Dr. Fenigsen agrees with these optimists that the Dutch are not on a slippery slope, but for a different reason.

"Dutch doctors who practice euthanasia are not on a slope. From the very beginning they have been at the bottom." This is because in his research he has found "involuntary euthanasia…is rampant." He found that "a staggering 62% of all newborns' and infants' deaths resulted from 'medical decisions,'" and that in 1995 alone there were 900 lethal injections given to patients who had not requested euthanasia.

On this page:

 

 


 
Dutch protests in 2001 as parliament debated legislation and euthanasia

Credit: SERGE LIGTENBERG/AP/EMPICS

 

 
  J Keown

Correspondence to:  J Keown
Rose F Kennedy Professor of Christian Ethics, Kennedy Institute of Ethics, Georgetown University, 37th and O Streets NW, Washington DC 20057, USA; ijk2@georgetown.edu

Original version received 4 November 2004

Accepted for publication 22 February 2005


ABSTRACT
In April 2004 the Parliamentary Assembly of the Council of Europe debated a report from its Social, Health and Family Affairs Committee (the Marty Report), which questioned the Council of Europe’s opposition to legalising euthanasia. This article exposes the Report’s flaws, not least its superficiality and selectivity.

 


Keywords: Council of Europe; euthanasia; Marty

In the ongoing international debate about the legalisation of euthanasia a significant point of reference has been the recommendation against legalisation passed in 1999 by the Parliamentary Assembly of the Council of Europe. (The Council of Europe, a larger body than the European Union, was established in 1949 in order inter alia to defend human rights.) In Recommendation 1418 the Assembly urged member states "to respect and protect the dignity of terminally ill or dying persons in all respects". To this end it recommended a trio of means:

 

In relation to this third means it added:

 

More recently, moves have been afoot to reconsider the Council’s position. In September 2003 a report on euthanasia emerged from the Council’s Social, Health and Family Affairs Committee (by a narrow majority).2 The Report comprised a draft resolution (of nine paragraphs) and an Explanatory Memorandum (of 63 paragraphs). The Memorandum was written by the Committee’s rapporteur, Mr Dick Marty.


THE REPORT’S REASONING AND RECOMMENDATIONS
The Report stated that some doctors practised active, voluntary euthanasia on or assisted in suicide terminally ill patients who experienced "constant, unbearable pain and suffering without hope of any improvement". It added that this practice was usually "confined to the shadows of discretion or secrecy", that decisions may be taken in an arbitrary manner and depended on the presence of a "sympathetic" doctor or nurse. Moreover, pressures from the family could be more pernicious "if exercised in the dark and beyond any procedures or control" and it was "this reality that carries the greatest risk of abuse". Furthermore, penal and professional sanctions were very rare. Hence, there was a "striking divergence" between the law and practice, and this gap "must be reconciled if respect for the rule of law is to be maintained".

The closure of this gap was one reason, it claimed, why legislation had been passed in 2002 in the Netherlands and in Belgium to permit voluntary euthanasia subject to "rigorously regulated and controlled conditions". Such legislation was designed

to bring such practices out of the grey area of uncertainty and potential abuse by establishing strict and transparent procedures, mechanisms and criteria which doctors and nursing staff have to observe in their decision-making.

 

In addition, it was difficult to distinguish ethically between active voluntary euthanasia and the withholding or withdrawal of life-sustaining treatment when it was known that the patient would die sooner, which the Report described as "passive euthanasia".

The Report asserted:

Nobody has the right to impose on the terminally-ill and the dying the obligation to live out their life in unbearable suffering and anguish where they themselves have persistently expressed the wish to end it.

Moreover, it added, we now respected a person’s choice to take their own life and avoided making value judgements about them, a development that could in no way be interpreted as a devaluation of human life.

Furthermore, palliative care could not take away unbearable pain and suffering in all cases and, in any event, the issue went beyond the alleviation of pain:

the degree of patients’ own suffering, including mental anguish and loss of dignity that they feel, is something that only they can assess. Individuals suffering in the same situation may take different end-of-life decisions, but each human being’s choice is deserving of respect.

In light of the above considerations the draft resolution recommended that member states:


SOME CRITICISMS
The Report is gravely flawed, not least because it overstates the arguments for legalisation and downplays or ignores arguments against it.

Arguments advanced by the Report
The rule of law
The Report claims that the rule of law supports legalisation. However, just as the opening paragraph of Recommendation 1418 notes that it is the vocation of the Council of Europe "to protect the dignity of all human beings and the rights which stem therefrom", so too the rule of law affords protection to all citizens, recognising their fundamental equality in dignity. Just as no-one is above the law, so no-one is beneath the law. A law permitting voluntary euthanasia would, for the first time, allow certain private citizens to kill other private citizens on the basis of the arbitrary judgement, historically denied in western law and medical ethics, that they would be better off dead. In short, the rule of law, to which the arbitrary exercise of power is repugnant, not least the power of life and death, tells against not for legalisation.

"Closing the gap"
The argument that there is a "striking divergence" between the law and medical practice and that the gap must be closed if respect for the rule of law is to be maintained is unconvincing. First, the assertion that there is a "striking" discrepancy between law and practice is controversial. Obtaining reliable data on the incidence of the offences of murder and assisted suicide by medical practitioners is, not surprisingly, difficult. The surveys cited by the Report allegedly demonstrating a "striking" discrepancy in countries where euthanasia and assisted suicide remain illegal must be read with caution. For example, the Report pointed out that, according to a survey of UK doctors,3 almost 60% replied that they had been asked to hasten death, of whom 32% had complied. These are not insubstantial figures. However, the figures require some qualification. The 60% includes 14% who were asked to let the patient die "through deliberate inaction", which the survey defined as "passive euthanasia", and the 32% who said they had taken active steps to end a patient’s life represented only 9% of all the doctors who had been sent a questionnaire. Nor did the survey ask how often euthanasia had been performed. Moreover, unlike the three comprehensive surveys into end of life decision making in the Netherlands carried out since 1991 by Professor van der Maas et al,4–6 the UK survey, as its definition of "passive euthanasia" indicates, did not consistently define "euthanasia" in terms of the intentional hastening of death, which may have led to some confusion; nor did the UK survey involve interviews with doctors, which van der Maas found important in clarifying the thinking of his respondents in distinguishing euthanasia from other end of life decisions.7

Another UK survey, commissioned by the BBC and involving a sample of health professionals over twice the size of the survey cited by the Report, disclosed that only 4% had assisted in suicide, either by providing drugs or advice.8 Similarly, a US survey found that only 6% of physicians there had performed euthanasia or assisted suicide, the author of the survey concluding that it was a "rare" event.9 Professor van der Maas has written that the proportion of deaths in the USA from euthanasia and physician assisted suicide is likely to be "small".10

Secondly, even if there were a serious discrepancy between the law and the practice of euthanasia, it would not follow that the gap would be narrowed by relaxing the law. Many criminal laws are regularly broken. Some prohibitions, such as the law against possessing hard drugs, are frequently breached without detection, but it does not follow that the law should therefore be relaxed to accommodate those who snort coke.

Thirdly, if the law against voluntary euthanasia is occasionally broken, so too is the law against non-voluntary euthanasia (both in jurisdictions where, like the UK and the USA, voluntary euthanasia is illegal and in jurisdictions, notably the Netherlands, where it is legal). If the Report believes the gap between the law and the practice of voluntary euthanasia militates in favour of legalisation, then why not the gap between the law and practice of non-voluntary euthanasia?

