Physician Assisted Suicide

An article written by Dr Peter Doherty
and based on a paper by Fr. James Keenan SJ. - an Australian priest.

The case for the decriminalisation of euthanasia, an act or omission to terminate life for the relief of pain or suffering, has been considerably diminished by the progress of the hospice movement. It is now confidently asserted that over 98% of patients cared for by the hospice movement will have their pain alleviated. But the very success of the hospice movement in its alleviation of pain makes pain seem as a less pressing reason for euthanasia and has shifted the emphasis to intractable suffering; the degeneration experienced by the patient, the depression and the generally wretched circumstances to which he is now exposed.

The debate has moved to whether the dying or seriously ill individual should have the legal right to take their own lives, and if necessary enlist the aid of a doctor willing to provide the lethal dose. In other words the legalisation of voluntary euthanasia.

Its proponents are no longer arguing for the simple decriminalisation of euthanasia. Rather they are looking for positively articulated legislation that permits Physician Assisted Suicide (PAS) or euthanasia only under certain restrictions that usually involve voluntariness, consent and, at times though not always, terminal illness. It is proposed that such a law legalising voluntary euthanasia will prevent the abuses which have been experienced for example in Holland.

The Dutch position

In 1984, the highest court in Holland struck down the criminal conviction of a physician who performed PAS and subsequently the Royal Dutch Medical Society articulated strict guidelines for providing PAS. Then in 1990 and again in 1996 the Remmelink Report published results of how the guidelines have been observed. It acknowledged that none of the initial guidelines are presently holding. The report shows that annually 9700 requests for PAS are made and about 3600 actual requests are met, accounting for over 2% of all deaths in that country. But, over 50% of all cases of PAS and euthanasia go unreported. Furthermore, of the 3600 cases, about 1,000 were non voluntary; that is the doctor took the patient*s life without an explicit request from the family.

Other developments are more disturbing. In 1993 a Commission of the Royal Dutch Medical Society recommended that mercy killing should be made available to psychiatric patients. In 1995 the Dutch courts vindicated the mercy killing of an infant suffering with spina bifida. Three of the eight Dutch neonatal units now have active euthanasia policies

The implications of euthanasia

Fr. James Keenan SJ., on whose paper this memorandum is based, makes the case that no new law will ever bear the burden of the euthanasia debate. In his opinion, the fears that anti-euthanasia persons have about incompetent, depressed, disabled or otherwise vulnerable people are valid. The only ones who will benefit from a change in law are neither the terminally ill nor chronically ill patients but rather those doctors practising euthanasia who fear censure liability, or punitive sanctions.

Daniel Callahan writes "It is impossible in principle and in practice to regulate either euthanasia or PAS successfully". He bases this claim on the fact that fundamental legal concepts like terminal illness, competency, voluntariness, restrictions of eligibility, suffering, pain and consent are so historically fluid and regionally diverse that they could never be used with any success to maintain, any distinction. A law that levels the distinction between withdrawing life support and hastening death would level all other distinctions. After arguing that such laws could never protect us from abuses, Callahan concludes: "The only purpose that will be achieved by these laws is to protect physicians and health care facilities from any liability for their action in connection with PAS". Besides providing protection to physicians, the only other effect of PAS will be what Callahan calls the "deregulation of euthanasia".

The experience in the Netherlands made a great impression on American and Australian advocates of euthanasia. They are no longer looking for the simple decriminalisation of euthanasia. Rather they are looking for positively - articulated legislation that permits PAS or euthanasia only under certain restrictions that usually involve voluntariness, consent and at times though not always, terminal illness. They propose that the law will keep us from the abuses that their opponents invoke. Legalising voluntary euthanasia will be the best way for regulating existing unreported euthanasia practices. If Callahan is right their only benefit will be to protect doctors engaging in these practices. In Melbourne for example seven doctors wrote in an open letter to the Victorian Premier, Jeffrey Kennet, "For the sake of all those who may be unfortunate enough to be trapped in suffering and anguish, we ask you to put an end to the uneasy hypocrisy of our law and allow us to work without fear of prosecution."

The American Scene

The case of Nancy Cruzan concerned the assumption that by the constitution*s liberty interest competent adults are free to refuse medical procedures including life saving procedures and artificial hydration and nutrition. Nancy was in a persistent vegetative state and her parents were seeking to remove their daughter from the burden of artificial hydration and nutrition. The famous case of Karen Quinlan was also important as her parents sought to remove her from a ventilator. These and other cases represented progressive legal developments that prevented hospitals from prolonging the dying of those who do not want their dying prolonged.

