Legalizing Euthanasia and/or Assisted Suicide: Legal and Ethical Considerations

1. Legalizing Euthanasia and/or Assisted Suicide: Legal and Ethical Considerations Disability and Society Fall Quarter 2007 Session 16

2. Topics for discussion • Euthanasia • Assisted Suicide • DNR Orders • Is There a “Right to Die”? • The perspective of Not Dead Yet, et.al • Please Consider These…

3. Definitions • Euthanasia • Term comes from Greek, meaning “happy death” • Synonymous with “mercy-killing” – i.e., ending a “life of suffering” • Third party—e.g., MD or family member—performs act that results in death • Assisted Suicide • A third party provides the method/means for another to die • Individual him/herself performs “final” act that results in death • Do Not Resuscitate (DNR) Orders • Written directives to health care providers from MD and adult (or parent/guardian of a child) to prohibit emergency intervention to restore function when cardiac or respiratory failure occurs • Controlled by state law that establishes standards including limitations on who can issue and implement/honor

4. Euthanasia • Acts we label “euthanasia” • MD injects a patient with an overdose of narcotic used to alleviate pain but intending to cause death • Husband suffocates his terminally ill wife at her request • Mother unplugs respirators for her two sons with progressive neurological disease so they will die, because they no longer have conscious awareness of their environment • Has a killing occurred in these examples? • Has a murder occurred? • Are these acts “crimes”? • Not in the Netherlands (April 2001) • Not in Belgium (May 2002) • MDs call for extending legal euthanasia for children under 12 years • 1997-2004 22 infants with spina bifida were euthanasied

5. Euthanasia…considered • Difficult to know with any certainty how often acts of euthanasia occur. • Legal system considers acts of euthanasia in various ways—e.g., • Unworthy of prosecution • Killings that are justified because motivated by “compassion” • Crimes, but ones that deserve leniency in sentencing • Murder

6. Assisted Suicide • Acts we label “assisted suicide” • Person swallows overdose of drugs that MD provides to the individual for the specific purpose of causing death • Patient performs some action that causes a lethal dose of drug to flow through veins—e.g., Kevorkian killing machine • Wife prepares drink with sufficient drug to kill her terminally ill husband because he wishes to die but can no longer independently take necessary steps • Has a killing occurred? • Are these suicides? • Are these crimes? • Suicide is not a temporal crime although may be in religious law • Not in Oregon (Death with Dignity Act – November 1994, effective 1997) • Not in the Netherlands • Not in Belgium

7. Assisted Suicide. . .Considered • Again, difficult to get any accurate data on incidence • 1998 National Survey of PAS and Euthanasia in USA found 36% said if legal they would hasten death by medication, 24% by injection. 30% had received requests from patients; 20% had complied (338 NEJM 1193). • Oregon reports in 2005, 64 prescriptions written for lethal doses; 38 patients died by taking the medication. Numbers have not risen much since 1998. • Surveys of individual MDs show ½ believe PAS is ethically justifiable in certain cases (http://depts.washington.edu/bioethx/topics/pas.html). • Surveys of practicing MDs show that about 1 in 5 will receive a request for PAS sometime in their career. Between 5-20% of those requests honored. • State legislatures making efforts to pass “Death with Dignity” laws • Washington State Referendum 119 in 1991—defeated • Vermont, Wisconsin, Maine, Arizona, California, Hawaii—all defeated 2005 • Colorado—SB 102 passed which protects MDs, et al from prosecution for manslaughter if prescribe or administer medication for palliative care to a terminally ill patient with consent of patient or patient’s agent. • Washington State trying again – PAC created to collect signatures for 2008

8. Assisted Suicide continued • Washington v. Glucksberg, 521 U.S. 702 (1997) Supreme Court asked to determine whether our state statute banning assisted suicide violated the Due Process clause. Court stated that this difficult issue was best left to the state’s policy choice as reflected in the legislative action prohibiting the practice. • US Department of Justice challenged the Oregon physician assisted suicide law. November 2001 filed complaint against the state’s determination as to what constitutes a “legitimate practice of medicine” regarding the use of schedule II substances.

9. Gonzales v. Oregon, 126 S.Ct. 904 (2006) • U S Supreme Court agreed to decide the legality of the Oregon Death With Dignity Act. • Attorney General (Ashcroft) argued it violated the federal drug-control laws (Controlled Substance Act)—i.e., MDs prescribing narcotics to cause death not legitimate medical practice. • Oregon voters approved the right-to-die measure twice (1994/1997); argued “states’ rights” federalism. • Ruling: 6/3 decision affirmed the lower courts in favor of Oregon. • Ashcroft not entitled to deference and • CSA did not give him the authority to regulate practice of medicine generally.

