On Assisted Dying and Non-Neutrality

by Gerald Dworkin

Three years ago I posted on this site “California Dying” about my experience in working for an assisted-dying bill in that state. That bill passed and while it has been involved in litigation by its opponents on a tactical issue of whether it was  the right type of issue for a special session of the legislature, it is anticipated that it will survive intact. Since I have a residence in California I am eligible for such assistance should I need it.

Since I live the other six months in Illinois I am now working to achieve a similar result in that state. Medical Aid in dying is now legal in California, Oregon, Washington, Colorado, Vermont, Hawaii and DC. It is legal In Montana in the sense that physicians are immunized from prosecution as long as they have patient consent but there is no regulatory system in place. It is the law in all of Canada.

Another important development is that a number of state medical societies are shifting from the AMA’s stated opposition to assisted dying, to a neutral position.

In 2015 the California Medical Association shifted to a neutral position.

“CMA has removed policy that outright objects to physicians aiding terminally ill patients in end of life options. We believe it is up to the individual physician and their patient to decide voluntarily whether the End of Life Option Act is something in which they want to engage.”

In 2016 the Colorado Medical Society did likewise.The board of directors of the Colorado Medical Society, out of respect for the strongly held divergent principled views of our colleagues regarding end-of-life assistance as proposed in Proposition 106, voted to take a neutral public stance. Similar stands have been taken in DC, Maine, Maryland, Nevada, Minnesota and Oregon. Many national organizations have taken a similar neutral stance — The American Public Health Association, American Medical Student association, American College of Legal Medicine.

The New York State Society of Family Physicians (120,000 members) went further to endorse assisted dying.

RESOLVED, that the NYSAFP support expansion of options for end-of-life care to include medical aid in dying by means of a patient-directed, patient administered prescription medication.

There has even been some small movement in the AMA. This June a committee which had been studying the question of whether to change the existing policy opposing aid in dying recommended that the policy be kept but delegates at the AMA’s annual meeting in Chicago instead voted for the organization to continue reviewing its guidance on the issue. This, in effect, meant the existing policy remained in force but did not explicitly re-endorse the policy.

I had not thought very much about the general issue of  neutrality except to welcome it as a first step towards full acceptance of assisted-dying. A search of the literature brought up as the first item:

Physician-Assisted Suicide: Why Neutrality for Organized Medicine is Neither Neutral Nor Appropriate,  Journal of General Internal Medicine August 2018 1394-99.

It has five authors; two of whom, Kathleen Foley and Mark Siegler, I remembered from the time I was writing, with Ray Frey, my co-authored Physician-Assisted Suicide: For and Against. We were for. Sissela  Bok was against.

I want to consider the arguments they present arguing that neutrality is not either neutral or appropriate.

They are clearly correct that the policy of neutrality is not itself a morally neutral position. While some might argue for neutrality without taking a stand on assisted-dying, e.g. simply arguing that the membership is divided or that it is not appropriate for an organization such as the AMA to take a position one way or the other, neutrality is in conflict with a policy that condemns assisted-dying —an ethical judgment— and therefore is itself one.

It is true that arguments for neutrality such as the one that members may have different views  about some issue, and therefore, the organization should not take a stand, do not appeal directly to the characteristics of assisted-dying, so they seek to avoid substantive moral discussion. But such an argument for neutrality on aid-in-dying is simply not convincing. Physicians have sharply differing views about  single-payer, or whether they should participate in lethal injection, or the role of conscientious objection in medicine. I am not in favor of neutrality on any of these issues.

I favor the view that physicians should not participate in lethal injection: “Prisoners and Patients: the Ethics of Lethal Injection“. This view is independent of my views about capital punishment. Even if I favored capital punishment–and I do not–I would want it carried out by competent executioners and not by medical personnel.  I do not, therefore, favor neutrality by the AMA but support their view that it is inconsistent with a doctor/client (condemned prisoners are not patients!) relationship.

Having agreed that neutrality is not neutral I now turn to substantive arguments for neutrality about assisted-dying.

