Society Can Implement
following information is based on an excerpt from a 1994
executive summary on assisted voluntary euthanasia and other end
of life decisions of the
British Columbia Civil Liberties
We have presented the main arguments that have been used by those who have thought seriously about the
time when the law will permit one person to assist another person in
voluntarily ending their life.
There was one broad conclusion from this review. The law as it currently stands unjustifiably prohibits individuals from offering forms of assistance that ought to be available to people who have made deliberate and rational decisions to end their own lives. This issue involves a central principle of civil liberties, supported by a reasonably broad social consensus.
We also noted that there are good reasons for retaining some legal limits on the kinds of situations in which assistance can be given to those who express a desire to end their own lives. Again, it is our view that at least some such limits can be identified as a matter of both principle and social consensus, though it is much more problematic to specify the exact point at which broad social consensus about particular issues of principle begins to dissolve.
A point of further clarification is useful, however, before we go on to address the implications for public policy of these views. We are not asserting that general dissatisfaction with the current state of the law can be translated easily into a comparable degree of support for any particular measure that might be chosen to replace the current law. But we are confident that the current state of the law does not permit a proper response to legitimate demands for lawful assistance in suicide. The law should be changed to accept the legitimacy of that demand, however difficult the process may be.
Broadly speaking, there are three approaches that can be taken to the creation of space for some forms of assistance to individuals who have decided to end their own lives.
(1) To maintain the current state of the law as a matter of form but to ensure, as a matter of practice, that the law will not be enforced in certain types of situations, although presumably the law would be enforced in other situations.
(2) To change the law to create either a defense to criminal prosecution or, less satisfactorily, to reduce penalties for certain types of assistance to those who wish to end their own lives in appropriate circumstances. The third is to adopt a broader regulatory approach to the problem of striking the balance between the need to create space for the legitimate provision of assistance in suicide and the need to prevent the abuse of this opportunity, particularly as it affects vulnerable individuals.
It is our view that the first approach is very significant flawed and that the second, while deserving of some attention, remains unsatisfactory. We will briefly set out our reasons for this view, and then go on
to outline the considerations that need to be addressed if a workable regulatory scheme is to be implemented. Although we will identify what we believe are the issues that have to be addressed in the creation of a regulatory scheme, we will not seek to make
recommendations on which choices are most appropriate, since we see that as being the subject of a separate paper.
Selective Enforcement of Criminal Prohibitions
We start with the observation that, on the surface at least, selective enforcement of the current legal prohibitions on assisted suicide seems to represent the current state of affairs.
As long as official policy on the exercise of prosecutorial discretion acknowledges the legitimacy of the current law, there will be ongoing pressure to prosecute people who provide assistance in suicide even if the government would prefer, as a matter of policy, not to prosecute at least some of the people who are providing such assistance. The uncertainty of this situation will inevitably mean that some people who would be prepared to provide suicide assistance in appropriate circumstances will be unwilling to do so because of the fear of prosecution. In turn, such assistance for those who have a legitimate need for it is likely to be restricted or, at best, very uneven.
Moreover, when a blind eye is turned to assisted suicide and active voluntary euthanasia despite official proscription, it is impossible to prevent abuses.
If those who are well qualified to provide effective suicide assistance are unwilling to do so, their place is likely to be filled in some instances by well-meaning but incompetent individuals who will actually increase the suffering of those who wish to end their lives. We are then faced with the dilemma of either prosecuting these individuals, thereby enhancing concerns about the risk of prosecution in the minds of those who are qualified to provide such a service competently, or recognizing, in effect,
the law's inability to prevent the harms flowing from the incompetent provision of suicide assistance. In addition, and
perhaps most importantly, this either/or approach prevents individuals, or society, from addressing in a rational way the proper limits that should be placed on assisted suicide.
One way of addressing these difficulties would be for the Attorney General to abandon any pretence of enforcing the current law and overtly engage in an exercise of announcing under what conditions assisted suicide will be prosecuted and under what conditions the current laws will not be enforced. This approach raises several easily identified problems, both for citizens and for the federal government.
From the point of view of citizens, as long as a criminal law is in place, an assurance from the Attorney General that prosecutions will not take place offers insufficient assurance for those who are prepared to provide suicide assistance, thus failing to alleviate the concerns raised above.
