Undefined concepts in bills and laws for medical killing à la Oregon

One of the central eligibility criteria in laws for medical killing in the model used in Oregon is that the patient must be

– Diagnosed with a terminal illness that will lead to death within 6 months.

The central concept here is ”terminal illness”. This is not defined anywhere in the law, and the obvious interpretation should hence be the one that dictionaries and common sense tells us, namely an incurable disease, in the meaning that all treatment options are exhausted and all hope is gone.

But in the fall of 2017, the Swedish National Council on Medical Ethics published a report, ”Assisted Death: A Knowledge Compilation”. There, in one sentence, they revealed that the six-month limit on expected survival time applies, ”if no treatment is given to slow down the course of the disease”, referring to a conversation with Professor Linda Ganzini, Oregon Health and Science University. This statement was left without any further discussions, although it contradicts the obvious interpretation of terminal illness.

In order to have this issue clarified, I contacted the Oregon Health Authority (OHA) in the end of 2017, and this resulted in a remarkable correspondence, published in the beginning of 2018. Apparently the OHA deeply regretted what they revealed. Shortly after the correspondence was published and commented, the OHA changed their website by adding a new statement: “OHA does not interpret the statute, other than the portion related to the reporting requirements.” They could also have stated: “OHA does not interpret the statute – anymore”. Because that was exactly what they did in the correspondence.

One of my first questions concerned the alleged statement from Linda Ganzini. I asked whether the six-month limit is to be interpreted as ”without administration of life-sustaining treatment”?

Craig New, research analyst at Oregon Health Authority, gave the answer:
“…your interpretation is correct. The question is: should the disease be allowed to take its course, absent further treatment, is the patient likely to die within six months?” (emphasis added)

As I realized that this interpretation would have far-reaching implications, I came back to Mr. New with more questions:

  1. If an eligible patient refuse treatment that possibly could cure the disease – is that patient still eligible to take use of the Act?
  2. If a patient with a chronic disease (for instance, diabetes) decides to opt out from the life-sustaining medication/treatment and by doing so is likely to die within 6 months – will that patient become eligible to take use of the Act?

Soon after this, I got a remarkably candid answer from Mr. New, Oregon Health Authority:

“Interesting questions. While this is not addressed specifically in the law, the answer in both cases is yes—those patients would qualify. . . .
The law is best seen as a permissive law, and states only that patients must have a terminal illness with six months or less to live. It does not compel patients to have exhausted all treatment options first, or to continue current treatment. It is up to the patient and doctor to discuss disease and treatment options. But if the patient decides they don’t want treatment, that is their choice.” (emphasis added)

I then asked: “What about patients who cannot pay for treatment or who are denied treatment from their insurance company?”

Answer: “ . . . I think you could also argue that even if the treatment/medication could actually cure the disease, and the patient cannot pay for the treatment, then the disease remains incurable.”

Thus, a patient who has good or very good prospects of living for an additional number of years, can qualify for death assistance simply by refraining from treatment or being denied treatment from their insurance company.

Another question was whether this is an interpretation that has developed gradually?
The answer I got was: ‘We at the Public Health Division . . . always held this interpretation of ‘terminal illness.’”

Big surprise? Not for many of the opponents – this is what they suspected. But never before had it been officially confirmed. However – the voters in Oregon were deceived, and so are many of those who vote yes to any law modeled after Oregon’s. Obviously, they believe that terminal means terminal and that incurable is incurable! Nevertheless – the wider interpretation is logically inevitable for ALL such laws!

Of course, it must be the patient himself who has to decide when enough is enough. For those who believe in the basic idea of ​​such bills, it is obviously unreasonable to request that, for example, a cancer patient who is exhausted by radiation and several unsuccessful chemotherapy treatments, should be forced to undergo additional painful treatments with dubious results to gain access to assisted death.

But where should we draw the line? Isn’t it also obviously unreasonable that a patient who has very good prospects to be cured can get assisted death only by refusing treatment? Shouldn’t we require that a cancer patient accept at least one treatment before talking about assisted death – or at least to account for reasonable motives for his or her wish to die?

However, all such attempts to conditions intrude on patient autonomy (the very autonomy that such bills are intended to expand – not decrease) also lead to insoluble demarcation problems.

So in the face of these two contradictory positions, all Bills à la Oregon have surrendered to the patient’s autonomy. Let’s have a quick look at the corresponding criteria in two other jurisdictions inspired by Oregon:

Australia, Victoria (law) says: ”the person must be diagnosed with a disease that is incurable, progressive, and expected to lead to death within six months . . .

