If a court issues a stay of execution after the lethal injection has already started, must Oregon prison officials stop the execution and try to save the inmate's life?

Subject

David S. Cook, Director, Department of Corrections

Plain-English summary

The Department of Corrections wanted to know what would happen if a court issued a stay of execution after a lethal injection had already begun but before it had finished. The AG explained that an Oregon execution under ORS 137.473(1) involved three chemical agents administered intravenously in sequence: sodium thiopental, pancuronium bromide, and potassium chloride. Each was several times the normal dose. The full sequence took six to eight minutes. During that window, the superintendent stood within reach of a telephone and within hearing distance of the person doing the injecting.

Because all those acts had to be completed for the execution to be carried out, a stay received at any point before completion was valid. The superintendent had to instruct the person injecting the chemicals to stop. A stay that arrived after the injections were finished was ineffective because there was nothing left to stay.

The harder question was medical care. If the injection had started but a stay had come in, did the prison have to keep the inmate alive? The AG concluded that the Eighth Amendment and Article I, section 16, of the Oregon Constitution both imposed a duty to provide medical care to inmates, but the standard was the "deliberate indifference" test from Estelle v. Gamble, 429 US 97 (1976), and Billings v. Gates, 323 Or 167 (1996). The prison had to provide the same medical services and facilities to a condemned inmate that it provided to all other inmates in a medical emergency, but it was not required to staff the execution room with specially trained personnel or to keep hospital-grade equipment like a heart-lung machine or dialysis equipment on hand.

If a stay did come in mid-injection, the superintendent had to direct any medical staff present to attempt resuscitation efforts appropriate to the inmate's medical condition and the available resources. That included summoning an ambulance and transporting the inmate to an acute-care facility. The one exception: if the inmate had executed a valid advance directive declining resuscitation or other life-sustaining procedures, those wishes had to be honored.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Oregon's death penalty has had a complicated legal history since this opinion was issued.

Common questions

At what point was a stay too late under this opinion?
The AG concluded the stay had to be received before completion of all the acts required by ORS 137.473(1), which meant before the last of the nine syringes (three chemicals plus saline flushes between each) had been injected. A stay arriving even moments before the final injection was still valid and had to be obeyed.

Did the prison have to keep a doctor in the room during the execution in case of a stay?
No. The AG read ORS 137.473 to require only that the superintendent "invite" the presence of one or more physicians, not to mandate medical staff or equipment. The deliberate-indifference standard did not require the prison to anticipate the unlikely event of a mid-execution stay with extraordinary lifesaving capacity.

If a stay did come in after the injections had started, what was the prison expected to do?
The AG said the superintendent had to direct whatever medical staff were on hand at the institution to attempt resuscitation appropriate to the inmate's condition. That meant calling an ambulance and transporting the inmate to a hospital if necessary, unless the inmate had a valid advance directive declining such care.

What if the inmate had filed an advance directive saying no resuscitation?
The AG concluded the advance directive controlled. If the inmate had completed a valid advance directive declining resuscitation or life-sustaining treatment, the prison had to honor that directive even if a stay came in mid-execution. The AG noted this was consistent with the rights all inmates retained over their own healthcare decisions.

The doses were described as several times the normal medical dose. Did that matter for the analysis?
It made the analysis more concrete but not legally different. Even the first agent, sodium thiopental, was 4.5 to 6.8 times the normal dose for a 195-pound person and would rapidly stop the inmate's breathing for minutes at a time. The second agent paralyzed the breathing muscles entirely. By the time the third agent was administered, cardiac arrest was inevitable. The AG nonetheless concluded the prison's general duty to provide reasonable emergency care attached at the moment a stay was received, regardless of how likely resuscitation was to succeed.

Background and statutory framework

ORS 137.473(1) required executions to be carried out by intravenous administration of "a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent and potassium chloride or other equally effective substances sufficient to cause death." The statute placed the execution inside a Department of Corrections institution and required the superintendent to be present.

Beyond the death-penalty framework, the constitutional and statutory duty to provide inmate medical care came from several sources. Article I, section 16, of the Oregon Constitution and the Eighth Amendment both barred cruel and unusual punishment, and both had been interpreted to require adequate medical care. ORS 423.020(d) gave the Department of Corrections a general duty to provide medical care for confined persons. ORS 179.360(1)(f) required each superintendent to designate a licensed physician as chief medical officer.

The federal cases set the floor. Estelle v. Gamble made deliberate indifference to serious medical needs a constitutional violation. Farmer v. Brennan, 511 US 825 (1994), defined "deliberate indifference" as actual knowledge of an excessive risk plus a failure to act on it. Ramos v. Lamm, 639 F2d 559 (10th Cir 1980), required prisons to maintain a level of care adequate for routine and emergency needs. Hoptowit v. Ray, 682 F2d 1237 (9th Cir 1982), allowed prisons to satisfy emergency duties through institution infirmaries plus accessible outside hospitals.

Citations

• ORS 137.473(1) (lethal injection as execution method)
• ORS 423.020(d) (corrections duty to provide medical care)
• ORS 179.360(1)(f) (designation of chief medical officer)
• ORS 179.479(1) (transfer of inmates for outside medical treatment)
• Oregon Constitution Article I, section 16 (cruel and unusual punishment)
• U.S. Constitution Eighth Amendment
• Estelle v. Gamble, 429 US 97 (1976) (deliberate-indifference standard)
• Farmer v. Brennan, 511 US 825 (1994) (definition of deliberate indifference)
• Billings v. Gates, 323 Or 167 (1996) (Oregon adoption of deliberate-indifference standard)
• Ramos v. Lamm, 639 F2d 559 (10th Cir 1980) (medical-care adequacy)
• Hoptowit v. Ray, 682 F2d 1237 (9th Cir 1982) (use of outside facilities)

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1998/11/op1998-6.pdf

Original opinion text

HARDY MYERS
ATTORNEY GENERAL
DAVID SCHUMAN
DEPUTY ATTORNEY GENERAL
1162 Court Street NE
Salem, Oregon 97310
FAX: (503) 378-3784
TDD: (503) 378-5938
Telephone: (503) 378-4620
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
November 6, 1998
David S. Cook, Director
Department of Corrections
2575 Center Street NE
Salem, OR 97310
Re: Opinion Request OP-1998-6
Dear Mr. Cook:
You have asked several questions concerning a stay of execution received after commencement of the
execution of a condemned inmate by lethal injection. Your questions and our brief answers are set out
below, followed by a discussion.
1. What is the effect of a stay of execution that has been received by or communicated to the
superintendent after the commencement, but before completion, of the injection of lethal chemical agents
into the veins of the condemned inmate in accordance with proper execution procedures?
A stay of execution received by or communicated to the superintendent at any time before completion of
the acts required by ORS 137.473(1) to carry out the execution, i.e., before completion of the injection of
the three chemical agents, is valid. Upon receipt of such a stay order, the superintendent must instruct the
person(s) responsible for injecting the lethal chemical agents to stop.
2. Is the superintendent required to have specially trained medical staff present in the execution room to
intervene with lifesaving resuscitation efforts if a stay is received after the commencement of the
execution but before completion of the acts required by ORS 137.473(1)? May such intervention occur
only with the informed written consent of the condemned inmate?
The superintendent is not required to have specially trained medical staff or special medical equipment
present, beyond that normally in the institution for the medical care of inmates, in anticipation of
extraordinary lifesaving measure that may be needed to resuscitate an inmate for whom the sentence of
execution has been commenced. If a stay were received after the commencement of the lethal injection,
the superintendent must direct any medical staff present in the institution to attempt those resuscitation
efforts that are appropriate in light of the inmate's medical condition and the available resources,
including summoning an ambulance and transporting the inmate to an acute-care facility, unless the

inmate has completed an advance directive instructing that he does not want resuscitation or other
life-sustaining procedures.
Discussion
1. Effect of Stay of Execution
ORS 137.473(1) provides, in relevant part:
The punishment of death shall be inflicted by the intravenous administration of a lethal quantity of an
ultra-short-acting barbiturate in combination with a chemical paralytic agent and potassium chloride or
other equally effective substances sufficient to cause death.
We understand from your staff, and conversations with an anesthesiologist arranged by your staff, that
the three chemical agents to be used for the execution will be injected intravenously in sequence, as
follows:
Agent #1 (sodium thiopental) will be injected using one syringe containing 2400 milligrams of this agent,
which is approximately 4.5 to 6.8 times the normal dose for a 195-pound person.(1) Upon injection, this
agent will attain full concentration in the brain in less than 30 seconds. When administered at the
execution amount, this agent will rapidly cause unconsciousness, with a significant decrease in blood
pressure and respiratory depression. Within a minute after injection of approximately half of the
execution amount, the inmate's breathing will be transient and would likely stop for several minutes at a
time.(2)
Agent #2 (pancuronium bromide) will be injected using two consecutive syringes containing a total of
100 milligrams of this agent, which is approximately eight times the normal dose for a 195-pound
person.(3) This agent has an onset of action of approximately two minutes and over the next minute or so
would cause paralysis of skeletal muscles, including the breathing muscles of the ribs and diaphragm.(4)
Agent #3 (potassium chloride) will be injected using three consecutive syringes containing a total of 100
millequivalents of this agent,(5) which is five times the recommended safe hourly concentration.(6) This
lethal concentration will cause cardiac arrhythmias, heart block and cardiac arrest.(7)
After injection of each of the three chemical agents, a syringe of saline solution will be injected in order
to avoid any mixing of the different agents, which could cause chemical interactions. Thus, a total of nine
syringes must be injected before the acts required by ORS 137.473(1) will be complete. We understand
that injection of all nine syringes will take six to eight minutes.
We are informed by prison staff that the superintendent will be standing within reach of a telephone
through which a stay order could be communicated, that he will be within approximately five feet from
the person(s) responsible for injecting the chemical agents, and that despite partitions that will block the
superintendent's sight of such person(s), they will be able to hear any instructions given by the
superintendent. Given the length of time needed to inject the three chemical agents, it is conceivable that
a stay of execution could be received and acted upon before completion of all of the injections. It is also
conceivable (though exceedingly unlikely) that a stay could be received and acted upon before anything
more than a normal anesthetic dose of agent #1 has been injected.
An execution by lethal injection is no different than any other action that may be stayed by a court at any

time before its completion. Based on the above description of the method of execution, we cannot
determine as a matter of law that it would be impossible for the superintendent to comply with a stay
order received by or communicated to him before completion of the injections of the three chemical
agents. Thus, we conclude that the superintendent must comply with any stay of execution received by
him at any time before completion of the acts required by ORS 137.473(1) to carry out the execution,
i.e., before completion of the injection of the three chemical agents. Upon receipt of such a stay order,
the superintendent must instruct the person(s) responsible for injecting the lethal chemical agents to stop.
A stay order received after completion of those injections would be ineffective because there would be
no further action that could be stayed. Letter of Advice dated September 30, 1986, to Thomas Toombs,
Administrator, Corrections Division (OP-6014) at 4.
2. Legal Obligations to Provide Medical Care and Treatment
Article I, section 16, of the Oregon Constitution(8) and the Eighth Amendment to the United States
Constitution,(9) both of which proscribe cruel and unusual punishment, establish the government's
obligation to provide medical care for persons being punished by incarceration. Billings v. Gates, 323 Or
167, 916 P2d 291 (1996); Estelle v. Gamble. 429 US 97, 103, 97 S Ct 285, 50 L Ed2d 251 (1976), reh
den 429 US 1066 (1977).
The standard for evaluating claims that medical care was unlawfully denied to inmates is whether prison
officials have exhibited "deliberate indifference" to an inmate's serious medical needs. Billings, 323 Or at
180; Estelle, 429 US at 104. A prison may exhibit deliberate indifference by failing to make available to
inmates "a level of medical care which is reasonably designed to meet the routine and emergency health
care needs of inmates." Ramos v. Lamm, 639 F2d 559, 574 (10th Cir 1980), cert denied 450 US 1041
(1981). Absent additional statutory requirements, an institution's obligation to provide medical care and
treatment to inmates is determined by this standard.
a. Availability of Specially Trained Medical Staff and Equipment
ORS 423.020(d) places on the department a general duty to provide medical care for persons confined in
its institutions. ORS 179.360(1)(f) requires the superintendent of each institution to designate a licensed
physician to serve as chief medical officer, "who will be directly responsible to the superintendent for
administration of the medical treatment programs at the institution." In addition, ORS 179.479(1)
authorizes the superintendent of an institution, "when authorized by regulation or direction of the
Department of Corrections or division having jurisdiction over the institution, [to] convey an inmate to a
physician, clinic or hospital * * * for medical * * * treatment when such treatment cannot satisfactorily
be provided at the institution."
Based on the above constitutional and statutory provisions, we have previously concluded that the
department must provide for the "day-to-day minimum necessary medical needs" of each person in its
institutions through the staff of the institution to which the person is committed. 43 Op Atty Gen 192,
193 (1983). Necessary health care that is beyond the capacity of the institution staff, whether routine or
emergency health care, may be provided in facilities outside the prison. See ORS 179.479(1) and OAR
291-124-020(2)(d) and 291-124-035(3). See Hoptowit v. Ray, 682 F2d 1237, 1253-54 (9th Cir 1982)
(prison's duty to provide system for responding to emergencies may be satisfied through institution's
infirmary and use of outside facilities, provided such outside facilities are not too remote or inaccessible
to handle emergencies promptly and adequately). Clearly, a prison is not an acute-care hospital and need
not have on its premises either the facilities or the staff that are expected in such a hospital setting.