Creation of Defenses to Criminal Prosecution
There are two broad approaches to providing defenses against criminal prosecution in cases of assisted suicide or voluntary active euthanasia.
The first approach is to provide an absolute defense to a criminal charge in a defined set of circumstances.
The second is to mitigate the penalties associated with the offence in a defined set of circumstances, either by creating a new offence that incorporates what are perceived to be mitigating factors and attaching lesser penalties to that offence, or by allowing the mitigating factors to influence judicial discretion in sentencing. The fundamental difference between these two approaches is that the first concedes that what was done was not wrong as a matter of law, whereas the second retains the notion of wrongfulness but concedes that the nature of the wrong is not as serious as it might be in other circumstances.
Our difficulty with the second variation is that it seems to us highly problematic to make a determination that assisted suicide or voluntary active euthanasia, when done in an appropriately limited range of situations, ought to be considered wrong as a matter of law. Killing in
self-defense is not deemed to be wrongful, even though one may regret the death of the person who was killed and even though one may justifiably be cautious about expanding the range of situations that can be defined as permitting killing in self-defense.
In our view, therefore, the mitigation approach does not address the legitimate need for legal space in which appropriately limited acts of assisted suicide and voluntary active euthanasia can take place. Accordingly, we will not explore this option further, but will turn to the creation of a full
defense to criminal prosecution for certain acts of assisted suicide and voluntary active euthanasia.
In one respect, this type of defense has to be integrated into the regulatory scheme we propose under the third option set out below. Since we recognize the potential for serious abuse of assisted suicide and voluntary active euthanasia, it is necessary to retain serious penalties for such abuses.
What is needed, therefore, is a vehicle for drawing reasonably clear distinctions between situations in which we are prepared to accept the practice of assisted suicide and voluntary active euthanasia from those situations in which such. The fundamental difference between the use of a criminal
defense to establish that boundary and the use of a regulatory approach is that the regulatory approach seeks to provide an individualized determination of whether the necessary conditions have been met in advance of any action being taken to end a person's life, whereas the criminal
defense approach makes that individualized determination only after the fact, in the context of a criminal prosecution carries substantial penalties.
In our view, it is better to make advance determinations in individual situations rather than after the fact determinations.
First of all, the prior authorization provides a higher level of comfort for those in suicide assistance or voluntary active euthanasia. As a consequence, they will make their services more readily available to those who have a legitimate claim.
Secondly, and of equal importance, a regulatory mechanism offers the potential for more effective controls on abuse. We expect that the availability of prior authorization will tend to channel cases of assisted suicide and voluntary active euthanasia through the regulatory system so we can get a better sense of what is actually happening in society. As long as the threat of prosecution exists, these practices are likely to continue to be secretive, with all the attendant difficulties in gathering evidence about and prosecuting those who go beyond the legitimate boundaries on suicide assistance and voluntary active euthanasia.
Aside from the design of the system of prior authorization itself, most of the considerations that have to be addressed in the context of a regulatory system are also relevant to the design of a criminal
In other words, even if the federal government decided to create a defense
to criminal prosecution rather than a regulatory apparatus to deal with assisted suicide and voluntary active euthanasia, the decisions on the proper limits to the
defense will force the government to address most of the questions that we raise as issues to be addressed in the design of a
regulatory scheme. Accordingly, we will not attempt to canvass these issues here, but will do so in the context of our discussion of a regulatory scheme.
Regulatory Authorization of Suicide Assistance
As we noted above, a system of prior authorization for certain forms of suicide assistance and voluntary active euthanasia provides the most effective vehicle for achieving the twin goals of recognizing the legitimacy of the demand of some people for access to these end-of-life options and for restricting abuse, particularly of those who might be especially vulnerable. Here we will outline the framework of questions that need to be addressed in designing such a regulatory scheme.
The regulatory scheme must address the following questions at a level of principle:
(1) Who is eligible to ask for assistance in suicide or voluntary active euthanasia?
Should we impose qualifications such as requiring that the person be terminally ill, that the person be in severe pain, that the person be physically incapacitated and thus unable to take action to end his or her own life, etc.?
(2) How do we determine voluntariness?
What measures are needed to ensure that those who are vulnerable are not subjected to improper influences in deciding to end their own lives?
(3) Who should be allowed to provide suicide assistance or voluntary active euthanasia?
