PhysicianAssisted Suicide PHL 281 Y Bioethics Summer 2005

Physician-Assisted Suicide PHL 281 Y Bioethics Summer 2005 University of Toronto Prof. Kirstin Borgerson Course Website: www. chass. utoronto. ca/~kirstin

Overview n Case: Diane n Defining Physician-Assisted Suicide (PAS) n Drawing the line at PAS: n n Quill, Cassel and Meier Wolf n Slippery Slope Arguments n Case: Sue Rodriguez n The Hippocratic Oath

Diane n n n n “I had come to know, respect, and admire her over the past eight years” (Quill, 692) Independent, in control Diagnosis: acute myelomonocytic leukemia Odds 25% survival with aggressive treatment Refused treatment Overdosed with prescription barbiturates Physician said she died of ‘acute leukemia’ “I wonder why Diane, who gave so much to so many of us, had to be alone for the last hour of her life. ” (694)

Physician-Assisted Suicide (PAS) “Suicide carried out with the assistance of a doctor (whose role is typically to provide a lethal dose of a drug at the explicit request of the patient)” (OED) n Distinguished from VAE: n n The final act is solely the patient’s (causal pathway) Distinguished from VPE: n Physician provides means to death (prescription for lethal dose)

Quill, Cassel, Meier VAE ---/--- PAS ------ VPE n Argued: no essential difference between physician-assisted suicide and termination of lifesustaining treatment (passive euthanasia) n n Analogy Principles and VPE

Why PAS but not VAE? n Role of Medical Profession n Risk of Abuse: n n n “In assisted suicide, the final act is solely the patient’s, and the risk of subtle coercion from doctors, family members, institutions, or other social forces is greatly reduced” (421) Power and control In the USA right now, medical care is “too inequitable”; doctor-patient relationships are “too impersonal” (422) But: some patients who cannot swallow or move will be unable to receive PAS This is thought to be “less than ideal” but necessary in light of risks of abuse (cost/benefit analysis) (422) Cost/Benefit Analysis

Objection n Case of the borrowed gun n Suggested principle: Providing means for others’ n Implications for PAS? destruction is wrong

Reply n Modified principle: n n n ‘Providing means for others’ destruction is wrong in cases where the person is in condition x’ Where x = a condition that interferes with competence Lesson for PAS: restrictions needed

PAS Criteria Proposed by Q, C, M n Because PAS is extraordinary and irreversible, the following conditions must be met: 1. 2. 3. 4. 5. 6. 7. Incurable condition with severe suffering Adequate comfort care has been provided Clear and repeated request to die (no surrogate requests or advance directive requests, though) Competence (not depressed, good understanding) Context of meaningful doctor-patient relationship (note: right of conscientious refusal by doctor) Second opinion (consultation) Clear documentation to support each condition

Justifiable Restrictions? n Terminally ill? n Advance directives? n Missing elements?

Wolf VAE ------ PAS ---/--- VPE n n Wolf agrees with concerns raised with VAE Extends these concerns to PAS Reminds us of the importance of social context in discussions of ethical issues Argues: historically/socially vulnerable populations (gender, race, socio-economic status) may be differentially affected by legalization of PAS

Predictive hypotheses (Wolf) n 1. Possible differential effects of PAS (using the case of women, but can be extended to other vulnerable groups): Higher incidence of women dying by PAS n n n n In US, women are less likely to have health insurance Women are over-represented in the ranks of the poor Women have less access to resources (such as home care) Women are less likely to receive good attention from physicians even when insurance is the same Women are at greater risk for inadequate pain relief Women are at greater risk for depression Women more often use attempts at suicide as calls for help or change

Predictive Hypotheses (Wolf) 2. Women might seek PAS for different (and less acceptable) reasons n Women are more likely to be moved by a desire not to be burdens on the family 3. Physicians’ decisions may be affected by gender stereotypes n Historical and poetic valorization of women’s self-sacrifice (especially sacrifices by older women) 4. Many people envision women as recipients when discussing PAS and this may (negatively) influence our reasoning n Gender issues may influence broad public debate on PAS and euthanasia

Empirical Evidence? n Wolf tries to use empirical evidence to make her case n We now have better evidence (from Oregon, for example) n First predictive hypotheses is not supported – almost exactly 50/50 men/women dying in Oregon n Second hypothesis is somewhat supported – women choose PAS more often for reasons such as “being a burden” n Third hypothesis is somewhat supported (though it is difficult to assess) – those requesting PAS are more often younger and higher educated which seems to go against the stereotype of the older, poorer women who sacrifice themselves for their families

Social Context (Wolf) n Fourth hypothesis - our reasoning about PAS is affected by: n Women used in fictional cases (It’s Over Debbie) n n Message – powerful men should relieve suffering of vulnerable women Women used in actual cases (Dr. Kevorkian) n n First eight subjects women Why? n n n Chance? Misogynist? Sexist society and poetic/emotional appeal of women’s suffering and death? ? Evaluation of hypothesis? Society’s sexism is reflected in these cases and may be influencing the debate

Lessons from Wolf n Context matters (reflective equilibrium) n Good idea to pay attention to differential death rates – is one group using PAS more often? Could this be a result of social pressures? n n How, in general, do we deal with social pressures in medicine? What impact does this sort of general social pressure, coercion or manipulation have on people’s decisions? (We will see this again in the debate over reproductive technologies) Justice in health care

Abuse, Safeguards and Legalization n Opponents of euthanasia frequently warn of the possible negative consequences of legalizing physician assisted suicide and active euthanasia (PAS/AE) while ignoring the covert practice of PAS/AE by doctors and other health professionals. Studies in the USA, Netherlands, and Australia suggest that approximately 4% to 10% of physicians have intentionally assisted a patient to die (whether PAS or AE). Are we more or less likely to address issues raised by vulnerable populations if PAS and AE remain illegal (vs. legal with safeguards)?

