Determining Competence to Suicide When Facing Imminently Terminal Illness

Recently the State of Washington enacted a "death with dignity" statute (Chapter 70.245 RCW: The Washington death with dignity act) closely modeled on the Oregon statute (Death with Dignity ORS Chapter 127) passed years ago. This euphemism for assisted suicide probably evolved not only from the stigma associated with suicide but also, for example, from the importance of preventing denial of insurance benefits to survivors. (“Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.”)

I do find it interesting that we tend to strongly associate suicide with mental illness in spite of the fact the fact that so many (if not most) suicides, such as those we reported in the media are associated with terrorism, and if you look at the Behavenet suicide page, you will see a long list of films, and a few books, in which reference to suicide rarely relates to mental illness.

My interest in this topic lies in the question of how qualified mental health professionals might wish to respond if asked to evaluate a terminally ill patient who wants to die, in order to determine "compliance" with requirements of the law, particularly because this kind of evaluation seems to demand the clinician assume a new role unlike that of treatment provider or forensic examiner.

I hasten to point out that I pretend to have no expertise in this area, have not followed evolution of policy or law in this area closely, and hold no strong opinions for or against assisted suicide in principal. I am aware that many physicians believe that it is a rare case today in which a patient cannot “die with dignity” with previously available palliative care. Also, I approach this discussion in complete ignorance of how the practice has played out in Oregon. I have not even attempted to discover how psychiatrists or psychologists have conducted such evaluations in that state, choosing instead to approach the subject afresh.

The statute stipulates a procedure that starts with diagnosis of an imminently terminal illness. If the patient initiates the process two physicians must give a prognosis of death within six months. Only if one of the physicians questions whether the patient’s wish to die might result from a mental disorder must she request assessment by a psychiatrist or psychologist. After meeting all requirements the physician orders a lethal dose of a barbiturate such as sodium pentothal. After procuring the drug the patient has the option to use it at her discretion. Completion requires active conduct on the part of the patient. The decision to move forward is necessary, not sufficient. Even barring interference the patient or some other actor must take active steps or only nature may take its course. (A problem may arise in cases where the patient loses the physical capacity to self-administer life-ending medication. This is clearly beyond the scope of a test of competence or impaired judgment.)

Counseling Referral
The wording of the statutes differs slightly from that on the forms, but I suspect we will ultimately consider the forms definitive: A “licensed psychiatrist,” or a licensed psychologist, acting as a "consultant" must perform an evaluation to determine a) whether the patient suffers from a mental disorder or b) depression, and whether "impaired judgment" has resulted from either. RCW 70.245.060 requires a “counseling referral.” Maybe the author of the statute erroneously equated "counseling" with any of that mysterious stuff psychiatrists and psychologists do, but while such a professional might choose to counsel the patient about almost anything the statute seems to require evaluation rather than counseling. Counseling implies treatment service provided to the patient. In this setting the professional might also attempt to influence the patient. Was that intended?

Problems arise from ambiguity and questionable use of terminology. (I may have missed a few.):

States do license psychologists, but there is no "licensed psychiatrist" in Washington state, nor likely in Oregon. While statutes spell out the definition of a psychologist, nothing prevents any physician from claiming to be a psychiatrist. The state licenses physicians (or “physicians and surgeons”) but not psychiatrists. Neither the forms nor the statutes relating to assisted suicide provides for a definition of psychiatrist. Neither mentions completion of a psychiatric residency, board certification, or even the mythical "board eligibility."

Both states' forms (OR Form; WA Forms) and statutes require evaluation for "psychiatric or psychological disorder or depression." This would seem to imply that mood depression -- the symptom rather than the disorder -- might produce sufficient impaired judgment to disallow assisted suicide. This might include sub-syndromal depression. But would it not be just as likely that some other sub-syndromal disorder might produce the same degree of impaired judgment? The inclusion of both terms psychiatric and psychological would seem to imply that the two categories might differ in some way. More likely, I think, the author intended to use language that might not depend on a particular system of classification, just in case we abandon the official diagnostic manual of the American Psychiatric Association, or perhaps to assure against omission of any such condition.

Furthermore, as Washington attorney Margaret Dore points out, the evaluation occurs relatively early in the process. The evaluation might find a patient competent before proceeding, but with no guarantee that her mental state will not deteriorate before the time comes to take the life-ending drug. However, the down side risk might be minimal. At worst the patient might, for example, because of impaired judgment at the time, fail to take the drug in a lethal manner. This might result in further injury, a compression syndrome or further brain injury for example. This could happen if the patient were to lose consciousness before ingesting the entire lethal dose.