Should we restrict the practice to those who, because of their medical training, are in a position to ensure that death will be swift and painless?
(4) What mechanisms should be put in place for ensuring that the necessary conditions are met before steps are taken to end a person's life?
Options For a Regulatory
The question of who qualifies for assisted suicide and active voluntary euthanasia is perhaps the most critical
issue to be addressed.
If the question were to be settled simply by determining who has a good reason for death, access to these practices should be widely liberalized. Life cannot be regarded as an unconditional good, but rather as something which is valuable only if one
has the possibility of wanted experiences. If a person cannot have any wanted experiences, or if continuing to live
requires unwanted experiences which overbalance the wanted experiences, then that person has a good reason to die. The class of patients who have a good reason to die would include those who have non-terminal and even curable impairments, either physical or mental, and would include the young and the incompetent as well as the adult and competent.
However, we cannot settle the question of who should be eligible for aid-in-dying simply by settling the question of who has a good reason for death. In considering legislation in this area, we must also take into account the very real potential for mistakes and abuse, and these increase dramatically the more eligibility is liberalized. For example, to allow assisted suicide
and active voluntary euthanasia on children or those with a mental illness significantly increases the potential for abuse.
We thus find ourselves pushed to a liberal answer by considering who has a good reason to end their life, and
to a conservative answer by considering the potential for abuses and mistakes. Below are some of the issues which need to be considered when deciding who is eligible.
(a) Must death be imminent?
Some proposals restrict eligibility to those whose prognosis is for imminent death
(say, within six months). This minimizes the consequences of abuse
and mistakes, for the obvious reason that the patient would have died soon anyway.
However, there are problems with creating such an eligibility requirement. It is often difficult for physicians to provide an accurate prognosis regarding how long the patient has left to live. The restriction seems arbitrary since it is not clear why the remoteness of death should be a determining factor. And it would exclude persons with incurable, but not imminently terminal, progressive illnesses. The perpetual suffering of persons who are not close to death may be of even greater consequence than that of persons whose death is imminent.
(b) Must the condition be terminal?
Several proposals restrict eligibility to those with a terminal illness. Such a restriction removes the problematic six-month limitation, but retains some of the appearance of limiting the negative consequences of mistakes and abuses
(i.e., the disease will kill the person sooner or later).
It is not clear why a person with an illness that is not terminal ought to be barred from access to
aid-in-dying. Non-terminal illnesses such as Alzheimer's can lead to virtual total impairment of mental or physical capacities, and can progress to a point where the patient can no longer end their life in a dignified and peaceful way without assistance, even though death from the disease may not be inevitable. Quadriplegia is another such condition. If the reasons for allowing aid-in-dying rest on
the patient's judgment that their life is no longer worth living, and if there is no significant increase in the potential for abuse or mistakes attached to such medical conditions, it is questionable why such a limitation should be placed on patient's access to aid-in-dying.
(c) Must the condition be incurable or irreversible?
There is a plain and obvious reason why this should be a condition of access to aid-in-dying: if the condition which is producing the suffering can be cured or reversed, the patient's reason for preferring death to life will likely disappear.
However, there may occur circumstances where, in the patient's view, the cure is worse than the disease. The treatment may be of doubtful efficacy, prolonged, painful, and have such serious side effects that it would not be unreasonable for the patient to prefer death to living with the condition untreated or suffering through the treatment with no guarantee of success. A requirement for counseling, and consultation with another physician, would address most of the concern that allowing access by such persons to assistance in dying would increase the potential for abuse or mistakes. To argue otherwise, evidence of an increased likelihood of abuse or mistakes would need to be produced in order for the presumption of
honoring patient autonomy to be overridden.
A point needs to be made here: the more one liberalizes access to aid-in-dying, the greater the number of patients who
will seek assistance, and the sheer number of these will inevitably increase the number of abuses and mistakes. But this should not by itself be sufficient to restrict access.
For example, if the likelihood of abuse for patients with terminal illnesses is 1% and the likelihood of abuse for
patients with non-terminal but incurable illness is 1%, then a further reason must be presented in order to exclude the latter, despite the fact that including the latter will inevitably increase the number of abuses and mistakes.
(d) Must intolerable pain be present?
We naturally think of intolerable physical pain as a paradigm for access to aid-in-dying since its presence clearly makes continuing to live a burden, and it is to some extent verifiable, thus apparently providing a more objective standard. Some proposals include pain as a criterion.