Fourthly, the Report seems to assume that if voluntary euthanasia is practised it should therefore be condoned. Revealingly, the Draft Resolution does not propose that, in the light of whatever evidence may emerge from studies into the incidence of euthanasia, there should be a review of various options, including improving the provision of quality palliative care and/or tighter enforcement of the criminal law. It proposes solely that member states consider legalising euthanasia. That this is the Report’s not-too-skilfully-hidden agenda is also clear from its underlying argument in principle for reform, for, if there is a right to voluntary euthanasia, why should it not be recognised by law whatever the evidence might disclose about levels of current practice? Moreover, what if, as much evidence suggests,11,12 voluntary euthanasia is carried out on patients whose autonomy is compromised by clinical depression or whose suffering could have been alleviated by palliative care? In other words, why does the Report seem to assume that the problem with the alleged gap between the criminal law and medical practice lies with the former rather than the latter, that the law is bad and the practice good? Was Dr Kevorkian a model of good medical practice? Of the 69 people he assisted in suicide only a quarter were terminally ill.13 Why assume that the law should accommodate Kevorkians rather than incarcerate them?

Finally, relaxing the law to allow euthanasia to be performed in certain circumstances would not mean that euthanasia would be performed only in those circumstances. Legislative proposals for regulating euthanasia typically set out procedural requirements aimed at monitoring the practice of euthanasia; they do not seek to prohibit the practice of euthanasia that fails to satisfy those requirements. In other words, the potential for "abuse", for breaking the law against murder and assisted suicide, remains. Indeed, it may well be that legalising euthanasia in certain circumstances would result in euthanasia in other circumstances being regarded by the criminal justice system as less, not more, serious: a lower, not a higher priority. It is noteworthy that in the Netherlands very few doctors have been prosecuted for breaching the requirements for lawful euthanasia, and that those doctors who have been convicted of murder have typically been dealt with by the courts with remarkable leniency.

The Dutch example
The Report implicitly endorses the Dutch and Belgian legislation. It describes the procedures prescribed by the legislation as "strict and transparent" and claims that the Dutch surveys have shown that "close monitoring" is possible. There is a problem with all this: the Dutch surveys show precisely the opposite.

For example, the so-called "strict and transparent procedures" in the Dutch legislation (which essentially enshrine guidelines that have been in operation since 1984 when the Dutch Supreme Court first declared voluntary euthanasia lawful) include a requirement for doctors to report all cases to the authorities. The three Dutch surveys carried out by Professor van der Maas et al have demonstrated that a clear majority of cases have been covered up by doctors.14,15 In other words, in the bulk of cases there has not even been an opportunity for control. Even in relation to the minority of cases that have been reported, the reports are filed by the doctors themselves, who are hardly likely to disclose that they have breached the guidelines. The surveys indicate, moreover, that failure to report is by no means the only important requirement that has been widely ignored, with virtual impunity, by Dutch doctors. Thousands of Dutch patients have been killed without request.

The conspicuous failure of the Dutch regulatory mechanisms over the last 20 years has been repeatedly demonstrated by commentators of whose work the Report seems oblivious.12,16,17 (The focus of this paper is on the Dutch rather than the Belgian experience, partly because Dutch law has approved euthanasia for much longer—and there is accordingly more evidence about Dutch practice—and partly because the Belgian law largely emulates the Dutch law.) Also notably absent from the Report is any reference to the serious concerns that have been expressed, not least about the non-voluntary euthanasia of disabled newborns, by the UN Human Rights Committee.18

In short, there is indeed a "striking divergence", but it is between the law and the practice of euthanasia in the Netherlands. Another gap, hardly less striking, is that between the reality of Dutch practice and its (mis)representation by the Report.

Changing attitudes toward suicide
The Report also presents a contentious interpretation of changing attitudes to suicide. In England, for example, the decriminalisation of suicide by the Suicide Act 1961 reflected, as the Government of the time made abundantly clear,19 not a condonation of suicide but a realisation that criminal punishment was an inappropriate way of dealing with suicidal persons. As Lord Bingham confirmed in the Pretty case,20 in which the House of Lords rejected an alleged right to assisted suicide, the Suicide Act 1961 conferred no right on anyone to commit suicide.

Public opinion
The Report claims that public opinion polls show a majority in favour of legalisation. Such polls must be read cautiously, but even assuming the claim to be true it could hardly be allowed to dictate law and public policy any more than a finding that a majority of people favour capital punishment.

Equating euthanasia with non-treatment
The Report’s equation of "euthanasia" with the withdrawal of life-sustaining treatment when the shortening of life is foreseen, which it describes as "passive euthanasia", is misleading. It defines "euthanasia" as "any medical act intended to end a patient’s life at his or her persistent, carefully considered and voluntary request in order to relieve unbearable suffering". How, then, can the withdrawal of treatment when the doctor merely foresees that it will shorten life count, on the Report’s definition, as "euthanasia"? For one thing, there is no "act" and even if there is foresight of death it does not follow that there is also an intention to end life. Simply to conflate these two forms of conduct, which there are good ethical reasons to regard as distinct, is undeniably controversial and invites confusion. Moreover, by defining "euthanasia" as "active, voluntary euthanasia", the Report adopts the controversially narrow Dutch definition. One danger of this definition is that it can be used (as it has been by the Dutch) to deflect discussion of non-voluntary and involuntary euthanasia on the grounds that they are not "euthanasia" and therefore lie outside the boundaries of the euthanasia debate.

Misrepresenting the case against euthanasia
The Report states that opponents of legalisation reject the claim that

each individual, out of respect for his or her dignity and value, has a right to take decisions concerning his or her own life and death in accordance with his or her own values and beliefs, as long as no harm is done to others, and not to have these imposed.

 

It would have been less misleading to state that opponents of euthanasia, while supporting the right of patients to make a range of decisions concerning their medical treatment, reject one decision as being incompatible with the patient’s dignity and value: the decision to be intentionally killed, or to be helped to commit suicide. Moreover, to prohibit that choice does not deny the patient’s dignity but affirms it, just as disallowing other choices that a person may want to make, such as to be executed rather than imprisoned, equally respects his or her inalienable dignity. The fact that, through depression or pain or loneliness, some patients may lose sight of their worth is no argument for endorsing their misguided judgement that their life is no longer worth living. Were the law to allow patients to be intentionally killed by their doctors, it would be accepting that there are two categories of patients: those whose lives are worth living, and those who are better off dead. What signal, moreover, would that send out to people who are sick, elderly, disabled, or dying?

The Marty Report goes on to imply that opponents of euthanasia are imposing on terminally ill people "the obligation to live out their life in unbearable suffering and anguish ...". On the contrary, many of the leading opponents of euthanasia, such as Dame Cicely Saunders, foundress of the hospice movement, have devoted their lives to the alleviation of suffering and anguish. Again, opponents of euthanasia recognise the right of patients to refuse treatments because they are futile or too burdensome, even if it is foreseen that death will come sooner. Those opposed to euthanasia do not believe that life should be preserved at all costs; that is a cheap caricature.

Counterarguments not met
The Report glosses over several important counterarguments. To take but one, it mentions but nowhere rebuts the counterargument that legalising voluntary euthanasia leads as a matter of practice and of logic to non-voluntary euthanasia. The counterargument runs that the slide will occur as a matter of practice because "safeguards" to prevent it cannot be made effective, and as a matter of logic because the case for voluntary euthanasia for terminally ill people contains the seeds of its own extension to those who are not terminally ill or to those who cannot request it.

The failure of "safeguards" as a matter of practice is amply demonstrated by the Dutch experience, but that experience also illustrates the force of the logical "slippery slope", a product of the unresolved tension in the argument for voluntary euthanasia between patient autonomy and patient welfare.

