Should Physician-Assisted Death Be Expanded to Include Psychiatric Conditions?

A thoughtful guest post from What’s Wrong? Advisory Board member Bonnie Steinbock (image: pills).

Introduction

Should physicians ever be allowed to help their patients to die? Some are flatly opposed; others are strong proponents. Among proponents, there are disagreements about what the conditions for assisted death should be. In this guest post, I address the question: should those suffering from psychiatric conditions, such as severe, prolonged depression, which has not responded to treatment, be eligible for physician-assisted death?

This is not permitted in most jurisdictions that allow PAD. However, PAD for psychiatric conditions is now possible, though rare, in Belgium and The Netherlands. Some regard the expansion to psychiatric conditions as evidence of an inevitable slippery slope and a reason why PAD should not be legalized at all. Others think that while PAD should be limited to terminal, physical illness, a slippery slope to other conditions is not inevitable. And still others think that there is a case for inclusion of some psychiatric conditions. I will argue that the case for absolute exclusion of psychiatric conditions has not been made. It may be justified, in some cases and under certain conditions. Assisted death should always be a last resort, whether the condition prompting the request is physical illness or psychiatric condition.

Terminology and Legal Background

The term “physician-assisted death” covers both euthanasia and physician-assisted suicide (PAS).[1] The difference between euthanasia and PAS turns solely on who administers the lethal dose. In euthanasia, the physician gives a lethal injection. In PAS, the physician prescribes lethal medication, which is ingested by the patient. In The Netherlands, both are permitted, although as a matter of practice, most Dutch physicians who are willing to help their patients die prefer euthanasia, as being safer and more reliable. In Belgium, euthanasia is legal, but not PAS. In the United States, euthanasia is illegal everywhere, but PAS is legal by statute in four states (Oregon, Washington, Vermont, and now California) and by judicial decision in one (Montana[2]).

Is there a moral difference between euthanasia and PAS? There does not seem to be an intrinsic moral difference, since the physician who writes the prescription is as much an agent of the patient’s death as the physician who, at the request of the patient, performs a lethal injection. Perhaps there is a pragmatic reason for banning euthanasia, namely, as protection against a last-second change of mind. Requiring that the patient actually puts the pills in her mouth and swallows shows that she really does want to die. Moreover, the data from Oregon reveal that many people who request a prescription do not actually use it. They simply want the peace of mind that comes from knowing they have the pills if things get too bad. Simply not taking the pills might be psychologically easier than telling the doctor you have summoned to kill you to go away.

However, there are also pragmatic reasons to prefer euthanasia to PAS. As noted earlier, Dutch doctors regard euthanasia as a surer method of causing death. Moreover, PAS is not possible for someone who physically cannot put the pills in his mouth or has lost the ability to swallow. Such as person is not “death-eligible” in the U.S., regardless of his suffering or unwavering desire to die. This strikes the Dutch as absurd. Why should the inability to swallow be relevant to getting assistance in dying? It seems to me they have a point. For this reason, I will assume that euthanasia and PAS are morally equivalent, and will talk about physician-assisted death (PAD) to include both. The question, then, is whether PAD should be available to those with psychiatric conditions, such as severe depression.

Role Responsibility

One reason that has been given for why PAD should not be available to psychiatric patients is that this conflicts with role of psychiatrists. Kelly and McLoughlin write, “… the concept of assisting – rather than preventing – suicide counters the core aims of psychiatric practice. The shift of therapeutic role from alleviating psychic despair to facilitating suicide would be anathema to many psychiatrists.”[3]

However, the same could be said about PAD for physical illness. Some opponents of PAD argue that physicians should be healers, not killers. “The role of the physician is to promote health, cure when possible, and relieve pain and suffering as part of the care they provide.”[4] Therefore, it seems that reflection on the role of psychiatrists cannot be used specifically to rule out PAD for psychiatric conditions.

