C H N     Robert Pankratz, MD

 

 


  

      As a general practitioner involved in palliative care, I have followed the public debate on mercy killing with much interest.  When the Supreme Court of Canada denied Sue Rodriguez's appeal for physician assisted suicide the Reasons for Judgment (and Dissent) revealed perspectives that differ from traditional medical ethics which act as incentives promoting mercy killing.  Although the CMA has presented a comprehensive overview of euthanasia1, an analysis of the issues involved such as autonomy, dignity, and quality of life seem timely.  I will also examine how physicians can help reduce current incentives toward "death by choice" through educating the public and promoting palliative care.

      With the help of the Right To Die Society of Canada, Ms. Rodriguez, a 42 year old former secretary diagnosed with ALS in August of 1991, challenged the current legal prohibition of assisted suicide in September of 1992.2  In the media her illness was portrayed as being "condemned to die. . . a helpless, drooling, physically atrophied captive of this disease, dependent on other people and machines for an ever-attenuated form of mere biological existence."  Her desire to "die with dignity" is seen to require the "guarantee of a quick death with a minimum of misery" which means being "given a fatal injection when she decides the quality of her life has deteriorated beyond an acceptable degree".3

Court Arguments

      Although ultimately rejected by all three levels of court, her strongest appeal was based on the R. v. Morgentaler, 1988 definition of "security of the person" (meaning physical or mental integrity) which included the notion of human dignity, and in turn was equated with autonomy.4  The reasons for judgement that have been summarized in a recent Canadian Bioethics Report5 will not be repeated here.  However, I will discuss several statements made by the Supreme Court Justices that were not mentioned there.  Unless specified, references to individual Judges' comments are taken from Sue Rodriguez v. Attorney General of Canada and the Attorney General of BC, S.C.R., 1993, #23476.

Suicide in Canada

      Justice Sopinka outlined several reasons why Parliament removed the offense of attempted suicide from the Criminal Code in 1972.  Suicide was seen to be a problem with its roots and solutions in sciences outside the law.  Indeed, criminal law was seen to be "an ineffectual and inappropriate tool for dealing with suicide attempts",  but in his dissenting opinion Chief Justice Lamer asserted that the intended result (of the decriminalization of assisted suicide) was to increase the self determination of individuals in this realm by the removal of state controls.  Justice McLachlin (at pages 7 and 8) also argued that not only was suicide legal, but there was a "right to commit suicide."  The result of the reasons of these dissenting Judges, according to Justice Sopinka, would be the recognition of "...a constitutional right to legally assisted suicide beyond that of any country in the Western world..."(p.2).

      The dissenting opinion that the autonomy of suicidal individuals was now paramount over the state interest in protecting life seems to downplay the following information presented by A.G. Henderson Q.C. at trial.  In its 1982 working paper number 28, (at p. 13) the Law Reform Commission of Canada stated "the decriminalization of attempted suicide in 1972 occurred due to difficulties prosecuting people with mental illness and did not have the effect of legitimizing suicide, or of creating a true "right" to suicide in the classical sense of that word.  Suicide remains an act which is fundamentally contrary to human nature."6

       Many experts believe that there is no such thing as a "rational suicide"  because a major psychiatric disorder is almost invariably present, as is the common emotion of hopelessness-helplessness.7,8,9  Truly free consent does not appear to be present in parasuicides either, since "those who attempt suicide are normally ambivalent."10

      Suicide rates in Canada have been rising steadily since World War II, exceeding comparable U.S. rates11;even in the U.S., deaths due to suicide outnumber those due to AIDS.12  Although the elderly are at increased risk, even in this group most suicides result from treatable mental illness.  Studies reveal that "more individuals, particularly elderly individuals, killed themselves because they feared or mistakenly believed they had cancer than killed themselves and actually had cancer."13  Incarceration and bereavement also increase the risk of suicide.

      Physicians may be poorly equipped to sort out the intricacies of informed consent when treating patients who are near the end of life.14  We need to improve undergraduate and continuing medical education so as to make students and physicians aware of the many issues (such as competence and hidden motives) that should be considered when they are counseling a patient whom they believe is contemplating suicide.15  Further concerns about the act of suicide include the escalation of suicide rates among males aged 20-29 (doubled in the past 20 years) and the fact that "every suicide can start a chain of suicides."16,17  And relevant to Ms. Rodriguez' situation (she has a surviving son) is the 600-fold increase of suicide risk in male offspring of suicide victims.18

Dignity

      Many argue that we have a right to prevent our dignity from being reduced by disability or suffering.  This is particularly relevant since 57% of active euthanasia in the Netherlands is carried out for "loss of dignity."19  Rhetoric in our own House of Commons has encouraged the public perception that mercy killing is necessary to prevent an agonizing or shameful death.  On September 24, 1991 Member of Parliament Robert Wenman stated "In this new age of advancing medical technology in which death finds no easy peace or end and life is extended again and again and again, one can sustain their dying connected to machines and strapped to their hospital bed, rotting and suffering until all or most of their body parts are gone ..."20  But what is meant by the term dignity?  This cannot refer to the worth or value of an individual because worth is an inherent characteristic of all humanity, innate and inviolable, not reduced by disability or illness.  If what is meant here is a person's self esteem, then we are speaking of an attitude toward self or circumstances that is both personal and subject to change.  Here euthanasia proponents wish to indicate not dignity, but an individual's capacity for independent living and to be accurate, they might use such terms as decorum or modesty, which in the perspective of some individuals is dependent on external circumstances.  This could be simply a misdirected sense of pride.

      Since every member of society has equal value, illness or handicap does not reduce true dignity nor does availability of Physician Assisted Death (PAD) confer dignity upon one's existence.  Although your self-esteem may be diminished in a dependent state, this can be reinstated by the respect and tenderness with which you are treated.  In the hospice movement we find that true "death with dignity" occurs without need for PAD.21 And even though this seems to have been Rodriguez' ultimate motive, a patientís "hatred of dependence" cannot constitute adequate justification for PAD.22

Autonomy

            The primary argument that Sue Rodriguez advanced in favor of assisted suicide was her right to self determination.  Justice McLachlin summarized this elevation of the principle of autonomy when she stated (at p.13) "what value is there in life without the choice to do what one wants with one's life."  This extreme view sees even minor disability as a potential reason to end one's existence and presupposes that death is somehow better than dependence.  From this perspective, dependence alone is clearly classified as suffering.

            If a competent patient's request is seen as compelling, the physician loses autonomy, moving from the role of a professional to that of a technician.  In the case at hand, the Victoria Hospice Society's press release (Feb 15, 1994) has shown that immediately prior to Ms. Rodriguez' allegedly assisted death, she was in no physical pain, could manage solid food, and was not near death.  From this information, it is questionable whether she required assistance at all.  In Holland, the Royal Dutch Medical Society encourages physicians who disagree with euthanasia to refer; in fact "recently a doctor who had refused to apply euthanasia was called to defend his conduct before a 'medical court'."23  Indeed, Dr. C. Schaake of the Netherlands Cancer Institute in Amsterdam, has concluded that the hospital and its staff "could not refuse" a patient's carefully considered request for euthanasia.24

            The importance of the principle of autonomy presents a paradox when coupled with the other major consideration in PAD, namely pain and suffering.  "If the principle motive for the physician to act is relief from suffering, why ought self-determination to be required?  And why would the duty to relieve suffering not apply to the incompetent just as well as the competent?  Conversely, if we hold that self-determination should be the dominant motive, why should suffering be required?"25  The Rodriguez dissent saw no need for her to be suffering or terminally ill and gave no justification for contravening existing legislation (S. 14) that states that one cannot consent to one's own death. 