Yet there is an inherent problem in including pain as a criterion. It is not only difficult to measure pain, but especially difficult to measure "intolerable" pain, or pain "so great that its elimination would render the patient unconscious". Patients' reaction to pain is highly individual and subjective, and descriptions of pain
("intolerable" or "unbearable") admit of no objective standards.
Moreover, it is not obvious why physical pain should be a standard at all. The distress that some patients experience as their mental and physical capacities decay, the indignities caused by the loss of bodily functions and the insertion into their bodies of medical appliances, the terror of breathlessness or uncontrolled vomiting, and so on are mental states worthy of recognition in this matter, as much so as pain whose cause is physical in origin.
Some proposals include technological dependence as a criterion. Here, a patient whose prognosis involves continued reliance on the administration of life-sustaining treatment without any reasonable expectation of living without that treatment would
qualify for aid-in-dying. It needs to be shown why the hopelessness, distress and indignity that such a life can bring should not bring the patient within the scope of this legislation.
It is important to remember that in limiting legal space for aid-in-dying, the government is not be in the business of characterizing certain lives as not worth living and others as worth living. The task in legislating in this area is to provide legal space for aid-in-dying to those whose own view of their lives is that life is not worth living, and who may need assistance in
ending an intolerable existence. There will be many who qualify for aid-in-dying but who have no wish to end their lives. The criteria should not reflect society's view of whether a such a life is worth living, but rather should reflect the point past which the potential for mistakes and abuse overrides the presumption that it should be up to the patient to make such a momentous decision.
(e) Need the patient be physically incapacitated?
What is contemplated in such legislation is provision for assisted suicide and active voluntary euthanasia for those patients who are unable to avail themselves of the means to end their lives in an easy and painless manner.
In this regard we normally think of patients who are physically incapacitated to the point where they cannot swallow a pill or inject themselves. However, the question arises whether other patients should have access to these practices. It is equally against the law to intentionally supply persons with the means to kill themselves, even where the persons are unable to obtain those means by themselves. One thinks here of bedridden patients who could swallow a pill if they could obtain one, but cannot obtain
one by themselves. The argument is that it would be unfair to such patients to legally bar them from having someone assist them by supplying the means to commit suicide while at the same time making legal space for incapacitated patients to have assistance in dying.
There would likely be an enormous increase in abuses and mistakes if anyone could legally supply a person with the means to commit suicide. However, if the practice was restricted to physicians, and if the procedural requirements
applicable to incapacitated patients were applied in these cases, there is little reason to think that the potential for abuse or mistakes would be any greater in the cases at hand. If such patients are to be barred from aid-in-dying, the evidence for increased potential for abuse or mistakes needs to be presented.
In discussing the creation of legal space for assisted suicide and active voluntary euthanasia, we cannot emphasize too strongly that we are speaking of situations where people themselves have chosen to end their lives. In our view, the most significant concern that policy makers need to address in opening up access to assisted suicide and active voluntary euthanasia is the possibility that the choice of death is not a voluntary one, whether because of improper pressure being placed on the patient or for any other reason.
We consider this issue in our discussion of procedural requirements, and in particular in the context of possible requirements for a waiting period and patient
counseling. The requirement of voluntariness gives rise not only to issues of undue influence, but also to issues of competence. In our view, a choice cannot be said to be voluntary in any meaningful sense unless it is made by someone whom we are prepared to recognize as having the capacity to understand the nature and consequences of the choice. A regulatory scheme must therefore address the issue of competence to make such a choice.
Most proposals limit access to the competent.
If patients are not competent to make treatment decisions for themselves, they require a substitute decision maker to make treatment decisions for them, or to confirm such decisions. To make legal space for the incompetent to choose aid-in-dying is then to place the decision to live or die in the hands of the substitute decision maker. Such a provision would substantially increase the potential for abuse and mistakes.
Not allowing the incompetent access to aid-in-dying will result in some patients being forced to continue living hopeless, painful lives which they may not want to continue. Patients do not suffer any the less for being unable to make treatment decisions. However strong the presumption is in
favor of competent patients determining when to end their lives, a presumption of the same strength applies to the incompetent. The question is whether the increased potential for abuse and mistakes is enough to outweigh that presumption. The drafters of most proposals have concluded that it is, and we would strongly endorse this view.