When the state of Washington passed legislation to allow for PAS, an injunction was sought and granted by a local federal judge. Proponents of the legislation then sought to overturn the judge*s decision and appealed to the Ninth Circuit Court which represents the second highest level of the judiciary branch of government. This court not only overturned the judge*s injunction, but also declared a constitutional right to die. The decision claimed: "Cruzan, by recognising a liberty interest that includes the refusal of artificial provision of life sustaining food and water, necessarily recognises a liberty interest in hastening one*s own death."

But the contrary view articulated by Cathleen Kaveny (Assisted suicide, Euthanasia and the Law, Theological Studies 58, 1997, 124-148) stated "To put the matter bluntly (Cruzan) ensures that a competent individual will not be strapped to a gurney, intubated sedated and medicated without her consent.... The fundamental concern of the liberty interest assumed by Cruzan is not the right to die but the right to live unencumbered by unwelcome medical treatment."

The court*s decision was based on the famous PAS argument of moral and (in this case) legal equivalency, that is, there is no difference between withdrawing life-support and hastening one*s death. The intentional activity of the physician in hastening death is neglected.

Anthony Fisher, John Fleming and others observed this and objected that "It confuses good medical practice according to traditional medical law and ethics with other practices which are illegal and clearly contrary to medical ethics". If this distinction is levelled and PAS made legal it would strongly enhance the arguments of Callahan that a similar levelling would soon take place between PAS and euthanasia.
At about the same time in New York the Court of Appeals made a similar claim. It did not rule there was a constitutional right to hasten one*s death rather it overturned a New York law that prohibited PAS and claimed the government had no right to outlaw PAS. In Vacco v. Quill, the Court invoked the equal protection clause of the fourteenth amendment which demands that all persons in similar situations be similarly treated. Thus, the Court ruled that inasmuch as those who are on life support systems are allowed to hasten their deaths, similarly those who are not should not be prohibited from hastening their own deaths. Here again legal equivalency was advanced.

The US Supreme Court Ruling

But, on June 26, 1997, the Supreme Court in two decisions overturned both Appeal Courts with rare unanimous decisions. The court held simply that the constitution did not extend as the lower courts argued. The constitution does not protect a right to suicide. In making this it declared that the legal equivalency arguments did not apply either for guaranteeing a right to suicide or for denying a prohibition against suicide. However, while denying the claims of the Appeals Courts, it left to the States the prerogative to make decisions regarding PAS.

The Supreme Court asked the question: how well protected from harm are all people, especially the most vulnerable? It manifested a particular sensitivity to the fact that rarely are all those facing disability or terminal illness in equivalent situations. "The State*s interest goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and societal indifference."

This extraordinary reversal of the application of equivalency is important. The Supreme Court saws the effectiveness of the distinction between withdrawing and hastening as a significant important social standard and dismissed the equivalency argument in both court decisions. Judge Souter, who was known to be sympathetic to the theoretical claims of PAS, consented to the majority position because he wondered whether the State could in fact protect the more vulnerable by such permissive laws and wrote: "the capacity of the state to protect the others ...is.. subject to some genuine question, underscored by the responsible disagreement over the basic facts of the Dutch experience."

The Court's decision exemplifies the view that the debate regarding PAS cannot be primarily about religious, philosophical or logical ideologies. Rather it is about the hard data that we can assess in the light of the legal developments that affect our lives; protecting the interests of the most vulnerable.
The only state to legalise PAS is Oregon. On February 18th 1999 a study was released on the first year of the operation of the Act permitting it. Of the 15 persons who died after taking the medication it was observed "Patients who chose PAS were seven times more likely to be concerned about loss of autonomy and nine times more likely to be concerned about loss of bodily functions than control patients." (New England Journal of Medicine 340 (1999) 577-583)

At the time of this study there was much enthusiasm over the difference between the Netherlands action of removing legal restraints in euthanasia practices and the Oregon situation where the practice is legally governed. There was a belief that a modest, fairly restrictive law could successfully prevent a fall down the slippery slope. But the alarming problem with the Oregon law was that the review committee was unable to track any non- compliance with the law. As Callahan commented before the review*s admission "Oregon*s procedural safeguards cannot change the fact that there is no legally meaningful self-limiting practice of PAS."

Inevitably acts of PAS will lead to acts of euthanasia practiced initially on competent but disabled patients, then on the incompetent but previously competent, until finally on the simply incompetent and therefore never voluntary patients.

Oregon gives us false assurance of its ‘success*. It does not tell us where the law is being broken, of where euthanasia is practiced or where non-terminally ill patients are receiving lethal drugs. The myth of its success is disturbing: it pretends to be regulating euthanasia precisely when euthanasia practices are going unreported. That is a fatal flaw.

Callahan warns us, once PAS is legalised admittedly with certain restrictions those restrictions will not be observed, for PAS is a rhetorical fiction. Without proper regulatory guidelines and punitive sanctions, doctors in Oregon will, if they are not already, practice PAS on chronically ill persons and euthanasia on others