Monday, April 6, 2015

Physician-Assisted Suicide: Improving the Debate

This article was first published on the Ethikapolitika website

Physician-assisted suicide (PAS) is in the news … again.

John Keown
By John Keown

The Washington Post reported on Valentine’s day that since the death of her husband, Diane Rehm, the NPR talk show host, is emerging as a “key force” in the “right to die” debate. The Post relates that she is addressing fundraising dinners for “Compassion and Choices,” a pro-PAS pressure-group. The Post quotes her as saying:

As strongly as I feel, I don’t want to use the program to proselytize my feelings … But I do want to have more and more discussion about it because I feel it’s so important.
She is right. It is important. And it is worthy of more discussion, not least because more discussion, if fair and balanced, allows opponents of PAS to refute the superficially attractive arguments of pressure-groups like “Compassion and Choices”—arguments that have, with very few exceptions, been rejected by legislatures, expert committees, courts, professional healthcare associations, and disability groups around the world.

What are the main arguments for changing the law to allow doctors, at the patient’s request, to write a lethal prescription (PAS) or to administer a lethal injection (voluntary, active euthanasia, or VAE)? In Debating Euthanasia, a book in which I debate a leading advocate of PAS and VAE, I considered ten arguments for relaxing the law. To illustrate their weakness, let us consider just three of the most popular arguments.

First: choice. Doesn’t respect for autonomy mean that patients have a right to be assisted in suicide, or to be given a lethal injection, if they make a truly autonomous request?

No. Respect for autonomy is important. We have, for example, a right to refuse treatment. We might judge that some treatments would not offer us a reasonable hope of benefit, or that others would be too burdensome to us. But respect for autonomy is not absolute. It has limits. One limit is on choices that seriously undermine the individual’s worth or well-being. We do not, for example, allow people to sell themselves into slavery. (And while one can sometimes escape from slavery, there is no return from death.) Nor do we allow people to take hard drugs. Even driving without a seatbelt is generally prohibited. It is often countered that suicide has been widely decriminalized. This is true, but the aim of decriminalization was, by removing the threat and stigma of punishment, to encourage suicidal people to seek psychiatric help. It was not to condone suicide, which is precisely why the prohibition on assisting suicide was retained.

Moreover, if the law were relaxed, how many requests for PAS or VAE would be truly autonomous, truly free, informed and considered, and how many the result of depression, or a sense of being worthless or a burden, or pressure from relatives, or inability to afford medical treatment?

Further, we often rightly restrict individual choice in order to protect others. If allowing some people access to PAS or VAE were to jeopardize the lives of others, this would be another sound reason for denying that choice. And, relaxing the law surely would jeopardize the lives of others. For: The underlying reason which is thought to justify PAS or VAE turns out, on closer examination, not to be individual choice at all. Not even campaigners for PAS and VAE argue that they should be available to anyone who autonomously wants them. They would be available only to some, who meet a criterion such as “terminal illness” or “unbearable suffering,” a criterion established by others, and established because it is thought that those who meet such a criterion would be “better off dead.” So: The case for PAS and VAE rests at bottom on the judgment that the lives of people in some conditions (but not others) are no longer “worth living,” that they (but not others) would be “better off dead.” This realization should raise at least three red flags.

First, because PAS and VAE involve judgments that certain people would be “better off dead” they are deeply discriminatory. The prohibition on one private citizen intentionally killing another innocent private citizen (or on assisting his suicide) is foundational to Anglo-American law. The principle of equality before the law and of equal protection under the law lies at the very heart of our jurisprudential culture. This principle should resonate particularly strongly this year, as we celebrate the 800th anniversary of the Magna Carta.

As the House of Lords Select Committee on Medical Ethics expressed it in 1994, unanimously rejecting the arguments for PAS and VAE, the law’s prohibition on intentional killing is “the cornerstone of law and of social relationships” that “protects each one of us impartially, embodying the belief that all are equal.”

Laws allowing PAS or VAE reject that cornerstone belief, and are based on the notion that some lives are less equal than others, even to the point that it would be entirely reasonable to end them. Small wonder that disability groups are at the forefront of opposition to PAS and VAE. As one such group wrote in opposition to a proposal to relax the law:
We are like society’s ‘canaries in the coalmine’ who can often see the dangers of potentially discriminatory legislation before others, as it impacts on us even before the deed is done. We are scared now; we will be terrified if assisted suicide becomes state-sanctioned.
A second red flag. Relaxing the law takes one onto a precipitous “slippery slope.” For example, the various criteria that are thought to justify an intentionally hastened death are intrinsically arbitrary. Why (as in Oregon) “terminal illness”? Why not allow PAS to those who face not just months but years, perhaps a lifetime, of illness? And why PAS but not VAE? Why discriminate against those who, even with assistance, are too disabled to kill themselves?

