Final act: sorting out the ethics of physician-assisted suicide - Death With Dignity

The question of whether a physician should assist a patient with an intolerable terminal condition to end his or her life has been debated since the practice of medicine began. Philosophically, it's been a toss-up: Plato, Thomas More, Francis Bacon, David Hume, and Jeremy Bentham approved; Aristotle, Thomas Aquinas, Roger Bacon, John Locke, and Karl Marx did not.

In the United States, patients now generally have a legal right to refuse treatment, and physicians can honor advance directives and surrogate decisions. So physicians currently with, hold or withdraw treatment--respiratory support, CPR, dialysis, sometimes nutrition and hydration--thereby allowing patients to die. Studies indicate that, as of 1991, roughly half of the deaths in hospital settings in nonemergency cases involved some form of withholding or withdrawing of treatment. A 1989 study reported that 85 to 90 percent of critical-care physicians -are withholding or withdrawing life-saving or life, sustaining treatment from some patients.

The "legalization" of euthanasia in the Netherlands has been widely discussed and often misinterpreted in the United States. As recently codified by the Upper Chamber, Dutch law now makes euthanasia illegal except in cases where the patient has explicitly requested it and there is no medical alternative for the relief of his or her condition. All cases are to be reported to a medical examiner who, in turn, reports them to a civil prosecutor who makes a decision concerning whether the criteria for exemption from prosecution were fulfilled. Reports in the American press of widespread involuntary euthanasia are therefore misleading. These reports are based on the Remmelink study, which was undertaken by a committee appointed by the Netherlands government. The Remmelink study counted as cases of involuntary euthanasia any instance in which life-support systems were withheld or withdrawn without the direct and explicit consent of the patient (as discussed above, a practice which is already far more widespread in the United States). Ironically, the Dutch actually appear to be less troubled by physician-assisted suicide when there is an explicit request by the patient but more troubled by the practice of withholding treatment and allowing a patient to die without such a request.

Many physicians and philosophers here draw a distinction between active and passive treatment and take the position that it is morally acceptable to allow a person to die "naturally" but unacceptable to do anything that hastens the process or brings about death. This is the kind of moral double-think that can give medical ethics a bad reputation. A number of years ago, philosopher James Rachels posed the following hypothetical situation: suppose Jones, who stands to inherit a fortune if his six-year-old nephew dies, goes into the bathroom while his nephew is in the bathtub and holds the boy's head underwater until he drowns. Now suppose another man Smith, who also stands to inherit a fortune if his six-year-old nephew dies, intends to do the same thing; however, as he enters the bathroom his nephew slips, knocks himself unconscious, and falls face down in the water. Smith simply lets nature take its course: he says a little prayer and leaves it to God. Is Smith's action morally acceptable, Rachels asked, because it is passive, while Jones' action is wrong because it is active?

Rachels' conclusion--that it makes little sense to distinguish between passive and active euthanasia--is even more evident today as medical practice has evolved. Consider two other cases. Jones is dying of multiple sclerosis; his condition has deteriorated to such a degree that he has lost all control of his bodily functions; he can no longer move without assistance and finds this condition intolerable. The dying process, however, has become a drawn-out affair, putting him and his family through prolonged misery. He begs the physician to help him end his life as peacefully and quickly as possible. Smith is in exactly the same condition as Jones, except that he also has severe diabetes and is kept alive with insulin. Smith is now in the fortunate situation of being able to request the termination of his insulin shots (a treatment entirely unrelated to his MS), thus assuring himself of a relatively quick death, while Jones has to suffer on. Governed by the active/passive distinction, Smith's request to die can be honored while Jones' request cannot. (Indeed, Smith's physician could even suggest that he might want to consider refusing his insulin.

Thus, the active/passive distinction makes no sense as a criterion for medical decisions. A person under medical care is just as much under "care" whether the treatment is active or passive. Is an order not to resuscitate active or passive? Is removing a ventilator active or passive? Is stopping dialysis active or passive? Is withholding food and water active or passive? Morally, a person can be just as responsible for an omission as for a commission. If the out, come is judged to be the right one, there is no justification for achieving it in one way but falling to achieve it in the other. Only the law, which permits the one but prohibits the other, makes a difference.

If the active/passive distinction were eliminated, the with, holding and withdrawing of treatment as it i's now practiced would be recognized for what it is: a form of physician, assisted suicide. It may help us emotionally to think that we are only allowing "nature" to take its course by refusing to intervene with heroic measures, but the fact is that withholding and withdrawing treatment is a form of physician assistance.