The authors begin by stating correctly that any substantive argument for moving to neutrality must be a defense of assisted-dying against arguments which condemn it. One cannot be neutral about a policy which is morally evil. So moving to neutrality must show that the arguments given by those who condemn assisted-dying are not sound.

The Authors state that their position depends on three factors–the meaning of medical practice, the importance of the patient-physician relationship, and respect for the common good.

Here is their claim about the meaning of medical practice.

“The Facilitation of Suicide is not a Healing Act. Medicine’s central task is to heal. Although healing is a much broader concept than curing, it makes no sense to claim that patients have been healed by having assisted them in ending their lives. Symptom relief heals, and forgoing treatment acknowledges the limits of healing, but PAS undermines the very meaning of medicine.”

This relies on a claim that medicine has one central task and that task is to heal. This seems to exclude palliative care from medicine. But this is immediately qualified and gets under the barrier because it “acknowledges the limits of healing.”

What about taking a patient off life-support–at the patient’s request–resulting in the death of the patient? I assume this would be defended as a recognition of the patient’s right to autonomy. What about increasing the amount of morphine to relieve pain knowing it will result in the death of the patient?

To handle this last –lethal doses of pain medication–  they invoke,without actually mentioning, the principle of double-effect which maintains that there is a morally important distinction between intending death and foreseeing it as a result of what one does.

This principle is essential for opponents of assisted-dying who want to justify the many things which physicians do that bring about the death of their patients. Doctors, at the request of patients, may — indeed legally must or face battery charges — take their patients off life-support knowing the certain result is the death of their patient. Doctors place patients–often at the request of their loved ones–in palliative, sometimes called terminal, sedation to relieve painful symptoms which cannot be handled in other ways. They sometimes accompany this by removing artificial nutrition and hydration. These two measures together guarantee the death of the patient.

Even if sedation is not at issue they also must accede to removing artificial nutrition and hydration if that is what the patient, or her proxies, request. Again doctors know that their actions will lead to the death of the patient.

Interestingly enough I have never heard of a physician who refuses these measures because it would be killing the patient –which is contrary to the nature and purpose of medicine. Such a  physician would have at least the virtue of consistency. But physicians instead say “No. These are different. We are not intending the death of the patient. We only intend to control her pain. We merely know, or foresee, that death is coming.”

Now this distinction –intend vs. foresee–if it is to be relevant to the discussion must have two features. It must be an intelligible distinction and it must have moral force in the cases in which it is invoked.

I do not deny that the distinction is an intelligible one. There is a difference between yelling at you to wake you up, and yelling at someone else to warn they are about to fall down the stairs knowing, while doing so, that the yelling will wake you.  And indeed it may be morally relevant in some cases to point this out as a way of re-assuring you that I was not trying to wake you, that I did not want to awaken you this early. But in both cases it is simply a fact that I did something that caused you to awaken. I woke you up.

Turning to the increasing amounts of morphine case, it is a fact that I gave you a substance which, given the current circumstances, caused you to die. And if I caused you to die, by giving you an injection, I killed you. Did I want you to die? Perhaps not. Did I intend you to die? Perhaps not.

Was I justified in killing you? I would think so.  Did I do something that is counter to the meaning of medicine? No. Not if medicine is understood to include, in addition to “restoring  health”, ending pain which cannot be controlled.

My view is that while the distinction between intending and foreseeing death is an intelligible one, it cannot provide a plausible moral reason for distinguishing between assisted-dying  and the other procedures–listed above–which doctors insist are permissible.

Note that even if the distinction were significant it would also justify what the laws in question allow, e.g. the provision of lethal drugs to the patient. The doctor does not intend the patient will use them. He does not even foresee they will since we know many patients decide not to. What he does is makes it possible for the patient to take such a drug. This is, undoubtedly, a step which needs justification but it is at least as consistent with the nature of medicine as the use of morphine dosages that lead to the death of patients.

The last argument is the slippery-slope argument. Here it is from the article.