            In 1990 in Holland, there were at least 1000 instances where PAD was applied without patient consent, 250 of these life shortening actions being carried out on at least partially competent individuals.26  Although the patient's suffering is cited as the reason for mercy killing, the Remmelink report stated that the doctors were more often "guided by their own impressions of the patient's unspoken but probable wishes."27  This practice of nonconsensual euthanasia suggests an increase in the paternalistic power of the medical profession in these cases.28  Even in the 2700 instances of PAD carried out as the result of the patient's request (in Holland in1990), the validity of the patient consent has been questioned because in spite of a "persistant and enduring request" being legally required, 59% of granted euthanasia requests are carried out within 24 hours of the patient's request (11% within the hour).29

Choice

             Chief Justice Lamer argued that, since the appellant only petitioned for the right to choose suicide, the morality of the act itself should not be considered relevant.  In this issue attempts are commonly made to deflect the focus of the debate from an analysis of assisted suicide itself to the issue of personal freedoms.   However, it is only the acting out of the choice of suicide that is impaired for the disabled person in question, so the act itself can hardly be an unrelated issue.

            Even if we limit the discussion to choice alone, we must remember that "the personal rights and freedoms listed in our constitution are never absolute.  There are always qualifications and limitations to allow for the protection of other competing interests in a democractic society."30  Since equality of rights presupposes that all lives have equal dignity and value, the state interest in protecting life does not merely extend to those vulnerable to coercion or who seek an escape from depression.

            It can hardly be seen as true freedom when people seek death out of a sense of impotence or loss of control brought about by illness or disability.  The desire to be totally independent (an illusion in our society) becomes a desire for death when this is not possible. Unwanted life circumstances become unwanted life.  Helping patients to cope with disability and to find meaning in suffering would serve them  better.31

            In addition, there is an inherent fallacy in the argument that this will be limited to freely consenting competent people only.  Firstly, cognitive impairment is present in the majority of terminally ill patients, including those with ALS.32,33  And if Canadian law recognizes a right for competent people to PAD, our constitution makes this right available to the incompetent members of society by proxy.  Many subtle but coercive pressures are present including social, financial, perceived duty to society, and physician biases.  Physicians generally are not well trained in assessing whether consent is truly free and informed, particularly on this issue, where their own existential anxieties may interfere.  In my practice I encounter terminally ill individuals who consider themselves a burden to their caregivers.  The mere legality of the option of PAD  would imply a societal concensus that PAD is appropriate (or even obligatory) under these circumstances and would imply to already fragile patients that they needed to justify their choice to remain alive.

Preserving vs. Protecting Life

            Justices McLachlin and Cory agreed that no justifiable legal distinction existed between the withdrawal of medical care and active intervention to take life.  The dissenting opinion argued that since patients can refuse life-prolonging medical therapy, this exercise of an individual's autonomy in their medical care should be extended to include PAD, because in both cases the intended result is death.  This view confuses the concepts of "preserving" life with "protecting" life and confuses natural death with deliberate life termination.  Preserving life is the medical prolongation of natural life, while protecting life refers to society's obligation to provide the necessities of life and prevent murder.  Allowing the refusal of a medical treatment shows a profound respect for natural life.  Although natural death may ensue from ceasing to attempt to extend life, this is not the intention behind the withdrawal of care; patient autonomy and comfort is the goal.  Because death is neither hastened nor desired, the withdrawal of care on request, even when this allows death to occur, is the antithesis of deliberate life termination (PAD).  We cannot equate our right to not be violated by unwanted therapy with the freedom to choose our means of death.  Curiously, since we have acquired the capacity to extend life we seem to have concluded that we are empowered to shorten life as well.  But the ethical use of power needs to remain within the natural boundaries of life.

Sanctity of Life

            Justice McLachlin argued  that because in self defense and in times of war killing is justifiable, the sanctity of life principle is not absolute.  However, the taking of innocent life always has been prohibited, the two exceptions mentioned above merely show that the only justification for the taking of life is the protection of something of equal value, another life.

            Most values in society today are seen as both personal and relative.  Those who would give life an absolute or infinite value, are often portrayed as intolerant bigots who impose their values on those who see autonomy as paramount.  But if the right to choice takes precedence over the right to life, the key foundational value in society is removed and life termination becomes justified under vague, subjective conditions.  To see life as an instrumental rather than intrinsic good, is to adopt a utilitarian ethic, that in reality (since the values are entirely relative) has no consistent or reproducible standard at all.

             Since man can merely manipulate, not create life, our potential for harm is enormous.  This can be seen in history, where the same scientific processes that produced life-prolonging technologies have also produced nuclear weapons for mass genocide.  And techniques such as the cyanide shower which were perfected in pre-war Germany to end the lives of some 275,000 handicapped individuals eventually were used in the holocaust.34  Bear in mind that Dr. Med. Brandt, personal physician to Hitler, who was executed after WWII for his role in this euthanasia program, stated at his trial that his " ...underlying motive was the desire to help individuals who could not help themselves and were thus prolonging their lives in torment...".35

            For those who would argue today that the German prewar euthanasia program had no connection with the war crimes, I refer you to the now-classic article written by Psychiatrist Leo Alexander, a Nuremberg expert witness, who noted that "(W)hatever proportions these crimes finally assumed, it became evident to all who investigated them, that they had started from small beginnings.  This attitude in its early stages, concerned itself merely with the severely and chronically sick, gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, and finally, all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus, was the attitude toward the nonrehabilitable sick."36

Palliative Care and Suffering

            Traditionally, suffering was seen as having a purpose both in this life and the next.  However, since suffering is now felt to reduce the value of life, this renders some people "better off dead".  But "wrongful life" suits (civil suits based on negligence that led to wrongful birth or life of an infant) have been rejected  in Canada, Britain and the U.S. because no objective evaluation of the state of death is possible so this cannot be weighed against one's quality of life.  In fact, the premise for wrongful life "is completely contradictory to the basic precept that life is precious".37  In the care of people who feel their quality of life is compromised, the physician's mandate is to improve that quality of life rather than to judge that quality.  Because suffering and distressing symptoms are not equivalent, this may entail the relief of symptoms, fears, and loneliness or helping someone adjust to a new circumstance.

            Since medicine now has the capacity to relieve most physical suffering, the conclusion seems to have been reached that people have the right to be free of suffering.  This can be enormously seductive to physicians who seek the omnipotence to truly relieve all suffering.  Unfortunately, suffering (as in the case of Ms. Rodriguez) encompasses not only the physical aspect but also spiritual, psychological and social aspects (hence relieving suffering requires the patient's willing participation).   Addressing the full spectrum of suffering is possible with a multidisciplinary palliative care team approach.  Unfortunately, Justice Sopinka (at p. 11) agreed with the appellant's submission that palliative care is a discipline which provides only relief of physical symptoms; furthering public misperceptions and euthanasiasts' goals.

