Physician-Assisted Death Scanning the Landscape: Proceedings of a Workshop (2018) / Chapter Skim
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2 Conceptual, Legal, and Ethical Considerations in Physician-Assisted Death
2 Conceptual, Legal, and Ethical Considerations in Physician-Assisted Death
Pages 7-44
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From page 7... ...
(Kim) • The differences in the laws regarding the withdrawal of treat ment and physician-assisted death reflect an attempt to trans late the moral desire to allow relief from suffering into legal rules that avoid problematic value judgments -- in other words, the legal rules are designed to operationalize underlying moral values.
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• Few people in the United States are taking advantage of physician-assisted death laws and an argument could be made that this is not a public health crisis and the topic distracts from improving health care for the nation's aging population. (Sulmasy)
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Speakers and participants highlighted the challenges to and opportunities for improving how these criteria are defined and operationalized in the clinical setting. Terminal Illness and the 6-Month Prognosis Joanne Lynn Director, Center for Elder Care and Advanced Illness Altarum Institute Laws on physician-assisted death, as well as access to hospice, require a patient to be terminally ill, as defined by having 6 months or less to live.
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, it is more difficult to predict when death will occur and, therefore, if and when these patients could gain eligibility for hospice care or physician-assisted death, said Lynn. Eligibility for physician-assisted death for a large proportion of the population will vary remarkably based on how the 6-month prognosis is operationalized (e.g., nearly certain to die within 6 months, very likely to die within 6 months, or more likely than not to die within 6 months)
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. The same investigators found that psychiatrists' own ethical views of physician-assisted death may influence the level of scrutiny used in their assessments (Ganzini et al., 2000)
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. He noted that contrary to expectation, the level of scrutiny and the threshold for declaring incapacity in non-terminally ill psychiatric patients requesting physician-assisted death in the Netherlands is surprisingly low.
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In Strouse's view, the mental health specialist has two tasks under the law: to review the referring physicians' determination of whether the patient has the capacity to make a medical decision, act voluntarily, and make an informed decision; and to discern whether the patient is suffering from impaired judgment and whether that impaired judgment results from a mental disorder. "To do that, you have to first decide whether a mental disorder is present, then evaluate for impaired judgment, and then try to causally link those two things," Strouse said.
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Reassessments are also conducted in order to confirm original evaluations. When it comes to assessing the abilities needed for capable decision making, mental health professionals rely on a substantial body of research that has identified four essential components: (1)
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Pointing to another evidentiary gap, David Orentlicher, the Cobeaga Law Firm Professor and co-director of the Health Law Program at the University of Nevada, Las Vegas, added that the same type of research should be conducted on withdrawal of treatment, given that there may be the same issues regarding competence and potential coercion. LEGAL FRAMEWORKS Comparative Analysis of Legal Rules: Withdrawal of Treatment Versus Physician-Assisted Death David Orentlicher Cobeaga Law Firm Professor University of Nevada, Las Vegas Eight U.S.
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Withdrawal of treatment is generally permitted for incompetent patients, but living will laws may require a "terminal condition"2 and no pregnancy. By comparison, Orentlicher said, there are significant limits for who is eligible for physician-assisted death, including decision-making capacity, the ability of the patient to perform the life-shortening act, a life expectancy of 6 months or less, and the requirement that the patient be a resident of the state where the practice is legal.
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Physician-assisted death currently is permitted only for terminally ill patients; withdrawal of treatment in
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In Orentlicher's view, the law's distinction between withdrawing treatment and physician-assisted death represents an important moral difference. The distinction provides a legal proxy to sort the morally justified death from the morally unjustified death.
