Harry C. Dudley: Death with Dignity: Clinical Input into Capacity Evaluations

As a clinician treating a client suffering a terminal illness, it is possible that your client may request from their attending physician a prescription for a lethal dose of medication consistent with the Death With Dignity (DWD) statutes of Oregon, and for those of us practicing on the border, Washington State or California. It is conceivable that the attending physician may have concerns about whether your client is competent or capable of making such a decision, and while you would not be asked to render the ultimate opinion on the matter, which is akin to a forensic opinion, you would no doubt be consulted with concerning your observations and clinical opinion. 

The intent of this article is to provide a basic orientation for counselors in Oregon of a few of the relevant statutory factors so that they are better able to consult with other professionals involved in evaluating the client’s competence or capacity to proceed with DWD. I will use the term capacity, as it is the term in Oregon, whereas the term competency is used in Washington, but they are synonymous. The Oregon and Washington statutes are very similar, but will underscore those differences as they relate to practice, but the majority of what will be discussed below applies to both states. I will also make reference to aspects of the California statue. Also, please note that I am focusing only on a very small facet of DWD and I encourage you to familiarize yourself with the relevant statutes of your state. Many of us deal with border issues, hence my attention to Washington and California. I have listed below relevant documents that I have drawn upon in the preparation of article. 

When a patient requests a lethal prescription from their attending physician, the physician must consider whether the patient is competent, and the majority of the time competency/capacity is not a concern. The attending physician then must also have a consulting physician review the file and examine the patient in order for there to be agreement as to the medical condition, life expectancy (estimated six months of less), and capacity to make an informed decision. If there are concerns about competence on the part of either physician, then there is typically a referral to either a psychiatrist or psychologist.  Please note that this type of evaluation is considered to be forensic in nature, and a treating mental health professional should not conduct the assessment, but their observations and clinical opinions would be considered relevant and quite valuable for the mental health consultant. 

Capacity requires your client to understand the following factors, which are the same in Oregon and Washington, and are the essential prongs of a capacity evaluation in a DWD case. The patient must have the functional capacity to understand the following: 

1)  His or her medical diagnosis;

2)  His or her prognosis;

3)  The potential risks associated with taking the medication to be prescribed;

4)  The probable result of taking the medication to be prescribed; and

5)  The feasible alternatives including, but not limited to, comfort care, hospice care, and pain control.

The functional abilities are articulated somewhat differently in California, and require the patient to demonstrate that they can:

1)  Understand relevant information needed to make a decision;

2)  Appreciate the situation and the consequences of different options;

            3)   Reason rationally over different options; and

            4)   Communicate an enduring choice.

An evaluator would need to consider a range of factors of which a treating clinician would likely have some input, these being personality functioning, substance use disorders, existential and religious issues, financial issues, cultural issues, family dynamics, coercion by others, medication and medically induced symptoms, and mental disorders including but not limited to depression, anxiety, dementia, delirium, or other neurocognitive impairments. 

When capacity is at issue, you would likely be asked if you have observations relevant to any items noted above, and I will focus on the topics of mental disorder and medication and medically induced symptoms. These are typically the questions I have for treatment providers in any competency/capacity evaluation. While the functional capacities articulated in the statutes may appear very basic, and they are, neurocognitive impairment due to the disease process and/or treatment process can greatly impact your client’s capacity, and I can’t emphasize enough that capacity is a very fluid thing that changes over time. A client’s functioning may change considerably day to day, or even the course of a few hours, and I have encountered both recently in DWD matters as well as over the years in other civil and criminal capacity evaluations. The most common examples of this that I have encountered, and which my physician and attorney colleagues have also described, are clients who are capable or competent in the morning, but whose mental status deteriorates rapidly over the course of the day and by the afternoon or early evening they lack capacity due to delirium. I recently encountered this with a DWD case where my assessment sessions were purposefully scheduled in the morning, and in the end my opinion was that the client was competent. After my report was issued, the consulting physician conducted the physical examination and subsequently communicated to me that the client did not appear to be competent in the late afternoon when he saw the client. As the treating clinician, you would no doubt have an opinion as to the best time to evaluate the client and the degree to which their mental status vacillates over time. Mental status my also change as a function of the timing medical treatment, such as dialysis or chemotherapy. Again, this is critical information to convey to the attending physician, consulting physician and psychologist. Also, although capacity may be thought of as a binary construct, meaning, they either are or are not capable (this is the case during a legal proceeding), it is also recognized as being on continuum, which is a reality of clinical and forensic practice. For example, a client may have difficulty conveying their understanding of their medical diagnosis due to word finding and memory difficulties, but if asked to describe the disease, can adequately describe the organ systems involved and the relevant pathophysiology in layman’s terms. In short, they don’t need to have the language capacities of a fourth year medical student, and as the treating clinician, you are probably in the best place to have explored your clients understanding of their condition over time and can comment about what they understand and if there has been a deterioration of their understanding.The evaluator needs to obtain information about the medication being considered and offer inquiry to the client, and again, you as the treating provider may have information as to the client’s understanding and the evolution of their thinking about this. The client would need to have some basic understanding of how the medication or medications work. Although this appears obvious, the client also needs to demonstrate understanding of the lethality of the prescription and that the results are irreversible, and neurocognitive impairment or psychosis my impact this capacity.. 