            The argument that PAD is necessary to relieve suffering seems largely based on unsubstantiated fears rather than actual clinical situations.  In caring for nearly 300 patients with ALS at St. Christopher's Hospice, Dr. Cecily Saunders has received no request for assisted suicide, and 95% of deaths were "peaceful."38  A request for euthanasia is likely to fade away in the hospice setting once symptom control is effected.39  Dr. Saunders quoted a police sergeant with ALS who, after admission to St. Christopher's, said "if I ever get like that chap opposite I shall want to do something to myself."   However, when he reached that stage months later, he said "I can't see round the next bend but I know it will be all right."40

            Even though the relief of suffering is the physician's goal, we must not too readily accept the idea that suffering is purposeless.  Dr. Elizabeth Latimer has noted, that "although suffering is universal, its role in human development and human relationships is still not understood."41  Often during the terminal phase of an illness, patients accomplish important business.  Victoria psychiatrist Philip Ney reminds us that "dying time is not wasted time, it is the time when people settle their affairs, mourn their losses, and prepare to meet their maker."42  The astute clinician can facilitate the patient's physiological adjustment to the stages of dying, and reduce suffering by helping the individual discover meaning and purpose in their situation.43

             Palliative care physicians seem to be in agreement with Dr. Latimer "that patients within a caring community of support rarely ask to die earlier."  And anecdotes abound of patients who, after an initial demand for PAD have a subsequent change of heart.  As for the few who sustain a wish to die "their reasons seem to be reflections more of their personality and life's adaptation than pain and suffering per se."44

             Justice Sopinka blurred distinctions between palliative care and  PAD (at p. 34) when he stated "The administration of drugs designed for pain control in dosages which the physician knows  will hasten death constitutes active contribution to death by any standard."    Even though a distinction based on intention was drawn, he misunderstood the difference between treatment that carries a statistical risk of shortening life with procedures that carry a certainty of termination of life.  This equates palliative care in Canada with what is referred to as the "alleviation of pain and suffering" (or APS) in the Netherlands where 8100 people had their lives intentionally shortened by the escalated administration of narcotics in 1990.45  The weight of palliative expert opinion is that appropriate narcotic use doesn't shorten life much if at all, that is, the use of analgesics in doses adequate to relieve pain will not kill the patient.46  This means that the above practice of "APS" in Holland is not actually palliative care as it claims to be but PAD by another name.  Thus palliative care in Canada runs the risk of being "hijacked" by the euthanasia lobby, simply by a failure to draw clear distinctions in this realm.

            Another concern is the lack of incentive to make palliative care more widely available that may occur if the relatively easy option of PAD is available to physicians.  What motive would remain to increase training and dedicated financial support of palliative care?  PAD may well be the only "medical procedure" that will have 100% efficacy and significant likelihood of reducing healthcare costs.

Quality of Life

            Although it is argued that we have a right to a minimum quality of life, this is a vague and subjective concept.  It also confuses functional capacity with the quality or value of a human life itself.  Low quality of life is a prominent reason for involuntary euthanasia in the Netherlands, yet how can any physician presume to judge the quality of another person's life?47  The subjective nature of the criteria used has led to euthanasia being granted to people with psychiatric illness as well as HIV-positive patients without manifestations of AIDS.48

Compassion

      Some believe euthanasia to be compassionate, thus primary care providers should have an adequate understanding of what this and other expressions of love mean in the context of our profession.49  Since compassion literally means "to suffer along side", elimination of the sufferer can hardly constitute true compassion.  Emotions cannot be our guide in hard cases because "compassion is a virtue, not a principle.  Morally weighty as it is, compassion can become maleficent unless it is constrained by principle."50

Political-Legal Climate in Canada

      After extensive review, the Law Reform Commission recommended retaining the present criminalization of assisted suicide and mercy killing in 1984.  Professor B. Sneiderman, Faculty of Law, University of Manitoba, although not morally opposed to the practice of euthanasia, feels decriminalization is unnecessary and dangerous.51  Current prohibitions prevent abuse while the law currently looks the other way in cases where unbearable suffering seems to have been the motive for an assisted death.52

      A political "solution" to the debate is currently being sought.  A private member's bill to legalize physician assisted suicide (C-385) was under discussion at the time of Parliament's recess  last spring.  Liberal Senator Nieman has struck the Senate Committee on  Euthanasia and Physician Assisted Suicide to research the issue.53  Both the law courts and Parliament have consistently looked to the CMA for direction.   the majority of practicing physicians need ethical leadership from the CMA because, contrary to public opinion, many physicians have little ethical training.54  Vocal opposition to PAD is coming from the physicians who will be directly involved, such as anesthetists and palliative care experts.55   And in spite of a seeming majority of physicians favoring some change in current legislation, only 28% may be willing to practice PAD if legalized.53  In the words of Justice Sopinka, "since much of the medical profession is opposed to being involved in assisting suicide because it is antithetical to their role as healers of the sick, many doctors will refuse to assist, leaving open the potential for the growth of a macabre specialty in this area reminiscent of Dr. Kevorkian and his suicide machine."57

      The CMA's code of ethics (1990) endorses the 1948 Declaration of Geneva developed and approved by the World Medical Association which prohibits active killing on the part of physicians.  It is tempting to cast ourselves in the role of omnipotent eliminator of all suffering, but to do this at the cost of life would violate the most fundamental value in this society as well as the moral center of medicine.58  "Persons with terminal illness, or who are depressed, mentally ill, or mentally retarded for whom suicide advocates would secure this right deserve more; society deserves more.  Encouraging or aiding despondent persons in their real or imputed desire to self-destruct is not the measure of a civilized humane people."59

Conclusion

      Sue Rodriguez has brought an important issue to the forefront of Canadian thought.  As leaders in healthcare, physicians must formulate a well-reasoned response based on knowledge rather than emotion.  The reasons behind the majority decision (that the importance and protection of life must be given priority in decisions of this nature) deserve close examination.  The advancement of palliative care in delivery and public perception must be the focus of clinicians to maintain the public perception that medicine has the highest ethical standards of all professions.  Much harm was done to the cause of palliative care in Canada during the Rodriguez hearing when Justice Sopinka characterized hospice care as a medical discipline that only relieves physical pain and occasionally deliberately terminates lives.  Working against the public perception that people are assaulted with unwanted care that prolongs their dying will address the fears of many.  Because the natural death that may ensue from ceasing to attempt to extend life is the antithesis of PAD, I believe the CMA and practitioner alike have a mandate to draw the line for society between the taking of life and allowing death to occur.  It is indeed possible to care properly for people while respecting their dignity and autonomy without needing to legalize "death by choice".  But this won't happen without physician involvement in a multidisciplinary approach to palliate terminal symptoms well.  With a change in attitude we can eliminate those dreaded words "There is nothing I can do for you" and deal properly with the fears that lie behind the current push for death on demand.  This is the only "solution" to this debate that an ethical profession can offer.
 

REFERENCES

 1.Lowy FH, Sawer DM, Williams JW, Canadian Physicians and Euthanasia. CMA, Ottawa, 1992.

2.Hofsess John: Will Sue Rodriguez Go Gently into That Good Night? Globe and Mail, September 19, 1992

3.Ibid.