Respect for patient autonomy
The Report states that opponents of euthanasia dismiss

the individual’s right to take decisions concerning his or her own life and death in accordance with his or her own beliefs and values, as long as no harm is done to others.

 

It concludes that consideration should be given to exempt from prosecution doctors who agree to help

terminally-ill patients undergoing constant, unbearable pain and suffering without hope of any improvement in their condition, to end their lives at their persistent, voluntary and well-considered request ...

 

However, if there is a right to make decisions concerning life and death in accordance with one’s own values and beliefs why should euthanasia not be available to any autonomous person who believes, for whatever reason (terminal, chronic or mental illness, "tiredness of life", bereavement, divorce, unemployment, lost election ...) that their life is no longer "worth living"? By imposing conditions such as "terminal illness" on candidates for euthanasia, why is the Report not denying each individual’s "right to take decisions concerning his or her own life and death in accordance with his or her own values and beliefs"?

Interestingly, the former Dutch Health Minister, Mrs Borst, a leading defender of the Dutch euthanasia regime, has stated that she thinks elderly people should be able to obtain suicide pills to take if they simply felt "tired of living". Mr Marty could not claim to be unaware of her viewpoint—it was pointed out by the author in his response to Mrs Borst’s speech at a hearing on euthanasia held by his Committee in Paris in 2002 (a hearing which, like the Report, was unbalanced: invited speakers in favour of legalisation markedly outnumbered those against).

Respect for patient welfare: the life "not worth living"
No responsible doctor would kill a patient merely because the patient requested it, however autonomously, any more than a responsible doctor would amputate a healthy leg just because the patient requested it. Indeed, in the Netherlands doctors refuse many autonomous requests for euthanasia. The doctor grants the request only if the doctor personally judges that the patient is right in thinking that death would be a benefit. If the doctor, however, thinks he or she can make this judgement—that the patient would be better off dead—in relation to a patient who asks for euthanasia, why cannot the doctor make that decision in relation to a patient in the same situation who is unable to request it? In other words, if death would benefit the patient why should it be denied the patient merely because of incompetence?

In 1996, two Dutch Courts of Appeal, adapting the reasoning previously used by the courts to justify voluntary euthanasia, held it lawful for doctors to give lethal injections to disabled babies,21 which illustrates the force of this counterargument. It was, moreover, recently reported that Dutch doctors are drafting protocols for euthanising children aged under 12 years (which is the minimum age specified in the present legislation) and that Members of Parliament from the ruling party in Belgium have introduced a Bill that would extend euthanasia to minors.22 As this trend confirms, once the rhetorical mask of autonomy is stripped away, the true face of euthanasia is revealed: the judgement that certain patients are better off dead. The Marty Report is an exercise in failed cosmetic surgery.


CONCLUSION
Mr Marty’s Explanatory Memorandum concludes:

As a lawyer and a legislator, I note that all over the world, doctors are ending the lives of patients, often in secrecy and with a sense of guilt. The law seems to want to ignore this fact of life, whereas it ought to have the courage to address it. Decriminalising euthanasia, rather than keeping the ban, might enable us to better supervise it and also prevent it.

He seems unaware that around the world the case for legalising voluntary euthanasia has already been considered by "lawyers and legislators" and that they have, with few exceptions, rejected that case. It is puzzling why the Report fails even to mention important and relevant publications such as that of the New York State Task Force, 11 whose members, both pro- and anti-euthanasia, unanimously rejected legalisation on the ground that it would be socially disastrous.

The core argument informing the Marty Report—that because euthanasia takes place illegally the Council of Europe should, in the light of empirical evidence, consider legalising it so as to "bring it out into the open" where it can be better "controlled"—has been refuted by the evidence from the Netherlands. This is hardly surprising: if some doctors are prepared, when euthanasia is illegal, to ignore the law of murder which prohibits it, why should we expect them, when euthanasia is legal, to observe the guidelines that permit it?

The Marty Report appeared in September 2003. It was strongly criticised by the Council of Europe’s Committee on Legal Affairs and Human Rights later that month.23 This Committee concluded (at paragraph 25): "The Dutch situation demonstrates that legalizing euthanasia and assisted suicide, far from introducing greater controls, simply introduces more euthanasia and more assisted suicide". The Report was debated in April 2004 by the Parliamentary Assembly of the Council of Europe.24 The Assembly decided not to vote on the text but to refer it back to the Committee so it could prepare a new text bringing together the widely diverging viewpoints expressed in the debate. It is to be hoped that any new text avoids the pitfalls of superficiality and selectivity into which its predecessor so clumsily fell.


FOOTNOTES
Competing interests: none declared


REFERENCES
 

  1. Parliamentary Assembly of the Council of Europe. Protection of the human rights and dignity of the terminally ill and the dying. (Recommendation 1418) 1999. http://assembly.coe.int/Documents/AdoptedText/ta99/erec1418.htm#1 (accessed 21 Mar 2005).
  2. Social, Health and Family Affairs Committee, Council of Europe, rapporteur D Marty. Euthanasia. (Doc. 9898) 10 September 2003. http://assembly.coe.int/Documents/WorkingDocs/Doc03/EDOC9898.htm (accessed 21 Mar 2005).
  3. Ward BJ, Tate PA. Attitudes among NHS doctors to requests for euthanasia. BMJ 1994;308:1332–4.[Abstract/Free Full Text]
  4. van der Maas PJ, van Delden JMM, Pijnenborg L. Medische beslissingen rond het levenseinde. Het onderzoek voor de Commissie onderzoek medische praktijk inzake euthanasia. [Euthanasia and other medical decisions concerning the end of life.] The Hague: SDU Uitgeverij Plantijnstraat, 1991.
  5. van der Wal G, van der Maas PJ. Euthanasie en andere medische beslissingen rond het levenseinde. De praktijk en de meldingsprocedure. [Euthanasia, physician-assisted suicide and other medical practices involving the end of life.] The Hague: SDU Uitgevers, 1996.
  6. van der Wal G, van der Heide A, Onwuteaka-Philipsen BD, et al. Medische besluitvorming aan het einde van het leven: De praktijk en de toetsingprocedure euthanasiae. [Medical decision making at the end of life: the practice and the verification procedure (in cases of) euthanasia.] Utrecht: De Tijdstroom, 2003.
  7. van der Maas PJ, van Delden JMM, Pijnenborg L. Medische beslissingen rond het levenseinde. Het onderzoek voor de Commissie onderzoek medische praktijk inzake euthanasia. [Euthanasia and other medical decisions concerning the end of life.] The Hague: SDU Uitgeverij Plantijnstraat, 1991:162 Cited in: Keown J. Euthanasia, ethics and public policy. Cambridge: Cambridge University Press, 2002:94.
  8. McLean SAM, Britton A. Sometimes a small victory. Glasgow: Institute of Law and Ethics in Medicine, University of Glasgow, 1996:31–2 (appendix III, table 17).
  9. Meier DE, Emmons CA, Wallenstein S, et al. A national survey of physician-assisted suicide and euthanasia in the United States. N Engl J Med 1998;338:1193–201.[Abstract/Free Full Text]
  10. van der Maas P, Emanuel LL. Factual findings. In: Emanuel LL, ed. Regulating how we die. Cambridge, MA: Harvard University Press, 1998:151.
  11. New York State Task Force on Life and the Law. When death is sought: assisted suicide and euthanasia in the medical context. New York, NY: New York State Task Force on Life and the Law, 1994.
  12. Keown J. Euthanasia: ethics and public policy. Cambridge: Cambridge University Press, 2002.
  13. Roscoe L, Malphurs J, Dragovic L, et al. Dr Jack Kevorkian and cases of euthanasia in Oakland County, Michigan, 1990–1998 [Letter]. N Engl J Med 2000;343:1735–6.[Free Full Text]
  14. Keown J. Euthanasia, ethics and public policy. Cambridge: Cambridge University Press, 2002:113,132.
  15. Fenigsen R. Dutch euthanasia: the new government ordered survey. Issues Law Med 2004;20:73,77.[Medline]
  16. Gomez CF. Regulating death: euthanasia and the case of the Netherlands. New York, NY: Free Press, 1991.
  17. Hendin H. Seduced by death: doctors, patients and assisted suicide. revised edition. New York, NY: Norton, 1998.
  18. United Nations, International Covenant on Civil and Political Rights. Concluding observations of the Human Rights Committee: Netherlands. Paras 5–6. (CCPR/CO/72/NET.) 27 August 2001. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.72.NET.En?Opendocument (accessed 21 Mar 2005).
  19. Keown J. Euthanasia, ethics and public policy. Cambridge: Cambridge University Press, 2002:64–66.
  20. Regina (Pretty) v . Director of Public Prosecutions (Secretary of State for the Home Department Intervening) [2001] 3 WLR 1598.
  21. Jochemsen H. Dutch court decisions on nonvoluntary euthanasia critically reviewed. Issues Law Med 1998;13:447–58.[Medline]
  22. Reuters. Dutch doctors drafting protocols for child euthanasia. Bioedge, 10 September, no. 134. http://www.australasianbioethics.org/Newsletters/134-2004-09-10.html (accessed 21 Mar 2005).
  23. Opinion of the Legal Affairs and Human Rights Committee of the Council of Europe. Rapporteur K McNamara, United Kingdom, Socialist Group. Euthanasia. (doc. 9923) 23 September 2004. http://assembly.coe.int/Documents/WorkingDocs/Doc03/EDOC9923.htm (accessed 21 Mar 2005).
  24. Council of Europe. News item. 2000–. http://www.coe.int/NewsSearch/InternetNewsSearch.asp?KW=euthanasia&lmLangue=1&Submit=Search&L= (accessed 21 Mar 2005). 