Ethically, the crucial factor in these alternative treatments is not whether they are active or passive but, rather, whether they are done with or without the patient's consent. As the recent court case of Baby K in Virginia shows, the practice of withholding or withdrawing treatment is not at all settled legally. Baby K (an 18-month-old anencephalic child kept alive by repeated life-saving intervention as ordered by the court) raises the question of whether CPR or other life-saving or life-supporting procedures must necessarily be offered to a patient if such procedures hold little or no hope of medical benefit. There is an important principle of medical practice here: no physician should be obligated to offer a treatment which is futile in that it will not benefit the patient medically. Some physicians, for example, now refuse to offer renal dialysis if the patient's condition is such that the procedure would be only a painful process with little ultimate benefit.

The issue here is whether the physician or the patient is going to decide what is or is not a "benefit" and whether medical benefit can be separated from quality of life decisions which are primarily ethical and therefore a matter of the patient's values. There are, of course, patients and families (like Baby K's mother) who cannot bring themselves to forego any treatment regardless of its futility. But removing an option or an alternative on the grounds of medical futility takes the choice entirely out of the patient's hands. There should certainly be a standard of medical futility that would permit treatment to be withheld in fairly clear cases like that of Baby K, but the trend toward bypassing patient consent by a cursory judgment that a certain treatment is medically futile should be resisted. We in the United States are thus on the verge of practicing a form of involuntary euthanasia that would perhaps alarm many people in the Netherlands. To the extent that the concept of medical futility includes physicians' value judgments concerning the quality of life, it is really an ethical question and ought to remain a matter of patient choice.

Another increasingly common practice in the United States today is to relieve distress with the use of narcotics which have the effect of inhibiting breathing. A typical case might be a terminal cancer patient whose breathing is assisted by a ventilator. The time comes when deterioration has progressed to a point where the patient should be allowed to die and the decision is made to turn the ventilator off. The patient may then experience severe distress, which can be relieved with narcotics, but the narcotics may also hasten the patient's death by depressing respiration. In cases such as this, the argument is often made that, if a physician acts to relieve the distress but the treatment also shortens the patient's life or "hastens" his or her death, this is ethically acceptable because the death of the patient was an unintended consequence, a secondary effect in a double-effect situation.

This is another kind of double-think that can give philosophers and physicians a bad name. The fact of the matter is simply that the treatment may hasten the patient's death. Like the active/passive "distinction," double-effect thinking may be emotionally helpful because physicians want to avoid the feeling that they are causing someone's death. But this strategy won't work for long. Double-effect is legally risky: people can be held liable for foreseeable secondary effects whether or not they are "intended." Double-effect thinking is ethically risky as well if it ever leads physicians to believe that they can engage in this type of action without the safeguards of informed consent because their intent is, after all, just to relieve the distress. Ethically, we are responsible for all of the foreseeable consequences of our actions regardless of what we intend or don't intend. The action in this example is, in fact, physician assistance at death, and we will make the appropriate medical decision more honestly if we get rid of the double-think of double-effect.

The type of case most directly associated with physician, assisted suicide in current discussion is one in which a conscious and competent patient asks the physician to take some action that will bring about his or her death or to provide the means for the patient or the patient's family to take the action. Cases that fall into this category often involve the gradual disintegration of the powers and capacities which make us human: severe instances of amyotropic lateral sclerosis, multiple sclerosis, Parkinson's disease, Lupus, end-stage lung disease, and perhaps advanced brain cancer or gastric cancer, There are patients in some of these conditions, although probably not very many, for whom hospice care does not work effectively. They suffer not so much pain as the deterioration of their bodily functions and mental capacities, and the misery of deterioration can be a long and costly process. The most compelling argument in favor of physician-assisted suicide has always been the one based upon the fact that some conditions are so intolerable that the only relief is death, and the patient wishes to end the suffering rather than to have it prolonged. Sensitive and courageous human beings have often responded to these situations in the past by assisting the sufferer to put an end to his or her misery. They are now doing this more openly and more often. The question is whether this will be done with the assistance and regulation of the medical profession or whether it will remain covert.

The most recent answer to such problems, which may well become standard practice, is to sedate these patients into complete unconsciousness and to withhold nutrition and hydration until they die. This relieves the patient of any conscious experience of his or her condition. It also shows just how far we will go to preserve the myth that only "passive" euthanasia is morally acceptable. Again, we should face the facts: complete sedation and the withdrawal of food and water is active euthanasia, and it is probably not the best method. Some patients in extreme conditions might choose this method, but the clear choice of others, if they could have their way, would be to end it all sooner than such a method allows and spare themselves and their families the agony.

