, justify imposing a flat prohibition that will apply even in cases where the evidence of mental capacity is clear.
(4) The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders lists nine criteria for identifying a Major Depressive Episode. A grievously ill person who is not clinically depressed may meet criteria 2, 3, 4, 5, 6, and 9:
1) Depressed mood most of the day, nearly every day, as indicated by either subjective report(e.g., feels sad or empty) or observation made by others (e.g., appears tearful);
2) Markedly diminished interest or pleasure in all, or almost all activities most of the day, nearly every day (as indicated by either subjective account or observation made by others);
3) Significant weight loss when not dieting or weight gain (e.g., a change of more than 15% of body weight in a month) or decrease or increase in appetite nearly every day;
4)Insomnia or hypersomnia nearly every day;
5) Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down);
6) Fatigue or loss of energy nearly every day;
7) Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick);
8) Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others); and/or
9) Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicidal attempt or a specific plan for committing suicide.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 327 (4th ed. 1994).
(5) Research indicating that the majority of individuals who commit suicide have one or more mental illnesses may be misleading. Even accepting the data as reported, these studies also show that from 3%-12% of people who have killed themselves had no mental illness. Black and Winokur, supra, at 139; Clark and Horton-Deutsch, Assessment in Absentia: The Value of the Psychological Autopsy Method for Studying Antecedents of Suicide and Predicting Future Suicides, in Assessment and Prediction of Suicide 144, 148-49, 153-54 (R. Maris et al., eds., 1992). Other researchers report studies in which more than 25% of completed suicides did not have a mental disorder and could be considered rational. See R. Maris, Pathways to Suicide: A Survey of Self-Destructive Behaviors (1981); Meerloo, The Multifarious Motivations for Suicide, in Suicide and Mass Suicide 18, 25 (J. Meerloo ed. 1962); Patel, Pathology of Suicide, 13 Medicine, Science, and the Law 103, 106 (1973). After studying suicide notes, Tuckman, Kleiner, and Lavell stated that they "were impressed with the possibility that in a number of cases the suicide could have resulted from a conscious, `rational' decision reached by weighing the pros and cons of continuing to live." Tuckman et al., Emotional Content of Suicide Notes, 116 Am. J. Psychiatry 59, 62 (1969). See also Shneidman et al., The Suicide Prevention Center, in The Cry for Help 6, 13 (N. Farberow and E. Shneidman eds., 1961) ("A large minority of suicides, usually older persons in physical pain, are logical and rational and not psychotic.")
Other studies suggest that the data linking suicide and mental illness may be oversimplified. Tanney noted that dramatic differences appeared when studies of the association between mental illness and suicide are broken down into general population surveys and hospital surveys. He reported that, on average, only 38% of completed suicides in the general population had a known history of mental disorder, while, on average, more than 80% of suicides in hospital-based surveys had a psychiatric disorder or history of care. Tanney, Mental Disorders, Psychiatric Patients, and Suicide, in Assessment and Prediction of Suicide 277, 283-84 (R. Maris et al. eds., 1992) Similarly, Temoche, Pugh, and MacMahon reported all the highest estimates (47%-94%) of the percentage of suicides who displayed prior evidence of mental illness come from studies done after the suicide occurred; in studies dependent upon objective criteria measured prior to the suicide, estimates of the correlation with mental illness were much lower (5%-22%). Temoche et al., Suicide Rates Among Current and Former Mental Institution Patients, 138 J. Nervous and Mental Disease 124 (1964).
(6) In one survey of 39 HIV-positive individuals, researchers concluded that more than two thirds had rationally contemplated suicide. Moreover, the desire to hasten death was not directly related to clinical depression as measured by the Beck Depression Inventory (the most widely accepted means of making swift diagnoses of depression). Jones and Dilley, Rational Suicide and HIV Disease, 8 Focus: A Guide to AIDS Research and Counseling 5 (July 1993).