The prison must have available for an inmate sentenced to death the same medical services and facilities
that it has for all other inmates who may have a medical emergency.(10) ORS 137.473(1) provides that
the execution "shall take place within the enclosure of a Department of Corrections institution." The
statute does not require the execution to occur within a hospital-type setting or require any type of
medical equipment or preparations. Although the statute requires that the superintendent of the institution
be present at the execution, it does not mandate the presence of medical staff, but merely requires the
superintendent to "invite" the presence of one or more physicians.
Thus, we conclude that neither the department nor the superintendent are required to have particular
medical staff or equipment present, beyond that normally in the institution for the medical care of
inmates, in anticipation of extraordinary lifesaving measures that may be needed to resuscitate an inmate
if a stay of execution were received after commencement of the lethal injections but before the death of
the inmate. Cf. Billings, 323 Or at 180 (rejecting "reasonably available" standard for inmate medical
claims). The medical needs that might arise in that situation are not the day-to-day needs of inmates in
the institution. To the contrary, the purpose of the execution room and, after commencement of the
execution, the intent of the state is to put to death an inmate who has been sentenced to that punishment.
We do not believe that the failure to have specially trained medical staff present in the execution room or
to have extraordinary lifesaving equipment (e.g., heart-lung machine or dialysis equipment) available in
the prison,(11) in anticipation of a stay being received after the execution has commenced, is deliberate
indifference to an inmate's medical needs. Deliberate indifference exists only when a prison official
"knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists and he must
also draw the inference." Farmer v. Brennan. 511 US 825, 837, 114 S Ct 1970, 128 L Ed2d 811 (1994);
Watson v. Caton, 984 F2d 537, 540 (1st Cir 1993) (decisions to deny or delay care may constitute
deliberate indifference if reckless in the "criminal law sense, requiring actual knowledge of impending
harm, easily preventable"). The execution is a lawful act, the date and time of which is known to the
superintendent; however, issuance of a stay after commencement of the execution is an unlikely event,
the occurrence of which cannot be known until it happens, and, due to the nature and amounts of the
chemical agents used for the lethal injections, the prevention of the inmate's death after those injections
have begun would not be readily and easily achieved.(12) Therefore, we conclude that there is no
deliberate indifference to an inmate's medical needs merely because arrangements are not made to have
specially trained medical staff and equipment present to cover the remote possibility of receipt of a stay
in the very short time period after commencement of the injection of the chemical agents but before
death occurs.
b. Lifesaving Resuscitation Efforts
The conclusion that the superintendent is not required to have specially trained staff or special medical
equipment present in the execution room does not resolve the question of the duty to intervene with
lifesaving resuscitation efforts if a stay were received after commencement of the execution.
An inmate for whom a stay of execution has been granted is in no different position than any other
inmate of the institution with respect to the institution's duty to provide medical care and treatment.(13)
The fact that the event triggering an inmate's medical need for resuscitation is a lawful execution stayed
before its completion, rather than, for example, a heart attack, does not affect the obligation of prison

officials to provide medical care to the inmate.(14) Unless the inmate has directed that he does not want
resuscitation or other life-sustaining procedures, prison officials must attempt appropriate resuscitation
efforts(15) if an inmate's sentence of execution has been stayed before completion of the acts required by
ORS 137.473(1).(16)
c. Inmate's Medical Direction
In our earlier Letter of Advice OP-6014, we concluded that if the execution of an inmate were stayed
before completion of the lethal injections, the inmate should be viewed as a patient in need of medical
treatment. Relying on the doctrine of informed consent, we stated that the inmate should be asked to
express in writing his or her wishes regarding potential resuscitation efforts, concluding that "as a general
proposition, a mature, competent patient has self-determination rights in medical care decisions which
will be honored absent overriding state interests in preservation of life." OP-6014 at 4-5.
Since that opinion was issued, the legislature enacted ORS 127.507, which provides that "[c]apable
adults may make their own health care decisions."(17) A "capable" adult is one who does not lack the
ability to make and communicate health care decisions to health care providers. ORS 127.505(13).
"Health care decision" means consent or refusal of consent or the withholding or withdrawal of consent
to "health care," including decisions relating to admission to or discharge from a hospital or other health
care facility. ORS 127.505(8). "Health care" means the treatment or care of injury,(18) including the use,
withdrawal or withholding of life-sustaining procedures. ORS 127.505(7). "Life-sustaining procedure"
means any medical procedure, medical device or medical intervention that "maintains life by sustaining,
restoring or supplanting a vital function." ORS 127.505(16). Thus, ORS 127.507 authorizes a capable or
competent adult to make a decision for himself or herself to refuse consent for resuscitation efforts or
other life-sustaining procedures.(19)
The Oregon statutes also authorize a capable adult to execute a written "health care instruction," which
shall be effective when it is properly signed and witnessed. ORS 127.510(2). Such instructions must be
in the form provided by Part C of the advance directive form set forth in ORS 127.531. ORS 127.515(3).
Part C of this statutory advance directive form permits a capable adult to state in advance his or her
instructions regarding life-sustaining procedures and tube feeding, if the person's doctor and another
knowledgeable doctor confirm that the person is in one of the following medical conditions: (1) close to
death, and life support would only postpone the moment of death; (2) unconscious and very unlikely to
become conscious again; (3) in the advanced stage of a progressive illness that will be fatal and unable to
communicate, swallow food and water safely, provide self-care, recognize family and others, and it is
very unlikely for that condition to substantially improve; and (4) in a medical condition that will not be
helped by life support, but life support would cause permanent and severe pain. ORS 127.531(2).
Additionally, the person may provide in Part C a general instruction that he or she does not want
life-sustaining procedures or tube feeding but to be allowed to die naturally if his or her doctor and
another knowledgeable doctor confirm that the person is in one of the medical conditions listed in items
(1) to (4) above. Id. Finally, the person may also use Part C to state additional conditions or instructions
regarding his or her health care decisions. Id.
Because of the wording and structure of Part C of the form, it has been suggested that a capable person
may not give an advance instruction refusing consent for life-sustaining procedures if he or she is not in
one of the four listed conditions, as confirmed by the person's doctor and another knowledgeable doctor.
We do not believe that is a proper interpretation of the statute.(20)

First, Part A of the advance directive form set forth in ORS 127.531(2) explains, in a section entitled
Facts About Completing This Form, that: "You may cross out words that don't express your wishes or
add words that better express your wishes." Thus, although ORS 127.531(1) requires that the "form" of
an advance directive must be "the same as the form set forth in this section" in order to be valid, the
terms of the form clearly provide that the person is not bound by the words on the form, but may modify
the wording of the health care instructions provided on the form or add additional instructions.
Second, ORS 127.505 to 127.660 contain no explicit provision requiring medical confirmation of the
four listed medical conditions for an advance instruction refusing consent to lifesaving procedures.
Instead, the statutes state affirmatively that capable adults may make their own health care decisions,
ORS 127.507, and that such persons may execute a health care instruction in advance to refuse consent
or withhold consent to health care, including the withholding of life-sustaining procedures. ORS
127.505(7)-(8), (10) and 127.510(2). These rights would be severely limited if the instructions could only
be followed when the person was in certain medical conditions that were confirmed by two physicians.
Yet the statutes do not directly state that to be the case.
The only provisions explicitly requiring an individual to be medically confirmed to be in one of the four
listed medical conditions are ORS 127.540(6)(b), 127.580 and 127.635(1). See ORS 127.640. None of
these provisions are applicable to a capable adult who has executed an advance health care instruction to
refuse or withhold consent to life-sustaining procedures. ORS 127.540(6)(b) limits the authority of a
health care representative appointed by a capable adult to make health care decisions for him or her and
requires medical confirmation of one of the four listed medical conditions only if the individual
appointed as the representative has not been given authority to make decisions on withholding
life-sustaining procedures. ORS 127.580 establishes a presumption that a person has consented to
artificially administered nutrition and hydration unless the person, while a capable adult, clearly and
specifically stated that he or she would have refused such nutrition or hydration, or the person is
medically confirmed to be in one of the four listed conditions. ORS 127.580(2) necessarily implies that
an advance directive stating a refusal to consent will also overcome the presumption irrespective of the
person being in one of the four listed medical conditions. ORS 127.635(1) provides that life-sustaining
procedures that otherwise would be applied to an incapable person "who does not have an * * *
applicable valid advance directive" may be withheld in accordance with subsections (2) and (3) if the
person is medically confirmed to be in one of the four conditions. Thus, the statutory provisions requiring
medical confirmation that the person is in one of the four listed medical conditions actually demonstrate
that the instructions of a capable adult contained in an advance directive are not conditioned on the
person being medically confirmed to be in one of the four listed medical conditions if the directive does
not so provide or states otherwise.
Third, the provisions relating to health care representatives do not require medical confirmation of one of
the four listed conditions when the representative is authorized to make health care decisions for a
capable adult. ORS 127.505 to 127.660 authorize a capable adult to appoint a health care representative
to make health care decisions if he or she becomes incapable, although appointing such a health care
representative is not a requirement for a valid advance health care instruction. See ORS 127.510(1),
127.515(2), 127.531, 127.535. A health care representative is not authorized to make a health care
decision with respect to the withholding or withdrawing of a life-sustaining procedure unless the
representative has been given authority to do so, or the person has been medically confirmed to be in one
of the four medical conditions listed above. ORS 127.540(6). It would be a dubious legislative policy to

require an individual to be medically confirmed to be in one of the four listed medical conditions in order
to independently direct his or her own future health care decisions, but not to require such medical
confirmation if the individual authorized a health care representative to make such decisions.
Fourth, ORS 127.560(2) states that the provisions of ORS 127.505 to 127.660 "do not in themselves
impose civil or criminal liability" on a health care provider who withholds life-sustaining procedures for
an individual who is in a health condition other than the four listed conditions. Although this provision
implies that liability might arise from a source outside of ORS 127.505 to 127.660,(21) it also clearly
establishes that these statutes were not intended to change existing law with respect to informed consent.
See also ORS 127.560(1)(g) and (j) (ORS 127.505 to 127.660 do not impair or supersede the laws of this
state relating to right of persons to effect withholding of life-sustaining procedures in any lawful manner
or to make their own health care decisions).
We have found no Oregon appellate court decisions addressing the right of competent adults to refuse
life-sustaining medical treatment, either before or after the 1993 enactment of ORS 127.505 to
127.660.(22) In other jurisdictions, the courts have generally found that an individual has a right to refuse
life-sustaining medical treatment, which is derived from either the common-law doctrine of informed
consent or a constitutional right to privacy. 22A Am Jur Death §§ 579-587 (1988) and cases cited
therein.(23) The Supreme Court has recognized such a right as a liberty interest derived from the
Fourteenth Amendment to the United States Constitution. Cruzan v. Director, Mo. Health Dept., 497 US
261, 278-79, 110 S Ct 2841, 111 L Ed2d 224 (1990) (rejecting federal constitutional privacy interests in
right to refuse treatment, but stating: "The principle that a competent person has a constitutionally
protected liberty interest in refusing unwanted medical treatment may be inferred from our prior
decisions. * * * "[F]or purposes of this case, we assume that the United States Constitution would grant a
competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.");(24)
Vacco v. Quill, __ US __, 117 S Ct 2293, 2301, 138 L Ed2d 834 (1997) (assumption of right to refuse
treatment grounded on "well established, traditional rights to bodily integrity and freedom from
unwanted touching").
The extent of an individual's right to refuse life-sustaining treatment must be determined by balancing the
individual's interests against the following potentially countervailing state interests: the preservation of
life, the prevention of suicide, the protection of innocent third parties and the maintenance of the ethical
integrity of the medical profession. Superintendent of Belchertown v. Saikewicz, 370 NE 2d 417, 425
(Mass 1977); 22A Am Jur Death §§ 579-587. Cf. Cruzan 497 US at 279. In the case of prison inmates,
another governmental interest, the interest in upholding orderly prison administration, must also be
balanced against an inmate's right to refuse medical treatment. Commissioner of Corrections v. Myers,
399 NE 2d 452 (Mass 1979) (incarceration imposes limitations on inmate's constitutional rights in terms
of state interests unique to prison context).(25)
We next consider whether any of these state interests might outweigh the decision to refuse
life-sustaining procedures by an inmate whose execution is stayed after commencement of the lethal
injections. The first is the state's interest in the preservation of human life. This interest has been found to
include two aspects: preserving the life of the particular individual and preserving the sanctity of all
life.(26) Matter of Conroy, 486 A2d 1209, 1223 (NJ 1985). At least one court has stated that "[i]n cases
that do not involve the protection of the actual or potential life of someone other than the decisionmaker,
the state's indirect and abstract interest in preserving the life of the competent patient generally gives way

