Assisted Dying and Slippery Slopes: Where Do We Place the Guardrails?

May 15, 2018

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The recent assisted suicide of David Goodall, the 104-year-old Australian ecologist, has brought into focus some key issues in the continuing debate over assisted suicide and euthanasia. One issue is whether we should legalize assisted suicide or euthanasia for those “tired of life.” A related issue is whether legalization of assisted suicide or euthanasia for even a restricted class of individuals (such as the terminally ill) places us on a slippery slope to accepting euthanasia in cases that many of us—at least now—consider questionable or objectionable, for example, the nonvoluntary euthanasia of incompetent patients who physicians deem to have an unacceptable quality of life.
First, a review of the facts in the Goodall case: Goodall was not terminally ill, severely disabled, or suffering from irremediable depression. He simply no longer wanted to continue living. That’s not to say he had no physical ailments or problems. His physical activity had become limited, commensurate with his centenarian status, and a few months before his death he had fallen in his home and had lain on the floor for two days. Still, until his death he retained mobility and his mind was alert.
Goodall ended his life in Switzerland because currently that’s the only country where he could do so with assistance. Under Swiss law, assisting someone to die is not a crime if the person providing assistance acts unselfishly, and it doesn’t matter if the person who is assisted to die is a non-resident. Furthermore, although in practice the Swiss organizations that provide assistance will screen persons requesting assistance and inquire into their medical problems, there is no legal requirement that the person be terminally ill or suffering from an irremediable medical condition. This is contrast to the other jurisdictions where assisted dying is legal. (In the Netherlands, there have been efforts to legalize euthanasia for those tired of living, but to date these efforts have not been successful.)
Here’s a summary of the current status of legal assisted dying in other jurisdictions: In the Netherlands, Belgium, and Luxembourg, both euthanasia and assisted suicide are legal upon the explicit request of a patient suffering from a serious and incurable disease or disorder. Psychiatric patients suffering from incurable depression are eligible. Seven states in the United States (Oregon, Washington, Vermont, Montana, California, Colorado, and Hawaii) permit assisted suicide upon request for those who are terminally ill. Canada permits assisted suicide or euthanasia for suffering patients who request it if their death is “reasonably foreseeable.” (The meaning of “reasonably foreseeable” has resulted in intense debate.)
Though the laws in these jurisdictions differ regarding the eligibility of patients and various procedural aspects, they share a common core. In all these jurisdictions: 1) a competent patient must explicitly request assisted dying; and 2) the patient must be suffering from some serious medical condition. These two criteria have traditionally been considered necessary conditions for legal assisted dying. These criteria reflect the most common argument in favor of legalizing assisted dying, namely that we should show mercy and compassion to those who are suffering, and if a competent, suffering person requests assistance in dying, we should respect that person’s autonomy. (The “whose life is it anyway” point.) The requirement that the patient be suffering from a diagnosed medical condition also provides the rationale for physician involvement. Most advocates of legalized assisted dying consider physician involvement desirable, as it helps assure the patient is properly diagnosed and is informed of alternatives to assisted suicide or euthanasia.
But being tired of life isn’t a medical condition, so except for the need to confirm a patient’s competency, there’s no clear role for a physician in such cases. So, who makes the determination that a person is really tired of life? A social worker? A psychologist? Is “tired of life” an objectively verifiable condition at all? Should there be a minimum age requirement for those who claim they are tired of life? Intuitively, we may be inclined to accept the claim of life weariness from someone like Goodall who is over 100. But how about ninety? Eighty? Sixty-five?
Some might say that the concerns I’m raising are irrelevant because persons should be able to decide for themselves when they are tired of life. One could plausibly maintain there is no moral obligation to stay alive, except, arguably, in certain special circumstances (e.g., when one has minor children). Again, whose life is it anyway?
But even though it may be morally permissible to commit suicide, assisted dying involves a third-party. Legalizing assisted dying, that is, legalizing the actions of a third-party in bringing about another’s death, presents serious risks. The principal risk is the risk that some who do not really want to die are put to death. (For obvious reasons, this risk is much greater with euthanasia than with assisted suicide, although it’s possible that a person can be manipulated into committing suicide.) The requirement that there be some objectively verifiable serious medical condition before a person can request assisted dying helps to reduce this risk.
I’m not prepared to say that assisting someone who is tired of life to die is never morally permissible. On the other hand, I have serious doubts about whether it should be legal. To reduce the risk I’ve just mentioned, it would seem to me to be necessary to require that someone be a very advanced age before they can receive assistance in dying (age being objectively verifiable). Let’s not forget that elder abuse is a major problem and the elderly are often more susceptible to manipulation. But establishing a minimum age presents its own problems. Let’s say we set the minimum age at 100. Those above 100 will claim we are devaluing their lives and those below 100 who want to end their lives will assert we have created an unnecessary obstacle.
So much for the slippery slope on which we may be placed if we legalize assisted dying for those tired of life. I want to consider now another slope, and that is the slippery slope on which we may be placed by legalizing euthanasia as opposed to assisted suicide. When I attended a conference on euthanasia in the Netherlands in 2016, some speakers sarcastically remarked on how backwards the United States is, as even those who favor legal assisted dying in the U.S. typically argue for assisted suicide only—not euthanasia. But statistics from the Netherlands and Belgium reveal that a substantial percentage of patients who are euthanized (depending on the year or country, perhaps as high as 25%) are euthanized despite the absence of either a contemporaneous or prior request. Those who favor euthanasia attempt to minimize the significance of these statistics by arguing that many of these cases are better described as aggressive symptom treatment with opioids instead of euthanasia. However, that argument, even if accepted, doesn’t account for all such cases. Euthanasia advocates also argue that these patients were unquestionably suffering.  Be that as it may, such a defense dismisses as irrelevant one of the key justifications for assisted dying, namely that we should respect a person’s autonomy. Autonomy drops out of the picture if it is the physician who determines when life is no longer worth living. And if it’s the physician who is going to make this determination—well, you can see where this could lead.
By contrast, if we limit assisted dying to assisted suicide, in particular how it’s practiced under the Oregon model, autonomy remains relevant, as the patient make the final determination whether and when to self-administer the lethal drug. Granted, if we limit assisted dying to assisted suicide, there may be a few patients who cannot avail themselves of this method (e.g., because they are too frail). Perhaps we can deal with this problem by making assisted suicide the default and making euthanasia available only in these exceptional cases and only after additional safeguards.
Those who favor legal assisted dying, at least for those terminally ill or severely disabled (and I’m one of those), have sometimes accused opponents of relying on dogmatic assertions (sanctity of life!)  as opposed to reasoned argument supported by empirical evidence. Sometimes these accusations have merit. But we need to be careful not to fall into the trap of dogmatic thinking as well. Respect for autonomy doesn’t mean we should have assisted dying on demand. Similarly, being compassionate to those who are suffering doesn’t entail we should be legally entitled to decide for them when enough is enough. Assisted dying should be legally available if and only if a competent person has made an explicit, durable request for such assistance and that person has a verifiable, serious, incurable medical condition. And effective screening procedures should be in place to ensure both of these conditions are met.
(Note: Space doesn’t permit me to discuss the challenging issue of assisted dying for those suffering from psychiatric conditions, such as irremediable depression. Suffice it to say that, at a minimum, different and more demanding screening procedures should be used in such cases, if we are to allow assisted dying for such persons at all.)