4.Reasons for Judgment, Justice Melvin, Supreme Court of British Columbia, #4040/92, page 8

5.Court Decision, Sue Rodriguez v. the Attorney  General of Canada and the Attorney General of BC, Humane Medicine, 10(1)Jan. 1994;59-60

6.Law Reform Commission of Canada.  Working Paper 28.  EUTHANASIA, AIDING SUICIDE AND  CESSATION OF TREATMENT.  Ottawa: Minister of Supply and Services Canada, 1982

7.Maltsberger John T: What I Think About Rational Suicide, Newslink, fall 1992; 18(3)

8.Clark David C: One Reaction to Final Exit Panel, Newslink, fall 1992; 18(3)

9. Hendin H, Klerman G: Physician-Assisted Suicide: The Dangers of Legalization. 150 American       Journal of Psychiatry, 1993: 143

10. Marsen T et.al:  Suicide: A Constitutional Right? Duquesne Law Review, volume 24, #1, fall 1985

11. Report of the National Task Force on Suicide in Canada, Health and Welfare Canada Government Documents, September 15, 1987

12. McWhirter C: Uncovering Secrets That Mask Suicide. Chicago Tribune, Dec 19,1993

13. Supra, note 9

14. Scott J: Lamentation and Euthanasia, Humane Medicine,1992; 8(2): 116-121

15. Wagley P: Counseling the Patient Contemplating Suicide, Humane Medicine,1992; 8(4): 317-320

16. Sakinofsky: Why Has Canada's Suicide Rate Doubled? Globe and Mail, 2/9/93

17. Merrloo J: Suicide and Mass Suicide: 1968

18. Shaver A: Teen Suicide.  August 1990 Background Paper, BP-236e

19. van der Maas P J et.al:  Euthanasia and Other Medical Decisions Concerning End of Life, Lancet, 1991; 338: 669-674

20. Wenman R, Canadian House of Commons Parliamentary Debates, September 24, 1991

21. Victoria Hospice Society Press Release, Feb 15,1994

22. Saunders Cicely: Voluntary Euthanasia (Editorial). Palliative Medicine, 1992; 6:1, (also: Personal Communication to Compassionate Healthcare Network, December 11, 1992)

23. Gunning K F, President of the World Federation of Doctors Who Respect Human Life, Personal Communication to Compassionate Healthcare Network, October 29,1993

24. deWachter M A N: Euthanasia in the Netherlands, Hastings Center Report, March-April 1992: 23-30

25. ibid.

26. Supra, note 19.

27. ten Have H A M J: Euthanasia: Normal Medical Practice? Hastings Center Report, March-April 1992: 34-38

28.  Welie J V M: The Medical Exception: Physician, Euthanasia and the Dutch Criminal Law, 17 J Med Phil, 1992: 419

29. Fenigsen R: A Gentle Man Speaks of Death (Physician-Assisted Suicide), Living World 1992;6(4):11-15 (quoting data from Van der Wal, 1991)

30. Ontario Court of Appeal: re: Federal Republic of Germany and Rauca, p. 401, as quoted in U.S.A. vs. Cotroni, {l989] l S.C.R. l469 at l489-90 (from the Attorney General of B.C. Factum)

31. Stark B L: The Human Spirit: The Search For Meaning and Purpose Through Suffering. Humane Medicine, 1992; 8(2): 132-137

32. supra, note 14

33. Iwasaki Y: et.al. Neuropsychological Dysfunction in Amyotrophic Lateral Sclerosis: Relation to Motor Disabilities, International Journal of Neuroscience 1990, October; 54(3-4): 191-5

34.Gallagher H, By Trust Betrayed: Patients, Physicians and the Licence to kill in the Third Reich, Henry  Holt and Co. New York, 1990

35. Marker R, Stanton JR et al: Euthanasia: A Historical Overview, Maryland Journal of Contemporary Legal Issues 1991; 2(2):257-298

36. Alexander, L: Medical Science Under Dictatorship. NEJM 1949; 241(2):39-47

37. Personal communication from Iain Benson B.A.(Hons)LLB.M.A.(Cantab.) May 13,1994, quoting Blake v. Cruz 108 Idaho 253, 698 P2d 315 and Cowe v. Forum Group Inc (Ind App)541 NE 2d962, 1989 Ind App LEXIS 743 [as cited in (1990) 62A AmJur 2d pars 101]

38. O'Brien, K M, Saunders C: Motor Neurone Disease; A Hospice Perspective. BMJ, 1992; 304:471-3 (also: Saunders C: Personal Communication to Compassionate Healthcare Network, December 11, 1992)

39. Saunders Cicely: Voluntary Euthanasia (Editorial). Palliative Medicine, 1992; 6:1

40. supra, note 38

41. Latimer E: Euthanasia: A Physician's Reflections, Journal of Pain and Symptom Management,       1991;6(8)

42. Dr. Philip Ney: Victoria Times Colonist, 7/02/93

43. supra, note 31

44. supra, note 41

45. Fenigson, R: The Report of the Dutch Governmental Committee on Euthanasia. Issues In

Law and Medicine, 1991; 7(3):339-344

46. deVeber LL, Henry F et.al: Public Policy, Private Voices: The Euthanasia Debate. 1992; The Human       Life Research Institute, Toronto

47. supra, note 28

48. An Appointment With Death, Special Documentary for Health Quarterly, Production of K.A.     Production Inc., in Association with TV Ontario, for Frontline 1993

49. Mermann A: Love in the Clinical Setting, Humane Medicine 1993; 9(4): 268-273

50. Pellegrino E E: Compassion Needs Reason Too, JAMA 1993; 270(7):874-5

51. Sneiderman B: Euthanasia in the Netherlands: A Model for Canada? Humane Medicine 1992; 8(2):       104-115

52. Aided Death, Timmons M.D. Gets Probation, Globe and Mail, April 5, 1993

53. Senator Backs Study of Law on Suicide, Globe and Mail, October 1993

54. News Brief, CMAJ 1992; 147(7): 1041

55. Ferris F, Latimer E: More Resources Needed For Palliative Care. Globe and Mail, September 25,       1993

56. Kinsella T D, Verhoef M J: Alberta Euthanasia Survey (Parts I and II). CMAJ 1993; 148(11): 1921-1933

57.  Sue Rodriguez v. the Attorney General of Canada and the Attorney General of BC, S.C.R., 1993, #23476

58.  Gaylin W: et.al. Why Doctors Must Not Kill.  JAMA 1988; 259: 2139-2140

59.  Bopp J D Jr: Is Assisted Suicide Constitutionally Protected? Issues in Law and Medicine 1987; 3(2):             140

Source:    Humane Medicine #312-1994


 

by

ROBERT PANKRATZ, M.D.

On the issue of euthanasia, we frequently tend to be arguing the same questions and the arguments are all well laid out in the literature.  The pro euthanasia world view sees people as autonomous (self-ruling) biological entities, whose life's purpose is pleasure, and whose end is complete extinction. This logically results in viewing life as utilitarian, ie. valuable only for what it offers, and seeing no value in suffering.

According to this perspective, a life should not be continued unless it is a wanted life. Suffering is seen as an unmitigated negative; thus there are some lives not worth living.

