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11 Problems with US “Death with Dignity” Laws

1) The “death with dignity laws” do not allow for carrying out the wishes of an individual expressed in his or her living will once that person is not able to act in his or her own behalf. For example, if an individual (hereafter called the patient) has expressed his or her wishes in a valid living will to have medications (hereafter called the lethal dose) administered to end his or her life with dignity and with a minimal amount of suffering once he or she has been incapacitated by a stroke or other form of illness that for one reason or another renders him or her unable to act in his or her own behalf, the “death with dignity laws”, would not allow such a lethal dose to be administered at the request of the person holding the patient’s valid medical power or attorney.

2) The “death with dignity laws” do not allow a patient who has a terminal disease that doctors think will take more than 6 months to kill him or her or a chronic disease that makes death a more desirable alternative than continuing to live with the agony caused by the disease to request administration of a lethal dose. That is because a patient has to have less than 6 months to live to qualify for a lethal dose to end the suffering.

3) The original approximately 15-day waiting period between the first oral request for the lethal dose and the first date that it is allowed to be administered is far too long to wait if the patient is suffering. Furthermore, the 48-hour waiting period between the written request and writing the prescription is also too long for the same reason. In 2018, Oregon passed a law allowing shortening the waiting period when the patient’s suffering required immediate action, but the other states with such laws have not followed suit as of our posting this list of problems in 2020.

4) The “death with dignity laws” do not allow individuals who are not a resident of Oregon to benefit from the provisions of the act. There are many individuals in states without such legislation who would wish to benefit from a death with dignity act that was applicable to them, even if that meant traveling to another state to benefit from such a law. We are not aware of any other kind of medical service that is restricted to in-state residents. It is commonplace to go to another state to get medical care when there are better or closer providers available there. In short, a “restraint of trade” is any activity that hinders someone else from doing business in the way that he would normally do it if there were no restraints. ... The federal Sherman Antitrust Act makes unreasonable restraints of trade illegal, as well as actionable under civil law. Yet, we are unaware of any attempts to overturn this restriction.

5) The “death with dignity laws” do not permit the lethal dose to be administered by a person acting in the patient’s behalf if the patient is physically unable to do so himself or herself. The Oregon and Washington annual reports document that it is not uncommon for patients to vomit-up the lethal dose. Seriously ill patients often have trouble keeping fluids down. Bowel obstruction is often a problem in cancer, and such patients may seek death with dignity both because of the terminal diagnosis and their severe discomfort.

6) The “death with dignity laws” allow only an oral route of administration. It does not allow the lethal dose to be administered by whatever route of administration the doctor believes to be the most effective one for that particular drug or combination of drugs, given the patient’s medical condition and physical limitations. This is despite the fact that the mandated annual Oregon reports indicate that many who swallow lethal doses vomit-up the dose before it can take effect.

The 2017 Canadian law has been implemented with IV drugs administered by others in hospital settings. However, the Canadians have run into problems when initially mentally competent patients originally qualified to receive the medication have gone down-hill during the wait for drug administration and are not able to convince the drug administration team that they are mentally competent. The Canadians mention that allowing the person holding a valid medical power of attorney to act for the patient would eliminate this problem.

7) The “death with dignity laws” have no provision that permits one or more supplemental lethal doses to be administered if the first dose is not effective within a reasonable period of time. The most important issue once the first dose has been administered is for the individual’s goal of death with dignity to be accomplished as quickly and painlessly as possible. This may require another dose to be administered by a different route of administration if the patient is not able to administer the subsequent dose himself or herself. The Oregon annual report for 2016 documents that through the years there were five patients who survived the lethal dose and who went on to die of their disease. Some others have had very slow deaths with at least one patient surviving nine hours before death arrived.

8) The “death with dignity laws” have no provision instructing how the death certificate should be filled out. As a result, a few individuals have filled in the drug prescribed for the assisted suicide as the cause of death, an approach that hides the terminal disease that would have killed the patient if he or she had not applied for assisted suicide under the death with dignity act. This approach distorts the vital statistics records by hiding the actual disease that would have killed the patient and saying that the death was due to a drug overdose. Death certificate clauses specifying that the underlying terminal illness qualifying the patient for the lethal dose must be listed as the cause of death are present in the laws of Colorado, Hawaii, Maine, Washington State, and Washington, DC.

9) The “death with dignity laws” restrict the lethal dose to self-oral administration. In practice, that has meant that most prescriptions have been for one hundred, 100 mg secobarbital capsules which are then opened one at a time. The resulting powder is then usually suspended in a glass of aqueous liquid to be consumed by the patient.

10) The “death with dignity laws” do not work well for many fatal diseases. It was originally designed to provide mercy for cancer victims. The long waiting periods imposed between initially asking for a lethal dose and finally having access to the actual medication were designed to fit the slow progress of the typical fatal cancer. Similarly, the requirement that the patient have less than six months to live to be eligible for a lethal dose was related to the progress of the typical fatal cancer. The courses of other fatal or chronic illnesses that produce unremitting pain or misery are not consistent with the requirements for inclusion under the law. These other conditions include (but are not limited to) dissecting aortic aneurysm that cannot be surgically corrected with its extremely painful course measured in days instead of months and the long-term unremitting misery experienced by some stroke victims and victims of neurodegenerative diseases (e.g. Alzheimer’s disease, Huntington’s chorea, Lew Gehrig’s disease, multiple sclerosis, and Parkinson’s disease). Some of the neurodegenerative diseases cause so much cognitive decline that the patient fails mental competency tests by the time that he or she can be said to have less than 6 months of life expectancy.

11) The costs for the drugs that can be used as the fatal dose under the “death with dignity laws” have become cruelly high. According to an 11-9-2017 report, their investigation showed that the price of the above dose of secobarbital had jumped from about $200.00 to $3,000.00 or higher. The price of one alternative, sodium pentobarbital labeled for human use, was so high that it was financially prohibitive. Sodium pentobarbital is the drug routinely used for intravenous euthanasia of animals. Most patients ended up paying the entire price of the secobarbital out of their own pockets. A human sized dose of sodium pentobarbital labeled for animal use would cost $100 or less. Another alternative, Sodium thiopental, is no longer available in the United States. Secobarbital, sodium pentobarbital, and sodium thiopental are all available and reasonably priced in Canada and Europe.


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