to the patient's much stronger personal interest in directing the course of his own life." Id. at 1223. Most
other courts have concluded that the interests must be balanced against each other, with the state's
interest weakening and the individual's interest growing as the degree of bodily invasion necessary for
treatment increases and the prognosis of return to a cognitive, sapient life dims. Foody v. Manchester
Memorial Hosp., 482 A2d 713, 718 (Conn 1984); Matter of Quackenbush, 383 A2d 785, 789-90 (NJ
1978). This does not mean, however, that the right of a competent person to refuse life-sustaining
procedures is limited to terminally ill persons. In Quackenbush, a 72-year old man was diagnosed with
gangrene in both legs due to arteriosclerosis, and his doctor concluded he would die within three weeks
as a result of infection spreading throughout the body if both legs were not amputated above the knee.
The court held that the extent of bodily invasion was sufficient to make the state's interest in the
preservation of life give way to the individual's right to self-determination even though the probability of
recovery was good and the risks of the procedure were limited. See also Thor v. Superior Court, 855
P2d 375, 383 (Cal 1993) (in permitting refusal of tube feeding and medication by quadriplegic, court
noted that state interest in preservation of life can only be asserted at "the expense of self-determination
and bodily integrity, matters all the more intensely personal when * * * physical disability renders
normal health and vitality impossible."); Matter of Farrell, 529 A2d 404, 411 (NJ 1987) ("the value of
life is desecrated not by a decision to refuse medical treatment but 'by the failure to allow a competent
human being the right of choice'").
As discussed above, if a stay order were received after commencement of the lethal injections, the
inmate's chance of resuscitation would be slim,(27) and even if successful, the inmate's risk of irreversible
brain damage is high, if not certain. Consequently, the state's interest in the preservation of life would
appear to be minimal, while the inmate's right to determine whether he wants resuscitation in the face of
such risks must be overriding. We conclude, therefore, that the inmate's right to refuse life-sustaining
procedures in this situation would outweigh the state's interest in the preservation of life.(28)
The second state interest, the prevention of suicide, is inapplicable in the case of a competent adult's
refusal of life-sustaining medical treatment. See ORS 127.570 (the withholding of life-sustaining
procedure in accordance with the provisions of ORS 127.505 to 127.660 does not constitute a suicide or
assisting a suicide). The courts have also concluded that the decision to refuse life-sustaining treatment is
not suicide for two reasons: (1) The individual may not have the specific intent to die, and (2) even if he
or she did, the cause of death would be from the individual's underlying medical condition, not any act of
self-destruction. Vacco v. Quill, 117 S Ct at 2298-99 and cases cited therein; Farrell, 529 A2d at 411 and
cases cited therein; McKay v. Bergstedt, 801 P2d 617, 627 (Nev 1990) (when life of a competent adult
with irreversible condition whose life must be sustained artificially and under circumstances of total
dependence, the adult's motive "may be presumed not to be suicidal"; there is substantial difference
between a person desiring non-interference with natural consequences of his condition and a person who
desires to terminate his life by some deadly means); Matter of Colyer, 660 P2d 738, 743 (Wash 1983);
Saikewicz, 370 NE 2d at 426 n 11. See also Thor, 855 P2d at 385 (because state interest in protecting
people from direct, purposeful self-destruction is motivated by state interest in preserving life, "it is
questionable whether it is a distinct state interest worthy of independent consideration"). For purposes of
assessing the state's interest in preventing suicide, it is irrelevant that, in the case of an execution stayed
after commencement of the lethal injections, the origin of the individual's medical condition is not due to
disease or accidental injury. The state's interest in preventing irrational acts of self-destruction is not
compromised by the decision to refuse life-sustaining procedures when made by an individual whose
medical condition was not self-inflicted.

The third state interest, the protection of innocent third parties, is implicated when the individual is
responsible for the support of minor children and the refusal of treatment would result in their
"abandonment." 22A Am Jur Death § 583. Thus, one court ordered treatment over the refusal of the
mother of a seven-month old child. Application of President & Directors of Georgetown Coll, 331 F2d
1000, 1008 (DC Cir 1964). The courts have not found this state interest to be overriding when the
individual had no minor children or had made provisions for them. See Matter of Melideo, 390 NYS 2d
523, 524 (1976) (upholding refusal of treatment by patient who had no children and was not pregnant);
St. Mary's Hospital v. Ramsey, 465 So 2d 666, 668-69 (Fla 1985) (upholding refusal of blood
transfusion in part because child resided with other parent and patient had made financial provisions for
his child); In re Osborne, 294 A2d 372, 374 (DC 1972) (upholding right to refuse treatment in part
because patient had provided for future well-being of his children); Farrell, 529 A2d at 413 (upholding
right of competent patient to withdraw respirator when patient's decision took into consideration the
extreme stress already put on her teenage children by her medical condition and other parent had capacity
to care for children in her absence). This state interest may also be implicated when the refusal of
medical treatment endangers public health. Cf. Jacobsen v. Massachusetts, 197 US 11, 25 S Ct 358, 49
L Ed 643 (1905) (mandatory vaccination for small pox); but see 30 Op Atty Gen 58 (1960) (tuberculosis
patient under care of state for isolation and quarantine may not be compelled to undergo surgery).
Because the medical condition of an inmate whose execution is stayed after commencement of the lethal
injections is likely to be such that he would be unable to support or provide care for any minor children,
his refusal of resuscitation would not be a significant cause of their "abandonment" and thus the state
interest in protecting third parties would be minimal at most.
The fourth state interest is in maintaining the integrity of the medical profession. In Farrell, the court
found "unanimous support" in the medical authorities for the right of a competent and informed
terminally ill patient to decline medical treatment, concluding that:
Health care standards are not undermined by the medical authorities that support the right to
self-determination that we recognize today. Even as patients enjoy control over their medical treatment,
health-care professionals remain bound to act in consonance with specific ethical criteria. We realize that
these criteria may conflict with some concepts of self-determination. In the case of such a conflict, a
patient has no right to compel a health-care provider to violate generally accepted professional standards.
529 A2d at 412. Often, such a conflict is resolved because "prevailing medical ethical practice does not,
without exception, demand that all efforts toward life prolongation be made in all circumstances," Satz v.
Perlmutter, 362 So 2d 160, 163 (Fla 1978), and the patient has found a physician who does not oppose
the patient's choice. See, e.g., Saikewicz, 370 NE 2d at 426-27. Other courts have found the patient's right
to self-determination to be paramount, particularly when the patient's condition is terminal or the patient's
condition is painful. See Bouvia v. Superior Court (Glenchur), 179 Cal App 3d 1127, 225 Cal Rptr 297,
305 (1986) (decision to have nasogastric tube withdrawn "is not a medical decision for [patient's]
physicians to make. * * * It is a moral and philosophical decision that, being a competent adult, is [the
patient's] alone."); Bartling v. Superior Court, 209 Cal Rptr 220, 225 (1984) (if right of patient to
medical self-determination "is to have any meaning at all, it must be paramount to the interests of the
patient's hospital and doctors"). Yet other courts have found a patient's right of self-determination to
include the right to determine when his or her life no longer has value, irrespective of the judgment of the
medical profession. In Thor, the court stated that the standards of medical ethics
cannot exist in a social and moral vacuum, thereby encouraging a form of medical paternalism under

which the physician's determination of what is "best," i.e., medically desirable, controls over patient
autonomy. Doctors have the responsibility to advise patients fully of those matters relevant and necessary
to making a voluntary and intelligent choice. Once that obligation is fulfilled, "[i]f the patient rejected the
doctor's advice, the onus of that decision would rest on the patient, not the doctor. Indeed, if the patient's
right to informed consent is to have any meaning at all, it must be accorded respect even when it conflicts
with the advice of the doctor or the values of the medical profession as a whole."
855 P2d at 386 (citations omitted). See also McKay v. Bergstedt, 801 P2d at 627-28 (decision by
competent adult "to reject continuation of respirator-dependency that has proven too burdensome to
endure" does not present ethical threat to medical profession).
We need not enter this debate because we believe that ORS 127.625 resolves this issue for persons who
have completed an advance directive refusing life-sustaining procedures. ORS 127.625 states that a
health care provider shall not be under any duty to participate in the withholding of life-sustaining
procedures, but shall authorize the transfer of that patient to another provider. We understand that prison
medical staff have agreed to abide by any decision of the inmate to refuse resuscitation.
Lastly, we consider the state's penological interest in managing inmates in the prison setting. An adult
prisoner retains only "those rights not fundamentally inconsistent with imprisonment itself or
incompatible with the objectives of incarceration." Hudson v. Palmer, 468 US 517, 523, 104 S Ct 3194,
82 L Ed2d 393 (1984) (inmate has no reasonable expectation of privacy enabling him to invoke Fourth
Amendment protections against searches). Although the Supreme Court concluded that prisoners possess
a significant liberty interest in avoiding the forced administration of antipsychotic drugs, the Court also
found that the state may compel the administration of such drugs over the inmate's refusal if the inmate is
dangerous to himself or others and the treatment is in his medical interest. Washington v. Harper, 494
US 210, 221-22, 110 S Ct 1028, 108 L Ed2d 178 (1990). Nevertheless, the courts have routinely
concluded that an inmate may not manipulate his medical circumstances to the detriment of the state's
interest in penal order, security and discipline. In Myers, the court found that the governmental interests
in the preservation of internal order and discipline of the prison facility, the maintenance of institutional
security, and the rehabilitation of prisoners were paramount over the rights of the inmate to refuse
hemodialysis treatment and supportive medication when the inmate's refusal was an attempt to
manipulate the prison system. 399 NE 2d 452. See also Scheutzle v. Vogel, 537 NW 2d 358 (ND 1995)
(prison could require inmate to submit to diabetes monitoring and, if ordered by a physician, forced
administration of food, insulin or other medications when inmate's refusal had little to do with his
disease); Turner v. Safley, 482 US 78, 89-90, 107 S Ct 2254, 96 L Ed2d 64 (1987) (factors relevant in
determining reasonableness of a prison regulation). These cases suggest that the right of an inmate to
refuse lifesaving medical treatment may be outweighed by the interests of the prison officials in
maintaining discipline and security in the prison.
Nevertheless in Thor, the court upheld the right of a quadriplegic prisoner to refuse tube feeding and
medication, finding that prison officials had offered no evidence that allowing him to do so undermined
prison integrity or endangered the public. 855 P2d at 387-89. The court noted the unique susceptibility of
a prison to the "catalytic effect of disruptive conduct" and stated that in another case, or if circumstances
changed in the case before it, the court would not preclude prison officials from establishing the need to
override an inmate's choice to decline medical intervention. Id. at 388. The court also held that the
inmate's refusal of treatment negates a violation of the Eighth Amendment's "deliberate indifference"
standard. Id. at 389.

In the present case, we have no reason to believe that a refusal by the inmate to consent to resuscitation if
a stay were received after commencement of the lethal injections would be motivated by a desire to
disrupt the orderly administration of the prison system. Moreover, we have not been informed by prison
officials that such refusal would pose a risk to prison security or discipline. Accordingly, we conclude
that the inmate's right to refuse resuscitation or other life-sustaining procedures if a stay were received
after commencement of the lethal injections would not be outweighed by the state's penological interests.
4. Recommended Procedures
Having concluded that the inmate's right to refuse life-sustaining treatment would outweigh any
countervailing state interests,(29) we recommend that prison officials discuss with the inmate the
possibility of a stay being received after commencement of the execution and ask him whether he would
like to complete an advance directive stating his instructions regarding life-sustaining procedures in that
event.(30) If the inmate chooses to complete an advance directive,(31) the Department of Corrections
should:
1. Confirm that the inmate is a "capable" adult, i.e., able to understand and communicate his decision
regarding health care;(32)
2. Inform the inmate about the prognosis of resuscitation after commencement of the injection of the
lethal chemical agents, the range of procedures that could be undertaken, depending upon the type and
amount of the chemicals that had been injected at various points in time, and the risks involved in such
resuscitation efforts;(33) and
3. Assist the inmate in completing an advance directive in the form required by ORS 127.531 that
properly and fully articulates the inmate's health care instructions.(34)
An advance directive must be executed and witnessed as required by ORS 127.515.(35) We suggest you
seek the advice of this office in complying with that procedure.
If the inmate provides an advance directive refusing resuscitation efforts or other lifesaving procedures,
the superintendent should ensure that any medical personnel who will be present during the execution
will voluntarily abide by that directive.(36) See ORS 127.625(1) ("No health care provider shall be under
any duty, whether by contract, by statute or by any other legal requirement to participate in the * * *
withholding of life sustaining procedures[.]"). Judicial approval of an advance directive refusing consent
to life-sustaining procedures is unnecessary. ORS 127.510(2), 127.550(1). See also Farrell, 529 A2d at
415 (judicial intervention "could infringe the very rights [of patient self-determination] that we want to
protect").
If the inmate states in an advance directive that he wishes resuscitation, the superintendent should ensure
that any medical personnel present in the institution during the execution will take appropriate steps to
comply with that directive. An inmate's completion of an advance directive containing such an
instruction does not alter our above conclusion that prison officials have no duty to bring into the
institution, or have present in the execution room, special medical personnel or equipment beyond that
normally in the institution for the medical care of inmates.
If the inmate chooses not to provide an advance directive, in the event of a stay of execution after
commencement of the lethal injections, the superintendent should direct medical personnel present in the

institution to attempt appropriate resuscitation efforts. See note 14, above. In OP-6014, we stated that
prison officials should designate a physician to be at the execution site as the inmate's physician should
resuscitation efforts be needed. Id. at 5. In light of our above analysis and conclusions, we now reverse
that portion of the opinion.
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division
AVL/llm/JGG0E526