Although the presuppositions at the basis of the debate are clear, a logical, non-emotional approach helps to maintain an open dialogue with those promoting legalized euthanasia. Following is a series of arguments and counter arguments that are helpful when discussing this issue.

1. Medical technology is now prolonging life beyond reason, resulting in increased suffering, so euthanasia is necessary to prevent unnecessary suffering.

In reality medical technology is very limited in its ability to prolong life. In those cases where life may be prolonged, physicians and family are already allowing the withdrawal of treatment in appropriate circumstances. This is good medical practice. Technology may give us the option of more time on earth, but this is not the cause of the suffering.

2. Legalized euthanasia is needed to ensure the control of an individual over the circumstances of his death.

Since the "syringe is in the hand of a physician" it is actually the doctor who is the final arbiter of death in circumstances where euthanasia is practiced. This is seen in the Netherlands where in 1990 there was estimated to be at least 1000 instances of euthanasia carried out on patients without their consent. 250 of these individuals were at least partially able to discuss this course of action (but were not given the opportunity).

3. Euthanasia is necessary to prevent the undermining of our dignity by disability or suffering.

What the proponents of euthanasia really mean by the term dignity is independence and modesty. This is a synonym for self esteem which depends on one's personal belief system and circumstances so is therefore highly variable. Someone's hatred of dependence cannot constitute adequate justification for ending their life. Illness or handicap does not reduce true dignity nor does the availability of euthanasia confer dignity upon ones existence. True "death with dignity" occurs without euthanasia in palliative or hospice setting, where treating a person with respect and tenderness is the key to helping someone retain their sense of dignity.

4. Not shortening the suffering in a terminal person is an act of cruelty, not compassion .

Compassion means literally "to suffer alongside", which could hardly mean eliminating the sufferer. As expressed by a prominent ethicist "compassion is a virtue not a principle. Morally weighty as it is compassion can become maleficent unless it is constrained by principle". True compassion provides companionship and encourages the sufferer to endure and seek meaning (a purpose for life) in their anguish.

5. Euthanasia is necessary to prevent a very poor quality of life in some circumstances .

In the Netherlands a prominent reason for euthanasia without consent is "low quality of life". Since there are no objective criteria as to what this means, in the Netherlands euthanasia is being granted to people with psychiatric illness, handicapped newborns, and many people who are unable to express their own wishes. Outside observers tend to rate a person's quality of life lower than the person himself would. And our society is full of the "worried well" who may think in advance that they would not wish to live under certain circumstances, but change their mind when actually faced with difficult situations.

6. Euthanasia proponents feel that they should have unrestricted free choice over what they do with their own lives.

Truly free consent is virtually impossible in terminally ill individuals who are generally suffering from various degrees of depression and cognitive impairment. And the taking of ones own life has marked ramifications for the rest of society since an individual's choice affects the rest of society. In particular the availability of the option of euthanasia will mean that the infirm and vulnerable will feel pressure to take that option, especially if they feel they are a burden to others.

Further, autonomy is not the dominant legal value in Canada. The Law Reform Commission states "The personal rights and freedoms listed in our constitution are never absolute. There are always qualifications and limitations to allow for the protection of other competing interests in a democratic society.

Finally, the Netherlands experience shows us that individual autonomy is not always increased by the availability of euthanasia. In 1990, 6300 of 9000 requests for euthanasia were refused and if one includes mercy killing brought about by intentional overdoses of narcotics given to palliative patients, the majority the persons who received euthanasia did not request it.

7. Safeguards could be set up that would limit euthanasia to competent, terminally ill individuals who are suffering unbearably and have no other options.

The fact is that once euthanasia is available as it is in the Netherlands, it is extended to non-terminal and non-competent persons, and people who simply claim to be suffering. Under current Canadian law what is a right for one person becomes a right for all and it can not be restricted to a subgroup of people (just as abortion became unrestricted after an initial period of restriction).

The recent New York State Task Force on Life and the Law, rejected the legalization of euthanasia stating "the number of people genuinely harmed by laws prohibiting euthanasia or assisted suicide is extremely small...Legalizing euthanasia or assisted suicide for the sake of these few, whatever safeguards are written into the law, would endanger the lives of a far larger group of individuals who might avail themselves of these options as a result of depression, coercion or untreated pain."

8. Unless euthanasia is available people will suffer undue pain.

Pain itself is never an adequate justification for ending a patient's life since pain can be eliminated in almost all cases and reduced to bearable in the remainder. Even in the Netherlands, where "hospice care is in its infancy", pain alone is the reason for physician assisted death in only 5% of cases.

9. Euthanasia is really no different than what already occurs because doctors are already shortening life with palliative care and withdrawal of treatment.

Natural death that occurs with the withdrawal of treatment is the opposite of euthanasia. Allowing someone to die and actually killing them are two vastly different things. Palliative care tends not to hasten death S in fact it probably prolongs life in most cases. In those rare circumstances where life may be shortened, it may be that the relief of pain allows people to let go of life that they were hanging on to. This is ethically permissible as long as the intent is to relieve pain, not to kill the patient.

10. Suicide is already legal so why not legalize assisted suicide?

Suicide has never been criminalized in Canada because a completed suicide leaves no one to prosecute.

Attempted suicide was decriminalized in 1972 in Canada because incarceration only increases the risk of suicide and suicide is caused in 95% of cases by reversible mental illness. Society has never seen suicide as a right or even as a good. Justice Sopinka in the Rodriguez decision said "suicide remains an act which is fundamentally contrary to human nature". The solution to attempted suicide is a medical one not a legal one. Assisted suicide involves the promotion of suicide by another party, and to legalize this would be to encourage suicide at a societal level.

11. Senseless suffering is to be avoided at all costs.

Suffering is universal in human experience and therefore we must seek the meaning of suffering. Often the terminal phase of an illness is a time of remarkable personal growth and interpersonal relationship building. Reconciliations happen and our affairs can be tidied up. The proper treatment of a dependent individual by the family or by society results in the growth of the ability to nurture, which is necessary to our society.

12. Legalized euthanasia would protect patients from cruel medical treatment.

The patient would not be protected by legalized euthanasia. Rather, the physician or other agent would be protected from prosecution. In fact, personal control would be reduced, and the vulnerable of society would lose their protection. Since physicians are the ones who fill in the death certificates, they are virtually immune from prosecution S the only other witness would already be dead.

13. Physicians could be entrusted with euthanasia; they are the most ethical professionals.

Generally physicians are poorly trained in ethics and have difficulty sorting out issues of consent, competence, and quality of life. As well, doctors are notoriously poor at diagnosing the presence or absence of depression.

The foregoing arguments, which are not comprehensive, coupled with the warmth of true humane love towards suffering individuals should help to slow the arrival of euthanasia in Canada. Retaining the law as it is protects Canada from having violence done to something that is infinitely valuable to society S the lives of its members. Those who are well informed can play a powerful role in preventing the corruption that this pervasive ideology could have in our society.

