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Thursday, March 07, 2019

Rethinking the Ban on Euthanasia

C0b776626fc1cd50a1532d7dbb11-should-we-euthanize-those-that-will-not-or-cannot-take-care-of-themselvesWhen states legalize physician aid in dying (AKA physician-assisted suicide), they include three safeguards that seem essential—patients must be competent to make medical decisions, they must be terminally ill, and they must self-administer the lethal dose of medication. Every state that has legalized aid in dying has included these three criteria for eligibility. But it’s not clear that the requirement for self-administration is necessary.

 

The three requirements serve two important purposes. They help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination rather than the irrational choice of someone suffering from distorted thinking.

Nevertheless, the Canadian experience suggests that it may be safe to allow a health care provider to administer the lethal dose of medication. Like Oregon and other states that allow aid in dying, Canada restricts the option to adults who possess decision-making capacity and who are terminally ill. But Canada allows physicians and nurse practitioners to administer the lethal dose rather than requiring self-administration. And health practitioners administer the medication in virtually all cases. Self-administration occurred in only 1 out of 1,960 cases in one report.

Health practitioner administration responds to significant concerns with self-administration. Patients may have difficulty taking the drugs themselves or may be physically unable to do so. Also, access to the drugs may be a problem in some communities.

There is good reason to think that the requirements of terminal illness and patient competence provide adequate protection. When one considers the controversies over particular aid in dying cases in the Netherlands and Belgium, as well as over particular illicit aid in dying cases in the United States, they typically involve patients who were not terminally ill or who lacked decision-making capacity. Illustrative examples include Jack Kevorkian and a woman with chronic pelvic pain or a Belgian patient featured in a New Yorker article who suffered from chronic depression.

It’s possible that the requirement of self-administration adds an additional layer of protection against abuse. If the patient has to take the lethal dose, we may better ensure that aid in dying truly reflects the patient’s choice. The patient with some ambivalence may be more likely to hesitate with self-administration than to stop the health practitioner who is assigned to administer. It would be useful to know if there are cases in the United States or other countries where the patient had scheduled a self-administration and then called it off and how often that happens compared to cases in which the patient scheduled a physician or nurse-administration and then called it off.

Canada is only in its third year of legalized aid in dying, so we would want more data before drawing firm conclusions. If it continues to be the case that allowing health practitioner administration provides important benefits without greater risks, then it would make sense for U.S. states to allow health practitioner administration.

Posted by David Orentlicher on March 7, 2019 at 11:06 AM | Permalink

Comments

The physician administration is safer in several respects:
1. It avoids the significant rate of side effects reported from self-administration in Oregon
2. It permits confirmation of capacity at the time of administration, which is required but unregulated in Oregon model jurisdictions.

But David asks a good question about adding new risks. A big fraction of patients in US states that get prescriptions never ingest them. Their suffering (physical or existential) does not get bad enough that they feel they need MAID. It may be harder for Canadian, Belgian, or Dutch patients to say no to the doctor once she is there. But presumably the patient does not call the doctor until she has determined she is ready.

Posted by: Thaddeus Pope | Mar 13, 2019 3:20:23 PM

I don't think we can generalize to the United States from the European experience. It's not that the Netherlands started with terminal illness and expanded beyond. Rather, the U.S. and the Benelux countries have taken very different approaches to translating end-of-life ethics into law.

In both places, the right to make medical decisions that can shorten life is based on an ethic that people suffering from serious and irreversible illness ought not to be forced to continue suffering.

In the Netherlands, and subsequently Belgium and Luxembourg, the moral sentiment has been implemented directly in a "subjective" fashion. If a person is suffering from serious and irreversible illness, the person can refuse treatment, receive a prescription for a lethal drug, or receive an injection of a lethal drug. Without a requirement of terminal illness, and with physical or psychological suffering covered, there is a much greater risk that life-ending drugs will be prescribed inappropriately. We don't have good ways to measure suffering.