(7) Oregon's "Death With Dignity Act," for example, adopted by the State's voters on November 6, 1994, requires a physician to refer a patient who requests aid in dying to counseling if the physician believes that the patient may be depressed or otherwise mentally compromised. 1995 Or. Laws Ch. 3 (I.M. 16). The counseling is to consist of consultation with a licensed psychiatrist or psychologist to determine whether the patient is suffering from a psychiatric or psychological disorder, or from depression causing impaired judgment. We note that other mental health professionals, including social workers and professional counselors, who have appropriate training or experience in working with the terminally ill would also be capable of performing such evaluations. See also Baron et al., A Model State Act to Authorize and Regulate Physician-Assistance Suicide, 33 Harv. J. on Legis. 1 (1996), which proposes a specific series of procedural requirements designed to prevent mistaken decisions. In particular, the model act requires a review of the patient's competence by suitably trained mental health professionals.
(8) For example, Section 3 of the proposed Model Act to Authorize and Regulate Physician-Assisted Suicide also contains requirements that "the request must be competent, fully informed, voluntary, and enduring." See Baron, supra note 8, at 26. The proposed statute also mandates that a professional mental health care provider "evaluate the patient to determine that his or her decision is fully informed, free of undue influence, and not distorted by depression or any other form of mental illness." Id. at 18.
(9) With or without legal sanction, and with or without active or tacit professional assistance, some number of terminally ill patients already make their own decisions about exactly how and when to end their lives. One important effect of a decision affirming the judgments below might be to remedy an inequality akin to, but different from, that identified by the Second Circuit in Quill: the inequality between those patients who already have, whether through wealth, personal acquaintance, or mere physical ability, the de facto "right" to choose the time and manner of ending their battle with illness, and those whom disadvantage or disability consigns to live or die based solely on the medical and moral judgments of others. From the point of view of patient autonomy, surely it would be better to create a system under which some who have the power to die would receive the support or counseling that might convince them to live, while those who would truly choose to hasten their own ends would have the opportunity to do so without regard to fundamentally inconsequential criteria such as poverty or physical disability.
APPENDIX A: DESCRIPTIONS OF THE AMICI
The Washington State Psychological Association ("WSPA") is a non-profit professional association of approximately 900 doctoral level psychologists, and other related mental health practitioners. The WSPA's mission is to support, promote and advance the science and practice of psychology in the public interest. Many WSPA members work in areas directly affected by the issues raised by physician-assisted suicide, and confront the problems faced by terminally ill patients and their families on a regular basis. WSPA members routinely assess the mental capacity of patients, including those who are terminally ill and those contemplating suicide. By reason of the skills, training and experience of its members, WSPA believes it can provide meaningful insight into the mental capacity of terminally ill patients and into the diagnostic and evaluative resources available to verify such capacity. While the existence of a constitutional right to die is a legal question beyond the special expertise of WSPA, WSPA hopes to demonstrate that evaluative processes do exist for reliably assessing mental capacity, even for patients who are terminally ill, and even for patients who may contemplate suicide.
The American Counseling Association ("ACA") is the largest non-profit organization of professional counselors in the United States, with approximately fifty-five thousand members. ACA is an educational, scientific, and professional organization whose members are dedicated to the enhancement of human development throughout the life span, and who work to support and enhance the worth, dignity, potential and uniqueness of each individual. Indeed, the ACA's Code of Ethics and Standards of Practice states that "The primary responsibility of counselors is to respect the dignity and to promote the welfare of clients." Many of ACA's members provide mental health services, including psychotherapy and psychological assessments. Professional counselors serve in private practice, community mental health centers, mental health agencies, schools, universities, hospitals, rehabilitation facilities, business, industry, correctional institutions and religious organizations. ACA's members are trained in the diagnosis, etiology, and treatment of mental and emotional disorders, including depression. Given the counseling profession's largely unique focus on human development, and on individual self-determination and self-actualization, ACA feels it imperative to express its position regarding the ability of terminally ill adults to choose the manner and hasten the timing of their death.