November 6, 1998
David S. Cook, Director
Department of Corrections
2575 Center Street NE
Salem, OR 97310
Re: Opinion Request OP-1998-6
Dear Mr. Cook:
You have asked several questions concerning a stay of execution received after commencement of the
execution of a condemned inmate by lethal injection. Your questions and our brief answers are set out
below, followed by a discussion.
1. What is the effect of a stay of execution that has been received by or communicated to the
superintendent after the commencement, but before completion, of the injection of lethal chemical agents
into the veins of the condemned inmate in accordance with proper execution procedures?
A stay of execution received by or communicated to the superintendent at any time before completion of
the acts required by ORS 137.473(1) to carry out the execution, i.e., before completion of the injection of
the three chemical agents, is valid. Upon receipt of such a stay order, the superintendent must instruct the
person(s) responsible for injecting the lethal chemical agents to stop.
2. Is the superintendent required to have specially trained medical staff present in the execution room to
intervene with lifesaving resuscitation efforts if a stay is received after the commencement of the
execution but before completion of the acts required by ORS 137.473(1)? May such intervention occur
only with the informed written consent of the condemned inmate?
The superintendent is not required to have specially trained medical staff or special medical equipment
present, beyond that normally in the institution for the medical care of inmates, in anticipation of
extraordinary lifesaving measure that may be needed to resuscitate an inmate for whom the sentence of
execution has been commenced. If a stay were received after the commencement of the lethal injection,
the superintendent must direct any medical staff present in the institution to attempt those resuscitation
efforts that are appropriate in light of the inmate's medical condition and the available resources,
including summoning an ambulance and transporting the inmate to an acute-care facility, unless the

inmate has completed an advance directive instructing that he does not want resuscitation or other
life-sustaining procedures.
Discussion
1. Effect of Stay of Execution
ORS 137.473(1) provides, in relevant part:
The punishment of death shall be inflicted by the intravenous administration of a lethal quantity of an
ultra-short-acting barbiturate in combination with a chemical paralytic agent and potassium chloride or
other equally effective substances sufficient to cause death.
We understand from your staff, and conversations with an anesthesiologist arranged by your staff, that
the three chemical agents to be used for the execution will be injected intravenously in sequence, as
follows:
Agent #1 (sodium thiopental) will be injected using one syringe containing 2400 milligrams of this agent,
which is approximately 4.5 to 6.8 times the normal dose for a 195-pound person.(37) Upon injection, this
agent will attain full concentration in the brain in less than 30 seconds. When administered at the
execution amount, this agent will rapidly cause unconsciousness, with a significant decrease in blood
pressure and respiratory depression. Within a minute after injection of approximately half of the
execution amount, the inmate's breathing will be transient and would likely stop for several minutes at a
time.(38)
Agent #2 (pancuronium bromide) will be injected using two consecutive syringes containing a total of
100 milligrams of this agent, which is approximately eight times the normal dose for a 195-pound
person.(39) This agent has an onset of action of approximately two minutes and over the next minute or
so would cause paralysis of skeletal muscles, including the breathing muscles of the ribs and
diaphragm.(40)
Agent #3 (potassium chloride) will be injected using three consecutive syringes containing a total of 100
millequivalents of this agent,(41) which is five times the recommended safe hourly concentration.(42) This
lethal concentration will cause cardiac arrhythmias, heart block and cardiac arrest.(43)
After injection of each of the three chemical agents, a syringe of saline solution will be injected in order
to avoid any mixing of the different agents, which could cause chemical interactions. Thus, a total of nine
syringes must be injected before the acts required by ORS 137.473(1) will be complete. We understand
that injection of all nine syringes will take six to eight minutes.
We are informed by prison staff that the superintendent will be standing within reach of a telephone
through which a stay order could be communicated, that he will be within approximately five feet from
the person(s) responsible for injecting the chemical agents, and that despite partitions that will block the
superintendent's sight of such person(s), they will be able to hear any instructions given by the
superintendent. Given the length of time needed to inject the three chemical agents, it is conceivable that
a stay of execution could be received and acted upon before completion of all of the injections. It is also
conceivable (though exceedingly unlikely) that a stay could be received and acted upon before anything
more than a normal anesthetic dose of agent #1 has been injected.

An execution by lethal injection is no different than any other action that may be stayed by a court at any
time before its completion. Based on the above description of the method of execution, we cannot
determine as a matter of law that it would be impossible for the superintendent to comply with a stay
order received by or communicated to him before completion of the injections of the three chemical
agents. Thus, we conclude that the superintendent must comply with any stay of execution received by
him at any time before completion of the acts required by ORS 137.473(1) to carry out the execution,
i.e., before completion of the injection of the three chemical agents. Upon receipt of such a stay order,
the superintendent must instruct the person(s) responsible for injecting the lethal chemical agents to stop.
A stay order received after completion of those injections would be ineffective because there would be
no further action that could be stayed. Letter of Advice dated September 30, 1986, to Thomas Toombs,
Administrator, Corrections Division (OP-6014) at 4.
2. Legal Obligations to Provide Medical Care and Treatment
Article I, section 16, of the Oregon Constitution(44) and the Eighth Amendment to the United States
Constitution,(45) both of which proscribe cruel and unusual punishment, establish the government's
obligation to provide medical care for persons being punished by incarceration. Billings v. Gates, 323 Or
167, 916 P2d 291 (1996); Estelle v. Gamble. 429 US 97, 103, 97 S Ct 285, 50 L Ed2d 251 (1976), reh
den 429 US 1066 (1977).
The standard for evaluating claims that medical care was unlawfully denied to inmates is whether prison
officials have exhibited "deliberate indifference" to an inmate's serious medical needs. Billings, 323 Or at
180; Estelle, 429 US at 104. A prison may exhibit deliberate indifference by failing to make available to
inmates "a level of medical care which is reasonably designed to meet the routine and emergency health
care needs of inmates." Ramos v. Lamm, 639 F2d 559, 574 (10th Cir 1980), cert denied 450 US 1041
(1981). Absent additional statutory requirements, an institution's obligation to provide medical care and
treatment to inmates is determined by this standard.
a. Availability of Specially Trained Medical Staff and Equipment
ORS 423.020(d) places on the department a general duty to provide medical care for persons confined in
its institutions. ORS 179.360(1)(f) requires the superintendent of each institution to designate a licensed
physician to serve as chief medical officer, "who will be directly responsible to the superintendent for
administration of the medical treatment programs at the institution." In addition, ORS 179.479(1)
authorizes the superintendent of an institution, "when authorized by regulation or direction of the
Department of Corrections or division having jurisdiction over the institution, [to] convey an inmate to a
physician, clinic or hospital * * * for medical * * * treatment when such treatment cannot satisfactorily
be provided at the institution."
Based on the above constitutional and statutory provisions, we have previously concluded that the
department must provide for the "day-to-day minimum necessary medical needs" of each person in its
institutions through the staff of the institution to which the person is committed. 43 Op Atty Gen 192,
193 (1983). Necessary health care that is beyond the capacity of the institution staff, whether routine or
emergency health care, may be provided in facilities outside the prison. See ORS 179.479(1) and OAR
291-124-020(2)(d) and 291-124-035(3). See Hoptowit v. Ray, 682 F2d 1237, 1253-54 (9th Cir 1982)
(prison's duty to provide system for responding to emergencies may be satisfied through institution's
infirmary and use of outside facilities, provided such outside facilities are not too remote or inaccessible
to handle emergencies promptly and adequately). Clearly, a prison is not an acute-care hospital and need

not have on its premises either the facilities or the staff that are expected in such a hospital setting.
The prison must have available for an inmate sentenced to death the same medical services and facilities
that it has for all other inmates who may have a medical emergency.(46) ORS 137.473(1) provides that
the execution "shall take place within the enclosure of a Department of Corrections institution." The
statute does not require the execution to occur within a hospital-type setting or require any type of
medical equipment or preparations. Although the statute requires that the superintendent of the institution
be present at the execution, it does not mandate the presence of medical staff, but merely requires the
superintendent to "invite" the presence of one or more physicians.
Thus, we conclude that neither the department nor the superintendent are required to have particular
medical staff or equipment present, beyond that normally in the institution for the medical care of
inmates, in anticipation of extraordinary lifesaving measures that may be needed to resuscitate an inmate
if a stay of execution were received after commencement of the lethal injections but before the death of
the inmate. Cf. Billings, 323 Or at 180 (rejecting "reasonably available" standard for inmate medical
claims). The medical needs that might arise in that situation are not the day-to-day needs of inmates in
the institution. To the contrary, the purpose of the execution room and, after commencement of the
execution, the intent of the state is to put to death an inmate who has been sentenced to that punishment.
We do not believe that the failure to have specially trained medical staff present in the execution room or
to have extraordinary lifesaving equipment (e.g., heart-lung machine or dialysis equipment) available in
the prison,(47) in anticipation of a stay being received after the execution has commenced, is deliberate
indifference to an inmate's medical needs. Deliberate indifference exists only when a prison official
"knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists and he must
also draw the inference." Farmer v. Brennan. 511 US 825, 837, 114 S Ct 1970, 128 L Ed2d 811 (1994);
Watson v. Caton, 984 F2d 537, 540 (1st Cir 1993) (decisions to deny or delay care may constitute
deliberate indifference if reckless in the "criminal law sense, requiring actual knowledge of impending
harm, easily preventable"). The execution is a lawful act, the date and time of which is known to the
superintendent; however, issuance of a stay after commencement of the execution is an unlikely event,
the occurrence of which cannot be known until it happens, and, due to the nature and amounts of the
chemical agents used for the lethal injections, the prevention of the inmate's death after those injections
have begun would not be readily and easily achieved.(48) Therefore, we conclude that there is no
deliberate indifference to an inmate's medical needs merely because arrangements are not made to have
specially trained medical staff and equipment present to cover the remote possibility of receipt of a stay
in the very short time period after commencement of the injection of the chemical agents but before
death occurs.
b. Lifesaving Resuscitation Efforts
The conclusion that the superintendent is not required to have specially trained staff or special medical
equipment present in the execution room does not resolve the question of the duty to intervene with
lifesaving resuscitation efforts if a stay were received after commencement of the execution.
An inmate for whom a stay of execution has been granted is in no different position than any other
inmate of the institution with respect to the institution's duty to provide medical care and treatment.(49)
The fact that the event triggering an inmate's medical need for resuscitation is a lawful execution stayed

before its completion, rather than, for example, a heart attack, does not affect the obligation of prison
officials to provide medical care to the inmate.(50) Unless the inmate has directed that he does not want
resuscitation or other life-sustaining procedures, prison officials must attempt appropriate resuscitation
efforts(51) if an inmate's sentence of execution has been stayed before completion of the acts required by
ORS 137.473(1).(52)
c. Inmate's Medical Direction
In our earlier Letter of Advice OP-6014, we concluded that if the execution of an inmate were stayed
before completion of the lethal injections, the inmate should be viewed as a patient in need of medical
treatment. Relying on the doctrine of informed consent, we stated that the inmate should be asked to
express in writing his or her wishes regarding potential resuscitation efforts, concluding that "as a general
proposition, a mature, competent patient has self-determination rights in medical care decisions which
will be honored absent overriding state interests in preservation of life." OP-6014 at 4-5.
Since that opinion was issued, the legislature enacted ORS 127.507, which provides that "[c]apable
adults may make their own health care decisions."(53) A "capable" adult is one who does not lack the
ability to make and communicate health care decisions to health care providers. ORS 127.505(13).
"Health care decision" means consent or refusal of consent or the withholding or withdrawal of consent
to "health care," including decisions relating to admission to or discharge from a hospital or other health
care facility. ORS 127.505(8). "Health care" means the treatment or care of injury,(54) including the use,
withdrawal or withholding of life-sustaining procedures. ORS 127.505(7). "Life-sustaining procedure"
means any medical procedure, medical device or medical intervention that "maintains life by sustaining,
restoring or supplanting a vital function." ORS 127.505(16). Thus, ORS 127.507 authorizes a capable or
competent adult to make a decision for himself or herself to refuse consent for resuscitation efforts or
other life-sustaining procedures.(55)
The Oregon statutes also authorize a capable adult to execute a written "health care instruction," which
shall be effective when it is properly signed and witnessed. ORS 127.510(2). Such instructions must be
in the form provided by Part C of the advance directive form set forth in ORS 127.531. ORS 127.515(3).
Part C of this statutory advance directive form permits a capable adult to state in advance his or her
instructions regarding life-sustaining procedures and tube feeding, if the person's doctor and another
knowledgeable doctor confirm that the person is in one of the following medical conditions: (1) close to
death, and life support would only postpone the moment of death; (2) unconscious and very unlikely to
become conscious again; (3) in the advanced stage of a progressive illness that will be fatal and unable to
communicate, swallow food and water safely, provide self-care, recognize family and others, and it is
very unlikely for that condition to substantially improve; and (4) in a medical condition that will not be
helped by life support, but life support would cause permanent and severe pain. ORS 127.531(2).
Additionally, the person may provide in Part C a general instruction that he or she does not want
life-sustaining procedures or tube feeding but to be allowed to die naturally if his or her doctor and
another knowledgeable doctor confirm that the person is in one of the medical conditions listed in items
(1) to (4) above. Id. Finally, the person may also use Part C to state additional conditions or instructions
regarding his or her health care decisions. Id. (56)
First, Part A of the advance directive form set forth in ORS 127.531(2) explains, in a section entitled
Facts About Completing This Form, that: "You may cross out words that don't express your wishes or
add words that better express your wishes." Thus, although ORS 127.531(1) requires that the "form" of

an advance directive must be "the same as the form set forth in this section" in order to be valid, the
terms of the form clearly provide that the person is not bound by the words on the form, but may modify
the wording of the health care instructions provided on the form or add additional instructions.
Second, ORS 127.505 to 127.660 contain no explicit provision requiring medical confirmation of the
four listed medical conditions for an advance instruction refusing consent to lifesaving procedures.
Instead, the statutes state affirmatively that capable adults may make their own health care decisions,
ORS 127.507, and that such persons may execute a health care instruction in advance to refuse consent
or withhold consent to health care, including the withholding of life-sustaining procedures. ORS
127.505(7)-(8), (10) and 127.510(2). These rights would be severely limited if the instructions could only
be followed when the person was in certain medical conditions that were confirmed by two physicians.
Yet the statutes do not directly state that to be the case.
The only provisions explicitly requiring an individual to be medically confirmed to be in one of the four
listed medical conditions are ORS 127.540(6)(b), 127.580 and 127.635(1). See ORS 127.640. None of
these provisions are applicable to a capable adult who has executed an advance health care instruction to
refuse or withhold consent to life-sustaining procedures. ORS 127.540(6)(b) limits the authority of a
health care representative appointed by a capable adult to make health care decisions for him or her and
requires medical confirmation of one of the four listed medical conditions only if the individual
appointed as the representative has not been given authority to make decisions on withholding
life-sustaining procedures. ORS 127.580 establishes a presumption that a person has consented to
artificially administered nutrition and hydration unless the person, while a capable adult, clearly and
specifically stated that he or she would have refused such nutrition or hydration, or the person is
medically confirmed to be in one of the four listed conditions. ORS 127.580(2) necessarily implies that
an advance directive stating a refusal to consent will also overcome the presumption irrespective of the
person being in one of the four listed medical conditions. ORS 127.635(1) provides that life-sustaining
procedures that otherwise would be applied to an incapable person "who does not have an * * *
applicable valid advance directive" may be withheld in accordance with subsections (2) and (3) if the
person is medically confirmed to be in one of the four conditions. Thus, the statutory provisions requiring
medical confirmation that the person is in one of the four listed medical conditions actually demonstrate
that the instructions of a capable adult contained in an advance directive are not conditioned on the
person being medically confirmed to be in one of the four listed medical conditions if the directive does
not so provide or states otherwise.
Third, the provisions relating to health care representatives do not require medical confirmation of one of
the four listed conditions when the representative is authorized to make health care decisions for a
capable adult. ORS 127.505 to 127.660 authorize a capable adult to appoint a health care representative
to make health care decisions if he or she becomes incapable, although appointing such a health care
representative is not a requirement for a valid advance health care instruction. See ORS 127.510(1),
127.515(2), 127.531, 127.535. A health care representative is not authorized to make a health care
decision with respect to the withholding or withdrawing of a life-sustaining procedure unless the
representative has been given authority to do so, or the person has been medically confirmed to be in one
of the four medical conditions listed above. ORS 127.540(6). It would be a dubious legislative policy to
require an individual to be medically confirmed to be in one of the four listed medical conditions in order
to independently direct his or her own future health care decisions, but not to require such medical
confirmation if the individual authorized a health care representative to make such decisions.