SOURCE REFUTING THE RHETORIC  by Robert Pankratz, MD


CRITICAL ISSUES
The Sue Rodriguez Decision: Concerns of a Primary Care Physician

 

H. Robert C. Pankratz, MD

 

In their decision to deny Sue Rodriguez a physician-assisted death (PAD), the courts upheld the principle of sanctity of life over the principle of autonomy. The Sue Rodriguez judgement and dissent gave an overview of PAD and, in so doing, revealed confusion over the distinction between euthanasia, treatment cessation and palliative care. Because the withdrawal of therapy has been equated to deliberate life termination, and because palliative care is thought to occasionally involve direct killing, the medical profession has an obligation to clarify these important ethical distinctions.

 

The author argues that the natural death that may ensue from treatment cessation is the antithesis of mercy killing. A case is made for the paramount importance of the inviolability of life. Suicide in Canada is discussed, as are quality of life, autonomy and choice, sanctity of life, and palliative care and the role of suffering. The author urges medical practitioners to examine the Rodriguez decision, to recognize the foundational nature of the sanctity-of-life ethic in our society and to work toward the provision of exemplary palliative care in Canada.

 

When the Supreme Court of Canada denied Sue Rodriguez's appeal for physician-assisted suicide,1 the reasons for judgement and dissent revealed perspectives that differ from traditional medical ethics and revealed some perspectives that favour the acceptance of mercy killing. Although the Canadian Medical Association (CMA) has presented a comprehensive overview of euthanasia,2 an analysis of the issues involved, such as dignity, autonomy and quality of life, seems timely. I will also examine how physicians, by educating the public and promoting palliative care, can help to slow down the current drive toward "death by choice."

 

In September 1992, with the help of The Right To Die Society of Canada, Ms. Rodriguez, a 42-year-old woman who had been diagnosed with amyotrophic lateral sclerosis (ALS), began her challenge of the legal prohibition of assisted suicide.3 The media portrayed her as "condemned to die. . . . a helpless, drooling, physically atrophied captive dependent on other people and machines for an ever-attenuated form of mere biological existence." In order to "die with dignity" she wanted the guarantee of a quick death with a minimum of misery" by being given "a fatal injection when she [decided] the quality of her life [had] deteriorated beyond an acceptable degree."3 Ultimately, Rodriguez's appeal was rejected by all three levels of court. Rodriguez's strongest argument was based on the 1988 R. v. Morgentaler4 definition of security of the person (meaning physical or mental integrity), which included the notion of human dignity and in turn was equated with autonomy. The reasons for judgment were summarized in a recent Canadian Bioethics Report (CBR).5 However, several statements made by the Supreme Court justices were not mentioned in that issue of the CBR.

 

Family practitioner and assistant director of the Palliative Care Program, Matsqui-Sumas-Abbotsford General Hospital, Abbotsford, BC

 

Correspondence and reprint requests to: Dr. H. Robert C. Pankratz, Ellwood Medical Center, 200-31205 Old Yale Rd., Clearbrook, BC V2T 5E5

 

In this article, unless otherwise specified, individual judges' comments are taken from Rodriguez v. British Columbia (Attorney General),1 and the relevant page numbers are provided.

The Act of Suicide
 

Many experts believe that there is no such thing as a "rational" suicide because a major psychiatric disorder is almost invariably present, as is the emotion of hopelessness-helplessness.6 -8 Truly free consent does not appear to be present in cases of parasuicide either, because "those who attempt suicide are normally ambivalent."9

 

Suicide rates in Canada have been rising steadily since the Second World War and exceed comparable US rates.10 In the United States, deaths by suicide outnumber those due to AIDS.11 Although the elderly are at increased risk of suicide, even in this group most suicides result from treatable mental illness. Studies also reveal that "more individuals, particularly elderly individuals, killed themselves because they feared or mistakenly believed they had cancer than killed themselves and actually had cancer."8 Incarceration and bereavement (especially as a result of the suicide of a loved one) also increase the risk of suicide.10

 

Further concerns about the act of suicide include the escalation of suicide rates among men aged 20 to 29, which has doubled in the last twenty years, and the fact that "every suicide can start a chain of suicides."12,13 Relevant to the Rodriguez case (there is a surviving son, who was already at increased risk due to family breakdown) is the fact that the death of a parent, particularly a mother, increases 600-fold the risk of suicide attempts.14

Sue Rodriguez Court Arguments1
 

Justice Sopinka outlined several reasons why Parliament had removed the offence of attempted suicide from the Criminal Code in 1972. For example, suicide was seen to be a problem with "its roots and its solutions in sciences outside the law," (p 398) and criminal law therefore was an inappropriate tool for dealing with suicide.

 

In his dissenting opinion Chief Justice Lamer asserted that the intended result of decriminalizing assisted suicide in 1972 was to increase the self-determination of Canadians by the removal of state controls (p 370).

 

Justice McLachlin (p 417) argued that not only was suicide legal but there was a "right to commit suicide." The result of the reasons given by these dissenting judges, according to Justice Sopinka, would be the recognition of "a constitutional right to legally assisted suicide beyond that of any country in the Western world" (p 386).

 

The dissenting opinion that the autonomy of suicidal individuals was now paramount over the state interest in protecting life seems to downplay the following findings of the Law Reform Commission of Canada.15

 

The decriminalization of attempted suicide in 1972 occurred due to difficulties prosecuting people with mental illness and did not have the effect of legitimizing suicide, or of creating a true "right" to suicide in the classical sense of that word. Suicide remains an act which is fundamentally contrary to human nature.

Quality of Life
 

Although it is frequently argued that we have a right to a minimum quality of life, this is a vague and subjective concept. It confuses functional capacity with the quality or value of a human life. Low quality of life is a prominent reason for nonconsensual euthanasia in The Netherlands, yet how can any physician presume to judge the quality of a patient's life?16 The subjective nature of the criteria used has led to euthanasia being granted to people with psychiatric illnesses as well as to HIV-positive patients without advanced AIDS.17

Dignity
 

Many argue that we have a right to prevent our dignity from being undermined by disability or suffering. This argument is particularly relevant; 57% of the cases of active euthanasia in The Netherlands are carried out because of "loss of dignity."18 Rhetoric in Canada's House of Commons has encouraged the public perception that mercy killing should be permitted so that a person could avoid an agonizing or shameful death. On Sept. 24, 1991, MP Robert Wenman stated:19

 

In this new age of advancing medical technology in which death finds no easy piece [sic] or end and life is extended again and again and again, one can sustain their dying connected to machines and strapped to their hospital bed, rotting and suffering until all or most of their body parts are gone.

 

But what is meant by the term "dignity"? Dignity cannot refer to the worth or value of an individual because worth is an inherent characteristic of all humanity, innate and inviolable, not reduced by disability or illness. If what is meant by dignity Is a person's self-esteem, then we are speaking of an attitude toward self or circumstances that is personal and is subject to change. To be accurate, euthanasia proponents should not refer to a person's dignity, but to that person's capacity for independent living. They could use such terms as "decorum" or "modesty," which, in the perspective of some individuals, are dependent on external circumstances. (Perhaps this could be simply a misdirected sense of pride?)