“The Incremental extension of PAS Data from jurisdictions that have legalized PAS show year on year increases overall in the prescription of lethal drugs and in PAS deaths, suggesting a normalization of PAS as part of routine practice. Yet this is just the tip of the iceberg. Once PAS is legalized, on the strength of the argument that one must respect autonomy, it is a short step to say that those who are paralyzed and cannot self-administer drugs are being discriminated against on the basis of their handicaps, and that this requires a move from PAS to euthanasia.”

“Moreover, since PAS can result in nausea and vomiting and the process can fail, legalizing PAS generates pressure to legalize euthanasia so that the process can be professionally controlled. Similarly, those who are unable to speak for themselves (such as children, the demented, and severely retarded) would need to be eligible for euthanasia on the basis of surrogate judgments to avoid treating them unequally. Those suffering from refractory depression and autism, and others who are not terminally ill also become candidates for PAS in order not to discriminate against these classes of patients; the evidence from overseas shows how this happens.”

There are different claims being made here. The first is that the number of PAS cases will increase. But, of course, they will. In Oregon from 1998 to 2011 they went from 16 to 71. As people learned more about the possibility of assisted-dying they increased their usage. Percentage-wise a large increase; in terms of the causes of death in Oregon an insignificant increase. It might also be noticed that, as of April, not a single DC resident has used the law passed 11 months prior. In any case one needs a separate argument to show increased usage is to be deplored rather than an outcome to be welcomed.

The second argument is that there will be pressure to extend the law so as to allow children or the those with early dementia access to assisted-dying. But whether these extensions are a good idea requires separate argument. One can favor or oppose them while favoring the current law. A slippery-slope argument is only a reasonable one if there is agreement already that the end of the slope is a bad place to be. I think that the arguments about extending the law to allow advanced-directives for persons at an early stage of dementia are difficult and complex. But there is plenty of time for such discussion when every state allows assisted-dying. There is no political will behind such an extension on the horizon.

Finally there is the claim that proponents of assisted-dying rely on a claim that autonomy is the only value used in their argument.

“Autonomy cannot be considered in isolation from the entire framework of ethical principles in medicine and in society. Patient autonomy is not the isolated exercise of will. Autonomy is relational– the way one person behaves affects others. One person’s autonomy must not undermine another’s. It does not mean I want, therefore I must get. Autonomy must be weighed against other professional principles such as beneficence, non-maleficence, the internal rationality of medicine, justice, and respect for the common good.”

This is simply a straw-man. Nobody has ever argued that simply from a principle of the value and importance of autonomy we can justify legalising assisted-dying. There is not a single footnote in the paper to an individual or group of individuals who makes such a claim. Even those who argue that it is autonomy in the context of intense suffering that is important do not deny the importance of considerations of general welfare. For example, they want there to be safeguards in place to ensure ill people are not coerced by relatives into requesting assisted-dying. They want there to be more than one physician certifying the mental competence of the patient who requests aid in dying. They even have a provision that the doctor not be present when the lethal drugs are taken to guard against subtle pressures.

There are issues of the relation between autonomy and the ends of medicine which deserve serious consideration. Is cosmetic surgery to improve the look of a person’s nose consistent with the notion of medicine as healing or symptom relief or curing? Another difficult case is body dysmorphia where a person suffers because he regards his leg as not a “real” part of his body and asks for amputation. Does autonomy come into conflict with the proper ends of medicine?

But no sane person denies that it is a proper end of medicine to cope with the serious and terrible symptoms of people with terminal illness. The only issue is which causal paths to that end are legitimate and which are not. I do not believe that the arguments presented by the authors to distinguish what they take to be legitimate means from assisted-dying are valid.

Do I then accept Neutrality? Only in the sense that I believe it is morally a step forward for the major national organizations of medicine not to condemn such laws as inconsistent with the nature of medicine and the professional obligations of its members. Obviously I would prefer the stronger position of affirming assisted-dying as promoting the ends of medicine.

I look forward to the time when we all can live in a society which gives its citizens the option of ending their life in a fashion consistent with the way they tried to live their life– autonomous and dignified.  This certainly includes those who choose not to use such laws and to fight to the end to prolong their life, as well as the doctors who commit themselves to helping them do so.