The Dutch, pioneers of PAS and VAE since 1984, realize that such limitations are indefensible. Their guidelines require not “terminal illness” but “unbearable suffering.” But, again, why need the suffering be “unbearable” (whatever that means), rather than suffering that the patient could bear but would rather not? Moreover, Dutch law allows purely mental suffering, unconnected to any physical illness, to count, but not “existential suffering,” such as the “tiredness of life” experienced by some, perhaps many, elderly folk. Many Dutch people think this should be a legal ground. And why not? In Belgium, which followed the Netherlands and legalized VAE in 2002, patients euthanized have included a man psychologically distressed by his appearance after several “sex-change” operations. And why not?

Clearly, once one abandons the bright line of the current law—no intentional killing of any patients—which is grounded in the recognition of the equal, fundamental worth we all share in virtue of our common humanity, one enters a murky world of arbitrary and discriminatory judgments about whose life is “worth living” and whose is not.

Red flag number three: Acceptance of hastened death for suffering patients who request it leads, logically, to acceptance of hastened death for suffering patients who cannot. Take Alice and Alex, both of whom are patients of Dr. Jack. Alice and Alex both have terminal cancer and both are suffering to the same degree. Alice is capable of asking for a hastened death and does so. Dr. Jack judges that death would benefit Alice, as it would put an end to her suffering, and administers a lethal injection. Dr. Jack judges that death would equally benefit Alex, by putting an end to his suffering. Why should Dr. Jack stay his hand? If hastened death would benefit Alex, why deny it to him merely because he cannot request it? Why discriminate against Alex because of his incapacity? One answer might be that Alex is not autonomous. But this answer fails. In the case of Alice, Dr. Jack can point to two reasons for killing her: respect for her autonomy, and relief of her suffering. But in the case of Alex, Dr. Jack can still point to one argument for killing him: relief of his suffering. This logical “slippery slope” argument, demonstrating the logical, adamantine link between euthanasia with request and euthanasia without request, is unanswerable.

It is not surprising that surveys have shown, undisputedly, that Dutch and Belgian doctors have given lethal injections to thousands of patients without an explicit request, in flagrant breach of the law, and with virtual impunity. Nor is it surprising that the Dutch courts have proceeded to rule that it is lawful to give lethal injections to disabled infants in certain circumstances.

Sadly, the logical slippery slope argument is not well known to the general public. It is one of the several powerful arguments against PAS and VAE that merit extensive coverage on Rehm’s show.

Let us turn now to a second major argument for relaxation of the law: compassion. Don’t we have a duty to alleviate suffering? Advocates of legalization make much of cases where loved ones died in distressing conditions, or killed themselves out of fear of dying in distressing conditions. Well, advocates of change have no monopoly on witnessing loved ones dying in distressing conditions. Many of us have witnessed that. But it does not follow that the answer is PAS or VAE. The answer is to improve the quality and availability of end-of-life care so that people do not die, or fear they will die, in distressing conditions. It is noteworthy that experts in palliative care, who are at the forefront of caring for the dying, and who help people die naturally with dignity, are among the strongest opponents of PAS and VAE.

A third main argument for PAS and VAE is that public opinion favors legalization. However, we should treat opinion polls on this issue with considerable caution. As the article in the Post pointed out, much depends on how the question is phrased. Further, how informed is public opinion? How many people polled have carefully considered the arguments for and against, as opposed to forming an opinion on the basis of an emotional reaction (however understandable) to seeing a loved one (or someone on television) die without the benefit of palliative care? In any event, should public policy be decided by opinion poll? One wonders how many of the “progressive” politicians who attach importance to opinion polls favoring PAS would attach importance to polls showing majorities in favor of capital punishment.

Enough has been said to suggest that major arguments used to justify PAS and VAE—autonomy, compassion, and public opinion—are far less persuasive than they may at first appear. This explains why the case for relaxation of the law has met with far more failures than successes around the world.

Unfortunately, coverage of the debate by the mass media is typically one-sided and emotive. Viewers, listeners, and readers are subjected to a succession of heart-rending human interest stories of sick or paralyzed people who want assisted suicide. As the saying goes, “If it bleeds, it leads.” Moreover, these stories seem designed not only to tug on public emotion, but to tug it in one direction: toward legalization. And, to the extent that opposing views are aired at all, they are often caricatured as “religious,” despite the fact that legalization has long been opposed by secular bodies like the World Medical Association.

Let us hope that shows like Diane Rhem’s will buck the media trend, and ensure that the powerful case against legalization is given a fair hearing.

John Keown, D.Phil., Ph.D., holds the Rose F. Kennedy Chair of Christian Ethics in the Kennedy Institute of Ethics.

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