Our society, of course, legally forces us into this sham since the patient only has the legal right to refuse treatment. Unfortunately, some of the patients in these extreme conditions are not lucky enough to have a life-saving treatment that can be stopped. If death is their only relief, they need help. The proper response, ethically, is to change the standards of practice and the law, if necessary, to permit the physician to assist either directly or indirectly. Proposals to decriminalize physician assistance, such as the current Oregon initiative, generally take into account the ethical imperatives of relieving suffering and respecting patient choice. The law should ensure, through a second medical opinion if necessary, that assistance will only be available if and when a competent physician judges that there is no other way left to relieve the patient of his or her misery.

The problem of physician-assisted suicide poses a double question and requires a double answer. Critics often charge that, if physician-assisted suicide were legalized, patients who are mentally unstable or simply depressed would too quickly choose suicide. But current laws stipulate clearly that no physician should ever offer or agree to any medical procedure unless he or she is convinced that it is in the best interests of the patient. With regard to physician-assisted suicide, the physician would have to be convinced that nothing else could be done and that the situation was so intolerable to the patient that an easier death was in his or her best interests.

The other popular criticism is the reverse: if physicians alone decide when there is no hope left for a meaningful life, we will be on the slippery slope toward the killing of people with any and every sort of disability. The answer here is that current laws already require informed consent for any medical treatment: physician-assisted suicide would have to remain strictly at the patient's informed request. People should, of course, be allowed to express their wishes through living wills and surrogate decision-makers as long as these means are used to enact the patient's wishes. (The problem with the Nancy Cruzan case, in which the family of a woman in a permanent vegetative state attempted to have her life support removed, was not that the law required evidence of the patient's wishes but that the legal standard of proof was too high.

The critics of physician-assisted suicide thus attempt to make a case against euthanasia by pointing out that, if physicians alone decide when life is worth saving, they would engage in involuntary euthanasia; but on the other hand, if patients alone can choose when to end their lives, suicide would be permitted for emotional or psychological reasons. The answer to this criticism is that the choice should never be up to physicians or patients alone; it should require mutual agreement. And this is exactly what the most widely held principles of medical ethics require. The principle of beneficence requires that physicians do only what is in the patient's interest, and the principle of autonomy requires that treatment be administered only at the patient's request. Taken together, as they must be, a morally justifiable decision could only be made when the physician and patient came to an agree, ment. Neither the physician alone nor the patient alone could or should decide. The `critics' case can only be made by considering each half of the moral imperative in isolation.

Furthermore, in most states these ethical principles are already embodied in statutory or case law regarding informed consent. Informed consent requires that the procedure is adequately explained and understood by the patient; that the alternatives and their possible consequences are explained as well; and that the patient is able to make an informed decision in the light of his or her own values.

By many indications, American society is quite ready for the legalization of physician assistance at death. A 1991 General Social Survey conducted by the National Opinion Research Center asked the question:

When a person has a disease that

cannot be cured, do you think doctors

should be allowed by law to

end the patient's life by some painless

means if the patient and his or

her family request it?

Of the 1,024 people in the national random sample who responded, 70 percent said "yes," 25 percent said "no," and 5 percent didn't know. A November 1993 Harris poll, which explained the safe, guards proposed in the Oregon Right to Die initiative, found 73 percent approval. At present, there is more reason to be concerned about current medical practice in treating terminally ill patients than about the legalization of physician, assisted suicide. The more we shy away from recognizing the true nature of the current practices of withholding and withdrawing treatment by philosophical tricks such as the notion of secondary effects and the active/passive distinction, the more likely we are to find ourselves on the slippery slope toward involuntary euthanasia.

Some physicians now take the position that they would be willing to provide the means for a patient to take his or her own life but would not want to assist the patient directly. Aside from cases in which this is physically impossible--for example, if the patient cannot take pills--the physician should want to ensure that the medication provided will actually be taken by the patient and not by a distraught spouse.

Another common concern among physicians is that legalizing physician-assisted suicide will diminish the trust that patients have in their physicians. This is based upon the simplistic assumption that trust implies only that physicians will do no harm. The fact is that many patients now want to trust that their physicians will stay with them and will not abandon them when the only way out of their suffering is to help them to die as they choose. The medical profession as a whole will gain public respect if it agrees to medicalize the dying process rather than leaving the final act to be performed with handguns, plastic bags, and illegally acquired drugs. If we face up to the realities of current practice, we should admit that we are already engaged in physician-assisted suicide--we just aren't calling it that. De, criminalizing physician assistance under the current guidelines of beneficent standards of practice and informed-consent laws would expand the options available and would put physicians in a better position to help those who now have no other way out. It would surely be better to have the practice regulated than to allow the further development of self-help methods.

Robert T. Hall is a professor of sociology and philosophy at West Virginia State College. He is the author of Emile Durkheim: Ethics and the Sociology of Morals (Greenwood Press, 1987) and Moral Education in Theory and Practice (Prometheus Books, 1976).

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