(b) Determination of Competence
If competence is regarded as a necessary condition for access to aid-in-dying, the question arises whether the legislation should set out the manner in which is to be determined. Many proposals include such a provision. Among the proposals are: that a mental health evaluation be conducted; that a skilled
counselor (in conjunction with the attending physician) assess competency; that where there is a question about the competence of a patient, it should be resolved by a psychiatrist; and that
the attending physician determines competence.
Under "normal" conditions, competency is left up to the attending physician to decide. However, where aid-in-dying
has been requested, the conditions are often not "normal": the patient may be near the end of a long series of invasive or
painful treatment, under heavy doses of pain medication, and potentially clinically depressed. It is difficult in such circumstances to
make an accurate assessment of the patient's competency.
A provision for the opinion of a mental health professional has distinct advantages. Such a professional will be skilled is assessing competence, and bring an objective view to the assessment, thus lowering the risk that the patient has made the request during a period of temporary, treatable depression. The attending physician may be inexperienced in the diagnosis and treatment of depression.
On the other hand, there will be circumstances where there is no doubt that the patient is competent, and the injection
into the process of a mental health evaluation is costly, and may unnecessarily lengthen the time during which the patient must suffer. In addition, the assessment of competence and even of clinical depression in difficult circumstances is not an exact science, so the gain in accuracy may be marginal. Even without special skills, the attending physician
(who will likely have spent considerable time with the patient) may often be in the best position to make such an assessment.
The decision whether to require an independent assessment of competency is a difficult one. If it is left to the physician to request an independent assessment when he or she is unsure, the risk is that some incompetent patients may receive aid-in-dying. If an independent assessment is mandatory, the risk is that some, perhaps many, competent patient's agony will
be unnecessarily prolonged.
(c) Should access be restricted to adults?
Most proposals restrict access to adults. While this restriction may preclude otherwise compelling requests for assisted
death, the vulnerability of children as a class points in favor of their being protected from abuse.
On the other hand, it is not obvious why age by itself should be a criterion. Patients who are 17 or 15 or even 13 years of age are allowed some degree of control over treatment decisions, and they may equally be as competent as any adult to understand the nature and consequences of a request for aid-in-dying. Certainly they do not suffer any the less. A strong argument can be made that some age limit must be set
(no seven-year old should be allowed to make such a decision), but it is at least questionable whether the age of majority is the appropriate legal limit.
One alternative would be to require that the patient be competent, then specify that those under a certain age
(say, 17) are presumed not to be competent. A decision of incompetence
based on this age limit could then be appealed in the courts.
(d) Challenges to ineligibility
Provision could be made in the legislation for a patient to challenge a decision either by the physician or by a review panel that he or she is ineligible for aid-in-dying. Although the initial appeal of a physician's decision could be to a review panel, it
makes sense that the patient ultimately have access to the courts for a review of the decision. Such an appeal should probably be on the facts.
Who May Provide Aid-In-Dying?
Most legislative proposals restrict the practice of euthanasia to physicians. Such a restriction has important benefits to the patient and to others. Physicians have the expertise to assure a painless, dignified death. In addition, physicians would inevitably be involved in the procedural safeguards necessary for a defensible practice. These include seeing that the patient is informed about their condition, prognosis and possible treatments, and ensuring that all possible steps have been taken to improve the quality of the patient's life. Open discussion and involvement with a physician may also bring to light other options.
One necessary protection against abuse of the practice is to limit the persons given authority to perform it, so that they can be held accountable for their exercise of that authority. Physicians are an appropriate group of persons to whom the practice may be restricted.
Some proposals further limit the practice to those physicians who are specially trained and certified in administering aid-in-dying. This would create a new "specialty" of physicians who are skilled in relieving suffering and, when necessary, terminating life painlessly. It would have the advantage that patients would avoid being shuffled from physician to physician trying to find one who is willing to assist in death. Some might regard the specialty as "ghoulish" or as transforming aid-in-dying into a "factory-like" practice. It is suggested that this is an issue that need not be addressed in legislation, but could be left to the medical profession.
Other proposals limit aid-in-dying to the practicing physician who is currently responsible for the patient's care. This assures that the person administering aid-in-dying knows most about the patient and his or her condition, and that the practice would be carried out in the context of a meaningful doctor-patient relationship. However, it has the distinct disadvantage that the attending physician may be opposed to physician-assisted death, and could preclude some patients from being able to access a legal and desperately wanted medical treatment.
