In just over two weeks, Washington State residents will vote on a Death with Dignity referendum. If it passes, Washington will become the second state where physicians can legally prescribe a lethal dose of medication to terminally ill patients who want the option of ending their lives.

And there will be all the more reason to grapple with an uncomfortable truth that is only now coming to light – that some patients slip through the safety net and get lethal prescriptions when, maybe, they shouldn’t.

Oregon, the only state with legalized physician-assisted death, has safeguards intended to ensure that individuals who ask for assistance know what they’re asking for and really mean it. One safeguard requires doctors receiving a request to refer the patient to a psychologist or a psychiatrist if the patient shows signs of a psychiatric disorder, such as depression, that could impair judgment.

Just to be clear: a diagnosis of a psychiatric disorder in and of itself does not disqualify a terminally ill patient from aid in dying under the Oregon law. That terminally ill patients suffer from depression and anxiety is often understandable. Depression affects about 25 percent of people who are terminally ill with cancer. The question is whether the disorder compromises a patient’s decision-making capacity. It may or it may not, and it’s difficult to tell the difference. Hence the requirement for a referral if there’s cause for concern.

It’s the referral process that’s problematic. A new study in BMJ found that three out of a sample of eighteen Oregon patients who received a lethal prescription were in fact depressed. None had been referred for a psychiatric evaluation before the research. All three took the medicine and died.

The numbers are small, so, so it’s easy to jump to the conclusion that the doctors involved were the exceptions rather than the rule. But that’s not the case. Psych referrals for terminally ill patients who request aid in dying are rare. Of the 341 patients who died after taking a lethal dose of medication in Oregon from 1998 to 2007, only 36 were referred for psychiatric evaluations. None were referred last year.

But the lack of referrals is only half the problem. The other half is on the receiving end.

There is a shortage of mental health professionals willing to do this sort of work.  “Interviews with physicians in Oregon who have received requests under the Act confirm their difficulties in finding a mental health professional to evaluate the patient,” states the chapter on mental health consultation in The Oregon Death With Dignity Act: A Guidebook for Health Care Professionals.

Many therapists object to the act on ethical grounds. Surveys show that 44 percent of psychiatrists and 22 percent of psychologists in Oregon oppose the Death with Dignity Act, and most of them would refuse to evaluate a patient who asked for a doctor’s help in committing suicide.

Even many who support the act say that they would not do evaluations. They may have financial reasons--the evaluations usually aren’t covered by Medicare.

When evaluations do take place, there is concern about quality. Only 6 percent of psychiatrists and psychologists in Oregon surveys say that they are confident that they could determine, in just one evaluation of a patient who had requested aid in dying, if the patient had a mental illness that was impairing his or her judgment. These clinicians would feel more confident it they could evaluate a patient over a period of time, but time may be a luxury that neither the specialist nor the patient can afford.

Despite these problems, most terminally ill patients in Oregon who receive aid in dying are not depressed, the BMJ study concludes. Still, there’s room for improvement.

A promising solution proposed in an accompanying editorial is to screen all terminally ill patients for depression. The idea is not to wait until the patients are so close to death that they request a lethal prescription – and mental health professionals either refuse to see them or don’t have enough time to do a proper evaluation. Instead, screen patients weeks or months earlier, as soon as active treatment stops and palliative care begins.

This approach could not only save some individuals from slipping through the safety net in Oregon and, soon possibly, Washington. It could lead to better treatment of depression at the end of life, making the dying process less psychologically and emotionally wrenching for terminally ill patients everywhere. 

Susan Gilbert is Staff Writer at The Hastings Center.