 

Every member of society has equal value. Illness or handicap does not reduce true dignity, nor does the availability of physician-assisted death (PAD) confer dignity upon one's existence. Although self-esteem may be diminished when a person is in a dependent state, self-esteem can be reinstated by treating the person with respect and tenderness. In the hospice movement it has been found that true "death with dignity" occurs without PAD.20 A patient's "hatred of dependence" cannot constitute adequate justification for PAD.21

Compassion
 

Primary care providers need an adequate understanding of how love is expressed in the clinical setting.22 Because "compassion" literally means "to suffer alongside," elimination of the sufferer can hardly constitute true compassion. Emotions cannot be our guide in difficult cases because "compassion is a virtue, not a principle. Morally weighty as it is, compassion can become maleficent unless it is constrained by principle."23

Autonomy and Choice

The Principle of Autonomy

 

The primary argument that Sue Rodriguez's lawyers advanced in favour of assisted suicide was the right to self-determination. Justice McLachlin summarized this elevation of the principle of autonomy when she stated (p 420): "What value is there in life without the choice to do what one wants with one's life?" This extreme view sees even minor disability as a potential reason to end one's existence and presupposes that death is somehow better than dependence.

 

If a competent patient's request for assistance to die is seen as compelling, the physician would lose autonomy and move from the role of a professional to that of a technician. In reference to the case at hand, the Victoria. Hospice Society, Victoria, BC,20 showed that immediately before Ms. Rodriguez's allegedly assisted death she was in no physical pain, could manage to eat solid food and was not near death. Considering this information, it is questionable whether she required assistance to die.

 

In The Netherlands, the Royal Dutch Medical Association encourages physicians who disagree with euthanasia to refer their patients to other physicians. Recently, "a doctor who had refused to apply euthanasia was called to defend his conduct before a 'medical court'."(K.F. Gunning, President of the World Federation of Doctors Who Respect Human Life: personal communication [Compassionate Healthcare Network], Oct. 29, 1993) Indeed, Dr. C. Schaake of The Netherlands Cancer Institute in Amsterdam concluded that the hospital and its staff "could not refuse" a patient's carefully considered request for euthanasia.24

 

The importance of the principle of autonomy presents a paradox when coupled with the other major considerations in the discussion of PAD - pain and suffering.

 

If the principal motive for the physician to act is relief from suffering, why ought self-determination to be required? And why would the duty to relieve suffering not apply to the incompetent just as well as the competent? Conversely, if we hold that self-determination should be the dominant motive, why should suffering be required?"

 

The Rodriguez dissent saw no need for Ms. Rodriguez to be suffering or terminally ill in order to be legally entitled to PAD (pp 384-385) and gave no justification for contravening existing legislation, which states that one cannot consent to one's own death (Criminal Code, section 14).

Variations on "Consent"

 

In 1990 in The Netherlands there were at least 1000 instances in which PAD was performed without patient consent; 250 of these life-shortening actions were carried out on individuals who were at least partially competent.18 Although the patient's suffering was cited as the reason for mercy killing, the Remmelink report stated that the doctors were more often "guided by their own impressions of the patient's unspoken but probable wishes."26 This practice of nonconsensual euthanasia suggests an increase in the paternalistic power of the medical profession.16 Even in the 2700 cases of PAD that were performed at the patient's request (in The Netherlands in 1990), the validity of the patient consent has been questioned because in spite of the legal requirement of "persistent and enduring request" 59% of the granted euthanasia requests were carried out within 24 hours of the patient's request and 11% were carried out within 1 hour.27

Choice

 

Returning to the court arguments in Rodriguez v. British Columbia (Attorney General),1 Chief Justice Lamer argued that, since the appellant only petitioned for the right to choose suicide, the morality of the act itself should not be considered relevant (p 365). When arguing this issue, euthanasia protagonists commonly attempt to deflect the focus of the debate from an analysis of assisted suicide to the issue of personal freedoms. However, it is the acting out of the choice of suicide that is difficult for a disabled person, so the act can hardly be an unrelated issue.

 

Even if we limit the discussion to choice alone, we must remember that "the listed rights and freedoms are never absolute. . . . there are always qualifications and limitations to allow for the protection of other competing interests in a democratic society."28 Since equality of rights presupposes that all lives have equal dignity and value, the state interest in protecting life does not merely extend to those vulnerable to coercion or to those seeking an escape from depression.

 

It can hardly be seen as true freedom when people seek death out of a sense of impotence or a loss of control brought about by illness or disability. The desire to be totally independent (an illusion in our society) becomes a desire for death when independence is not possible. Unwanted life circumstances become unwanted life. Helping patients to cope with disability and to find meaning in suffering would serve them better.29

 

In addition, there is an inherent fallacy in the argument that PAD will be limited to freely consenting competent people. Cognitive impairment is present in the majority of terminally ill patients, including those with ALS.30,31 If Canadian law were to recognize the right for competent people to obtain PAD, our constitution would make this right available to the incompetent members of society by proxy. Many subtle but coercive forces are present in these cases, including social and financial pressures, perceived duty to society and physician biases. In my practice I have encountered terminally ill individuals who considered themselves a burden to their care-givers. The mere legality of the option of PAD would imply a societal consensus that PAD is appropriate (or even obligatory) under these circumstances and would imply to already fragile patients that they must justify their choice to remain alive.

Education

 

Generally, physicians are not well trained in assessing whether consent is truly free and informed, particularly on this issue, where their own existential anxieties may interfere. They may be poorly equipped to sort out the intricacies of informed consent.30 We need to improve undergraduate and continuing medical education in order to make students and physicians more aware of the many issues (such as competence and hidden motives) that must be considered when they are counselling a patient whom they believe is contemplating suicide.32

Sanctity of Life

Preserving versus Protecting Life

 

In the Rodriguez case, Justices Cory (p 413) and McLachlin (p 420) agreed that no justifiable legal distinction existed between the withdrawal of medical care and active intervention to take life. The dissenting opinion argued that since a patient can refuse life-prolonging medical therapy, this exercise of an individual's autonomy in his or her medical care should be extended to include PAD because in both cases the intended result is death. This view confuses the concept of "preserving" life with "protecting" life and confuses natural death with deliberate life termination. "Preserving life" is the medical prolongation of natural life. "Protecting life" refers to society's obligation to provide the necessities of life and to prevent murder. Allowing the patient to refuse medical treatment shows a profound respect for natural life. Although natural death may ensue from ceasing to attempt to extend life, this is usually not the intention behind the withdrawal of care; patient autonomy and comfort is the goal. To honour a request to not prolong life, even when death follows, is the antithesis of deliberate life termination (PAD). We cannot equate our right to not be violated by unwanted therapy with the freedom to choose our means of death.

 

Curiously, since we have acquired the capacity to extend life we seem to have concluded that we are empowered to shorten life as well. But the ethical use of power must remain within the natural boundaries of life.

The Potential for Harm

 

Justice McLachlin argued that there are situations, such as self-defense, when the sanctity of life principle is not absolute (p 419). However, the taking of innocent life has always been prohibited. The exception just mentioned merely shows that the only justification for the taking of life is the protection of something of equal value: another life.

 

Today, most values are seen as both personal and relative. Those who give life an absolute or infinite value are often portrayed as intolerant bigots who impose their values on those who see autonomy as paramount. But if the right to choice takes precedence over the right to life then the key foundational value in society is removed and life termination becomes justified under vague, subjective conditions. To see life as an instrumental rather than intrinsic good is to adopt a utilitarian ethic that, in reality (since the values are entirely relative), has no consistent or reproducible standard.

