SIX TECHNICAL
CHANGES SUGGESTED
FOR
THE OREGON DEATH WITH DIGNITY ACT
by
James Leonard Park
I have reproduced the Oregon law at the following location,
here with links to the safeguards I discovered dispersed thru-out the
law:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-OR-DD.html
The following non-controversial changes
will not
affect how the law
operates.
But many other states are copying Oregon's law.
And they are copying the tiny defects as well.
(For example, in 2008, Washington State copied all 6
of the following flaws,
except the one confusing "principal" and "patient".)
Thus the best way to prevent the replication of
these problems
over and over again in all laws copied from Oregon,
we ought to make a list of non-controversial changes
that should be included in any laws copied from Oregon's.
Perhaps it would be wise to create a model law based on the
Oregon law
but which does not contain the small defects noted below.
Then each state would not have to correct the defects one by one.
And, of course, each state would be free to modify any provisions
contained in any model law.
TECHNICAL CHANGES SUGGESTED FOR
THE OREGON DEATH WITH DIGNITY ACT
SMALL MODIFICATIONS FOR CLARITY AND TO ELIMINATE AMBIGUITY
1. "terminal disease" should be expanded to say
"terminal disease, illness, or condition".
This expression appears several times in the Oregon law.
Sometimes it is simply "patient's disease",
which should be expanded to say "patient's disease, illness, or
condition".
Discussion:
Not all patients who are facing the end of their
lives
are suffering from an identifiable disease process.
Some are dying because of traffic accidents or farm accidents,
which had damaged their vital organs to such a degree
that they are now on an downward slope that cannot be avoided.
Other dying persons were the victims of violence caused by others.
And some are dying because of organ failure,
which might be called a 'terminal disease'.
But it would fall more easily under this expression: "terminal illness".
Sometimes we are dying for a number of reasons at once,
only some of which would be found in a medical textbook on diseases.
Would we not agree that all such physical problems that will probably
cause death
fall under this comprehensive expression: "terminal illness, disease,
or condition"?
If it seems wiser, this comprehensive expression
could be included
in the definitions at the beginning of the bill.
"Terminal illness" could be defined to include disease and condition.
Another very serious confusion arises when we
consider patients
who lives are sustained by any form of life-support.
If the life-supports were turned off or removed, the patient would die.
Should this situation of dependence of artificial life-supports
fall within the definition of "terminal disease, illness,
or condition"?
This advocate of the right-to-die believes such patients should qualify,
but the lawmakers of each state should clarify exactly what they mean.
Normally such patients would not need any specific aid-in-dying,
since they will die from natural causes without their life-supports.
And everywhere in the advanced world withdrawing or withholding
life-supports
is a legal end-of-life decision.
But stating that they have the same right-to-die as any others in
terminal condition
would help patients such as Terri Schiavo,
who are sustained for 15 years in persistent vegetative state.
2. "next of kin" should be consistently replaced
by
"family".
This expression appears in a few places in the Oregon law,
first in (Section 3) (E) (f).
Discussion:
Each state defines by law exactly who is next of
kin
and sets priorities among these kin.
If the patient was married but is now separated but not divorced,
the next of kin is the
now-alienated spouse.
Sometimes the actual family of the patient is not the next
of kin as defined by law.
Thus, even tho "family" is more ambiguous,
it is a better term to use here.
Let the patient decide whom to inform and whom to keep out of
the loop.
"Family" could also include informal, unofficial, unregistered
arrangements
such as gay couples, who do not qualify as kin by most definitions in
law.
Unmarried heterosexual couples are also "family" but not "next of kin".
The form
provided by the state
of Oregon
does ask about informing family.
In the following title in the Oregon law,
"family"
is used,
but in the text of
this section, the expression is "next of kin".
127.835
s.3.05. Family notification.
All future bills should use the expression "family"
where "next of kin" might be more traditional.
Or perhaps some future drafting committee
will devise a better solution to this ambiguity.
3. "most recent tax year" should be changed to "a
recent tax year" or something similar.
This provision appears here:
127.860
s.3.10. Residency
requirement.
(4)
Filing of an Oregon tax return for the most recent tax year. [1995 c.3
s.3.10; 1999 c.423 s.8]
Discussion:
Most of us do not file our tax returns until April
of any given
year.
This means, for example, that from January to April of any year,
we do not yet have a tax return for the most recent tax year.
Therefore we do not have at hand our "tax return for the most recent
tax year".
Changing this to "a recent tax year"
would permit us to use the most recent year for which we have a tax
return at hand.
Someone might prefer to limit it to the most recent tax year or the
previous year.
I note that Vermont (in its first attempt to create
a law based on Oregon's)
copied this same provision without noticing this possible problem.
If we are going to allow dying persons to prove
their residency
by providing tax returns, we should not require the most recent tax year.
Patients applying for voluntary death in the first four months of any
year
should not be required to file their income taxes before applying for
death!
________________________________________________________
4. "principal" should be "patient".
This appears only in the last section:
127.995
Penalties.
Discussion:
"Patient" is defined at the beginning of this law.