Choice of Evaluator
The law does not stipulate who chooses the evaluator, but likely both physician and patient would participate. If a psychiatrist or psychologist has treated the patient before would his prior familiarity with the patient put him in a better position to make such a determination because of greater knowledge? Emotional connection with the patient might make it more difficult to maintain objectivity, especially if the professional holds a strong opinion about assisted suicide. Perhaps he should suggest that a new professional conduct the examination. Patient and physician will likely choose a "counselor" believed unlikely to oppose to accept the practice of assisted suicide. Perhaps the physician requesting the examination should ask whether the potential examiner holds any strong bias for or against.

Compensation of Evaluator
Who pays the examiner? I believe the patient should compensate the examiner. Third party payers might or might not provide reimbursement. This could conceivably hinge on whether the evaluation leads to treatment of a psychiatric disorder. This raises the question of whether an examiner should ever take on continuing treatment or refer to a new professional.

The space provided on the evaluation form allows for very little documentation. This may reflect ignorance of the typical length of such an evaluation. It might betray the fact that the author did not intend the professional to conduct a comprehensive diagnostic examination. Or the author may have assumed that the professional would attach a complete document.

To whom does the evaluator owe a duty? the terminal patient? the attending physician?

Patient's Perspective
We should also consider assisted suicide from the patient’s point of view: "I have to convince this psychiatrist/psychologist my desire to die this way is not because I'm depressed or crazy." That is, the evaluator may be perceived as an adversary, a fact the examiner must keep in mind. The patient will have an incentive to "fake well." On the other hand the patient might fail to cooperate with evaluation. In this case the professional would probably not declare the patient competent, and the process might be halted. In the face of an adverse determination for any reason, either the patient or the attending physician might challenge the finding and request a second examination. If two evaluations disagree, a tie breaker could be ordered, but the statute seems to require only one permissive opinion to allow the process to go forward.

Administration of Lethal Medication
For the suicide to proceed to successful completion requires more from the patient than mental competence to choose death. Self administration of a lethal dose of the chosen barbiturate requires the patient to find, prepare and consume a large number of capsules or tablets over a short period of time. Some patients might require assistance at the time because of the physical demands aside from the mental demands.

Criteria for Competence
Under the Washington definition the patient must be found competent, but we can only guess that this might mean competent to want to die or competent to decide to die. The definition adds another criterion: absence of “impaired judgment,” a term that covers a lot of territory. Neither the forms nor the statutes stipulate the degree to which judgment must remain intact in order to allow assisted suicide. Some examiners might consider a wish to die as evidence of impaired judgment. What criteria should be used? Does this compare to a forensic competence assessment like testamentary capacity or competence to stand trial?

Should the examiner presume competence or incompetence? This could depend on whether the examiner has a bias against, or in favor of, assisted suicide. But it seems unlikely that evaluators opposed to assisted suicide would participate. Judging from the brevity of the form and the lack of attention to qualifications of the examiner, might we assume the authors of the law intended a presumption of competence?

I favor modeling the competence or impaired judgment test on other tests of capacity or competence. The examiner should focus the evaluation on the judgments directly related to the act of assisted suicide. For example, the patient might provide an inappropriate answer to the frequently used questions about what one should do when she discovers fire while in a crowded theater or what to do with an addressed, stamped envelope found on the street. The fact the patient meets criteria for any particular mental disorder should  not in itself be assumed to render them incompetent. However history might be relevant, particularly if the patient has attempted suicide in the past, particularly if the suicide appeared related to a mental disorder.

In making this determination the examiner should elicit evidence of the degree to which the patient

1) appreciates the diagnosed illness, its effects, and the natural process of death from the illness
2) appreciates the available alternatives to assisted suicide, including palliative care
3) appreciates the irreversible nature of assisted suicide, including the process of death from the life-ending medication
4) appreciates how to administer life-ending medication to achieve the desired effect, including the ability to discriminate among life-ending medication, other medication, food, and drink.

Should we include assessment of appreciation of the impact of assisted suicide on individuals or organizations? Should there be evidence that the patient wants to die to avoid the loss of dignity associated with the terminal illness rather than to avoid psychic "pain" associated with a mental disorder. The examiner should not attempt to influence the patient, or should he?

Psychologists, who lack medical training, may not be qualified to adequately assess elements of the examination requiring knowledge of terminal physical illness and treatment, especially palliative measures. Few of these elements is straightforward or simple. Each involves judgment of the degree of understanding, taking into account the patient’s cultural and educational background.

According to the Washington statute, "A professional organization or association, or health care provider, may not subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter." This seems to provide a degree of immunity, but only related to whether one participates or refuses. It would be safest to assume that one must still comply with all other aspects of law and meet the profession's standard of care. Furthermore, it is not clear that the State of Washington for example has authority over the American Psychiatric Association with regard to ethics questions. If APA censured a member for participation what legal recourse would the State have?

Those psychiatrists or psychologists who embark on these evaluations will enter uncharted territory. I hope this will at least help them ask the necessary questions about how to proceed. It will be important for the pioneers to share their experience with those who follow.

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