Source

Journal of Medical Ethics 2006;32:29-33; doi:10.1136/jme.2004.011148
© 2006 by BMJ Publishing Group Ltd & Institute of Medical Ethics   http://jme.bmj.com/cgi/content/full/32/1/29?ijkey=ee0a12545ca93b6160a57a1f264f53a085e66d2f

==================

BOOK REVIEW

Vol. 13 No. 6 (June 2003)

 

 

Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. Email: behuniak@lemoyne.edu

 

The issue of euthanasia has all the components that make for a political-legal morass. Emerging at the intersection of medicine, ethics, law, and politics, it is inspired by profound human suffering, shaped by clashing cultural values and practices regarding death and dying, and colored by the historical specter of human rights abuses. EUTHANASIA, ETHICS AND PUBLIC POLICY, by John Keown of the Faculty of Law at the University of Cambridge, skillfully navigates readers through this mire, while arguing a point of view that resists polemics.

 

The thesis that drives the book is both compelling and uncommon. Keown forcefully argues that neither voluntary euthanasia nor, more specifically, physician-assisted suicide should be legalized. What sets this book apart from other anti-euthanasia volumes, however, is that Keown does not argue against these practices on a principled basis, but for the pragmatic reason that they cannot be effectively controlled. That neither practice can be contained nor regulated to prevent abuses leads him to conclude that their legalization will inevitably lead down the “slippery slope” to involuntary active euthanasia—i.e., murder.

 

In garnering sources to support his position, Keown offers a comparative dimension by drawing on the euthanasia policies of Australia, Canada, England, Netherlands, and the United States—five countries that are currently grappling with the question of under what circumstances, if any, different euthanasia practices should be allowed.

 

Given the confusion over terminology within any given country and most certainly between them, Keown wisely uses Part I of the book to establish the vocabulary of euthanasia. After a brief survey of three definitions, he defines “euthanasia” as “doctors making decisions which have the effect of shortening a patient’s life and that these decisions are based on the belief that the patient would be better off dead” (p. 10). He then surveys the academic disagreements over the finer distinctions drawn between various euthanasia practices. For example, although the issue of patient consent is divided into “voluntary,” (i.e., with the patient’s consent), “nonvoluntary,” (i.e., lacking patient’s consent, usually because the patient lacks capacity but also when the patient is not asked), and “involuntary,” (i.e., contrary to the patient’s wishes), the distinctions are not accepted as relevant by all. There is also disagreement over whether “acts” (e.g., an injection) are to be treated differently than “omissions” (e.g., a decision not to administer antibiotics), as well as whether the withdrawal of life support would constitute an act or an omission. Finally, there is the controversial principle of the “double effect” that distinguishes that which is “intended” from that which is merely “foreseen.”

 

Keown’s position is that voluntary active euthanasia (VAE) should be broadly defined to include both acts and omissions, and to include physician-assisted suicide (PAS), a practice in which terminally ill patients self-administer a fatal dose of a drug prescribed by a physician. On the other hand, he supports the distinction drawn between intended and foreseen consequences maintaining that a physician who prescribes a drug to reduce a patient’s pain, even though it may hasten death, is not participating in euthanasia; whereas a physician who purposely does so to kill the patient is committing VAE.

 

In Part II, another background section necessary to set up his argument, Keown distinguishes between the ethical perspectives of Vitalism (the position that life must be preserved at all costs), Inviolability (the position that life is sacred, but that treatment may be stopped when it does not benefit the patient) and Quality of Life (the position that it is the value of the life itself, and not the specific value of the treatment, that determines when death may be sought). This section also contains one chapter that examines how the right to personal autonomy is not an absolute right, and another that demonstrates how logically difficult it is to support PAS or VAE without sliding public policy toward NVAE. For example, if physicians are allowed to prescribe deadly drugs to terminally ill patients, then why not permit them to give direct injections to those who cannot swallow the pills, and then why not expand this to those who are suffering but not terminally ill, and then to patients who have a poor quality of life but are unable to consent to termination?

 

This is Keown at his strongest. Even among proponents of PAS and VAE, of which I am one, he will raise doubts as to whether he may in fact be right about the dangers of legalization. In drawing out the scenario of the descent to legalized murder, his analysis is most disturbing in that it does not rely on the existence of evil intentions within a regime like that of Nazi Germany, but on well-meaning policymakers in democracies sensitive to human rights whose goal it is to end human suffering. In this, he is convincing that advocacy for the Inviolability of life position would safeguard patients from most abuses by shifting the focus to an evaluation of the benefit of the treatment for a specific patient, and not an evaluation of the worth of an individual life.

 

With definitions and ethical perspectives reviewed, Keown turns in Part III to the main question at hand: Can VAE and PAS be effectively controlled? To answer, he explores data collected from the Netherlands, a nation whose Supreme Court in 1984 declared VAE lawful under certain conditions. After comparing statistical data on deaths with the guidelines established by the Royal Dutch Medical Association, he concludes that not only are the guidelines “elastic” rather than strict and therefore open to abuse, but that the slide to NVAE has already taken place. To support this latter claim, he draws on 1990 data that indicate that, while only 2300 patients are reported to have died by VAE and 400 by PAS, doctors intended to accelerate the deaths of another 6350 cases, some without the “explicit request” of the patient (pp. 96-98).