Finally, there are proposals which would allow persons other than physicians to administer aid-in-dying, so long as they
act under the supervision of a physician. This would give patients greater control over their own death. However, it has
two major disadvantages. Those administering aid-in-dying might not have the knowledge or skill to do so properly, and this could lead to botched attempts. And by widening the number of persons administering aid-in dying, it increases the difficulty of effectively monitoring and regulating the practice.
Whichever proposal is accepted, physicians are going to be involved in the process. This raises the problem of those physicians who on grounds of conscience oppose the practice. Under current law, and under the medical profession's Code of Ethics, no physician is required to perform any medical procedure to which they are opposed either for ethical or medical reasons. It is clear that such a liberty ought to be extended to aid-in-dying procedures. If doing so requires legislative stipulation, it should
be so stipulated.
But then the problem of patients' access to aid-in-dying is raised, since an attending physician may be opposed on grounds of conscience to the procedure, and may refuse a patient's request for assistance in ending their life. One suggestion would be not to limit aid-in-dying to the attending physician, and to stipulate in the legislation that when an attending physician who is opposed on grounds of conscience to aid-in-dying receives a request for aid-in-dying, the physician must refer the patient to another physician who is not opposed to such a procedure. Another suggestion would be simply to limit aid-in-dying to physicians, and then leave regulation of this matter up to the medical community.
(a) Form of the request
Most proposals contain a requirement that there be a stipulated form for requests for aid-in-dying, and that patients sign this form in the presence of witnesses.
There is much to be said for such a form being incorporated in the legislation. This would ensure that the substance of
the formal request for aid-in-dying, and so the protections offered both to patients and to physicians, would reflect the government's concerns in this matter and be standard across the country. Provision could be made for patients who are physically incapable of signing such a form. One suggestion is that patients may designate third parties to sign the forms for them, where the designation and the signing are carried out in the presence of the same witnesses.
Some proposals also require that the two witnesses to the signing of a form of request for aid-in-dying be
"independent" or "disinterested". This requirement is intended to lower the potential for undue influence or subtle coercion on the part
of family members or others who may be affected by the patients' death, or who may have too close a relationship with the physicians.
It has been suggested that disinterested means a person "not related by blood or marriage and who will receive no portion of the patient's estate upon the patient's death".
"Independent" has been taken to mean that a witness may not be (1) related to the declarant by blood or marriage;
(2) entitled to any part of the estate of the declarant; (3) directly, financially responsible for the declarant's medical care, and
(4) the attending physician, or an employee of the attending physician, or an employee of a health care facility in which the declarant is a
patient. The problem of knowing who will receive a portion of a patient's estate could perhaps be overcome by having the witnesses sign a declaration as to their independent or disinterested status, which includes "to the best of my knowledge, I will not receive any portion of the patient's estate".
It is probably best that in witnessing the patient's signature, the witnesses only attest that the signature on the
request for aid-in-dying form is that of the patient, i.e., that it matches the patient's name. It would likely be unduly onerous for the witnesses to have to satisfy themselves that the patient is of sound mind, not under duress or undue influence, and so on. In any case, they would not often have the expertise to make such a determination in any meaningful manner. But if that is all they are attesting to, it is questionable whether they need to be either "disinterested" or "independent" as these are defined above.
(b) Waiting period
A waiting period between the time of the request and the time of the procedure is sometimes recommended in order to ensure that patients have not decided too quickly that they want to die. Such a requirement seeks to confirm that the request is not a transient product of depression, of impulse, or of
judgment distorted by pain.
Any such requirement must strike a balance between the need to ensure that the request flows from a firm decision, and the need not to unnecessarily prolong suffering. One option is to require a specified time period between the signing of the request form and the administration of aid-in-dying, say 30 days. Another is to require that the patient "clearly and repeatedly" request to die. A third is to specify no such time period or sign of a firm decision, once the other requirements of the legislation have been met.
The advantage of the first option is that patients do not have to keep on asking for death; rather they simply have to show no indication that they have changed their minds. The requirement for repeatedly asking for death sets up an artificial situation where patients would have to be informed that this is a requirement, and the requests would flow from the patients' knowledge of the requirement. On the other hand, a specified waiting period risks putting patients through unnecessary suffering when
their decision has been firm from the time of the request. The third option, which specifies no waiting period, answers both these problems, but takes no notice of the possibility that patients might, if given time, hesitate or change their minds.