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Orentlicher said that he expects that more states will legalize physician-assisted death if the empirical evidence continues to be reassuring, which could also lead the Supreme Court to recognize a constitutional right to aid-in-dying. Legal and Regulatory Landscape John Keown Rose Kennedy Professor, Kennedy Institute of Ethics Georgetown University In most jurisdictions, said John Keown, the Rose Kennedy Professor in the Kennedy Institute of Ethics at Georgetown University, criminal law prohibits a doctor from intentionally administering a lethal drug to terminate a patient's life, even to end suffering (which he defined as "voluntary euthanasia" if the patient requested it and "non-voluntary euthanasia" if the patient was incapable of requesting it)
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He discussed two types of slippery slope: first, the expansion of physician-assisted death within an accepted category of practice 4 Washington v. Glucksberg, 521 U.S.
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. Kim argued that data are needed to assess these two types of expansion, and he questioned whether the jurisdictions that permit physician-assisted death collect the types of data needed to evaluate how decisions are made regarding, for example, how strong a presumption of capacity is used, how terminal illness is determined, and who serves as the second opinion on those determinations.
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In the United States, this question has been avoided by limiting physician-assisted death to terminal illness; no physician-assisted death law in the United States mentions a qualityof-life judgment or suffering requirements, he said. In jurisdictions that do use the suffering requirement, the problem of a state-mandated evaluation of suffering is evaded by using a subjective definition of unbearable suffering: unbearable suffering is based solely on the patient's account, said Kim.
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However, if a standard of unbearable suffering is used, mental illness, despair, and hopelessness become markers of unbearable suffering and thus a "green flag," or part of the justification for physician-assisted death. Kim cautioned that the type of physician-assisted death practiced in Oregon -- with terminal illness required for access and a strong focus on patient autonomy -- represents a small minority (approximately 1 in 12 by rough estimate)
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Moreover, the act does not require the second doctor to be independent of the first, so both could be partners in the same physicianassisted suicide practice. Furthermore, Keown said, the Oregon law relies on self-reporting after the fact by the physician involved, and the Oregon Health Authority has acknowledged that it cannot detect or collect data on issues of noncompliance with any accuracy.
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Why deny incompetent patients a merciful death? Keown noted that the Dutch law allowing voluntary euthanasia has not prevented non-voluntary euthanasia.
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REFLECTIONS ON THE ETHICS OF PHYSICIAN-ASSISTED DEATH Empirical Research and Controversial Medical Practices Daniel Sulmasy André Hellegers Professor, Kennedy Institute of Ethics Georgetown University Addressing the subject of empirical research about controversial medical practices, Daniel Sulmasy, the André Hellegers Professor of Biomedical Ethics at Georgetown University's Kennedy Institute of Ethics, said it is important to be aware of both the potential contributions and the methodological limitations of "descriptive" ethics research (Sugarman and Sulmasy, 2010)
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There is no scientific basis for deciding on terminology, other than perhaps marketing science, he said, adding that he chooses to use the term "physician-assisted suicide." From his perspective as an ethicist and social sciences researcher, he said, he finds that there are important distinctions between physician-assisted suicide, euthanasia, vigorous symptom control, and forgoing life-sustaining treatment, all of which, Sulmasy said, could be included by a reasonable person under the umbrella term "assisted death." In that regard, he urged caution when using terms that are more political than ethical or scientific in the way they are constructed. Community engagement is a new standard for research involving human participants and serves to inform the agenda and approach for research, Sulmasy said.
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From page 28... ...
For many of these individuals, Sulmasy said, the fact that dependence on others has become a socially sanctioned reason to be made dead is itself a threat to their dignity even if they are not themselves seeking assisted suicide. Regarding what the pitch of the slippery slope actually means, he said, this will not be determined by research, but rather by serious discussion from an ethical and policy perspective.
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"Good policy is based on both facts and ethics." He said that one must be aware that invalid causal inferences can lead to invalid conclusions, citing as an example the inference that the legalization of physicianassisted suicide improved palliative care in Oregon because palliative care improved after Oregon legalized the practice. It is not valid to claim that palliative care improved as a result of legalized physician-assisted suicide in Oregon, Sulmasy said.