In the United States, end-of-life law has looked for more "objective" ways to implement the guiding moral sentiment. First, the law has done so by prohibiting the ingestion of a lethal dose of medication and allowing the withdrawal of treatment--since people who refuse ventilators and other treatments almost always do so because they are suffering from a serious and irreversible illness. Other refusals reflect religious objections to treatment. But a right to refuse treatment didn't reach people suffering from serious and irreversible illness who were not dependent on a life-sustaining treatment. Hence, states are now allowing aid in dying, but only for people with a terminal illness, who by definition are suffering from a serious and irreversible illness.

I see the risks of a slippery slope as minimal. This divergence in approach between the U.S. and Benelux has existed for more than 45 years.

Posted by: David Orentlicher | Mar 7, 2019 10:29:14 PM

J,

Have the proponents of any idea that ended up *having* a slippery slope ever admitted beforehand that there was, indeed, a slippery slope?

Posted by: YesterdayIKilledAMammoth | Mar 7, 2019 7:29:34 PM

just forgot to clarify:

In the Israeli law mentioned ,consent to terminate life,consist rather on avoidance of treatment,keeping the patient alive(somehow of course) over deliberate act of administration of lethal substance.

Thanks

Posted by: El roam | Mar 7, 2019 4:20:42 PM

The experience with euthanasia in several European countries suggests that the slippery slope is real, and that the "essential" "safeguard" of a terminal illness (of course, we're *all* "terminally ill", in a sense!) is likely to evaporate.

Posted by: Richard Garnett | Mar 7, 2019 3:42:33 PM

Biff - passing a law that something is not murder does, in fact, make it not murder. Murder is a legal construct. “Killing” might not be, And is maybe what you’re thinking of, but murder is an illegal killing. If a killing isn’t illegal, it’s not murder. That doesn’t mean you can’t still be morally opposed to it, however, I’m morally opposed to many things that are legal.

Further, your slippery slope arguments are exactly what the restrictions on euthanasia are designed to limit. I can think of a dozen reasons why we might want to allow an individual to decide to end their own life without giving the same right to the individual’s legal guardian. Those reasons are the very reasons it’s unlikely a law would ever pass allowing guardians to consent to euthanasia. Slippery slope arguments only work if there is some reason to believe that we might actually move down the slope, and I truly don’t see any reason to believe that here.

Posted by: J | Mar 7, 2019 2:56:18 PM

Interesting. We couldn't just understand from the post, whether even without being in terminally ill situation, one patient can give preliminary consent, for future situation, where he might be in terminally ill state.In the Israeli law for example (Dying Patient Law 5760-2005,article 30,31 ) there is such possibility.

One may find great interest then,in that Israeli ruling(precedent)concerning one dying patient,here:

http://www.loc.gov/law/foreign-news/article/israel-tel-aviv-district-court-authorizes-avoidance-of-treatment-for-als-patient/

Thanks

Posted by: El roam | Mar 7, 2019 2:04:35 PM

I am not sure how we would find out if someone was administered death inducing drugs without his positive desire to die. He'd be dead and the people doing it aren't going to report that they killed him without his say so. So I don't think waiting for more data from Canada would show anything.

Besides, I think you are missing an important reason for requiring self-administration. Killing another person without an excuse is murder. We may pass laws saying it's not murder, but that doesn't change the "fact" that it is murder. Permitting that is a big deal. I am not making a slippery slope argument, yet. I am saying that this itself is evil.

Now I will make the slippery slope argument. Once we permit the killing of others when a competent person who is going to die soon consents, by what logic would it be wrong for a guardian of an incompetent person to consent? Guardians consent to medical care for their charges all the time, why should consenting to being killed be different? If it so important to human dignity to die in peace rather than suffer needlessly while waiting to die, how long would it be before a court orders a guardian to consent to have his charge be killed instead of making him suffer? How long would it be before people argue that it is a violation of equal rights to deny incompetent people the right to have themselves killed.

Posted by: Biff | Mar 7, 2019 11:57:35 AM

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