With respect to the issue of feasible alternatives, as articulated in the statute, by the point in time the client has invoked DWD, they may have given a great deal of consideration to other options available to them, and many options have been tried or are in place, such as hospice care. It is possible that different options have not been discussed in detail or implemented as the diagnosis is very recent and the progress of the disease is quite advanced. It has been my experience doing different types of capacity evaluations in general that some clients may have difficulty articulating their reasoning and the options that they have considered over time. In my experience this may be due to a deterioration in their mental status, or, to be blunt, by the time they get to me they are sick and tired of talking about it, particularly if their medical condition involves fatigue and lack of energy. As such, as the treatment provider you may have input as to the evolution of their reasoning over time which would be useful input into the evaluation. The client would still need to articulate their reasoning to the evaluator, but your input would provide essential context.

Perhaps one of the most challenging and controversial areas is assessing and understanding the role of depression with invoking Death with Dignity. While considerable concern has been raised about major depressive disorder (MDD) impacting the ability to make an informed position, there is agreement that MDD in and of itself may not interfere with or render the client incapable of making an informed decision. Concerns have also been raised that the DSM criteria for depressive disorders is not adequate for the terminally ill. The one principle area of disagreement with regards to practice between Oregon and Washington is with Oregon’s guidelines recommending the use of a common depression screening measure, the PHQ-9, as a component of assessing capacity. Concerns have raised about the PHQ-9 being appropriate for this population as well as being unable to differentiate MDD from depression due to a medical condition. Regardless, many clinicians appropriately use the PHQ-9 to screen for depression and monitor treatment outcome as it is a sensitive measure well designed for such purposes. If you have PHQ-9 results as part of your clinical treatment of the client, then the evaluator would certainly want to know the results, which would apply to any other measures that you might use.  However, it would be very important to put the results in context, as items related to sleep, energy and appetite may reflect the medical condition rather than depression, per se, and the final item, which pertains to suicidal ideation and intent, would warrant further exploration. 

I have a strong opinion, which is that the reliance on the PHQ-9 is problematic in these cases. To be sure, psychometric method can be useful in evaluations and clinical practice, and brief measures do offer an advantage over lengthy test batteries in many cases, but in my opinion the PHQ-9, which I do use in my own clinical work, may lead to a skewed assessment of depression with DWD cases with the potential for over-diagnosing MDD in this population if great weight is put on PHQ-9 scores. Therefore, the treating clinician’s observations of depression, medical symptoms, and functional capacity are extremely relevant in Oregon DWD cases and understanding PHQ-9 results. 

With regards to the latter issue of suicidality, physicians and psychologists need to differentiate between the aspects of the desire to invoke DWD from other forms of suicidality, which are those that arise with recurrent MDD or other mood disorders, as well as a Cluster B personality disorder. In my experience, such a differentiation is qualitative and this is where your experience with your client is very valuable. The question that the physician or evaluating psychologist would have is how the client’s current desire to invoke DWD is different from past suicide attempts, and this is where a careful history of precipitating events and your clients emotions and cognitions and beliefs would be helpful, and it is likely that you, as the treatment provider, would have information that may be less impacted by the bias of the client distorting information, consciously or non-consciously, at the present time to order to obtain the lethal prescription. 

To reiterate, the treating clinician is an essential collateral in the those DWD cases where capacity is in question, and it is hoped that this article provided a basic orientation to the issues faced by evaluators and clinicians.

Resources:

Report to the Board of Directors of the American Psychological Association from the APA Working Group on Assisted Suicide and End of Life Decisions, 2000.

The Oregon Death with Dignity Act: A Guidebook for Healthcare Professionals, 2008.

Washington Death with Dignity Initiative 1000 Report Submitted to the Washington State Psychological Association by Judith R Gordon, PhD, On Behalf of the WSPA End-of Life Committee, June 2008.

California’s End of Life Option Act: CPA Guidance for Psychologists, 2017.

Harry Dudley, PsyDprovides psychotherapy to children, adolescents, and adults. He is a certified Integrative Restoration - iRest Yoga Nidra teacher. Primarily, he focuses on providing forensic and clinical psychological evaluations.

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