 

In Part IV, Keown moves on to the Northern Territory (NT) of Australia and the state of Oregon in the U.S. to explore whether legalization efforts through the legislative process have succeeded in ways that the Netherlands policy, based on case law, has not. In 1995 the NT passed the Rights of the Terminally Ill Act (ROTTI) permitting both PAS and VAE. Keown criticizes ROTTI for its lack of specificity, its laxity, and its weak safeguards, flaws that led to its repeal by the Federal Parliament nine months later. Oregon’s Death With Dignity Act (DWDA), legalizing PAS under certain circumstances, was implemented in November 1997 after it passed twice as a voter’s referendum and surmounted court challenges. Keown again criticizes what he sees as a lack of specificity in the Act as well as the data of the first three annual reports (1998-2000) indicating that among the most frequent reasons that patients sought PAS were loss of autonomy, fear of becoming a burden, decreasing ability to participate in activities, and loss of control of bodily functions. Keown concludes: “The Oregon Act can claim to be the most permissive regime for PAS yet devised. Unlike the Netherlands and the NT there is no requirement that the patient be suffering, let alone be suffering severely or unbearably” (p. 179). For Keown then, “suffering” in this instance seems to mean physical pain and not psycho-social distress.

 

Keown’s critiques of existing laws are so penetrating and detailed (at times even nitpicking, e.g., that the DWDA’s definition of “terminal”—expecting death to occur within six months—is not precise enough) that it makes me wonder why he would not suggest how imprecisions could be refined, loopholes plugged, and his fears about the slippery slope quelled. Indeed, if the objection to PAS and VAE is just a pragmatic one, and not one of logic or of ethics, why not agree to laws that draw a clear line between voluntary and nonvoluntary euthanasia for no other reason than that a line must be drawn somewhere?

 

But where Keown falters most is in his description and analysis of the U.S. experiences with PAS and the right to die. He criticizes the DWDA in its original version and not as amended in 1999; he ignores how the Supreme Court upheld a right to what he would call passive euthanasia in CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990); and he overstates the Court’s rejection of PAS bans in WASHINGTON v. GLUCKSBERG (1997) and VACCO v. QUILL (1997), failing to note that the rulings allowed the states to ban not only PAS, but indeed, the choice to legalize PAS just as Oregon has done.

 

Keown adds more fuel to his argument against legalization in Part V by enlisting expert opinion from ethics committees, courts, and medical associations of the five countries under review to heighten an argument that there is worldwide consensus that legalization is a Pandora’s box that should not be opened.

 

What he leaves unexplored, however, is the apparent conflict between such experts and citizens of these nations. That there is such uniformity among expert opinion against legalization and such a groundswell among patients, families, and interest groups for legalization surely indicates a disconnect between public policy and medical practice. Keown does acknowledge patient suffering.  But to argue that the solution to the euthanasia quagmire is to forbid it while encouraging doctors to treat suffering more effectively hardly seems like an answer given the current failures of these most sophisticated and expensive of medical systems. Indeed, it may be the medicalization of death and dying that has spawned this very issue.

 

My concern about the potential impact of his anti-euthanasia position is only heightened by the final section of the book in which he explains his opposition to even passive euthanasia (PE)—defined as withholding or withdrawing life sustaining treatment with the intent to kill the patient. It is here that his previously drawn distinction between intending death and foreseeing death is most critical. If two doctors each decide to stop nutrition and hydration of their patients, one can be charged with practicing PE if the intent was to kill the patient; while the other would be safeguarded from punishment if death was merely foreseen and the intent was to stop a treatment no longer of benefit to the patient. Again, Keown declares that the essential difference is that of evaluating the treatment, not the life of the patient.

 

This raises two questions: How would a prosecutor or a Court get into the head of the physician to know what truly motivates the treatment decision, and would physicians be confident enough to trust the system so that they would aggressively offer palliative care? Keown’s response to the first is that MENS REA is evaluated in criminal court all the time. While true, presumably physicians would be loath to be treated as criminal suspects who must answer for their state of mind when practicing medicine. Secondly, physicians in the U.S. are so fearful about being prosecuted that they too often under-medicate, thus leaving patients in pain—contributing again to the very reasons why patients and families cry out for legalization of PAS or VAE, and illustrating the flip-side of Keown’s pragmatic argument.

 

This book is written with a clarity that is rare in this complicated, cross-disciplinary field, and so should be well received by Keown’s intended audience of a general reader. It would also be an effective text in health policy, medical law, or comparative law courses. Keown’s contribution is in educating the public, policy makers, and academics about what is at stake as five different nations struggle over the question of how we die.

 

CASE REFERENCES:

CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, 497 U.S. 261 (1990).

 

VACCO v. QUILL, 512 U.S. 793 (1997).

 

WASHINGTON v. GLUCKSBERG, 512 U.S. 702 (1997).

*********************************************************************
Copyright 2003 by the author, Susan M. Behuniak.

Source http://www.bsos.umd.edu/gvpt/lpbr/index.htm

Perhaps the most surprising thing about the Dutch Parliament's action on April 2001 to legalize euthanasia and physician assisted suicide is the reaction to it. After all, these practices have been going on under an umbrella of official tolerance for decades. Nevertheless the act of giving it full legal recognition has raised new concerns both in the Netherlands and around the world. Yet an estimated 10,000 protesters surrounded the Parliament building, singing hymns and reading scripture, in vigorous protest against the steps being taken inside the building.

Euthanasia has been practiced the Netherlands under an agreement worked out between the government and the medical association, but it has not been officially "legal." Even in this legally murky environment, euthanasia has been practiced freely in that country, although the exact number of cases is not known because of underreporting. Dutch physician Richard Fenigsen has written that Dutch general practitioners are estimated to perform from 5000 to 20,000 cases per year, which he notes that in American terms would be from 80,000 to 300,000 cases per year. [1]

The law specifies the conditions in which euthanasia will be permissible:

· The patient must have an incurable illness (note it does not specify "terminal illness"-the patient need not actually be dying to receive euthanasia)
· The patient must be experiencing "unbearable suffering"
· The patient is sound mind and has given consent
· Doctors will administer "medically appropriate" means to terminate life

Despite the fears of many who have argued that Dutch society and medicine are on a "slippery slope," official apologists for the law claim that there is no reason to fear one. Health Minister Els Borst argued that Dutch euthanasia has appropriate safeguards against abuse, claiming that ``There are sufficient measures to eliminate those concerns,'' She claimed that euthanasia will remain a last resort for those who otherwise would face suffering. [2] Similarly, Peter Bootsma, counselor for health and welfare at the Dutch embassy in Washington, says that ``Euthanasia is not something which will be forced on people. But this should be an option as a last resort for people who have a permanent and long-lasting wish not to live any more.'' [3]

Surprisingly, Dr. Fenigsen agrees with these optimists that the Dutch are not on a slippery slope, but for a different reason. "Dutch doctors who practice euthanasia are not on a slope. From the very beginning they have been at the bottom." This is because in his research he has found "involuntary euthanasia…is rampant." He found that "a staggering 62% of all newborns' and infants' deaths resulted from 'medical decisions,'" and that in 1995 alone there were 900 lethal injections given to patients who had not requested euthanasia. [4] Among that group, an amazing189 were fully competent and could have been consulted about their consent but were not. He concludes that "those who contend that it is possible to accept and practice ‘voluntary’ euthanasia and not allow involuntary totally disregard the Dutch reality.”

Fenigsen's grim assessment of euthanasia in Holland even before the law was changed is supported by the research of an American team led by Herbert Hendin published in the Journal of the American Medical Association. Hendin and his associates found that

From our point of view there has been an erosion of medical standards in the care of terminally ill patients in the Netherlands. The 1990 and the 1995 studies document that 59 percent of Dutch physicians do not report their cases of assisted suicide and euthanasia, more than 50 percent feel free to suggest euthanasia to their patients, and about 25 percent admit to ending patients' lives without their consent. How is it that the Dutch researchers are so sanguine about their data?

