Such wrongdoing is not a requirement in presumed relationships o f undue influence, although its presence will often be determinative o f the outcome o f any action.

IV VULNERABILITY FOR ASSISTED DEATH: WHAT IS THE EVIDENCE?

If certain groups are vulnerable to choosing euthanasia or physician-assisted suicide, this would be indicated by a higher incidence of these practices among such groups. In 2007 Battin et al4<) examined the available data from Oregon and the Netherlands to assess whether certain socio-economic groups disproportionately accessed assisted death.41 Their analysis revealed no evidence of heightened risk for the elderly,42 women, the uninsured (not relevant in the Netherlands where everyone is insured), people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses including depression, or racial or ethnic minorities. The only group with a heightened risk was people with AIDS.43 In short, Battin et al concluded that there is ‘no evidence to justify the grave and important concern often expressed about the potential for abuse—namely, the fear that legalised physician-assisted dying will target the vulnerable or pose the greatest risk to people in vulnerable groups.’44

Battin et al’s findings have been disputed, although in a separate article Battin has provided a comprehensive rebuttal of the criticisms, some of which involve a mis-reading of the data.4>

40 Margaret P Battin et al, 'Legal Physician-Assisted Dying in Oregon and the Netherlands: Evidence Concerning the Impact on Patients in "Vulnerable" Groups' (2007) 33 Journal o f Medical Ethics 591.

41 The Oregon data consisted of all annual and cumulative Department of Human Services reports 1998-2006 and three independent studies, namely Linda Ganzini et al, 'Physicians' Experiences with the Oregon Death with Dignity Act' (2000) 342 New England Journal o f Medicine 557; Linda Ganzini et al, 'Experiences of Oregon Nurses and Social Workers with Hospice Patients Who Requested Assistance with Suicide' (2002) 347 New

England Journal o f Medicine 582; S W Tolle, 'Characteristics and Proportion of Dying Oregonians Who

Personally Consider Physician-Assisted Suicide' (2004) 15 Journal o f Clinical Ethics 111. The data from the Netherlands comprised mainly the four nationwide studies of end-of-life decision making, namely P J van der Maas, J J M van Delden and L Pijnenborg, 'Euthanasia and other Medical Decisions Concerning the End of Life: An Investigation Performed upon Request of the Commission of Inquiry into the Medical Practice Concerning Euthanasia' (1992) 22 Health Policy 3; Paul van der Maas et al, 'Euthanasia and Other Medical Decisions Concerning the End of Life' (1991) 338 Lancet 669; Paul van der Maas et al, 'Euthanasia, Physician- Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995' (1996) 335 New England Journal o f Medicine 1699; Bregje Onwuteaka-Philipsen et al, 'Euthanasia and Other End-of- Life Decisions in the Netherlands in 1990, 1995, and 2001' (2003) 362 Lancet 395; Agnes van der Heide et al, 'End-of-Life Practices in the Netherlands under the Euthanasia Act' (2007) 356 New England Journal o f

Medicine 1957.

42 This conclusion is supported by an earlier study: see Martien Muller, Gerrit Kimsma and Gerrit van der Wal, 'Euthanasia and Assisted Suicide: Facts, Figures and Fancies with Special Regard to Old Age' (1998) 13 Drugs

and Aging 185, 187.

43 Battin et al, above n 40, 591. The authors offer no explanation for the over-representation of AIDS patients, but note that AIDS is sometimes a ‘stigmatised’ illness: at 591.

44 Ibid 597.

45 For an overview of the criticisms and Battin’s response see Margaret P Battin, 'Physician-Assisted Dying and the Slippery Slope: the Challenge of Empirical Evidence ' (2008) 45 Willamette Law Review 91. See also I G Finlay and R George, 'Legal Physician-Assisted Suicide in Oregon and The Netherlands: Evidence Concerning

What is open to challenge is the finding that there is no evidence of increased risk for people with depression. As Battin points out, both the Netherlands and Oregon rely on the competencies of physicians to screen for depression.46 Critics argue that this is not an adequate safeguard because doctors are poorly trained in recognising depression, a claim supported by extensive research, as I highlighted in the previous chapter. Indeed, Battin acknowledges the conclusion of a study about patients who received a lethal prescription of drugs in Oregon that the system does not adequately protect patients whose decisions are influenced by depression.47

Other objections to Battin et al’s study relate to the integrity of the reporting and data- gathering practices in Oregon and the Netherlands.48 In chapters 7 and 8 I will discuss a number of problems with the Dutch system. Battin agrees there are inadequacies in the Oregon data,44 but argues that overall the data is useful and criticisms of the Oregon system are exaggerated.50

Even if we concede that there are some limitations to the Battin et al study, this does not undermine its relatively modest conclusion that there is no current evidence of abuse in certain groups identified as vulnerable. Their conclusion should be welcomed by both supporters and critics of voluntary euthanasia and assisted suicide who are concerned about risks to the vulnerable, even if, as Battin et al acknowledge, more research is needed.51

However, vulnerability is about more than simply numbers. Both Battin et al and their critics overlook what I will argue is a key issue: that even if vulnerable populations do not choose euthanasia or assisted suicide in disproportionate numbers, the reasons some members of these populations decide for assisted death could be indicative of vulnerability. To examine the meaning of this claim I propose women as a case study of a vulnerable population.

the Impact on Patients in Vulnerable Groups - Another Perspective on Oregon's Data' (2011) 37 Journal o f Medical Ethics 171.

4(1 Battin, above n 45, 124.

47 Ibid, referring to Linda Ganzini, Elizabeth R Goy and Steven K Dobscha, 'Prevalence o f Depression and