New Zealand (bill) says: it is for ”patient who suffers from a terminal illness likely to end their life within 6 months” or ”has a grievous and irremediable medical condition”, and ”is in an advanced state of irreversible decline in capability”

The key concepts: ”incurable”, ”terminal”, ”grievous”, ”irremediable”, and ”irreversible” are not defined in any of these bills/laws. As a result, the obvious interpretation of these central concepts does not apply – but is left open to the patient’s own decision, and hence the door is also opened to pure absurdities as to which people can be legally killed:

  • A cancer patient who has very good prospects to be cured, but denies treatment. An important reason is that she does not want to lose her hair. We are now in Oregon a few years after their assisted suicide law came into force and the patient in question is Jeanette Hall. Her physician, Dr. Stevens was opposed to the law, but was forced to acknowledge that his patient would be eligible to get the death pills she wanted because her cancer was likely to lead to death within 6 months if she was not treated. He managed, however, to convince her to accept treatment, and many years later Ms. Hall said: ”It’s great to be alive.”
  • Charles Blanke, an oncologist with Oregon Health & Science University, told The Bulletin about one of his cases, a young patient with Hodgkin lymphoma and a more than 90 percent chance of survival with treatment. She did not believe in chemotherapy and feared its toxicity, despite Blanke’s efforts to convince her otherwise. After cleared by a psychiatrist, Blanke approved her for assisted death, holding firm to his belief that doctors should not force patients to receive treatment. But afterwards Blanke asked himself: “Why doesn’t that patient want to take relatively non-toxic treatment and live for another seven decades?”

The answer to Dr. Blanke’s question is just as simple as disturbing, in the context of medical killing: It is because of a law that opens the door for sick people to commit suicide – for any reason whatsoever! A person could, as in the cases above, fear the possibility of side effects or future disabilities. But it could also be a parallel life crisis which is indirectly linked to the disease or not at all. Here follow four hypothetical but very possible scenarios:

  • For example, a cancer patient who, due to her lost vitality, may be abandoned by her partner and in her grief over this loss would rather die than fight the disease.
  • A man with cancer in his bladder has great chances of living many good years after a stomia surgery. But he finds the prospect of living with “a bag at his belly” so undignified that he prefers to die. (Well, there are also some family issues that he keeps for himself.) A strong motivating factor is the availability to a smooth and socially accepted death. He makes detailed plans for his exit party, nothing will be left by chance. He wants to die as he has lived – in full control. It will be a grandiose exit (yes, the local media is invited).
  • A young diabetic, in the despair of a broken relationship, wants to die and stops insulin in order to be able to obtain legal death assistance.
  • A man with a spinal cord injury who needs an electric wheelchair and a ventilator to live and work finds that his ventilator no longer works correctly and he can’t afford to fix it. His disability is now terminal and he can obtain suicide drugs. (This example borrowed from Richard Doerflinger)

Such laws not only enable sick people to commit suicide, but also encourages them by the obvious reason that for a suicidal person a socially accepted and smooth death administered by society is much more attractive than dying on one’s own, in loneliness as the young Belgium woman testifies in this video.

People may oppose our absurd examples by claiming that we exaggerate, as such examples hardly exist. But Professor Theo Boer, former member in one of The Regional Review Committees (RRCs) which is monitoring the euthanasia practice in the Netherlands wrote in his article, Dialectics of lead: fifty years of Dutch euthanasia and its lessons: “Over the years I have seen about 60 dossiers (in a total of 3722) in which a patient had a death wish prior to a fatal disease and refused to accept lifesaving or life-prolonging treatment.”

To those 60 we may add an unknown number of patients whose diagnosis became the straw that broke the camel’s back in an elsewhere depressing life situation – the event that released a death wish that was comfortably satisfied by a physician. Boer warns: “no society can afford open-ended laws when it comes to killing citizens on their request”.

Bills à la Oregon intend to such open-ended laws with unclear definitions of central concepts. This is not openly admitted, however. Instead, the reader is misguided to trust what common sense tells, supported by the rhetoric for the Bills. But in contrast to these declarations, the Bill is hiding a trap-door for suicidal patients.

It is the combination of the established right for patients to refrain from treatment and the proposed law for assisted death that creates two contradictory positions. As any such law is founded on the patient autonomy, it demands in its application a surrender to the same autonomy and hence it is impossible to craft a law that only target the intended “small group”, avoiding absurdities similar to those exemplified.

Such laws will incite or motivate people to end their lives. Suicidal people who hesitate to kill themselves will find the possibility irresistible to get aid in dying. The terms “irremediable”, “irreversible”, “terminal” and “grievous” are in these bills nonsense terms without meaning. They are however very meaningful in the wider context. Because when a society legalize medical killing it will cause grievous harm to the society that is likely to become irremediable.

Douglas Murray wrote 2016 in National Review an article about the euthanasia practice in the Netherlands and Belgium: “The generation of Baby Boomers in the Low Countries that led the way in advancing the rights of sexual and other minorities are the same generation that then advanced the ‘right’ to die. For them, it is the last right. As with some other rights arguments, the case puts the rights of the individual over those of the community irrespective of the impact this may have on wider society.

Even so, no other ‘right’ can be said to have anywhere near the implications of this last one. The ‘right to death’ makes every other right look like a plaything by comparison, because enjoying the right to death changes almost everything about the way a society views not only death but also life and the very purpose (or otherwise) of existence.”

A catchphrase for the advocates in Sweden, mainly belonging to the generation of Baby Boomers, is what they call ”the last freedom”, meaning the last right they want to add to all other rights they successfully fought for.

How true and illuminating isn’t that phrase. Because when this right has been granted, it will, at the end of the day, truly be the last right – in the meaning the last remaining right as all other rights have vanished – for all of us that day we will be regarded as subhuman – Untermenchen – by the cold-hearted society fostered by the death-movement.

Föredrag av Fabian Ståhle, hållet vid konferensen ”Stopping Assisted Suicide In Your State” Albuquerque, New Mexico, 25-26 januari 2019 

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