It should also be noted that not all physicians agree that assistance in dying is inconsistent with the physician’s role.[5] Some maintain that if a patient is dying, and nothing can be done to reverse the dying process, then healing is no longer possible. The physician’s job shifts from trying to cure to relieving physical suffering and also to providing the kind of death that fits with the patient’s own values. However, this points to a salient difference between PAD for physical illness and PAD for psychiatric conditions, namely, that psychiatric conditions are not instances of terminal illness.[6] But this would be a reason for excluding PAD for psychiatric conditions only on the assumption that terminal illness should be a prerequisite for PAD, an assumption that requires further investigation.

Terminal Illness

Terminal illness, defined as having a prognosis of death within six months, is a requirement for aid-in-dying in the United States. However, it is not required in other countries, such as The Netherlands and Canada[7]. In The Netherlands, the focus is on unbearable suffering without prospect of improvement; in Canada, on grievous and irremediable medical conditions. Should terminal illness be a prerequisite for PAD?

The rationale for the terminal illness requirement is that such patients are already dying and beyond medical treatment that can cure them or significantly prolong their lives. When they request PAD, they are asking their physicians for a “good death”: a death without undue suffering and on their own terms. Physical suffering may be adequately addressed with palliative care, but for some patients, that is not all that they want. For them, the physical impairments and deficits that will inevitably come are just as bad as, or worse than, physical pain.

This rationale for terminal illness helps to explain why groups like Compassion and Choices have emphatically rejected the term “physician-assisted suicide” in favor of “aid-in-dying”. Aid-in-dying is about helping patients to die in peace. By contrast, the term “physician-assisted suicide” (PAS) could apply to patients who are not terminally ill, or even not ill at all, but have other reasons for wanting to die.

However, the suffering that leads people to prefer death to continued life is not restricted to the terminally ill. What is the rationale for excluding those who have “incurable, but not imminently terminal, progressive illnesses,”[8] such as amyotrophic lateral sclerosis (ALS) and the most severe cases of multiple sclerosis or Parkinson’s disease? Indeed, if suffering is the basis for PAS, it is even stronger in the case of those who are not going to die within a few months, as their suffering will last longer and therefore will be greater.

The data from Oregon show that physical suffering is not a primary reason why people request aid-in-dying.[9] Loss of autonomy, loss of dignity, and loss of things that make life pleasurable and meaningful are more often cited as reasons. These too can cause intense suffering, although it is not the kind of suffering that can be addressed by morphine or other pain-relieving drugs. Moreover, concerns like these are not limited to those who are terminally ill. The morally relevant features that justify restricting physician-assisted death are, I submit, “incurable conditions and severe, unrelenting suffering,”[10] not terminal illness.

Incurable Conditions

Are there cases of psychiatric conditions that cannot be successfully treated? If so, then the case for offering PAD in such cases is analogous to offering it for incurable physical illness that causes severe, unrelenting suffering. On the other hand, if psychiatric conditions, like severe depression, can always be cured or ameliorated with therapy, the case for helping such patients to die is considerably weakened.

Some psychiatrists claim that depression is always treatable, but this claim seems too strong. A weaker claim is more plausible: even if treatment is, in some cases, futile, it is impossible to know in advance which ones these are, and therefore, from a clinical perspective, giving PAD is never justifiable. What supports this claim?

In the case of an individual patient, it remains extremely difficult to predict whether therapy will produce an early response, a delayed response or no response (Schoevers et al, 1998). It is impossible to predict which patients will undergo spontaneous remission and when this will happen. These uncertainties are far more pronounced in psychiatric practice than in medical practice, to the extent that it is essentially impossible to describe any psychiatric illness as incurable, with the exception of advanced brain damage as occurs in progressive neurodegenerative disorders such as Alzheimer’s disease and Huntington’s disease.[11]

This may overstate the difference between medical and psychiatric practice. Cancer patients who have been given a terminal diagnosis also sometimes go into spontaneous remission. Moreover, while doctors are pretty good at predicting death within a few days, it is much more difficult to predict that someone will be dead within six months. Indeed, this aspect of medical uncertainty is part of the reason why some advocates of physician-assisted death reject the terminal illness requirement. There are other areas in medicine where it is extremely difficult to predict outcomes in individual cases. We may know that premature infants under 23 weeks are more likely to die or be extremely impaired, but some of those babies survive, and a small proportion survive without any impairment. Uncertainty pervades most areas of medicine, not just psychiatry, and this is not viewed as a reason to deprive individuals of making their own decisions.