Fourth, ORS 127.560(2) states that the provisions of ORS 127.505 to 127.660 "do not in themselves
impose civil or criminal liability" on a health care provider who withholds life-sustaining procedures for
an individual who is in a health condition other than the four listed conditions. Although this provision
implies that liability might arise from a source outside of ORS 127.505 to 127.660,(57) it also clearly
establishes that these statutes were not intended to change existing law with respect to informed consent.
See also ORS 127.560(1)(g) and (j) (ORS 127.505 to 127.660 do not impair or supersede the laws of this
state relating to right of persons to effect withholding of life-sustaining procedures in any lawful manner
or to make their own health care decisions).
We have found no Oregon appellate court decisions addressing the right of competent adults to refuse
life-sustaining medical treatment, either before or after the 1993 enactment of ORS 127.505 to
127.660.(58) In other jurisdictions, the courts have generally found that an individual has a right to refuse
life-sustaining medical treatment, which is derived from either the common-law doctrine of informed
consent or a constitutional right to privacy. 22A Am Jur Death §§ 579-587 (1988) and cases cited
therein.(59) The Supreme Court has recognized such a right as a liberty interest derived from the
Fourteenth Amendment to the United States Constitution. Cruzan v. Director, Mo. Health Dept., 497 US
261, 278-79, 110 S Ct 2841, 111 L Ed2d 224 (1990) (rejecting federal constitutional privacy interests in
right to refuse treatment, but stating: "The principle that a competent person has a constitutionally
protected liberty interest in refusing unwanted medical treatment may be inferred from our prior
decisions. * * * "[F]or purposes of this case, we assume that the United States Constitution would grant a
competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.");(60)
Vacco v. Quill, __ US __, 117 S Ct 2293, 2301, 138 L Ed2d 834 (1997) (assumption of right to refuse
treatment grounded on "well established, traditional rights to bodily integrity and freedom from
unwanted touching").
The extent of an individual's right to refuse life-sustaining treatment must be determined by balancing the
individual's interests against the following potentially countervailing state interests: the preservation of
life, the prevention of suicide, the protection of innocent third parties and the maintenance of the ethical
integrity of the medical profession. Superintendent of Belchertown v. Saikewicz, 370 NE 2d 417, 425
(Mass 1977); 22A Am Jur Death §§ 579-587. Cf. Cruzan 497 US at 279. In the case of prison inmates,
another governmental interest, the interest in upholding orderly prison administration, must also be
balanced against an inmate's right to refuse medical treatment. Commissioner of Corrections v. Myers,
399 NE 2d 452 (Mass 1979) (incarceration imposes limitations on inmate's constitutional rights in terms
of state interests unique to prison context).(61)
We next consider whether any of these state interests might outweigh the decision to refuse
life-sustaining procedures by an inmate whose execution is stayed after commencement of the lethal
injections. The first is the state's interest in the preservation of human life. This interest has been found to
include two aspects: preserving the life of the particular individual and preserving the sanctity of all
life.(62) Matter of Conroy, 486 A2d 1209, 1223 (NJ 1985). At least one court has stated that "[i]n cases
that do not involve the protection of the actual or potential life of someone other than the decisionmaker,
the state's indirect and abstract interest in preserving the life of the competent patient generally gives way
to the patient's much stronger personal interest in directing the course of his own life." Id. at 1223. Most
other courts have concluded that the interests must be balanced against each other, with the state's
interest weakening and the individual's interest growing as the degree of bodily invasion necessary for
treatment increases and the prognosis of return to a cognitive, sapient life dims. Foody v. Manchester

Memorial Hosp., 482 A2d 713, 718 (Conn 1984); Matter of Quackenbush, 383 A2d 785, 789-90 (NJ
1978). This does not mean, however, that the right of a competent person to refuse life-sustaining
procedures is limited to terminally ill persons. In Quackenbush, a 72-year old man was diagnosed with
gangrene in both legs due to arteriosclerosis, and his doctor concluded he would die within three weeks
as a result of infection spreading throughout the body if both legs were not amputated above the knee.
The court held that the extent of bodily invasion was sufficient to make the state's interest in the
preservation of life give way to the individual's right to self-determination even though the probability of
recovery was good and the risks of the procedure were limited. See also Thor v. Superior Court, 855
P2d 375, 383 (Cal 1993) (in permitting refusal of tube feeding and medication by quadriplegic, court
noted that state interest in preservation of life can only be asserted at "the expense of self-determination
and bodily integrity, matters all the more intensely personal when * * * physical disability renders
normal health and vitality impossible."); Matter of Farrell, 529 A2d 404, 411 (NJ 1987) ("the value of
life is desecrated not by a decision to refuse medical treatment but 'by the failure to allow a competent
human being the right of choice'").
As discussed above, if a stay order were received after commencement of the lethal injections, the
inmate's chance of resuscitation would be slim,(63) and even if successful, the inmate's risk of irreversible
brain damage is high, if not certain. Consequently, the state's interest in the preservation of life would
appear to be minimal, while the inmate's right to determine whether he wants resuscitation in the face of
such risks must be overriding. We conclude, therefore, that the inmate's right to refuse life-sustaining
procedures in this situation would outweigh the state's interest in the preservation of life.(64)
The second state interest, the prevention of suicide, is inapplicable in the case of a competent adult's
refusal of life-sustaining medical treatment. See ORS 127.570 (the withholding of life-sustaining
procedure in accordance with the provisions of ORS 127.505 to 127.660 does not constitute a suicide or
assisting a suicide). The courts have also concluded that the decision to refuse life-sustaining treatment is
not suicide for two reasons: (1) The individual may not have the specific intent to die, and (2) even if he
or she did, the cause of death would be from the individual's underlying medical condition, not any act of
self-destruction. Vacco v. Quill, 117 S Ct at 2298-99 and cases cited therein; Farrell, 529 A2d at 411 and
cases cited therein; McKay v. Bergstedt, 801 P2d 617, 627 (Nev 1990) (when life of a competent adult
with irreversible condition whose life must be sustained artificially and under circumstances of total
dependence, the adult's motive "may be presumed not to be suicidal"; there is substantial difference
between a person desiring non-interference with natural consequences of his condition and a person who
desires to terminate his life by some deadly means); Matter of Colyer, 660 P2d 738, 743 (Wash 1983);
Saikewicz, 370 NE 2d at 426 n 11. See also Thor, 855 P2d at 385 (because state interest in protecting
people from direct, purposeful self-destruction is motivated by state interest in preserving life, "it is
questionable whether it is a distinct state interest worthy of independent consideration"). For purposes of
assessing the state's interest in preventing suicide, it is irrelevant that, in the case of an execution stayed
after commencement of the lethal injections, the origin of the individual's medical condition is not due to
disease or accidental injury. The state's interest in preventing irrational acts of self-destruction is not
compromised by the decision to refuse life-sustaining procedures when made by an individual whose
medical condition was not self-inflicted.
The third state interest, the protection of innocent third parties, is implicated when the individual is
responsible for the support of minor children and the refusal of treatment would result in their
"abandonment." 22A Am Jur Death § 583. Thus, one court ordered treatment over the refusal of the

mother of a seven-month old child. Application of President & Directors of Georgetown Coll, 331 F2d
1000, 1008 (DC Cir 1964). The courts have not found this state interest to be overriding when the
individual had no minor children or had made provisions for them. See Matter of Melideo, 390 NYS 2d
523, 524 (1976) (upholding refusal of treatment by patient who had no children and was not pregnant);
St. Mary's Hospital v. Ramsey, 465 So 2d 666, 668-69 (Fla 1985) (upholding refusal of blood
transfusion in part because child resided with other parent and patient had made financial provisions for
his child); In re Osborne, 294 A2d 372, 374 (DC 1972) (upholding right to refuse treatment in part
because patient had provided for future well-being of his children); Farrell, 529 A2d at 413 (upholding
right of competent patient to withdraw respirator when patient's decision took into consideration the
extreme stress already put on her teenage children by her medical condition and other parent had capacity
to care for children in her absence). This state interest may also be implicated when the refusal of
medical treatment endangers public health. Cf. Jacobsen v. Massachusetts, 197 US 11, 25 S Ct 358, 49
L Ed 643 (1905) (mandatory vaccination for small pox); but see 30 Op Atty Gen 58 (1960) (tuberculosis
patient under care of state for isolation and quarantine may not be compelled to undergo surgery).
Because the medical condition of an inmate whose execution is stayed after commencement of the lethal
injections is likely to be such that he would be unable to support or provide care for any minor children,
his refusal of resuscitation would not be a significant cause of their "abandonment" and thus the state
interest in protecting third parties would be minimal at most.
The fourth state interest is in maintaining the integrity of the medical profession. In Farrell, the court
found "unanimous support" in the medical authorities for the right of a competent and informed
terminally ill patient to decline medical treatment, concluding that:
Health care standards are not undermined by the medical authorities that support the right to
self-determination that we recognize today. Even as patients enjoy control over their medical treatment,
health-care professionals remain bound to act in consonance with specific ethical criteria. We realize that
these criteria may conflict with some concepts of self-determination. In the case of such a conflict, a
patient has no right to compel a health-care provider to violate generally accepted professional standards.
529 A2d at 412. Often, such a conflict is resolved because "prevailing medical ethical practice does not,
without exception, demand that all efforts toward life prolongation be made in all circumstances," Satz v.
Perlmutter, 362 So 2d 160, 163 (Fla 1978), and the patient has found a physician who does not oppose
the patient's choice. See, e.g., Saikewicz, 370 NE 2d at 426-27. Other courts have found the patient's right
to self-determination to be paramount, particularly when the patient's condition is terminal or the patient's
condition is painful. See Bouvia v. Superior Court (Glenchur), 179 Cal App 3d 1127, 225 Cal Rptr 297,
305 (1986) (decision to have nasogastric tube withdrawn "is not a medical decision for [patient's]
physicians to make. * * * It is a moral and philosophical decision that, being a competent adult, is [the
patient's] alone."); Bartling v. Superior Court, 209 Cal Rptr 220, 225 (1984) (if right of patient to
medical self-determination "is to have any meaning at all, it must be paramount to the interests of the
patient's hospital and doctors"). Yet other courts have found a patient's right of self-determination to
include the right to determine when his or her life no longer has value, irrespective of the judgment of the
medical profession. In Thor, the court stated that the standards of medical ethics
cannot exist in a social and moral vacuum, thereby encouraging a form of medical paternalism under
which the physician's determination of what is "best," i.e., medically desirable, controls over patient
autonomy. Doctors have the responsibility to advise patients fully of those matters relevant and necessary
to making a voluntary and intelligent choice. Once that obligation is fulfilled, "[i]f the patient rejected the