Like Fenigsen, Hendin and his colleagues conclude that " the Dutch experience indicates that these practices defy adequate regulation...." [5]

As the pro euthanasia movement grows in most of Western Europe and in North America, we are well advised to remember the words of one of the Dutch protesters mentioned earlier in this article: "We believe in the Lord, and he is the only one who can decide on taking life."

David B. Fletcher, Ph.D.
Chair, Steering Committee of CACE

Notes:

[1] "A Case Against Dutch Euthanasia," Hastings Center Report special supplement, Jan/Feb, 1989.
[2] Anthony Deutsch, "Dutch Approve Euthanasia Bill." Associated Press, Tuesday April 10 3:53 PM ET.
[3] Karen Iley, "Dutch Senate Passes Euthanasia Law Amid Protests," Reuters, Tuesday April 10 2:17 PM ET.
[4] Richard Fenigsen, "Dutch euthanasia revisited, " Issues in Law & Medicine, Winter 1997 v13 n3 p301-311
[5] Herbert Hendin et al, JAMA, June 4, 1997.


Promoting and encouraging the formation of moral character
and the application of biblical ethics to contemporary moral decisions
   

SOURCE Center for Applied Christian Ehtics
Wheaton College
http://www.wheaton.edu/CACE/resources/onlinearticles/euthanasia.htm


BMJ  2005;331:717 (1 October), doi:10.1136/bmj.331.7519.717-c

News

Clare Dyer, legal correspondent

BMJ

A retired GP and campaigner for the legalisation of voluntary euthanasia who agreed to help a terminally ill friend commit suicide was unfit to practice, the General Medical Council decided this week.

Michael Irwin, 74, was facing a strong possibility that he would be struck off the medical register as the BMJ went to press this week.

A GMC panel decided on Tuesday that his fitness to practise was impaired and told him that he had abused his position as a doctor.

The panel criticised Dr Irwin for stockpiling temazepam tablets and for "an act of deception" and a criminal offence in writing prescriptions for the drug in his own name, intending to use it to help his friend die.

Dr Irwin's case was referred to the GMC after he was given a police caution for possession with intent to supply a class C drug. He said he kept a supply of temazepam for his own use to relieve jet lag, but the panel found the numbers of pills "excessive."

A former chairman of the Voluntary Euthanasia Society, Dr Irwin travelled to the Isle of Man after agreeing to help a fellow euthanasia campaigner, Patrick Kneen, who was dying of prostate cancer.

But by the time Dr Irwin arrived his friend was too ill to take the pills. His own doctor put him on a diamorphine drip, and he died a few days later in a coma.

Dr Irwin, 74, told the panel that he knew of several doctors with "twinning" arrangements with fellow doctors to help each other commit suicide if a painful death threatened. He said he was twinned with a retired doctor in Glasgow, and he accused doctors of "double standards" if they refused to do the same for a friend or long term patient who is terminally ill and suffering.

Dr Michael Irwin

Credit: TOPFOTO/PHOTONEWS SERVICE LTD OLD BAILEY

 

In a statement to the GMC he said: "I believe passionately that in this apparently enlightened 21st century, terminally ill patients should have the right to obtain medical assistance to die, if this is their wish: to be able to pick a time for their death, preferably in their own familiar home environment.

"Although our British society is in principle just, I strongly believe that the existing law on assisted suicide is unjust and that sometimes a compassionate physician has a greater duty to a patient or a close friend than his or her duty to the state."

Dr Irwin, who was medical director of the United Nations in New York before he retired 15 years ago, represented himself at the two day GMC hearing, which he welcomed as a focus for renewed debate over the issue of doctor assisted suicide.

A poll last month by the UK polling organisation YouGov found huge popular support for the legalisation of doctor assisted suicide, with 86% of respondents agreeing with the statement that people who are terminally ill "should have the right to decide when they want to die and to ask for medical assistance to help them."

Doctor assisted suicide is legal in the US state of Oregon and in the Netherlands and Belgium and has been decriminalised in Switzerland.

source http://www.bmj.com/cgi/content/full/331/7519/717-c?maxtoshow=&HITS=80&hits=80&RESULTFORMAT=&fulltext=euthanasia&searchid=1&FIRSTINDEX=0&sortspec=date&resourcetype=HWCIT


BMJ  2005;330:1041 (7 May), doi:10.1136/bmj.330.7499.1041-a

News

Tony Sheldon

Utrecht

The Netherlands' first reported case of a doctor complying with a request for assisted suicide from a patient with Alzheimer's disease was lawful, a report has said.

The case was reported to the Netherlands' assessment committee system, which consists of five regional committees and checks whether doctors have followed the requirements of the law. If members of the relevant committee judge that the legal requirements have been met, they do not forward the case to the public prosecution service.

Committee members have defended their decision, maintaining that approval for the case did not show that the country was on a "slippery slope" towards a general acceptance of euthanasia for cases of Alzheimer's disease.

The case emerged in the 2004 annual report of the five committees of doctors, lawyers, and ethicists to whom doctors must report euthanasia. The committees judged that four out of 1886 cases of euthanasia and assisted suicide in 2004 failed the legal requirements, and, as the law requires, forwarded these to the public prosecution service.

But, in contrast, the case of a patient with Alzheimer's disease was considered to have met requirements as a "well-considered and voluntary request" to die. The patient was also considered to be "suffering hopelessly and unbearably," which is another of the criteria that makes euthanasia lawful.

The committees' report states that, in general, patients with Alzheimer's disease could not always comply with the requirements but that "in specific circumstances" they could. The 65 year old patient had had Alzheimer's disease for three years. Since his diagnosis he had said that he did not wish to endure the full course of his illness and had in the previous year repeatedly asked for help to commit suicide.

The doctor judged him to be suffering unbearably. He was conscious that he could no longer function independently and faced the future prospect of increasing dementia.

A second opinion from a doctor trained through the national support and consultation with euthanasia programme, however, did not recognise such suffering. This doctor argued that the patient's awareness of his suffering would decline as the disease progressed and doubted that the patient was competent to express his wishes.

Further consultations with a psychologist, a nursing home doctor, and a gerontopsychiatrist, however, all concluded that the patient was suffering unbearably because he was conscious that the disease was removing control over his life. They believed too that he remained competent.

source http://www.bmj.com/cgi/content/full/330/7499/1041-a?maxtoshow=&HITS=80&hits=80&RESULTFORMAT=&fulltext=euthanasia&searchid=1&FIRSTINDEX=0&sortspec=date&resourcetype=HWCIT 


BMJ  2005;330:1388 (11 June), doi:10.1136/bmj.330.7504.1388

Letter

"Right to die"

EDITOR—Grayling claims that the "right to life" means quite a rich life; withholding treatment with death as the result and giving treatment that causes death are indistinguishable; and death is the ultimate analgesic.1 Grayling also implies that the double effect is widely abused.

The EC Convention for the Protection of Human Rights and Fundamental Freedoms protects against intentional deprivation of life.2 Quality of life is not mentioned, and terminating a life at a person's request is clearly not permitted. "Right to life" is perhaps a "right not to be killed," in medicine, generally relating to survival and not assisted death. However, some interpret it as giving patients a right to cardiopulmonary resuscitation regardless of the clinical circumstances3; extrapolation to all potential interventions at the life-death interface could have disastrous consequences for the medical profession.