However, if decision-making is impaired, then the voluntariness of requests for PAD is suspect. We need to consider whether, and to what extent, decision-making capacity is impaired by the very condition that prompts the request for PAD.

Does Severe Psychiatric Illness Impair Decision-Making Capacity?

Respect for patient autonomy, understood as the right of patients to make their own value-laden decisions about medical treatment, has been a foundation of medical ethics since the 1960s. At the same time, it is recognized that certain conditions, such as youth, intoxication, cognitive deficits or psychiatric illness, can impair decision-making and prevent patients from making truly voluntary choices. The challenge for clinicians is to assess decision-making capacity in patients whose capacity may be impaired without depriving them of their fundamental right to participate in medical decision-making.

To be a competent decision-maker, one needs to have the ability to understand the information one is given about one’s condition and the possible treatments; to appreciate the significance of this information for one’s own situation; and to reason about the information in order to weigh options.[12] Someone who is impaired in one aspect may not be impaired in another, making the question of clinical assessment of competence complicated. Indeed:

…there may be no single answer to the question of the degree of capacity that  should be legally required for legal competence. The correct threshold may vary from case to case, depending on the clinical consequences of acceptance or refusal of treatment, as well as the risks and benefits of treatment alternatives in individual cases.[13]

Depression may not affect the ability to understand and reason, but it may have a profound effect on attitude. In depression, things look bleak, even hopeless, and the prospect that things could change for the better seems remote or impossible. Simply informing the person of the possibility of new treatments or spontaneous remission may not be adequate because a severely depressed person may not be able to appreciate the information.

While this would be of great clinical significance in assessing a request for PAD, it does not justify an absolute ban on PAD for psychiatric conditions, any more than it would justify depriving severely depressed patients of all say in their medical treatment. Admittedly, the “clinical consequence” of euthanasia or aid-in-dying is the death of the patient. That’s about as serious a consequence as there can be, justifying stringent standards of capacity. Certainly PAD should not be offered lightly. However, if a patient has undergone all available therapy for years, to no avail, and as a result, has such severe and unrelenting suffering that he or she wants to die, it is hard to see why this isn’t a legitimate reason for requesting PAD and why a compassionate physician has to refuse such a request.

 Should Existential Suffering Be a Ground for PAD?

Some who agree that the terminal illness criterion is arbitrary would nevertheless restrict PAD to physical illness. What is the rationale for excluding psychiatric conditions?

One reason might be that the suffering imposed by psychiatric conditions is less severe than that caused by physical illness. This is not supported by the reports of those who have experienced severe depression, especially repeatedly over time. Depression can cause terrible suffering.[14]

Should PAD be available only to those suffering from recognized psychiatric illnesses, such as clinical depression? Or may doctors help their patients who experience what is sometimes called “existential suffering”? This issue was brought to national attention in The Netherlands when a GP, Philip Sutorius, helped his 86-year-old patient, Edward Brongersma, to die, even though he had no serious physical or mental illness. “Mr Brongersma had often spoken with Sutorius of his wish to die. He suffered from physical decline and struggled with his ‘pointless and empty existence’.”[15] Although Dr. Sutorius was initially acquitted in 2000, an Amsterdam appeal court found him guilty in 2001 of assisting a suicide (though no punishment was imposed). The court accepted the argument that Mr. Brongersma’s suffering was not medical and therefore his GP had no experience to judge such an issue. The Dutch Supreme Court upheld the judgment of the appeal court in 2002, holding that a criterion for legal euthanasia must be that the patient has a “classifiable physical or mental condition.”[16]

The claim that doctors have experience with regard to suffering if and only if it stems from a medical condition is problematic. Suffering is intrinsically subjective, that is, based on the patient’s experience. That is why doctors typically determine the degree of suffering by asking the patient how bad it is. Doctors may expect certain medical conditions to produce suffering, but recognizing suffering does not depend on medical expertise. By the same token, doctors are capable of assessing their patients’ non-medical suffering, especially if they know them well. Dutch doctors and ethicists countered the 2002 Supreme Court ruling by noting that GPs “treat patients every day whose complaints cannot be linked to a classifiable disorder.”[17] To say that a doctor should be prevented from relieving uncontrollable suffering simply because it stems from a non-medical cause seems arbitrary. The etiology of suffering is irrelevant to the question of relieving it.