But "principal" does not appear anywhere else and is nowhere defined in
this law.
We know what it means—the person applying for voluntary
death.
But it is always a good idea to use consistent language thru-out.
People unfamiliar with legal language might wonder
how the school principal got into this law.
Wherever lawyers are tempted to use the word "principal",
the word "patient" will do just as well.
And no laypersons reading the resulting law will be confused about
just who is the "principal".
CHANGES OF TERMINOLOGY FOR GREATER CLARITY AND HONESTY
AND TO ELIMINATE EUPHEMISMS
Discussion:
When the Oregon Death with Dignity law was first
proposed in the
early 1990s,
it was necessary to sugar-coat the law to improve its chances of being
adopted.
Now that this law has proven itself,
the terminology can be brought up to date and made more honest
about what is actually being permitted.
Or at least new laws copied from Oregon can use better titles.
TITLE OF THE LAW: THE OREGON DEATH WITH DIGNITY ACT
Discussion:
Now that this law has proven itself in actual
practice,
there is probably no reason to change the title.
This is the original title and it will probably always be known by this
name.
But when other states (or countries) adopt this
approach,
they have usually taken a different name.
In California it was Compassionate Choices Act.
In Vermont's first attempt it was something else.
And in Minnesota I will propose The Minnesota Voluntary Death Act.
I note that Oregon did use the word "death" in
its
title.
Now that the right-to-die is well accepted
world-wide,
we can move away from terminology
that was intended to disguise or soften what was really being described.
A freely-chosen death
is not the only death with
dignity.
Perhaps some new proposal will use the expression
"timely death".
5. "medication" should be changed to
"lethal drugs", "life-ending drugs", or something similar.
This expression
appears several times in the Oregon law.
Discussion:
Even tho the same drugs might be used both as
medication
and for the purpose of producing a peaceful and painless death,
within this law, the only use discussed is to bring death.
Therefore the drugs prescribed should be correctly described:
They are chosen because they will produce unconsciousness
and then death within a few hours at
the most.
Therefore they are lethal drugs, life-ending drugs, a gentle poison, or a lethal
prescription.
No dictionary contains this use for the word "medication".
And some opponents have tried to
overturn Oregon's
law
by complaining that this is not a legitimate use of prescription
medications.
Federal legislation was introduced
to prevent using prescription drugs to produce death.
If such legislation were to pass,
or if any federal agency succeeds in controlling such use of
'medications',
then all laws that use such terminology might be overturned.
Calling them "lethal drugs", "life-ending drugs", or "gentle poison"
might make this
debate more honest.
In Oregon physicians are permitted to prescribe gentle poison
for the purpose of achieving a voluntary death.
Other terms besides "lethal drugs" might make such
state laws
less vulnerable to attack
using the
drug laws and/or drug enforcement
agencies.
What if doctors were permitted to prescribe some special poisons
that are NEVER prescribed for any other purpose than to produce death?
Then opponents would not be able to use the laws intended to control
narcotics
and laws
controlling the practice of medicine
as means of preventing people from claiming the right-to-die.
Once the life-ending drugs have been prescribed and
obtained,
they will be a hazard within each household that has them.
Death pills in the household
are even more dangerous than a loaded gun.
Therefore, they should never be described as a 'medication'.
That could lead to the drugs being accidentally taken by some other
family member.
If the drugs are dispensed in an ordinary medicine bottle, accidents
will happen,
as now happens when people take pills from medicine bottles without
reading the labels.
What does the label on the bottle say?
Let's hope there are serious warnings to prevent accidental use.
Under some laws in Europe,
the life-ending chemicals remain in the hands of the doctor until they
are used.
And the doctor takes away any unused chemicals.
And even if the bottles say "DEATH PILLS", "LETHAL
DRUGS", or "GENTLE POISON",
there is danger that other members of the household will use these
pills
to commit irrational suicide.
More discussion of this misleading use of
"medication":
Watch
Your
Language: "medication"---"life-ending chemicals".
6. "in a humane and dignified manner".
This expression appears in several places in the
Oregon law.
It could be dropped without affecting the meaning of the law.
Discussion:
What is actually being permitted by this law is the
prescription of
life-ending chemicals.
And we would hope that they would be taken so as to produce a peaceful
and painless death.
But that does not need to be said in the law.
When the law uses the expression "in a humane and
dignified manner",
we might wonder if all other deaths are inhumane and undignified.
Since there are 1,000 deaths in Oregon that do not use this law
for every one or two
death
that is achieved in this way,
the law should not indirectly stigmatize other pathways towards death.
Whenever we read thru the law, we usually disregard
these
words
because they add nothing to our understanding of what is being
described.
"In a humane and dignified manner" is empty rhetoric.
Created February 9, 2007; revised
5-13-2010; 11-8-2010; 4-7-2012
Please pass these comments to others who might be
able to revise
the Oregon law,
who are drafting similar laws,
or who are working to create a model law
that corrects some of the
problems in the present law.
Here is the full text of the present Oregon Death with Dignity Act:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-OR-DD.html
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Leonard Park—Free
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