The Association for Gay, Lesbian and Bisexual Issues in Counseling ("AGLBIC") is an association of gay and non-gay professional counselors seeking to promote greater understanding and insight toward counseling gay, lesbian and bisexual clients. AGLBIC offers professional training for all counselors interested in developing clinical skills that will enable them to be more effective. AGLBIC's interest in these cases stems from its members' experience with gay, lesbian, and bisexual persons with HIV disease.
The Coalition of Mental Health Professionals Supporting Individual Self-Determination in Decisions to Hasten Death is an ad hoc group of academics, private practitioners, administrators and consultants. These individuals have training and experience in the mental health professions which makes it appropriate for them to offer their views on the possibility of free and rational choice in the context relevant to this case. All Coalition members have extensive experience providing psychotherapy, often to persons who are terminally ill, and/or strong records of research and writing on depression, grief, suicide, psychotherapy, personality disorders, and substance abuse. A list of Coalition members follows. [See p. 161 of this article.]
TABLE OF AUTHORITIES
[Reader's Note: pages refer to original brief, not the brief as it appears in this article] CASES Addington v. Texas, 441 U.S. 418 (1979) 10, 11, 13 Cooper v. Oklahoma, 116 S. Ct. 1373 (1996) 10, 11, 13 Cruzan v. Director, Missouri Department of Health et al., 497 U.S. 261 (1990) 11, 14 Medina v. California, 505 U.S. 437 (1992) 11, 13 Compassion in Dying et al. v. State of Washington et al., 79 F.3d 790 (9th Cir. 1996) 6, 21 Quill et al. v. Vacco et al., 80 F.3d 716 (2d Cir. 1996) 7,21,27 STATUTES Cal. Prob. Code [section] 812 (West Supp. 1996) 10 Cal. Prob. Code [section] 813 (West Supp. 1996) 13 Cal. Prob. Code [section] 1881 (West Supp. 1996) 13 1995 Or. Laws Ch. 3 (I.M. 16) 24 BOOKS American Psychiatric Association, Diagnostic and Statistical Manual of the Mental Disorders (4th ed. 1994) 17, 18 P. Appelbaum and T. Gutheil, Clinical Handbook of Psychiatry and the Law (2d ed. 1991) 16 M. Battin, The Death Debate: Ethical Issues in Suicide (1996) 29 S. Blumenthal and D. Kupfer, eds., Suicide Over The Life Cycle: Risk Factors, Assessment, And Treatment Of Suicidal Patients (1990) 19, 20 N. Farberow and E. Shneidman, eds., The Cry For Help (1961) 20 S. Jamison, Final Acts of Love: Families, Friends, and Assisted Dying (1995) 22, 28 R. Maris, Pathways to Suicide: A Survey of Self-Destructive Behaviors (1981) 20 R. Maris et al., Assessment and Prediction of Suicide (1992) 20 J. Meerloo ed., Suicide and Mass Suicide (1962) 20 National Association of Social Workers, Social Work Speaks: NASW Policy Statements (3d ed. 1994) 10, 19 R. Neils, Dying Well Network, Death with Dignity FAQs (Frequently Asked Questions) (1996) 17 R. Ogden, Euthanasia, Assisted Suicide, and AIDS (1994) 22, 28 J. Werth, Rational Suicide? Implications for Mental Heath Professionals (1996) 12, 14, 15, 23, 28 ARTICLES Annas and Densberger, Competence to Refuse Medical Treatment: Autonomy vs. Paternalism, 15 U. Tol. L. Rev. 561 (1984) 12, 13 Appelbaum and Grisso, Assessing Patient's Capacities to Consent to Treatment, 319 New Eng. J. Med. 1635 (1988) 12 Appelbaum and Roth, Competency to Consent to Research, 39 Archives of Gen. Psychiatry 951 (1982) 12 Back et al., Physician-Assisted Suicide and Euthanasia in Washington State: Patient Requests and Physician Responses, 275 JAMA 919 (1996) 29 Block and Billings, Patient Requests to Hasten Death: Evaluation and Management in Terminal