In fact, the Dutch euthanasia law does not restrict euthanasia to those suffering from physical or mental illness, saying only that the patient must be “suffering hopelessly and unbearably.” In 2005, the Royal Dutch Medical Association issued a report that contradicted the Supreme Court ruling that limited PAD to physical or mental illness. At the same time, the report advised caution against expansion beyond illness. It recommended the collection and analysis of more data, and that protocols be drawn up for judging “suffering through living” (existential suffering). The report also recommended that therapeutic and social solutions to existential suffering should be tried first.[18]

A number of commentators have expressed concern about the opening in 2012 of an End of Life clinic in The Netherlands by a group that advocates for euthanasia. The clinic considers requests from people who meet all of the Dutch legal requirements for PAD, but whose requests were turned down by their regular physicians. This is seen by some as paving the way to a very slippery and dangerous slope.

The Slippery Slope Argument

In general, slippery slope arguments maintain that a law or policy that seems initially acceptable is likely to have extremely unacceptable results. In the case of PAD, the initial restrictions, such as terminal illness, unbearable suffering, and voluntariness, might be jettisoned as social attitudes changed:

… euthanasia and PAS, which originally would be regulated as a last-resort option in only very select situations, could, over time, become less of a last resort and be sought more quickly, even becoming a first choice in some cases.[19]

Barron Lerner and Arthur Caplan have slippery slope worries about the End of Life clinic.[20] They are troubled by the provision of PAD to those who are “tired of living,” a phrase they regard as “vague and thus disturbing.” But is “tired of living” any vaguer than “hopeless and unbearable suffering”? The real problem, I think, is not vagueness, but rather that the expression, “tired of living,” does not convey severe and unrelievable suffering, which is or should be the justifying factor.

Lerner and Caplan are also bothered by the fact that loneliness was often cited as the reason for wanting PAD: “Loneliness, even if accompanied by other symptoms, hardly seems a condition best addressed by offering death.”[21] They wonder if the increase in rates of euthanasia represents “a type of reflexive, carte blanche acquiescence among physicians to the concept of patient self-determination. Or worse, is it simply easier for physicians to accede to these sad and ailing patients’ wishes than to reembark on new efforts to relieve or cope with their suffering?”[22]

I share their concerns. PAD should never take place because it is easier or less expensive than medical or social interventions. However, concerns about PAD being used in lieu of other interventions are not unique to psychiatric conditions or existential suffering. Many, though not all, advocates of palliative care make the same arguments against PAD generally. It would be tragic if PAD were to replace, or lessen the provision of, palliative and hospice care. Fortunately, this has not been the experience in Oregon, where palliative care may have been improved by the passage of the Death With Dignity law.[23] Excellent palliative care should be available to all who need it, and it should address psychosocial causes of suffering, such as loneliness, as well as physical pain.

The dangers of a slippery slope should not be minimized or ignored. The words of Yale Kamisar in his classic article opposing the legalization of euthanasia remain relevant today:

Is this the kind of choice that we want to offer a gravely ill person? Will we not sweep up, in the process, some who are not really tired of life, but think others are tired of them; some who do not really want to die, but who feel they should not live on because to do so when there looms the legal alternative of euthanasia is to do a selfish or a cowardly act?[24]

The solution to the slippery slope is not to impose arbitrary restrictions based on the source of suffering, but to limit PAD to those with severe and unrelenting suffering that cannot be alleviated any other way.[25]

Bibliography

American College of Pediatricians. 2014. “Physicians Are Healers – Not Killers,” http://www.acpeds.org/physicians-are-healers-not-killers

American Journal of Health System Pharmacy. 2001. “Oregon Death with Dignity Act May Improve End-Of-Life Care,” http://www.medscape.com/viewarticle/406982

Ezekiel Emanuel. 2005. “Depression, Euthanasia, and Improving End-of-Life Care
,” Journal of Clinical Oncology 23 (27): 6456-6458.