doctor's advice, the onus of that decision would rest on the patient, not the doctor. Indeed, if the patient's
right to informed consent is to have any meaning at all, it must be accorded respect even when it conflicts
with the advice of the doctor or the values of the medical profession as a whole."
855 P2d at 386 (citations omitted). See also McKay v. Bergstedt, 801 P2d at 627-28 (decision by
competent adult "to reject continuation of respirator-dependency that has proven too burdensome to
endure" does not present ethical threat to medical profession).
We need not enter this debate because we believe that ORS 127.625 resolves this issue for persons who
have completed an advance directive refusing life-sustaining procedures. ORS 127.625 states that a
health care provider shall not be under any duty to participate in the withholding of life-sustaining
procedures, but shall authorize the transfer of that patient to another provider. We understand that prison
medical staff have agreed to abide by any decision of the inmate to refuse resuscitation.
Lastly, we consider the state's penological interest in managing inmates in the prison setting. An adult
prisoner retains only "those rights not fundamentally inconsistent with imprisonment itself or
incompatible with the objectives of incarceration." Hudson v. Palmer, 468 US 517, 523, 104 S Ct 3194,
82 L Ed2d 393 (1984) (inmate has no reasonable expectation of privacy enabling him to invoke Fourth
Amendment protections against searches). Although the Supreme Court concluded that prisoners possess
a significant liberty interest in avoiding the forced administration of antipsychotic drugs, the Court also
found that the state may compel the administration of such drugs over the inmate's refusal if the inmate is
dangerous to himself or others and the treatment is in his medical interest. Washington v. Harper, 494
US 210, 221-22, 110 S Ct 1028, 108 L Ed2d 178 (1990). Nevertheless, the courts have routinely
concluded that an inmate may not manipulate his medical circumstances to the detriment of the state's
interest in penal order, security and discipline. In Myers, the court found that the governmental interests
in the preservation of internal order and discipline of the prison facility, the maintenance of institutional
security, and the rehabilitation of prisoners were paramount over the rights of the inmate to refuse
hemodialysis treatment and supportive medication when the inmate's refusal was an attempt to
manipulate the prison system. 399 NE 2d 452. See also Scheutzle v. Vogel, 537 NW 2d 358 (ND 1995)
(prison could require inmate to submit to diabetes monitoring and, if ordered by a physician, forced
administration of food, insulin or other medications when inmate's refusal had little to do with his
disease); Turner v. Safley, 482 US 78, 89-90, 107 S Ct 2254, 96 L Ed2d 64 (1987) (factors relevant in
determining reasonableness of a prison regulation). These cases suggest that the right of an inmate to
refuse lifesaving medical treatment may be outweighed by the interests of the prison officials in
maintaining discipline and security in the prison.
Nevertheless in Thor, the court upheld the right of a quadriplegic prisoner to refuse tube feeding and
medication, finding that prison officials had offered no evidence that allowing him to do so undermined
prison integrity or endangered the public. 855 P2d at 387-89. The court noted the unique susceptibility of
a prison to the "catalytic effect of disruptive conduct" and stated that in another case, or if circumstances
changed in the case before it, the court would not preclude prison officials from establishing the need to
override an inmate's choice to decline medical intervention. Id. at 388. The court also held that the
inmate's refusal of treatment negates a violation of the Eighth Amendment's "deliberate indifference"
standard. Id. at 389.
In the present case, we have no reason to believe that a refusal by the inmate to consent to resuscitation if
a stay were received after commencement of the lethal injections would be motivated by a desire to

disrupt the orderly administration of the prison system. Moreover, we have not been informed by prison
officials that such refusal would pose a risk to prison security or discipline. Accordingly, we conclude
that the inmate's right to refuse resuscitation or other life-sustaining procedures if a stay were received
after commencement of the lethal injections would not be outweighed by the state's penological interests.
4. Recommended Procedures
Having concluded that the inmate's right to refuse life-sustaining treatment would outweigh any
countervailing state interests,(65) we recommend that prison officials discuss with the inmate the
possibility of a stay being received after commencement of the execution and ask him whether he would
like to complete an advance directive stating his instructions regarding life-sustaining procedures in that
event.(66) If the inmate chooses to complete an advance directive,(67) the Department of Corrections
should:
1. Confirm that the inmate is a "capable" adult, i.e., able to understand and communicate his decision
regarding health care;(68)
2. Inform the inmate about the prognosis of resuscitation after commencement of the injection of the
lethal chemical agents, the range of procedures that could be undertaken, depending upon the type and
amount of the chemicals that had been injected at various points in time, and the risks involved in such
resuscitation efforts;(69) and
3. Assist the inmate in completing an advance directive in the form required by ORS 127.531 that
properly and fully articulates the inmate's health care instructions.(70)
An advance directive must be executed and witnessed as required by ORS 127.515.(71) We suggest you
seek the advice of this office in complying with that procedure.
If the inmate provides an advance directive refusing resuscitation efforts or other lifesaving procedures,
the superintendent should ensure that any medical personnel who will be present during the execution
will voluntarily abide by that directive.(72) See ORS 127.625(1) ("No health care provider shall be under
any duty, whether by contract, by statute or by any other legal requirement to participate in the * * *
withholding of life sustaining procedures[.]"). Judicial approval of an advance directive refusing consent
to life-sustaining procedures is unnecessary. ORS 127.510(2), 127.550(1). See also Farrell, 529 A2d at
415 (judicial intervention "could infringe the very rights [of patient self-determination] that we want to
protect").
If the inmate states in an advance directive that he wishes resuscitation, the superintendent should ensure
that any medical personnel present in the institution during the execution will take appropriate steps to
comply with that directive. An inmate's completion of an advance directive containing such an
instruction does not alter our above conclusion that prison officials have no duty to bring into the
institution, or have present in the execution room, special medical personnel or equipment beyond that
normally in the institution for the medical care of inmates.
If the inmate chooses not to provide an advance directive, in the event of a stay of execution after
commencement of the lethal injections, the superintendent should direct medical personnel present in the
institution to attempt appropriate resuscitation efforts. See note 14, above. In OP-6014, we stated that
prison officials should designate a physician to be at the execution site as the inmate's physician should

resuscitation efforts be needed. Id. at 5. In light of our above analysis and conclusions, we now reverse
that portion of the opinion.
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division
AVL/llm/JGG0E526

1. Sodium thiopental is an ultra-short-acting barbiturate which is
   administered intravenously to induce surgical anesthesia. See The
   Pharmacological Basis of Therapeutics, Hypnotics and Sedatives, ch 9
   (5th ed). According to the anesthesiologist, a normal dose for such
   purposes would be four to six milligrams per kilogram of body weight.
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2. According to the anesthesiologist, because of the decrease in blood
   pressure and depressed respiration, brain damage is likely to occur as
   soon as three minutes after commencement of the injection of this
   agent due to the substantially reduced perfusion of blood containing
   oxygen in the brain. Prior to this time, there is a possibility of
   irreversible brain damage, the exact point of which would be difficult
   to predict. After injection of the full execution amount of this first
   agent, resuscitation is conceivable, but the chances of success are
   slim. Even if resuscitation was successful, if brain damage had
   occurred, the situation would be irreversible.
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3. Pancuronium bromide is a neuromuscular blocking agent which is
   administered intravenously as an adjunct to a general surgical
   anesthesia to obtain relaxation of skeletal muscle. See The
   Pharmacological Basis of Therapeutics, Neuromuscular Blocking Agents,
   ch 28 (5th ed); American Hospital Formulatory Service, Drug
   Information 96, at 928-31, 940-41. According to the anesthesiologist,
   a normal dose for such purposes would be 0.1 milligram per kilogram of
   body weight.
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4. Following injection of the first agent, the injection of this
second agent would insure that the inmate would not resume breathing.
Although this second agent causes an increase in heart rate, that
effect would be overwhelmed by the massive amount of the first agent.
After injection of the full execution amount of this second agent,
resuscitation is still conceivable, but the chances would be slim; the
likelihood of irreversible brain damage would now be substantially
greater because of the additional length of time that the brain was
not perfused with blood containing oxygen.
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5. A milliequivalent is a measure of potassium based on the number of
   available potassium ions.
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6. Potassium chloride is an important activator in many enzymatic
   reactions in the human body and, at the correct concentration, is
   essential for the transmission of nerve impulses, contraction of
   cardiac, smooth and skeletal muscle and renal function. The usual safe
   dosage for intravenous injection is 20 millequivalents per hour. See
   American Hospital Formulatory Service, Drug Information 96, at
   1871-73.
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7. The injection of the execution amount of this third agent will
   cause the heart to be unable to sustain a beat, particularly in the
   face of the decrease in blood pressure caused by the first agent.
   After injection of the execution amount of this third agent, the
   chance of resuscitation is almost nil because the heart would not be
   able to respond to any attempt to restart a beat. Without the brain
   being perfused with blood containing oxygen, brain death will occur.
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8. Article I, section 16, of the Oregon Constitution provides in part:
   Cruel and unusual punishments shall not be inflicted[.]
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9. The Eighth Amendment to the United States Constitution provides:
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
The Eighth Amendment is made applicable to the states by the
Fourteenth Amendment. Robinson v. California, 370 US 660, 82 S Ct
1417, 8 L Ed2d 758 (1962).
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10. Courts have found that a prison's denial of medical treatment on
    non-medical grounds may violate the Eight Amendment. Watson v. Caton,
    984 F2d 537, 540 (1st Cir 1993) (refusal to provide medical treatment
    for injuries caused by events that occurred before incarceration);
    Gill v. Mooney, 824 F2d 192, 196 (2nd Cir 1987) (refusal to provide
    medical attention as a form of punishment for misconduct unrelated to
    medical condition or treatment).
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11. We understand from your staff that the execution room will contain
    only such medical equipment and supplies necessary to facilitate the
    execution, and that a medical person will be present to confirm the
    death of the inmate. We further understand that the infirmary used to
    provide routine and emergency medical care for inmates in the
    Intensive Management Unit (IMU) of the penitentiary is located
    approximately 40 feet from the execution room and that two registered
    nurses will be on stand-by in the IMU during the execution in the
    event that any of the witnesses to the execution need medical
    attention.
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12. The judiciary is fully aware of the difficulties created by
    last-minute stays of execution. Cf. Judge Stephen Reinhardt, The
    Supreme Court, The Death Penalty, and The Harris Case, 102 Yale LJ 205
    (1992) (describing "nightmare" resulting from last-minute stays in
    this death penalty case). Accordingly, we have every reason to believe
    that if a court were to issue a last-minute stay, it would
    nevertheless do so sufficiently in advance of the time for the
    execution that the difficult issues addressed in this opinion would
    not become germane.
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13. See note 10, above.
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14. The United States Supreme Court has articulated a standard of
    deference to prison officials when a prison regulation impinges on
    inmates' constitutional rights, stating:
    the regulation is valid if it is reasonably related to legitimate
    penological interests. In our view, such a standard is necessary if
    "prison administrators . . . , and not the courts, [are] to make the
    difficult judgments concerning institutional operations."
    Turner v. Safley, 482 US 78, 89, 107 S Ct 2254, 96 L Ed2d 64 (1987).
    The Court then outlined the factors that are relevant in determining
    the reasonableness of a prison regulation. Id. at 89-90. Absent issues
    of prison security or "a significant 'ripple effect' on fellow inmates
    or on prison staff," id. at 90, nothing in the Supreme Court decision
    suggests that prison officials may refuse to provide the only medical
    treatment that will successfully treat a prisoner's medical problem.
    Cf. Lawson v. Dallas County, TX, No. CA-3-95-CV-2614-R, 1998 WL 246642
    (ND Tex Mar 24, 1998) (continuous and consistent disregard for medical
    needs of paraplegic inmate).
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15. The nature and extent of appropriate resuscitation efforts, if
    any, would depend upon the medical state of the inmate at the time the
    execution were stayed. According to the anesthesiologist, there are no
    specific antidotes or reversal agents for these chemicals. Given the
    massive amounts of the agents used for the execution, initial attempt
    at resuscitation would require intense measures including the infusion
    of several liters of fluids, injection of epinephrine, cardiopulmonary
    resuscitation and maintenance of artificial respiration. Complete
    circulatory support, ventilation support and intensive care unit
    management would be required, perhaps for days or weeks, along with
    hemodialysis.
    If a stay were received after the inmate was determined by medical
    personnel to be dead, whether or not all of the acts required by ORS
    137.473(1) to complete the execution had occurred, attempts at
    resuscitation would be futile and need not be attempted. Cf. Barber v.
    Superior Court of State of Cal, 195 Cal Rptr 484, 491 (Cal App 2 Dist
    1983) ("Although there may be a duty to provide life-sustaining

machinery in the immediate aftermath of a cardio-respiratory arrest,
there is no duty to continue its use once it has become futile in the
opinion of qualified medical personnel."). Medical personnel may also
reasonably conclude, based upon the lethal nature and amounts of the
chemicals already injected into the inmate, and the speed at which
those chemicals act on the human body, that resuscitation would be
futile and need not be attempted. This is essentially a medical
determination to be made at that time on the basis of the inmate's
medical condition and in light of the generally acceptable standards
of medical practice in the community for determining when there is a
duty to provide medical treatment. Id. at 491-92.
A reasonable decision by medical personnel that resuscitation would be
futile is not deliberate indifference to the inmate's medical needs,
even if there might be a legitimate difference in professional medical
judgment. See Billings, 323 Or at 181; Sanchez v. Vild, 891 F2d 240,
242 (9th Cir 1989) (honest difference of medical judgment as to
diagnosis or treatment does not amount to deliberate indifference);
Jackson v. McIntosh, 90 F3d 330, 332 (9th Cir 1996) (denial of
opportunity for kidney transplant would be deliberate indifference if
medically unacceptable under the circumstances and in conscious
disregard of excessive risk to inmate's health); but see Delker v.
Maass, 843 F Supp 1390, 1398 (D Or 1994) (court need not blindly defer
to prison doctors in determining whether there had been deliberate
indifference). Whether a decision by medical personnel not to attempt
resuscitation would constitute negligence would depend on whether the
medical personnel present had a duty of care toward the inmate under
the department's rules by virtue of their employment with the
department or otherwise, the type of medicine those personnel were
authorized to practice and whether they exercised the degree of care,
skill and diligence used by ordinary careful practitioners in that
field or discipline in the same or similar community under the same or
similar circumstances. Creasey v. Hogan, 292 Or 154, 163-64, 637 P2d
114 (1981).
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16. A stay received after completion of the acts required by ORS
    137.473(1) to carry out the execution would be ineffective to stop the
    execution and imposes no duty on prison officials to attempt
    resuscitation. At that point in time, the state has lawfully carried
    out the sentence of execution pursuant to the laws of this state. To
    the extent that our earlier opinion concerning the department's rules
    regarding execution by lethal injection suggests that the department
    may have a duty to attempt resuscitation in this situation or face a

considerable risk of liability for failure to do so, Letter of Advice
dated September 30, 1986, to Thomas Toombs, Administrator, Corrections
Division (OP-6014) at 4, we hereby reverse that opinion.
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17. ORS 127.507 was enacted in 1993 as part of the Oregon Health Care
    Decisions Act, ORS 127.505 to 127.660 and 127.995. Or Laws 1993, ch
    767, § 2.
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18. The lethal injections required by ORS 137.473(1) constitute an
    intentional "injury."
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19. Throughout this opinion, we use the term "life-sustaining
    procedures" as it is defined in ORS 127.505(16). That term includes
    not only life-sustaining therapies such as hydration, nutrition and
    hemodialysis, but also lifesaving procedures that restore or supplant
    a vital function, such as cardiopulmonary resuscitation, cardioversion
    or mechanical ventilation.
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20. In interpreting ORS 127.505 to 127.660, we must discern the intent
    of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries
    (PGE), 317 Or 606, 610-611, 859 P2d 1143 (1993) (establishing template
    for construing statutes and affirming agency's interpretation of
    statute). Our analysis begins with the text and context of ORS 127.505
    to 127.660 and other related statutes, including statutory and case
    law rules of construction that bear directly on the interpretation of
    the text and context of this statute. We may consider legislative
    history to ascertain intent only if the legislative intent is not
    clear from the text or context of the statutes. Id. at 611. Finally,
    if the meaning of a statute remains unclear after the foregoing steps,
    we may resort to general maxims of statutory construction to aid in
    resolving any remaining uncertainty. Id. at 612. One such maxim is to
    "construe the statute so as to satisfy the constitution." Westwood
    Homeowners Assn., Inc. v. Lane County, 318 Or 146, 160, 864 P2d 350
    (1993) (interpreting statute, in part, to avoid infringement of
    constitutional rights).