Slippery Slope Arguments n n Structure: If a(1) then a(2), if a(2) then a(3), if a(3) then a(4)… if a(n-1) then a(n). But we don’t want a(n). Therefore not a(1). Ex/ If we allow abortion then we will have to allow infanticide; if we allow infanticide, we will have to allow the murder of ‘undesirable’ types of people. We don’t want that so we had better not allow abortion. Ex/ If we allow PAS in cases where the patient has given explicit informed consent, we will have to allow PAS for those who have left written advance directives. If we allow PAS on the basis of written advance directives, we will have to allow proxy decision-makers to decide on PAS for patients who have become incompetent. We will then have to allow doctors to make decisions about PAS for patients who have no advance directive or proxy but who ‘would have wanted’ PAS. Next, we will create some ‘objective’ test for patients (including newborns) whose best interests would be served by dying, and from there we will make decisions about which infants should receive NAE. Finally, we will be making decisions about which children and adults should be euthanized, in spite of their expressed wishes (IAE).

Slippery Slope Arguments Possible problems with these arguments? n n At each step, we make a prediction. If we multiply the probabilities, the resulting probability of the chain is reduced. If the probability at each step is 80%, then the likelihood of a(1) -> a(n) if there are 6 steps is only 33%. The more steps involved, the less strong the argument. Slippery slope arguments rest on fuzzy distinctions. If at any point we can make a clear distinction and ‘draw the line’ we can stop sliding down the slope. There is no reason to think that the first step must logically lead to the second step as long as we clearly define and defend the first step and fail to see a similar defense for the second step. We are often psychologically compelled to slide down the slope but that does not mean we are logically compelled.

So… n Can we make moral distinctions between: VPE… PAS… VAE… NAE… IAE… Genocide?

Moral Principles in Legal Debates n n We will now look at some of the specific concerns arising in the legal debate over AE and PAS Allows us to pay some attention to moral issues raised by individual cases (part of reflective equilibrium)

Facts: Legal Status n Active Euthanasia: n n n Physician-assisted Suicide: n n n Netherlands (legalized 2002, permitted since 1984) Belgium (legalized 2002) Oregon, USA (legalized 1997) Switzerland (1941) 76% of surveyed Canadians said they support the ‘right to die’ – Angus Reid Polls 1993 & 1997 (steady response)

Canada n n Canada – AE and PAS illegal (though sometimes not prosecuted) Criminal Code Section 241 n Every one who (a) (b) counsels a person to commit suicide, or aids or abets a person to commit suicide whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.

Canada n Original motivation for this legislation was to protect vulnerable people n Originally included prohibition on suicide but was amended in 1974. n This legislation is broad – prevents all people (not just physicians) from aiding suicide n Challenges usually suggest that physicians be written in as an exception to (b)

Challenges to the Law n n (On six different occasions, motions or bills have been proposed by members of parliament or committees (C 203, C-261, C-385, among others)) Many different challenges to 241(b) in the Supreme Court Most famous and closest to success was the Sue Rodriguez case (1992/3) We will examine this case, and take special note of the moral principles underlying the legal debate

Sue Rodriguez

Sue Rodriguez Case n n n n 40 year old woman living in B. C. Amyotrophic Lateral Sclerosis (A. L. S. ) ‘Lou Gehrig’s Disease ALS – mentally competent while body degenerates In the end, physically unable to swallow, speak, walk or move without assistance Requested PAS but illegal Challenged s. 241(b) of the criminal code on the grounds that it violates ss. 7, 12, & 15 (1) of the Canadian Charter of Rights and Freedoms Supreme Court Decision: s. 241(b) upheld in 5 -4 decision Sue Rodriguez died in 1994 with the assistance of a physician (who was never charged)

Charter Rights and Morality n Charter rights: n n n Section 7 – Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice Section 12 – Everyone has the right not to be subjected to any cruel and unusual treatment or punishment Section 15 (1) – Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Moral Principles Underlying Legal Debate n n Autonomy? Beneficence? Equality/Justice? Which section of the charter seems most appropriate from a moral perspective?

Hippocratic Oath n n Wolf, “The principles bounding medical practice are not written in stone. They are subject to reconsideration and societal negotiation over time” (232) Evaluation of the Oath?

Beyond the Hippocratic Oath n n Next class we begin our exploration of ethical issues raised by new technological and social developments not anticipated in the original Hippocratic Oath Starting with new technology: cochlear implants

Summary n Case: Diane n Defining Physician-Assisted Suicide (PAS) n Drawing the line at PAS: n n Quill, Cassel and Meier Wolf n Slippery Slope Arguments n Case: Sue Rodriguez n The Hippocratic Oath

Contact Prof. Kirstin Borgerson Room 359 S Munk Centre Office Hours: Tuesday 3 -5 pm and by appointment Course Website: www. chass. utoronto. ca/~kirstin Email: kirstin@chass. utoronto. ca