Linda Ganzini, Darien S. Fenn, Melinda A. Lee, Ronald T. Heintz, and Joseph G. Bloom. 1996. “Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide.” American Journal of Psychiatry 53 (11): 1469-1475.

Thomas Grisso and Paul S. Appelbaum. 1995. “Comparison of Standards for Assessing Patients’ Capacities to Make Treatment Decisions,” American Journal of Psychiatry 152: 1033-1037.

Yale Kamisar. 1976. “Some Non-Religious Views against Proposed ‘Mercy-Killing’ Legislation Part I.” Human Life Review 2 (2): 71-114. (Originally published under the same title in Minnesota Law Review 42, no. 6 (1958): 969-1042.)

Brendan D. Kelly and Declan M. McLoughlin, 2002. “Euthanasia, assisted suicide and psychiatry: a Pandora’s box,” British Journal of Psychiatry: 278-279.

Charles Lane. 2015. “Europe’s Sinister Expansion of Euthanasia,” Washington Post, Aug. 19. https://www.washingtonpost.com/opinions/euthanasias-slippery-slope/2015/08/19/4c13b12a-45cf-11e5-8ab4-c73967a143d3_story.html

Pereira. 2011. Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls. Current Oncology 18 (32): E38-E42.

Timothy Quill, Christine Cassel, and Diane Meier. 1992. “Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide,” New England Journal of Medicine 327 (19): 1380-1384.

Tony Sheldon. 2003. “Being “tired of life” is not grounds for euthanasia,” British Medical Journal 326: 71.

Tony Sheldon. 2005. “Dutch euthanasia law should apply to patients “suffering through living,” report says,” British Medical Journal 330 (7482): 61.

Marianne C. Snijdewind, Dick L. Willems, Luc Deliens, Bregje D. Onwuteaka-Philipsen, and Kenneth Chambaere. 2015. “A Study of the First Year of the End-of-Life Clinic for Physician-Assisted Dying in the Netherlands,” JAMA Intern Med. doi:10.1001/jamainternmed.2015.3978 Published online August 10, 2015. E1-E8.

Notes

[1] The term “physician-assisted suicide” has fallen into disfavor among advocates in the United States, and replaced with “aid-in-dying.” Indeed, Compassion and Choices, a prominent advocate for the right to die, maintains that it is only opponents who refer to aid-in-dying legislation as physician-assisted suicide. However, both proponents and opponents elsewhere in the world use the term “physician-assisted suicide” and since I am not restricting myself to the United States, I will continue to use it in this article.

[2] The legal status of PAS in Montana is uncertain. Montana’s Supreme Court ruled that doctors cannot be prosecuted for helping their terminally ill patients to die. The state legislature passed a bill legalizing PAS in 2010, but the state’s Senate Judiciary Committee defeated it. Although doctors cannot be prosecuted, they may be reluctant to provide aid-in-dying without clear guidelines.

[3] Kelly and McLoughlin, p. 278. See also Ganzini et al.

[4] American College of Pediatricians.

[5] Timothy Quill is an example. See Quill et al.

[6] An exception would be the most severe cases of anorexia.

[7] The Supreme Court of Canada ruled in 2015 that laws banning PAS violate the fundamental rights of Canadians. Assisted dying will be permitted in Canada as of February 2016, slightly earlier in Quebec.

[8] Quill et al, 1381.

[9] Emanuel, 6456.

[10] Quill et al., 1381.

[11] Kelly and McLoughlin, 278-279.

[12] Grisso and Appelbaum, 1033.

[13] Ibid. 1037.

[14] William Styron’s Darkness Visible is among many memoirs that attest to the suffering caused by severe depression.

[15] Sheldon (2003).

[16] Ibid.

[17] Ibid.

[18] Sheldon (2005).

[19] Pereira, E40.

[20] Snijdewind et al.

[21] Lerner and Caplan, E1.

[22] Lerner and Caplan, E2.

[23] American Journal of Health System Pharmacy.

[24] Kamisar, 80.

[25] The criteria for legal due care for euthanasia and PAS in The Netherlands are given in Snijidewind et al. Some, like J. Pereira, argue that these criteria are not in fact respected. This empirical issue goes beyond the scope of this paper.