There is probably no perfect solution to this problem. The government should remember that a requirement for
counseling of patients will have addressed the question of whether there is a firm and settled desire for death, and there should be a clear specification that if at any time up to the last moment a patient wavers, the procedure is suspended. Beyond these safeguards, any waiting period of more than a few days would likely result in unnecessary suffering. Given enough time, any patient
may waver regarding such a momentous decision, but that does not show that a quick death was a mistake. Patient autonomy, and the terrible toll of such suffering, bear much weight.
Although it is assumed that as part of their professional responsibilities attending physicians will have discussed the patient's diagnosis, prognosis and options for relieving pain and discomfort with the patient and the patient's family, there is much to be said for including in the legislation a requirement for patient and family
counseling prior to a signed request for death becoming valid. It might be appropriate for there to be a stipulation that
counseling include discussion of the patient feeling themselves to be a burden to others, and any pressure that they feel from others to access the aid-in-dying option.
It is in our view fundamental to the legality of assisted suicide and active voluntary euthanasia that the patient was fully informed of all the factors relevant to a decision to request assistance in dying and that they were capable of understanding and appreciating these. There should be no doubt in a physician's mind what the legal requirements are regarding an informed decision to request death, and the best way to ensure this is to set it out in the legislation. Where the patient has no family members involved in treatment decisions, their absence should be noted by the physician in the documentation.
Many proposals require that the attending physician consult with another physician to confirm the diagnosis and prognosis, although some require only that consultation take place when the attending physician is uncertain about the patient's condition or prognosis.
There is a pronounced advantage to a requirement for consultation in all cases. One of the concerns expressed by the majority of objectors to legalizing these practices is the potential for a misdiagnosis or prognosis. An unnecessary death is irreversible and a tragedy. Further, there is no question but that most patients and their loved ones would want to be as certain as possible that a diagnosis of a terminal illness is correct. The concern here is not unreasonable. The legislation might include a requirement that the physician consulted be independent
(i.e., not a colleague of the attending physician and not previously involved in
the patient's care.), that he or she conduct their own examination of the patient, and certify in writing that the diagnosis and
prognosis are confirmed. This would address the concern that it might be too easy to find a "complaisant" colleague who merely "approves" the diagnosis as a formality. The legislation might also require that the consulted physician be experienced in the area of the diagnosis.
The disadvantage of such a requirement is that there are time and cost factors involved in having another physician examine the patient. In some cases a second opinion might have already been obtained. In others, especially in the final stages of an illness, there may be no real question about the nature and course of the illness.
Review of the Decision
Many proposals require that an aid-in-dying request be submitted to a panel for review, such as an Aid-In-Dying Board, a tribunal, or a hospital Ethics Committee. Others provide for a review only when the physician feels it necessary. And amongst these proposals there is disagreement as to whether the panel or Board should have the power to veto a patient's request for aid-in-dying, or rather simply assure that all procedural requirements have been met. It has been suggested that membership in such panels or Boards should consist of representatives from a cross-section of professional backgrounds, and include a representative from the field of ethics or civil liberties.
This proposal flows from the view that independent review before the assisted death is carried out is an essential safeguard against wrongdoing or possible errors in
judgment. Errors here can have tragic and irreversible results. Moreover, there is a need to ensure the integrity of the process of aid-in-dying, given the concern about it which has been expressed in some quarters.
The difficulty with such a proposal is that administrative delays and obstruction may result from the institutional inertia of requiring a procedural review. Moreover, the physician will be well aware of their professional obligations, and of the necessity to satisfy all procedural requirements
(on pain of a Criminal Code charge). As a result, there is little likelihood that these would not be satisfied. A requirement that the attending physician submit all documentation to the Coroner's Office would further ensure that all procedural requirements were met.
Another difficulty is that, given legal liability, even a procedural review by a Board may in practice result in the Board having veto power. An alternative proposal which could answer this concern would be to require the physician to go over the procedural requirements in a case conference with members from a hospital's ethics committee.