10. Washington State Natural Death Act (RCW 70.122.010 et. seq.) • “Any adult person may execute a directive directing withholding or withdrawal of life sustaining treatment in a terminal condition or permanent unconscious condition.” • Prior to implementing such a directive, diagnosis of terminal condition by the attending MD or diagnosis of permanent unconscious condition by 2 MDs shall be entered in writing and made a permanent part of the medical record. • Statute prohibits mercy killing or physician assisted suicide. • Releases from liability authorized individuals (MD, health care provider acting under the direction of a MD, health facility and its personnel) who participate in good faith in the implementation of such a directive—unless otherwise negligent.

11. Informed Consent and Competency • Informed Consent • Common Law doctrine: Consent for medical procedures must be competent, voluntary, informed. • Voluntary means not under extreme duress, medicated, intoxicated or threatened by MD or others. • Consent of family (or anyone) is not required of competent adults. • Competency • Law assumes every adult is competent (rebuttable presumption). • Challenging competency places burden on challenger to prove incompetency. • Competency is ultimately a legal determination (judicial). • Adults who have adequate capacity (competency) to make decisions about their health care entitled to do so based on personal interpretation of interests. • Adults who demonstrate adequate capacity to comprehend facts and concepts and express choices can provide informed consent or refusal.

12. What about Directives for Individuals with Disabilities? • Unless competency is a question, same legal standards. • If there is court appointed guardian (with authority for health care decisions), the guardian is the individual who must provide the informed consent and/or request the advance directive. • Washington’s Natural Death Act allows directives only for terminal condition or permanent unconscious condition. • MD or family determination of “quality of life” is not a legally authorized component of the decision. • Courts do not allow nontreatment decisions to be made solely on the basis of incompetent person’s future medical costs or physical disabilities.

13. Is There a “Right to Die”? • Ethical/Religious dilemma for which there is no social or legal consensus. • Question arises in cases of euthanasia, withholding treatment (honoring a DNR order), assisted suicide, as well as suicide. • Recognition by the US Supreme Court that a person in a permanent vegetative state has a constitutional liberty interest when the desire to die has been clearly articulated prior to the vegetative state. Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990).

14. If – for sake of argument – we say there is, then what should the parameters be, if any? • Keep assisted suicide and euthanasia “crimes,” but don’t prosecute • Keep assisted suicide and euthanasia “crimes,” but prosecute only those actors we find offensive • Trust the MDs to do the right thing, but nobody else • Legally sanction euthanasia and assisted suicide under very narrow circumstances… • But people with newly acquired disability must have a “slow” right to choose death. • Etc. etc, etc.

15. The perspective of Not Dead Yet, et.al • Not Dead Yet formed in April 1996 in response to Kevorkian acquittal in assisted suicide of 2 women with non-terminal disabilities. • “Americans with Disabilities don’t want your pity or your lethal mercy. We want freedom, We want LIFE.” • “The targets of legalized assisted suicide and euthanasia have come together to oppose the political movement that would sacrifice our lives for their idea of dignity and ‘the greater good’ – and the profits of the health care industry.”

16. Perspectives continued • Euthanasia and assisted suicide have become “medical treatments” not crimes. • MDs can decide these are the treatments appropriate for those who are “incompetent”—i.e., children and individuals with certain cognitive disabilities. • No consensus on what person’s “condition” should be prior to granting permission/forgiveness • In Oregon “terminal” means condition which will “within reasonable medical judgment, produce death within six months.” • In Netherlands, “unbearable suffering of either a physical or mental nature” is sufficient factor • Model State Assisted Suicide Law gives MDs the right to provide assisted suicide if “the patient has a terminal illness or an intractable and unbearable illness.”33 Harvard Journal on Legislation (1996)

17. Perspectives continued • Euthanasia or assisted suicide as a means of health care cost containment • “The least costly treatment for any illness is lethal medication.” Washington v. Glucksburg • Oregon Medicaid program pays for assisted suicide for poor residents as means of comfort care. • Slippery slope concerns

18. Please consider this… • Disability almost always is more a matter of social attitudes than individual impairment. “[F]ears of disability . . . sometimes slide from fear to disgust and from disgust to hatred." The public's and the Florida judges' understandable fear of ever "living like that“ quickly slid into the judgment that she should not live. • A sharp distinction should have been maintained between, on the one hand, fearing for oneself ever living such a life and, on the other, ordering (and supporting) the termination of a life that arouses fear. • Op-ed by Chris Cabbard in the Times-Union (Jacksonville, Florida) 3/31/06.

19. Please Consider These… • Martyred Mothers and Merciful Fathers • “Why would these fathers correctly feel that they could kill their sons and receive only tolerance and even social approval?” • Jerry and Raymond died in 1939. What relevancy, if any, do their stories have for the USA in 2007?