Patients obviously can wish for their life to be terminated without needing to explain why, and they arguably have a right to attempt suicide. However, a right to assisted dying equates to a right that somebody else will kill or help to kill them on request—very different from withholding treatment or the double effect.

Withholding treatment relates to interventions unable to produce the desired benefit.4 In palliative care withholding treatment does not directly cause death that arises from an irreversible and unsustainable pathological burden. And death without adequate analgesia is possibly the ultimate pain for everyone. Judicious use of analgesia is an essential part of good terminal care, and, in 15 years as a doctor, I have yet to see a death attributable to deliberate analgesic overdose by a doctor.

Palliative care affirms life until the moment of death, regarding death from advanced incurable disease as a natural process.5 It aims to relieve pain and other distressing symptoms, enhance remaining quality of life, and neither hasten nor postpone death. These human "death rights" should perhaps be protected by legislation. Ill-conceived legislative changes that take the right to life or the right to death beyond sensible limits or give certain doctors the right to kill on request could jeopardise palliative care.

John C Chambers, medical director

Katharine House Hospice, Adderbury, Oxfordshire OX17 3NL dr.chambers.info


Competing interests: None declared.

References

  1. Grayling AG. "Right to die." BMJ 2005;330: 799. (9 April.)
  2. Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No 11. http://www.echr.coe.int/Convention/webConvenENG.pdf (accessed 8 Apr 2005).
  3. Higginson IJ. Doctors should not discuss resuscitation with terminally ill patients: against. BMJ 2003;327: 615-6.
  4. British Medical Association. Withholding and withdrawing life-prolonging treatment: guidance for decision making. London: BMJ Books, 1999.
  5. World Health Organization. Definition of palliative care. http://www.who.int/cancer/palliative/en/ (accessed 8 Apr 2005).

source http://www.bmj.com/cgi/content/full/330/7504/1388?maxtoshow=&HITS=80&hits=80&RESULTFORMAT=&fulltext=euthanasia&searchid=1&FIRSTINDEX=0&sortspec=date&resourcetype=HWCIT


BMJ  2005;331:684-685 (24 September), doi:10.1136/bmj.331.7518.684

Education and debate

Legalised euthanasia will violate the rights of vulnerable patients

R J D George, senior lecturer1, I G Finlay, baroness2, David Jeffrey, chair of ethics committee3

1 Centre for Bioethics and Philosophy of Medicine, University College London UB1 3HW, 2 House of Lords, London SW1A 0PW, 3 Association for Palliative Medicine of Great Britain and Ireland, Southampton SO17 1DL

Correspondence to: R J D George rob@palliativecare.org.uk

Doctors in the United Kingdom can accompany their patients every step of the way, up until the last. The law stops them helping their patients take the final step, even if that is the patient's fervent wish. Next month's debate in the House of Lords could begin the process of changing the law. To help doctors decide where they stand we publish a range of opinions

Introduction

 Introduction
 Change is unjustified
 Protecting the vulnerable
 Moral consequences
 Achieving a good death
 References
 
The chameleon of euthanasia continues to change, and the current shade is physician assisted suicide. The politically correct position for clinicians is "studied neutrality" since doctors will not really be involved in assisted suicide. Thus the issue has slipped past the BMA,1 and the recent House of Lords' report on assisted dying suggests that euthanasia and assisted suicide are different.2 This cannot be. What doctor prescribing for assisted suicide would refuse to complete it with euthanasia? In the Netherlands just under one in five physician assisted suicides ends in lethal injection.3 Were physician assisted suicide legalised, doctors would have the new duty of therapeutic killing,4 even if they planned only to prescribe lethal medication. Both are killings justified as treatment, hence we use the term therapeutic killing simply because it describes precisely what is done. Medicine cannot escape; quite aside from patient safety, legalising physician assisted suicide will have a profound and ubiquitous effect on clinical codes, duties, and practice.w1-w15

Change is unjustified

 Introduction
 Change is unjustified
 Protecting the vulnerable
 Moral consequences
 Achieving a good death
 References
 
Autonomy and suffering are the usual justifications for change. The autonomy argument is thin. In all legislatures, the final decision for physician assisted suicide or therapeutic killing rests with the doctor. Patients' perception of total control over this type of death is illusory. Evidence from Oregon shows that patients have to shop around for compliant doctors, and in the Netherlands about a fifth of requests are denied because patients are not suffering enough.5-7

Protecting the vulnerable

 Introduction
 Change is unjustified
 Protecting the vulnerable
 Moral consequences
 Achieving a good death
 References
 
The cardinal argument against legalised euthanasia, however, is the insoluble ethical conflict between meeting individuals' demands for therapeutic death and ensuring that incapable, vulnerable, or voiceless patients will not have lethal treatment prescribed as their best interest. Coercion is a real, immeasurable risk. As with cardiopulmonary resuscitation, clinicians will have to discuss the potential for assisted suicide with all dying patients. Arguably this promotes freedom, trust, and openness, yet, as disabled people find with discussions about resuscitation, it could also infer a duty to die.8 9 Requests for physician assisted suicide because of "being a burden" have risen in Oregon from 1:5 to 1:3 since its Death with Dignity Act was implemented.10

Treatments are medical goods. Since justice dictates that rights to appropriate treatment are universal, if assisted suicide is legal it becomes an optional treatment, not just for patients who want it but also for those who need it. A moral obligation exists for death to be a legitimate interest for all our patients. Therefore, assisted suicide or therapeutic killing becomes our proper duty towards anyone claiming or appearing to suffer unbearably, regardless of prognosis or capacity to consent. The inevitable accommodation of this shift in the status of assisted suicide and therapeutic killing is seen clearly in the Netherlands. Therapeutic killing is now extended to children,11 12 people with psychiatric illness,13 14 and those who are mentally incapable.15 Therapeutic killing without consent has become laudable and morally necessary.16 17 The Netherlands now plans a committee to decide on such cases nationally.18 Even UK protagonists recognise that safeguards are limited and expect legislation to be incremental.2 Yet therapeutic killing without explicit request, or of those lacking capacity, is the ultimate violation of autonomy. Although the principle of autonomy is extended for requesting individuals, this is at the expense of others' freedoms.

Such collateral damage from the entitlement to therapeutic killing is inescapable. Dutch legislation has failed to improve reporting beyond 54% of all cases or to limit therapeutic killing without consent,16 19 which consistently accounts for about 1 in 7 of reported cases.16 Experience is similar in Belgium.20 Oregon does not police its deaths. The size of this problem is unknowable, and the argument that this promotes autonomy in the sick population as a whole is misleading and unsustainable. Extrapolating the current Dutch figures to the United Kingdom suggests that at steady state, 13 000 deaths may result each year, with around 2000 occurring without request or consent.2

Moral consequences

 Introduction
 Change is unjustified
 Protecting the vulnerable
 Moral consequences
 Achieving a good death
 References
 
In short, any safeguards have no ethical basis once any form of assisted suicide or therapeutic killing is sanctioned. The real question, therefore, is whether we are happy with the moral cost to society and loss of life among vulnerable patients as a result of reclassifying the freedom to die to the right to be killed.