There is also a concern that aid-in-dying is essentially a matter between the patient and his or her physician, and should not be open to review by any panel or Board, whose members will have had no contact with the patient, and who may well reflect the biases of their respective disciplines rather than the interests of the patient and the community at large. Thus, a procedural review may not be necessary, and a substantive review would not be welcome.
In deciding this issue, the government will have to address two issues. Is it proper for a review panel to have the authority to approve or reject on substantive grounds an application for aid-in-dying - that is, to second guess a patient's decision made in consultation with their physician? And does the need to ensure the integrity of the process outweigh the concern that a review on procedural grounds is both unnecessary and poses a risk of undue delays? Provision for a strict time limit
(say, five days) could partially answer the second concern, and address the concern raised in Objection 6.
Method of Aid-In-Dying
Some proposals stipulate conditions for the method to be used in aid-in-dying. For example, one proposal stipulates that the method must be the least active possible. Others stipulate that it may be any method which will terminate the life swiftly, painlessly and humanely. Some place the control of the method in the hands of the patient, others in the hands of the physician.
It is unclear why the activeness of the method is thought to be relevant to the decision. If the method needs to be characterized in the legislation at all, it should be characterized in terms of the case for aid-in-dying - that is, the one producing the easiest and most dignified death. There is much to be said for the choice of the method being placed in the hands of the patient. What is important is which method is "easiest" and "most dignified" in the eyes of the patient. If the method chosen by the patient is not acceptable to the physician, the physician always has the option not to administer the treatment. There is also much to be said for leaving this issue out of any legislation, and consider it as a matter best dealt with by the medical profession.
Documentation and Reporting
Some proposals contain stringent requirements for documentation and reporting by the physician in order to provide for a continuous monitoring of the practice, and as an additional check to safeguard against mistakes and abuses.
For example, the Netherlands requires that the physician maintain records of the patient's request, the
patient's condition, counseling, the findings of the Aid-in-Dying Board, the name of the physician providing aid-in-dying, and the date and time of aid-in-dying. In addition, the physician must submit a report with supporting documents to the Coroner, who must review the report, determine the cause of death, and present a follow-up report to the Attorney General's office.
Documentation and reporting requirements are important. They can provide for a review of the physician's conduct in
the individual case, and provide the information for continuous study of the practice. We can see no good reason for
excluding such requirements from the legislation.
Issues surrounding end of life decisions have become a persistent feature of the American political landscape. Public opinion is now ready to grapple with these issues, and an open and frank discussion of the promise and problems surrounding the end of life now lies at the doorstep of the federal government, regardless of the political stripe of the party in power.
The threshold issue of whether to permit aid-in-dying at all will require religious and secular perspectives and a thorough review of the personal and professional issues, both for those seeking aid-in-dying and the professionals involved in the care of those who seek aid-in-dying. An effective and functional policy on these issues cannot evolve without some degree of consensus amongst the many voices in our society affected by such profoundly personal matters.
Our own perspective on the threshold issue of whether or not to allow aid-in-dying is clearly on the side of personal autonomy for the individual facing death. Practical policy constraints arise when one considers who should be eligible, how, and under what circumstances. The state must impose some reasonable constraints on eligibility and upon those performing the acts which result in the death of another. But once the state permits aid-in-dying, it has an obligation to ensure that such deaths will be timely, painless and with minimum anxiety arising from bureaucratic process. The state must ensure that the person requesting death is indeed an appropriate candidate, but once that is established, the state surely has an obligation to respect that wish for early death, rather than to encumber these most vulnerable and helpless people with red tape and administrative delay.
A functional regime for the regulation of assisted suicide and voluntary euthanasia will require that individuals be screened for eligibility in a timely and compassionate fashion, that they have the services of an appropriately skilled physician available for effective assistance in dying, and that there be effective reporting and monitoring of such deaths. Monitoring is essential to provide assurances that abuses of the option for early death are minimal, that appropriate process is followed, and that inappropriate actions by families, care givers and the state itself are properly controlled, penalized or ended.
Once such a framework is in place, it must be well publicized. The goal of all of these policy building efforts must be to ensure that everyone, both lay and professional, have confidence that they can come to the end of life knowing what the rules are - and that they may therefore face death with less fear, knowing that a compassionate and reasonable approach to end of life decisions is available to them.
"O death! We thank you for the light that you will shed upon our ignorance." -
Copyright 2007 Near-Death Experiences & the Afterlife