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21. Such an implication of liability for withholding life-sustaining
    procedures in reliance on an advance directive refusing consent for
    such procedures is questionable in light of ORS 127.555(3). This
    provision states that a health care provider acting or declining to
    act in reliance on a health care instruction in an advance directive
    is not subject to criminal prosecution, civil liability or
    professional disciplinary action on the grounds that the decision is
    unauthorized unless the provider failed to satisfy a duty imposed by
    ORS 127.505 to 127.660, acted without medical confirmation "as
    required" under those statutes, knows or has reason to know that the
    requirements of those statutes have not been satisfied, or acts after
    receiving notice that the authority relied upon is not valid.
    Return to previous location.

22. The only Oregon case that we have found discussing informed
    consent is a medical malpractice case predicated on the lack of
    informed consent to a surgical procedure. In this case, the Oregon
    Court of Appeals noted that a "competent adult is free to refuse
    treatment which the average reasonable person would be highly likely
    to undergo and which other competent adults might consider it
    imprudent to forego." Arena v. Gingrich, 84 Or App 25, 30, 733 P2d 75
    (1987).
    Return to previous location.

23. Courts in other jurisdictions have upheld the right of a competent
    adult to refuse such lifesaving medical treatments as a respirator,
    Satz v. Perlmutter, 362 So 2d 160, 162 (Fla 1978); nasogastric tube
    for forced feeding, Bouvia v. Superior Court (Glenchur), 179 Cal App
    3d 1127, 225 Cal Rptr 297 (Cal App 2 Dist 1986); amputation of legs
    for gangrene, Matter of Quackenbush, 383 A2d 785, 789-90 (NJ 1978);
    Lane v. Candura, 376 NE2d 1232, 1233 (Mass 1978); and blood
    transfusions, Erickson v. Dilgard, 252 NYS2d 705 (1962); St. Mary's
    Hospital v. Ramsey, 465 So 2d 666, 668 (Fla 1985).
    Return to previous location.

24. The issue before the court in Cruzan was whether Missouri could
    constitutionally require clear and convincing evidence of a comatose

patient's previously stated wish not to be kept alive by artificially
administered nutrition and hydration. In order to reach this issue, it
was necessary for the Court to first recognize the right of a
competent patient to make the decision to refuse life-sustaining
medical treatment.
Return to previous location.

25. In Commissioner of Corrections v. Myers, 399 NE 2d 452 (Mass
    1979), prison officials obtained a court order compelling a competent
    adult inmate to submit to hemodialysis treatment and administration of
    supportive medication despite his refusal to consent. Finding that the
    inmate's refusal was an attempt to manipulate the prison system, the
    court concluded that the governmental interests in the preservation of
    internal order and discipline of the prison facility, the maintenance
    of institutional security and the rehabilitation of prisoners were
    paramount.
    Return to previous location.

26. But see Developments in the Law -- Medical Technology and the Law,
    VI The Right to Refuse Medical Treatment, 103 Harv. L. Rev 1643, 1675
    (1990) ("the state interest is not in the preservation of life per se,
    but, as the New York Court of Appeals recognized in O'Connor [v. Hall,
    513 NE2d 607, 613 (1988)], in guaranteeing that a severely medically
    disabled patient is not denied his constitutional right to life").
    Return to previous location.

27. In his dissenting opinion in Cruzan, Justice Brennan acknowledged,
    "[t]he possibility of a medical miracle [may] indeed [be] part of the
    calculus, but it is a part of the patient's calculus." 497 US at 321
    (emphasis in original).
    Return to previous location.

28. In reaching the conclusion that in this situation the state's
    interest must give way to the inmate's right of self-determination, we
    also note that the state has not embraced an absolute policy of
    preserving life at the expense of self-determination. The Oregon
    Health Care Decisions Act, ORS 127.505 to 127.660, clearly embodies a
    policy of permitting an individual or designated health care
    representative to refuse life-sustaining procedures. We believe that

this legislative policy evidences a recognition that fostering
self-determination in such matters enhances rather than deprecates the
value of life. See also The Oregon Death with Dignity Act, ORS 127.800
to 127.897 (1995 Ballot Measure 16).
Return to previous location.

29. Our weighing of the inmate's interests in the right of
    self-determination against the countervailing state interests is
    predicated on the facts discussed in this opinion. If those facts were
    to differ, e.g., because of changes in the means of execution or
    advances in medicine affecting the prognosis or risks of
    resuscitation, a different balance might be struck.
    Return to previous location.

30. Such an advance directive may include not only instructions
    regarding resuscitation but also instructions regarding admission to a
    hospital or other heath care facility. See ORS 127.505(8).
    Return to previous location.

31. Prison officials must ensure that the choice to complete an
    advance directive in this situation is made voluntarily and without
    coercion, and that the substance of any health care instructions is
    also the inmate's voluntary decision.
    Return to previous location.

32. See ORS 127.505(13); see also Farrell, 529 A2d at 413 n 7 ("A
    competent patient has a clear understanding of the nature of his or
    her illness and prognosis, and the risks and benefits of the proposed
    treatment, and has the capacity to reason and make judgments about
    that information."). We do not believe that any additional procedures
    are necessary to determine the competence of the inmate or the
    voluntariness of his decision. See Thor v. Superior Court, 855 P2d
    375, 390 (Cal 1993) ("[W]e have no basis for assuming [the prison
    environment] inherently jeopardizes the voluntariness of [medical
    decision-making].").
    Return to previous location.

33. Cf. ORS 677.097 (procedure to obtain informed consent of patient).
Return to previous location.

34. There is no legal requirement that a physician be present when an
    inmate completes an advance directive, nor that someone not employed
    by the department be present. In the context of an inmate facing
    execution, however, we recommend that a physician or other individual
    be available who can explain to the inmate the medical consequences of
    the three lethal chemicals and the likely efficacy of any
    resuscitation attempt after commencement of the injections. We also
    recommend that someone not employed by the department actually advise
    the inmate regarding his options in completing an advance directive in
    light of arguments that might be raised that an element of coercion is
    present when an inmate facing an execution is being asked for his or
    her health care instructions if a stay is received after commencement
    of the lethal injections.
    Return to previous location.

35. ORS 127.515(4) provides:
    (4) An advance directive must reflect the date of the principal's
    signature. To be valid, an advance directive must be witnessed by at
    least two adults as follows:
    (a) Each witness shall witness either the signing of the instrument by
    the principal or the principal's acknowledgement of the signature of
    the principal.
    (b) Each witness shall make the written declaration as set forth in
    the form provided in ORS 127.531.
    (c) One of the witnesses shall be a person who is not:
    (A) A relative of the principal by blood, marriage or adoption;
    (B) A person who at the time the advance directive is signed would be
    entitled to any portion of the estate of the principal upon death
    under any will or by operation of law; or
    (C) An owner, operator or employee of a health care facility where the
    principal is a patient or resident.
    (d) The attorney-in-fact for health care or alternative
    attorney-in-fact may not be a witness. The principal's attending
    physician at the time the advance directive is signed may not be a

witness.
(e) If the principal is a patient in a long term care facility at the
time the advance directive is executed, one of the witnesses must be
an individual designated by the facility and having any qualifications
that may be specified by the Department of Human Resources by rule.
Return to previous location.

36. Although there are no Oregon cases on liability for resuscitation
    of a patient against his wishes, at least one jurisdiction has found
    that a patient may recover damages based upon the torts of negligence
    or battery when medical treatment is provided to a patient who has
    expressly refused treatment. See Anderson v. St. Francis-St. George
    Hosp., 671 NE2d 225 (Ohio 1996).
    Return to previous location.

37. Sodium thiopental is an ultra-short-acting barbiturate which is
    administered intravenously to induce surgical anesthesia. See The
    Pharmacological Basis of Therapeutics, Hypnotics and Sedatives, ch 9
    (5th ed). According to the anesthesiologist, a normal dose for such
    purposes would be four to six milligrams per kilogram of body weight.
    Return to previous location.

38. According to the anesthesiologist, because of the decrease in
    blood pressure and depressed respiration, brain damage is likely to
    occur as soon as three minutes after commencement of the injection of
    this agent due to the substantially reduced perfusion of blood
    containing oxygen in the brain. Prior to this time, there is a
    possibility of irreversible brain damage, the exact point of which
    would be difficult to predict. After injection of the full execution
    amount of this first agent, resuscitation is conceivable, but the
    chances of success are slim. Even if resuscitation was successful, if
    brain damage had occurred, the situation would be irreversible.
    Return to previous location.

39. Pancuronium bromide is a neuromuscular blocking agent which is
    administered intravenously as an adjunct to a general surgical
    anesthesia to obtain relaxation of skeletal muscle. See The
    Pharmacological Basis of Therapeutics, Neuromuscular Blocking Agents,

ch 28 (5th ed); American Hospital Formulatory Service, Drug
Information 96, at 928-31, 940-41. According to the anesthesiologist,
a normal dose for such purposes would be 0.1 milligram per kilogram of
body weight.
Return to previous location.

40. Following injection of the first agent, the injection of this
    second agent would insure that the inmate would not resume breathing.
    Although this second agent causes an increase in heart rate, that
    effect would be overwhelmed by the massive amount of the first agent.
    After injection of the full execution amount of this second agent,
    resuscitation is still conceivable, but the chances would be slim; the
    likelihood of irreversible brain damage would now be substantially
    greater because of the additional length of time that the brain was
    not perfused with blood containing oxygen.
    Return to previous location.

41. A milliequivalent is a measure of potassium based on the number of
    available potassium ions.
    Return to previous location.

42. Potassium chloride is an important activator in many enzymatic
    reactions in the human body and, at the correct concentration, is
    essential for the transmission of nerve impulses, contraction of
    cardiac, smooth and skeletal muscle and renal function. The usual safe
    dosage for intravenous injection is 20 millequivalents per hour. See
    American Hospital Formulatory Service, Drug Information 96, at
    1871-73.
    Return to previous location.

43. The injection of the execution amount of this third agent will
    cause the heart to be unable to sustain a beat, particularly in the
    face of the decrease in blood pressure caused by the first agent.
    After injection of the execution amount of this third agent, the
    chance of resuscitation is almost nil because the heart would not be
    able to respond to any attempt to restart a beat. Without the brain
    being perfused with blood containing oxygen, brain death will occur.
    Return to previous location.

44. Article I, section 16, of the Oregon Constitution provides in
part:
Cruel and unusual punishments shall not be inflicted[.]
Return to previous location.

45. The Eighth Amendment to the United States Constitution provides:
    Excessive bail shall not be required, nor excessive fines imposed, nor
    cruel and unusual punishments inflicted.
    The Eighth Amendment is made applicable to the states by the
    Fourteenth Amendment. Robinson v. California, 370 US 660, 82 S Ct
    1417, 8 L Ed2d 758 (1962).
    Return to previous location.

46. Courts have found that a prison's denial of medical treatment on
    non-medical grounds may violate the Eight Amendment. Watson v. Caton,
    984 F2d 537, 540 (1st Cir 1993) (refusal to provide medical treatment
    for injuries caused by events that occurred before incarceration);
    Gill v. Mooney, 824 F2d 192, 196 (2nd Cir 1987) (refusal to provide
    medical attention as a form of punishment for misconduct unrelated to
    medical condition or treatment).
    Return to previous location.

47. We understand from your staff that the execution room will contain
    only such medical equipment and supplies necessary to facilitate the
    execution, and that a medical person will be present to confirm the
    death of the inmate. We further understand that the infirmary used to
    provide routine and emergency medical care for inmates in the
    Intensive Management Unit (IMU) of the penitentiary is located
    approximately 40 feet from the execution room and that two registered
    nurses will be on stand-by in the IMU during the execution in the
    event that any of the witnesses to the execution need medical
    attention.
    Return to previous location.

48. The judiciary is fully aware of the difficulties created by
    last-minute stays of execution. Cf. Judge Stephen Reinhardt, The

Supreme Court, The Death Penalty, and The Harris Case, 102 Yale LJ 205
(1992) (describing "nightmare" resulting from last-minute stays in
this death penalty case). Accordingly, we have every reason to believe
that if a court were to issue a last-minute stay, it would
nevertheless do so sufficiently in advance of the time for the
execution that the difficult issues addressed in this opinion would
not become germane.
Return to previous location.