Naturally, once promoted to a medical good, therapeutic killing becomes a legitimate consideration in resource management. In the first Dutch report in 1990, only one case was cited of a dying patient who was killed to free the bed,21 whereas in the latest survey, 15% of doctors were concerned about economic pressures.16 The nursing literature records similar experience.22

Achieving a good death

 Introduction
 Change is unjustified
 Protecting the vulnerable
 Moral consequences
 Achieving a good death
 References
 
Finally, suffering is extremely complex, part of our humanity, and not exclusive to people who are dying. Paradoxically, as disease overwhelms the dying person, the challenge is not how to be killed, but how either to hang on, or to let go, of life. Suffering can be mitigated but it requires the highly specialised skills and perseverance of a multidisciplinary team and goes well beyond controlling symptoms with drugs.23

Although the presence of specialist palliative care is no argument against therapeutic killing, its absence certainly is, and lack of even basic, consistent provision across the UK is clear.24 An average general practitioner cares for fewer than five dying patients a year; educational programmes consistently find general practitioners and hospital consultants are poor at controlling symptoms and relieving suffering, and many still believe that opioids and sedatives hasten death.25 26 It is unsurprising, then, that many clinicians have seen suffering patients who they have been unable to help. Many doctors assume that they already kill frequently with analgesia or sedation when they do nothing of the sort.

On a balance of harms, legalising physician assisted suicide or therapeutic killing is a far greater risk than compassion for the small minority pleading to be killed might imply. In detailed evidence to the Select Committee the implications for individual doctors in the UK was glossed.2 Every doctor caring for patients will be asked at some stage to assist suicide or kill therapeutically. Before another bill is laid before parliament every doctor must think through all the moral and practical implications for their own practice, for all the others in their clinical team, and, of course, for other patients in their care. Promoting autonomy for all is to help people understand that they can let go and to learn the skills to assist them to do that.23
 

Summary points

Any legislation will leave vulnerable groups open to therapeutic killing without consent

Since this is the ultimate violation of autonomy assisted suicide cannot be separated from euthanasia

Arguments that legalised euthanasia promotes autonomy do not stand

Doctors need to consider carefully the full implications of legalisation

 


 
{webplus.f1}References w1-w15 are on bmj.com

Competing interests: RJDG and DJ gave oral evidence to the Select Committee on the Assisted Dying for the Terminally Ill Bill on behalf of the Association for Palliative Medicine. IGF was a member of that committee.

Contributors and sources: The authors are among the national leaders in specialist palliative care, practising clinicians, and have researched, taught, and published widely in the discipline. IGF is also professor of palliative medicine, School of Medicine, Cardiff University. This article arose from discussions to distil the issues that emerged from a systematic literature review by RJDG of euthanasia and assisted suicide. RJDG is the guarantor.

References

 Introduction
 Change is unjustified
 Protecting the vulnerable
 Moral consequences
 Achieving a good death
 References
 
  1. British Medical Association. Assisted dying. www.bma.org.uk/ap.nsf/Content/Endoflifeissues?OpenDocument &Highlight=2,Annual,Representatives,Meeting,2005 (accessed 31 Aug 2005).
  2. House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill. Report [HL Paper 86-I]. London: Stationery Office, 2005.
  3. Groenewoud JH, van der Heide A, Onwuteaka-Philipsen BD, Willems DL, van der Maas PJ, van der Wal G. Clinical problems with the performance of euthanasia and physician-assisted suicide in the Netherlands. N Engl J Med 2000;342: 551-6.[Abstract/Free Full Text]
  4. British Medical Association, General Medical Council. Oral evidence to the select committee on the assisted dying for the terminally ill bill [HL] Vol II Evidence. London: Stationery Office, 2005: 125-6.
  5. Ganzini L, Nelson HD, Lee MA, Kraemer DF, Schmidt TA, Delorit MA. Oregon physicians' attitudes about and experiences with end-of-life care since passage of the Oregon death with dignity act. JAMA 2001;285: 2363-9.[Abstract/Free Full Text]
  6. Ganzini L, Nelson HD, Schmidt TA, Kraemer DF, Delorit MA, Lee MA. Physicians' experiences with the Oregon death with dignity act. N Engl J Med 2000;342: 557-63.[Abstract/Free Full Text]
  7. Haverkate I, Onwuteaka-Philipsen BD, van der Heide A, Kostense PJ, van der Wal G, van der Maas PJ. Refused and granted requests for euthanasia and assisted suicide in the Netherlands: interview study with structured questionnaire. BMJ 2000;321: 865-6.[Free Full Text]
  8. Campbell J. A right to die? I'm more concerned that everyone has the right to live. Times 2004 Dec 2.
  9. Templeton S-K. Better for old to kill themselves than be a burden, says Warnock. Times 2004 Dec 12.
  10. Oregon Department of Human Services. Fifth annual report on Oregon's death with dignity act. http://egov.oregon.gov/DHS/ph/pas/docs/year5.pdf.
  11. Leenen JI, Ciesielski-Carlucci C. Force majeure (legal necessity). Justification for active termination of life in the case of severely handicapped newborns after forgoing treatment. Camb Q Healthc Ethics 1993;2: 271-4.[Medline]
  12. Van Thiel GJ, van Delden JJ, de Haan K, Huibers AK. Retrospective study of doctors' "end of life decisions" in caring for mentally handicapped people in institutions in the Netherlands. BMJ 1997;315: 88-91.[Abstract/Free Full Text]
  13. Jochemsen H. Dutch court decisions on nonvoluntary euthanasia critically reviewed. Issues Law Med 1998;13: 447-58.[ISI][Medline]
  14. Sheldon T. Dutch GP cleared after helping to end man's "hopeless existence". BMJ 2000;321: 1174.[Free Full Text]
  15. Sheldon T. Euthanasia endorsed in Dutch patient with dementia. BMJ 1999;319: 75.[Free Full Text]
  16. Onwuteaka-Philipsen BD, van der Heide A, Koper D, Keij-Deerenberg I, Rietjens JA, Rurup ML, et al. Euthanasia and other end-of-life decisions in the Netherlands in 1990, 1995, and 2001. Lancet 2003;362: 395-9.[CrossRef][ISI][Medline]
  17. Sheldon T. Dutch GP found guilty of murder faces no penalty. BMJ 2001;322: 509.[Free Full Text]
  18. Sterling T. Netherlands hospital euthanizes babies. http://aplancasteronline.com/4/netherlands_child_euthanasia (accessed 15 Sep 2005).
  19. Jochemsen H, Keown J. Voluntary euthanasia under control? Further empirical evidence from the Netherlands. J Med Ethics 1999;25: 16-21.[Abstract]
  20. Deliens L, Mortier F, Bilsen J, Cosyns M, Vander SR, Vanoverloop J, et al. End-of-life decisions in medical practice in Flanders, Belgium: a nation-wide survey. Lancet 2000;356: 1806-11.[CrossRef][ISI][Medline]
  21. Dutch Department of Health. The Remelink report. The Hague: DoH, 1990.
  22. Hendin H. The Dutch experience. Issues Law Med 2002;17: 223-46.[ISI][Medline]
  23. George RJD, Martin J. Non-physical pain: suffering in action. In: Hoy A, Finlay I, Miles A, eds. The effective prevention and control of symptoms in cancer. London: Aesculapius Medical Press, 2004: 107-26.
  24. House of Commons Health Select Committee. Palliative care fourth report session 2003-4. HC 454-I. London: Stationery Office, 2004.
  25. Sykes N, Thorns A. Sedative use in the last week of life and the implications for end-of-life decision making. Arch Intern Med 2003;163: 341-4.[Abstract/Free Full Text]
  26. Thorns A, Sykes N. Opioid use in last week of life and implications for end-of-life decision making. Lancet 2000;356: 398-9.[CrossRef][ISI][Medline]
(Accepted 18 July 2005)

source http://www.bmj.com/cgi/content/full/331/7518/684?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&fulltext=Keown&searchid=1&FIRSTINDEX=0&sortspec=date&resourcetype=HWCIT


This page was added March 15, 2007, since that day you are visitor Hit Counter  to this page

Return to COMPASSIONATE HEALTHCARE NETWORK (CHN) INDEX