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The history of repression and suffering that those with disabilities have experienced from programs of institutionalization and eugenics-driven euthanasia, all driven by health care professionals, recommends vigilance regarding physicianassisted death, Silvers said. However, raising administrative barriers that must be hurdled by individuals seeking equitable access to medical services just because they are identified as having a disability is mainly about health care institutions protecting themselves from criticism, she said, arguing that such exclusion is an improper response to ableism.
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At the same time, he said, while non-disabled people are often considered terminal, people with terminal illnesses are almost never described as disabled, which he said helps explain why proponents sometimes say that no disabled person has been affected by these programs. He noted, too, that two-thirds of the people who Jack Kevorkian helped die in the late 1990s were non-terminal disabled individuals even though his victims were sometimes reported in the media as being terminally ill.
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Witnesses can simply check the person's identification, and doctors who decline for medical reasons are not interviewed, which means that people can doctor shop until they find someone willing to prescribe the lethal medication. In Oregon, he added, the Oregon Health Authority lacks the ability to investigate violations of the law.
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"No safeguards have ever been enacted or even proposed that can prevent this outcome, which can never be undone." Advocating for the Option of Physician-Assisted Death Kim Callinan Chief Executive Officer Compassion & Choices Omega Silva Professor Emeritus George Washington University Kim Callinan, the chief executive officer of Compassion & Choices, an organization that works to pass medical aid-in-dying laws in the United States, said that her main concern regaining medical aid-in-dying is its availability, not its usage. Currently, she said, usage of the medical aid-indying laws is low, which raises the question of whether that results from a lack of access or because people are not interested in accessing this option.
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. Similarly, a 2016 survey by LifeWay, which Callinan explained is a Christian organization, found that two-thirds of Americans believe it is morally acceptable for terminally ill patients to ask their doctors for help ending their lives and that majority support was found in a variety of demographic groups (Smietana, 2016)
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She would also like data to illuminate which legal safeguards and regulatory requirements are necessary and which ones create unnecessary delays and stigma. However, she cautioned that additional data collection efforts or requirements might affect patients' ability and willingness to access medical aid-in-dying by making the request process too onerous for both doctors and patients.
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Suicide prevention and assisted death programs have nothing to do with one another bureaucratically in Oregon, Callahan said. There are, however, what Callahan called provocative new data emerging that the number of "ordinary" suicides increased in parallel with that of assisted suicide (Dugdale and Callahan, 2017)
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, are the main reasons given by those requesting assisted death in Oregon according to physician reports of patient concerns (Oregon Health Authority, 2018)
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Further reflecting on the term "facilitated natural death" suggested by a workshop participant, Orentlicher questioned why a natural death would be preferred over unnatural death, noting that if natural was preferred over unnatural, there would not be heart bypass surgery, chemotherapy, or the medical profession, as each of those takes us away from our "natural" state of being. Drawing on his experience in the UCLA system, Strouse added that one difference between suicide and physicianassisted death is the extraordinary impact of opening a discussion among patients and families about end-of-life options which enables them to prepare and accept their loved one's impending death.
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From page 39... ...
should be for an advocacy organization participating in a scientific meeting and whether this might indicate one of the sorts of problems he noted in his initial presentation regarding potential sources of bias in empirical research about ethically controversial health policies. Physician-Assisted Death and Economically Marginalized or Minority Populations A workshop participant asked what is known about the impact of physician-assisted death on vulnerable or economically marginalized populations.
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. Pain and Suffering Courtney Campbell, the Hundere Professor of Religion and Culture at Oregon State University, said that the prevention of pain and suffering is often cited as a reason why physician-assisted death should be an option but that the empirical research does not indicate that patients are requesting physician-assisted death for this reason.
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2014. Diagnostic and statistical manual of mental disorders, 5th ed.
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2016. Capacity evaluations of psychiatric pa tients requesting assisted death in the Netherlands.
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Maryland State Medical Society.
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From page 44... ...
2007. Decision-making capacity in elderly, terminally ill patients with cancer.
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