Care, 154 Archives of Internal Med. 2039 (1994) 24, 29 Cohen et al., Attitudes Toward Assisted Suicide and Euthanasia Among Physicians in Washington State, 331 New Eng. J. Med. 89 (1994) 23 Drane, The Many Faces of Competency, 15 Hastings Center Report, No. 2, 17 (1985) 12 Freedman, Competence, Marginal and Otherwise; Concepts and Ethics, 4 Int'l J.L. and Psychiatry 53 (1981) 12 Ganzini et al., Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide, 153 Am. J. Psychiatry 1469 (1996) 23 Holtby, Social Work, Suicide, and Self-Deliverance, 1 National Social Work AIDS Network Readings & Writings No. 3, 30 (1996) 15, 28 Jones and Dilley, Rational Suicide and HIV Disease, 8 Focus: A Guide to AIDS Research and Counseling 5 (July 1993) 21 Lester, Easing the Legacy of Suicide: Counselor Assisted Suicide, in Changes (forthcoming 1997) 28 Patel, Pathology of Suicide, 13 Medicine, Science, and the Law 103 (1973) 20 Peruzzi et al., Physician-assisted suicide: The rote of mental health professionals, 6 Ethics and Behavior 353 (1996) 18, 19 Pope et al., Ethics of Practice: The Beliefs and Behaviors of Psychologists as Therapists, 42 Am. Psychologist 993 (1987) 23 Quill, Physician-Assisted Death: Progress or Peril?, 24 Suicide and Life-Threatening Behavior 315 (1994) 21 Quill et al., Proposed Clinical Criteria for Physician-Assisted Suicide, 327 New Eng. J. Med. 1380 (1992) 15 Roth et al., Tests of Competency to Consent to Treatment, 134 Am. J. Psychiatry 279 (1984) 12 Siegel, Rational Suicide: Considerations for the Clinician, 54 Psychiatric Quarterly 77 (1982) 21 Temoche et al., Suicide Rates Among Current and Former Mental Institution Patients, 138 J. Nervous and Mental Disease 124 (1964) 20 Tepper and Elwork, Competence to Consent to Treatment as a Psycholegal Construct, 8 Law and Human Behavior 205 (1984) 12 Tuckman et al., Emotional Content of Suicide Notes, 116 Am. J. Psychiatry 59 (1959) 20, 21 Werth and Liddle, Psychotherapists' Attitudes Toward Suicide, 31 Psychotherapy: Theory, Research and Practice 440 (1994) 22 OTHER AUTHORITIES Brief for the American Suicide Foundation, Amicus Curiae, Supporting Reversal, State of Washington et al. v. Glucksberg et al. (Case No. 96-110) 16, 26
James L. Werth Jr. is an assistant professor in the Department of Psychology at The University of Akron, Akron, Ohio. Judith R. Gordon is a clinical professor of psychology in the Department of Psychology at the University of Washington, Seattle. Some of the material contained in the introductory sections of this article originally appeared in a similar form in a poster titled "Psychology and the Supreme Court Decisions on Physician-Assisted Suicide," presented August 15, 1997 at the American Psychological Association Annual Convention, Chicago, Illinois. The appended amicus curiae brief was prepared by Edward DuMont, Tamar Feder, Dolly Mirchandani, and Lee A. Thorson for the October, 1996 term of the United States Supreme Court for the two cases (Vacco v. Quill and Washington v. Glucksberg) related to "physician-assisted suicide." Correspondence regarding this article should be sent to James L. Werth Jr., Department of Psychology, Third Floor, Polsky Building, The University of Akron, Akron, OH 44325-4301 (e-mail: email@example.com).
|Printer friendly Cite/link Email Feedback|
|Author:||Werth, James L., Jr.; Gordon, Judith R.|
|Publication:||Journal of Counseling and Development|
|Date:||Mar 22, 2002|
|Previous Article:||The relationship of culture and empathy in cross-cultural counseling. (Practice & Theory).|
|Next Article:||Alternative ways of measuring counselees' Jungian psychological-type preferences. (Research).|