49. See note 10, above.
    Return to previous location.

50. The United States Supreme Court has articulated a standard of
    deference to prison officials when a prison regulation impinges on
    inmates' constitutional rights, stating:
    the regulation is valid if it is reasonably related to legitimate
    penological interests. In our view, such a standard is necessary if
    "prison administrators . . . , and not the courts, [are] to make the
    difficult judgments concerning institutional operations."
    Turner v. Safley, 482 US 78, 89, 107 S Ct 2254, 96 L Ed2d 64 (1987).
    The Court then outlined the factors that are relevant in determining
    the reasonableness of a prison regulation. Id. at 89-90. Absent issues
    of prison security or "a significant 'ripple effect' on fellow inmates
    or on prison staff," id. at 90, nothing in the Supreme Court decision
    suggests that prison officials may refuse to provide the only medical
    treatment that will successfully treat a prisoner's medical problem.
    Cf. Lawson v. Dallas County, TX, No. CA-3-95-CV-2614-R, 1998 WL 246642
    (ND Tex Mar 24, 1998) (continuous and consistent disregard for medical
    needs of paraplegic inmate).
    Return to previous location.

51. The nature and extent of appropriate resuscitation efforts, if
    any, would depend upon the medical state of the inmate at the time the
    execution were stayed. According to the anesthesiologist, there are no
    specific antidotes or reversal agents for these chemicals. Given the
    massive amounts of the agents used for the execution, initial attempt
    at resuscitation would require intense measures including the infusion
    of several liters of fluids, injection of epinephrine, cardiopulmonary
    resuscitation and maintenance of artificial respiration. Complete

circulatory support, ventilation support and intensive care unit
management would be required, perhaps for days or weeks, along with
hemodialysis.
If a stay were received after the inmate was determined by medical
personnel to be dead, whether or not all of the acts required by ORS
137.473(1) to complete the execution had occurred, attempts at
resuscitation would be futile and need not be attempted. Cf. Barber v.
Superior Court of State of Cal, 195 Cal Rptr 484, 491 (Cal App 2 Dist
1983) ("Although there may be a duty to provide life-sustaining
machinery in the immediate aftermath of a cardio-respiratory arrest,
there is no duty to continue its use once it has become futile in the
opinion of qualified medical personnel."). Medical personnel may also
reasonably conclude, based upon the lethal nature and amounts of the
chemicals already injected into the inmate, and the speed at which
those chemicals act on the human body, that resuscitation would be
futile and need not be attempted. This is essentially a medical
determination to be made at that time on the basis of the inmate's
medical condition and in light of the generally acceptable standards
of medical practice in the community for determining when there is a
duty to provide medical treatment. Id. at 491-92.
A reasonable decision by medical personnel that resuscitation would be
futile is not deliberate indifference to the inmate's medical needs,
even if there might be a legitimate difference in professional medical
judgment. See Billings, 323 Or at 181; Sanchez v. Vild, 891 F2d 240,
242 (9th Cir 1989) (honest difference of medical judgment as to
diagnosis or treatment does not amount to deliberate indifference);
Jackson v. McIntosh, 90 F3d 330, 332 (9th Cir 1996) (denial of
opportunity for kidney transplant would be deliberate indifference if
medically unacceptable under the circumstances and in conscious
disregard of excessive risk to inmate's health); but see Delker v.
Maass, 843 F Supp 1390, 1398 (D Or 1994) (court need not blindly defer
to prison doctors in determining whether there had been deliberate
indifference). Whether a decision by medical personnel not to attempt
resuscitation would constitute negligence would depend on whether the
medical personnel present had a duty of care toward the inmate under
the department's rules by virtue of their employment with the
department or otherwise, the type of medicine those personnel were
authorized to practice and whether they exercised the degree of care,
skill and diligence used by ordinary careful practitioners in that
field or discipline in the same or similar community under the same or
similar circumstances. Creasey v. Hogan, 292 Or 154, 163-64, 637 P2d
114 (1981).
Return to previous location.

52. A stay received after completion of the acts required by ORS
137.473(1) to carry out the execution would be ineffective to stop the
execution and imposes no duty on prison officials to attempt
resuscitation. At that point in time, the state has lawfully carried
out the sentence of execution pursuant to the laws of this state. To
the extent that our earlier opinion concerning the department's rules
regarding execution by lethal injection suggests that the department
may have a duty to attempt resuscitation in this situation or face a
considerable risk of liability for failure to do so, Letter of Advice
dated September 30, 1986, to Thomas Toombs, Administrator, Corrections
Division (OP-6014) at 4, we hereby reverse that opinion.
Return to previous location.

53. ORS 127.507 was enacted in 1993 as part of the Oregon Health Care
    Decisions Act, ORS 127.505 to 127.660 and 127.995. Or Laws 1993, ch
    767, § 2.
    Return to previous location.

54. The lethal injections required by ORS 137.473(1) constitute an
    intentional "injury."
    Return to previous location.

55. Throughout this opinion, we use the term "life-sustaining
    procedures" as it is defined in ORS 127.505(16). That term includes
    not only life-sustaining therapies such as hydration, nutrition and
    hemodialysis, but also lifesaving procedures that restore or supplant
    a vital function, such as cardiopulmonary resuscitation, cardioversion
    or mechanical ventilation.
    Return to previous location.

56. In interpreting ORS 127.505 to 127.660, we must discern the intent
    of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries
    (PGE), 317 Or 606, 610-611, 859 P2d 1143 (1993) (establishing template
    for construing statutes and affirming agency's interpretation of
    statute). Our analysis begins with the text and context of ORS 127.505
    to 127.660 and other related statutes, including statutory and case
    law rules of construction that bear directly on the interpretation of
    the text and context of this statute. We may consider legislative

history to ascertain intent only if the legislative intent is not
clear from the text or context of the statutes. Id. at 611. Finally,
if the meaning of a statute remains unclear after the foregoing steps,
we may resort to general maxims of statutory construction to aid in
resolving any remaining uncertainty. Id. at 612. One such maxim is to
"construe the statute so as to satisfy the constitution." Westwood
Homeowners Assn., Inc. v. Lane County, 318 Or 146, 160, 864 P2d 350
(1993) (interpreting statute, in part, to avoid infringement of
constitutional rights).
Return to previous location.

57. Such an implication of liability for withholding life-sustaining
    procedures in reliance on an advance directive refusing consent for
    such procedures is questionable in light of ORS 127.555(3). This
    provision states that a health care provider acting or declining to
    act in reliance on a health care instruction in an advance directive
    is not subject to criminal prosecution, civil liability or
    professional disciplinary action on the grounds that the decision is
    unauthorized unless the provider failed to satisfy a duty imposed by
    ORS 127.505 to 127.660, acted without medical confirmation "as
    required" under those statutes, knows or has reason to know that the
    requirements of those statutes have not been satisfied, or acts after
    receiving notice that the authority relied upon is not valid.
    Return to previous location.

58. The only Oregon case that we have found discussing informed
    consent is a medical malpractice case predicated on the lack of
    informed consent to a surgical procedure. In this case, the Oregon
    Court of Appeals noted that a "competent adult is free to refuse
    treatment which the average reasonable person would be highly likely
    to undergo and which other competent adults might consider it
    imprudent to forego." Arena v. Gingrich, 84 Or App 25, 30, 733 P2d 75
    (1987).
    Return to previous location.

59. Courts in other jurisdictions have upheld the right of a competent
    adult to refuse such lifesaving medical treatments as a respirator,
    Satz v. Perlmutter, 362 So 2d 160, 162 (Fla 1978); nasogastric tube
    for forced feeding, Bouvia v. Superior Court (Glenchur), 179 Cal App
    3d 1127, 225 Cal Rptr 297 (Cal App 2 Dist 1986); amputation of legs
    for gangrene, Matter of Quackenbush, 383 A2d 785, 789-90 (NJ 1978);

Lane v. Candura, 376 NE2d 1232, 1233 (Mass 1978); and blood
transfusions, Erickson v. Dilgard, 252 NYS2d 705 (1962); St. Mary's
Hospital v. Ramsey, 465 So 2d 666, 668 (Fla 1985).
Return to previous location.

60. The issue before the court in Cruzan was whether Missouri could
    constitutionally require clear and convincing evidence of a comatose
    patient's previously stated wish not to be kept alive by artificially
    administered nutrition and hydration. In order to reach this issue, it
    was necessary for the Court to first recognize the right of a
    competent patient to make the decision to refuse life-sustaining
    medical treatment.
    Return to previous location.

61. In Commissioner of Corrections v. Myers, 399 NE 2d 452 (Mass
    1979), prison officials obtained a court order compelling a competent
    adult inmate to submit to hemodialysis treatment and administration of
    supportive medication despite his refusal to consent. Finding that the
    inmate's refusal was an attempt to manipulate the prison system, the
    court concluded that the governmental interests in the preservation of
    internal order and discipline of the prison facility, the maintenance
    of institutional security and the rehabilitation of prisoners were
    paramount.
    Return to previous location.

62. But see Developments in the Law -- Medical Technology and the Law,
    VI The Right to Refuse Medical Treatment, 103 Harv. L. Rev 1643, 1675
    (1990) ("the state interest is not in the preservation of life per se,
    but, as the New York Court of Appeals recognized in O'Connor [v. Hall,
    513 NE2d 607, 613 (1988)], in guaranteeing that a severely medically
    disabled patient is not denied his constitutional right to life").
    Return to previous location.

63. In his dissenting opinion in Cruzan, Justice Brennan acknowledged,
    "[t]he possibility of a medical miracle [may] indeed [be] part of the
    calculus, but it is a part of the patient's calculus." 497 US at 321
    (emphasis in original).
    Return to previous location.

64. In reaching the conclusion that in this situation the state's
interest must give way to the inmate's right of self-determination, we
also note that the state has not embraced an absolute policy of
preserving life at the expense of self-determination. The Oregon
Health Care Decisions Act, ORS 127.505 to 127.660, clearly embodies a
policy of permitting an individual or designated health care
representative to refuse life-sustaining procedures. We believe that
this legislative policy evidences a recognition that fostering
self-determination in such matters enhances rather than deprecates the
value of life. See also The Oregon Death with Dignity Act, ORS 127.800
to 127.897 (1995 Ballot Measure 16).
Return to previous location.

65. Our weighing of the inmate's interests in the right of
    self-determination against the countervailing state interests is
    predicated on the facts discussed in this opinion. If those facts were
    to differ, e.g., because of changes in the means of execution or
    advances in medicine affecting the prognosis or risks of
    resuscitation, a different balance might be struck.
    Return to previous location.

66. Such an advance directive may include not only instructions
    regarding resuscitation but also instructions regarding admission to a
    hospital or other heath care facility. See ORS 127.505(8).
    Return to previous location.

67. Prison officials must ensure that the choice to complete an
    advance directive in this situation is made voluntarily and without
    coercion, and that the substance of any health care instructions is
    also the inmate's voluntary decision.
    Return to previous location.

68. See ORS 127.505(13); see also Farrell, 529 A2d at 413 n 7 ("A
    competent patient has a clear understanding of the nature of his or
    her illness and prognosis, and the risks and benefits of the proposed
    treatment, and has the capacity to reason and make judgments about
    that information."). We do not believe that any additional procedures
    are necessary to determine the competence of the inmate or the

voluntariness of his decision. See Thor v. Superior Court, 855 P2d
375, 390 (Cal 1993) ("[W]e have no basis for assuming [the prison
environment] inherently jeopardizes the voluntariness of [medical
decision-making].").
Return to previous location.

69. Cf. ORS 677.097 (procedure to obtain informed consent of patient).
    Return to previous location.

70. There is no legal requirement that a physician be present when an
    inmate completes an advance directive, nor that someone not employed
    by the department be present. In the context of an inmate facing
    execution, however, we recommend that a physician or other individual
    be available who can explain to the inmate the medical consequences of
    the three lethal chemicals and the likely efficacy of any
    resuscitation attempt after commencement of the injections. We also
    recommend that someone not employed by the department actually advise
    the inmate regarding his options in completing an advance directive in
    light of arguments that might be raised that an element of coercion is
    present when an inmate facing an execution is being asked for his or
    her health care instructions if a stay is received after commencement
    of the lethal injections.
    Return to previous location.

71. ORS 127.515(4) provides:
    (4) An advance directive must reflect the date of the principal's
    signature. To be valid, an advance directive must be witnessed by at
    least two adults as follows:
    (a) Each witness shall witness either the signing of the instrument by
    the principal or the principal's acknowledgement of the signature of
    the principal.
    (b) Each witness shall make the written declaration as set forth in
    the form provided in ORS 127.531.
    (c) One of the witnesses shall be a person who is not:
    (A) A relative of the principal by blood, marriage or adoption;
    (B) A person who at the time the advance directive is signed would be
    entitled to any portion of the estate of the principal upon death

under any will or by operation of law; or
(C) An owner, operator or employee of a health care facility where the
principal is a patient or resident.
(d) The attorney-in-fact for health care or alternative
attorney-in-fact may not be a witness. The principal's attending
physician at the time the advance directive is signed may not be a
witness.
(e) If the principal is a patient in a long term care facility at the
time the advance directive is executed, one of the witnesses must be
an individual designated by the facility and having any qualifications
that may be specified by the Department of Human Resources by rule.
Return to previous location.

72. Although there are no Oregon cases on liability for resuscitation
    of a patient against his wishes, at least one jurisdiction has found
    that a patient may recover damages based upon the torts of negligence
    or battery when medical treatment is provided to a patient who has
    expressly refused treatment. See Anderson v. St. Francis-St. George
    Hosp., 671 NE2d 225 (Ohio 1996).
    Return to previous location.

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