 

Because humans can merely manipulate, not create, life, the potential for harm is enormous. This can be seen in history, in which the same scientific processes that produced life-prolonging technologies have also produced nuclear weapons for mass destruction. Techniques such as the cyanide shower, which were perfected in pre-war Germany to end the lives of more than 200 000 handicapped people, eventually were used in the holocaust.33 Dr. Med. Brandt, personal physician to Hitler, who was executed after the Second World War for his role in this euthanasia program, stated at his trial that his "underlying motive was the desire to help individuals who could not help themselves and were thus prolonging their lives in torment."34

 

For those who would argue that the German pre-war euthanasia program had no connection with the war crimes, I refer you to the now-classic article written by psychiatrist Leo Alexander, an expert witness at the Nuremberg trials, who noted:35

 

[W]hatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted, and finally, all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus, was the attitude toward the nonrehabilitable sick.

Palliative Care and the Role of Suffering

 

Traditionally, suffering has been seen as having a purpose both in this life and the next. However, because suffering is now felt to reduce the value of life, this renders some people "better off dead." But "wrongful-life" suits (civil suits based on negligence that led to wrongful birth or life of an infant) have been rejected by the courts in Canada, Britain and the United States because no objective evaluation of the state of death is possible, therefore it cannot be weighed against one's quality of life. In fact, the premise for wrongful life "is completely contradictory to the basic precept that life is precious. (lain Benson, BA [Hons], LLB MA [Cantab]: personal communication, May 13, 1994, quoting Blake v. Cruz 108 Idaho 253, 698 P2d 315 and Cowe v. Forum Group Inc [Ind App] 541 NE 2d962, 1989 Ind App LEXIS 743 [as cited in (1990) 62A Am Jur 2d pars 101]) When a patient feels his or her quality of life is compromised, the physician's mandate is to improve that person's quality of life rather than to judge it. Because suffering and distressing physical symptoms are not equivalent, improving a patient's quality of life may entail not only the relief of physical symptoms but also easing a patient's fear or loneliness, or helping that patient adjust to new circumstances.

 

Because medicine now has the capacity to relieve most physical suffering, society seems to have reached the conclusion that people have the right to be free of suffering. This can be enormously seductive to physicians who seek omnipotence through the ability to relieve all suffering. Unfortunately, suffering (as in the case of Ms. Rodriguez) encompasses not only the physical aspects but the spiritual, psychologic and social aspects.

 

Addressing the full spectrum of suffering is possible with a multidisciplinary, palliative-care team approach. Justice Sopinka (p 391) agreed with the appellant's submission that palliative care is a discipline that provides only the relief of physical symptoms, therefore unfortunately furthering public misperceptions and proponents of euthanasia's goals.

 

The argument that PAD is necessary to relieve suffering seems largely based on unsubstantiated fears rather than actual clinical situations. In caring for nearly 300 patients with ALS at St. Christopher's Hospice, London, Dr. Cecily Saunders has received no request for assisted suicide, and 95% of deaths were cited as "peaceful."36 In the hospice setting, a request for euthanasia is likely to fade away once symptom control is effected.21 Saunders quoted a patient with ALS who, after admission to St. Christopher's, said: "If I ever get like that chap opposite I shall want to do something to myself." However, when he reached that stage months later, he said: "I can't see round the next bend but I know it will be all right." (Dr. Cecily Saunders: personal communication [Compassionate Healthcare Network], Dec. 11, 1992)

 

Even though the relief of suffering is the physician's goal, we must not too readily accept the idea that suffering is purposeless. Dr. Elizabeth Latimer noted that "although suffering is universal, its role in human development and human relationships is still not understood."37 Often during the terminal phase of an illness patients accomplish important business. Victoria, BC, psychiatrist Philip Ney reminded us that "dying time is not wasted time, it is the time when people settle their affairs, mourn their losses, and prepare to meet their maker."38 The astute clinician can facilitate the patient's physiologic adjustment to the stages of dying and reduce suffering by helping individuals discover meaning and purpose in their situation.37

 

Palliative care physicians seem to agree with Latimer that "patients within a caring community of support rarely ask to die earlier."37 And anecdotes abound of patients who, after an initial demand for PAD, have a subsequent change of heart. As for the few who sustain a wish to die, "their reasons seem to be reflections more of their personality and life's adaptation than pain and suffering per se."37

 

The distinctions between palliative care and PAD are sometimes blurred. Some might suggest that pain relief treatment with drug dosages that a physician knows might hasten death should be considered PAD. The difference between treatment that carries a statistical risk of shortening life and procedures that carry a certainty of termination of life is often misunderstood. This attitude equates palliative care in Canada with what is referred to as "APS" (the alleviation of pain and suffering) in The Netherlands, where, in 1990, 8100 people had their lives intentionally shortened by the escalated administration of narcotics.39 The weight of expert opinion is that appropriate narcotic use doesn't shorten life much, if at all. That is to say, the use of analgesics in doses adequate to relieve pain will not kill the patient.40 This means that the above-mentioned practice of APS in The Netherlands is not actually palliative care, as it claims to be, but PAD by another name. Palliative care in Canada runs the risk of being "hijacked" by the euthanasia lobby, simply by a failure to draw clear distinctions in this realm.

 

If the relatively "easy" option of PAD is available to physicians, there may be a lack of incentive to make palliative care more widely available. What motive would remain to increase training and dedicated financial support of palliative care? PAD may well be the only "medical procedure" that will have 100% efficacy and significant likelihood of reducing health care costs.

Politico-Legal Climate in Canada

 

In 1992 Professor Barney Sneiderman, Faculty of Law, University of Manitoba, although not morally opposed to the practice of euthanasia, defined decriminalization as unnecessary and dangerous.41 In 1983 the Law Reform Commission of Canada, after extensive review, recommended retaining the criminalization of assisted suicide and mercy killing.42 Current prohibitions prevent abuse, and the law looks the other way in cases in which unbearable suffering seems to have been the motive for an assisted death.43 A political "solution" to the debate is being sought. Bill C-215, a private member's bill to legalize PAD, was introduced in Parliament in February 1994. This Bill was not selected for further action before Parliament's spring 1994 recess.44 On Sept. 21, 1994, the Bill was debated for its allotted time but did not come to a vote. According to the rules of the House of Commons it will not be discussed further during the current session of Parliament. However, a Special Senate Committee on Euthanasia and Assisted Suicide, chaired by Liberal Senator Neiman, was struck to research the issue. Its final report was due Dec. 15, 1994.45

The Role of the CMA

 

Both the Canadian courts and Parliament have consistently looked to the CMA for direction. The majority of practising physicians expect leadership in the field of ethics from the CMA because, contrary to public opinion,46 many physicians have little training in ethics. Opposition to PAD is coming from the physicians who will be directly involved, such as anesthetists and palliative care experts.47 In spite of a seeming majority of physicians favouring some change in current legislation, only 28% might be willing to practise PAD if it was legalized.48 In the words of Justice Sopinka (p 387):

 

Since much of the medical profession is opposed to being involved in assisting suicide because it is antithetical to their role as healers of the sick, many doctors will refuse to assist, leaving open the potential for the growth of a macabre specialty in this area reminiscent of Dr. Kevorkian and his suicide machine.

 

The CMA's Code of Ethics49 endorses the 1948 Declaration of Geneva

 

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