The Supreme Court addressed hastened death even
more directly in a pair of 1997 cases that challenged
existing prohibitions against PAS. In Washington v.
Glucksberg (1997) and Vacco v. Quill (1997), the
Court considered the question of whether permitting
some terminally ill patients to discontinue life-sus-
taining treatment (e.g., the Cruzan decision), while
denying other terminally ill individuals the right
to hasten death (i.e., those who do not require such
interventions) violated the Due Process and Equal
Protection clauses of the Fourteenth Amendment.
Although the Court rejected this assertion by distin-
guishing between active and passive methods for has-
tening death, the Court opined that decisions about
PAS could be determined by the individual states,
essentially clearing the way for legalized PAS.
The Court’s opinion was not accidental; 3 years
earlier, Oregon voters had approved a ballot referen-
dum authorizing the Death with Dignity Act, legaliz-
ing PAS in that state (a number of other states have
held referendums on this issue before and since
Oregon’s, but voters have rejected these proposals). In
October of 1997, shortly after the Washington v.
Glucksberg(1997) and Vacco v. Quill(1997) rulings,
Oregon’s referendum took effect, making this the first
and only state in the United States to legalize PAS.
Under the guidelines of the Oregon’s Death with
Dignity Act (or ODDA), an Oregon resident may
request a prescription for a medication that will result
in death. The individual must be 18 years of age or
older, with a terminal illness and a life expectancy of
less than 6 months. Additionally, the individual
must be capable of making a “reasoned judgment”
(described further below). Request for PAS must be
made at least twice, of which one request must be
written, and the physician is required to solicit a sec-
ond opinion regarding the patient’s diagnosis. Finally,
the physician is responsible for determining if a men-
tal disorder has impaired the patient’s judgment (i.e.,
rendered him or her incompetent) and, if so, whether
mental health consultation and/or treatment is
required. This latter requirement has engendered con-
siderable controversy, largely because of concerns
that patients with significant depression may not be
accurately identified. However, data from Oregon
indicate that requests for PAS are relatively rare,
accounting for roughly 1 in 10,000 Oregon deaths
(.01%) or 40 to 50 requests per year. Of those patients
who qualify for PAS and fulfill all the requirements,
approximately two thirds ultimately die by ingestingthe prescribed medication. This rate is substantially
lower than data from the Netherlands, where euthana-
sia accounts for roughly 3% of all deaths.Treatment Decision Making
A critical element of end-of-life decision making is
the ability of the patient to make a rational, informed
choice. The term competencerefers to a determination
as to whether one is legally authorized to make deci-
sions for himself or herself. However, it can be diffi-
cult to determine competence in terminally ill patients,
in part because impairments are often subtle, like
dementia or depression (vs. psychosis, which is a
common basis for incompetence among psychiatric
patients). Even when “rational thinking” appears
intact, symptoms such as depression can affect end-
of-life decisions. For example, depression can increase
a patient’s skepticism about the efficacy of pain or
symptom control and contribute toward a feeling of
hopelessness, at times leading to requests for PAS or
refusals of life-sustaining interventions despite long-
standing moral or personal objections to hastened
death. Later, once symptoms have been treated, these
patients may be thankful that their request for
euthanasia was not fulfilled. On the other hand, deny-
ing terminally ill patients the right to refuse life-sus-
taining treatment may inflict undue pain and distress,
essentially ignoring the patient’s autonomy. Thus,
accurate evaluations of a patient’s decision-making
capacity, once this ability has been called into ques-
tion, is critical and requires considerable expertise,
both in the legal issues (i.e., evaluating decision-mak-
ing capacity in general) as well as the specific context
(severe or life-threatening illness).
Once a patient has been found incompetent to
make treatment decisions, the mechanism for decid-
ing among treatment options hinges on the particular
jurisdiction. This process is, in theory, greatly simpli-
fied when ADs exist to document the patient’s wishes.
However, in actuality, ADs are often less helpful than
patients assume. These instruments often present
information in vague terms (e.g., “when the prognosis
for recovery or posttreatment quality of life is
extremely poor”) that make it difficult to determine
exactly when to apply the directive. Furthermore,
physicians may be reluctant to carry out the patient’s
wishes, even when no dispute as to applicability of the
directive exists (particularly if they disagree with the
decision). In the absence of a designated health care256 ———End-of-Life IssuesE-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 256