An Analysis on Physician Assisted Suicide By: Mary Pat Damrich

An Analysis on Physician Assisted Suicide

By: Mary Pat Damrich

Introduction:

Physician assisted suicide (PAS) is “the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.”[1] Whether a terminally ill patient has the right to end her life through PAS recently became a high-profile debate after the public decision of Brittany Maynard, a terminally ill 29-year old woman, to end her own life through the practice. [2]

Brittany Maynard was just 29-years old when she was diagnosed with terminal glioblastoma, a rare form of brain cancer.[3] With this diagnosis came an agonizing decision for Brittany: should she receive full brain radiation, a tortious treatment which would likely blind her and leave her mentally handicapped, destroying her final days; or, should she end her own life through PAS?[4] “When Brittany asked what would happen before she died, doctors described intense headaches, seizures of increasing frequency and duration, blindness, dramatic personality changes, and loss of every brain function, including movement and thought, as death approached.”[5] Knowledge of the harrowing symptoms of her disease, along with the knowledge that treatment was futile, lead Brittany to choose to end her life through PAS.[6] At the time, PAS was illegal in her home state of California, so Brittany and her family moved to Oregon so that she could take advantage of the state’s “Death with Dignity” law.[7] In November 2014, Brittany Maynard ingested a lethal prescription and passed away peacefully in her home.[8]

American Constitutional Perspective:

Although Brittany’s story garnered widespread attention in the United States, PAS remains illegal in most of the country.[9] In 1997, the Supreme Court issued two decisions, Washington v. Glucksberg and Vacco v. Quill, in which the Court held that PAS is not a protected liberty interest under the Constitution.[10] The Court determined that the government’s interest in preserving life and avoiding the undue influence of third parties outweighed patients’ interests in the liberty to choose to die through PAS.[11]

Although the Supreme Court determined that there is no constitutionally protected right to PAS, the Court did not ban the practice.[12] Instead, the Court left “the right to legislate on end-of-life procedures lies within the purview of the individual states.” [13]As of 2016, Oregon, Washington, Vermont, California, and Montana have explicitly legalized physicians providing terminally ill adults with prescriptions for lethal doses of medications.[14]

The Pros and Cons of PAS:

The debate on whether PAS should be legalized continues across the country.[15] Both advocates and opponents of its legalization are passionate about their stances. Advocates say that patients who are already going to die from their terminal illnesses should have the right to choose PAS if their suffering becomes unbearable; while opponents believe that legalizing PAS would lead to a variety of problems and injustices.[16] Below are just a few of the positions advocates and opponents have on the issue.

Opponents of PAS fear that legalizing the practice would allow terminally ill patients to be coerced by their families to submit to PAS, as well as allow terminally ill patients to request PAS only because they feel as though they are a burden on their families.[17] Advocates believe that legislative safeguards would prevent these abuses. For example, Oregon has a legislative safeguard that holds physicians criminally and civilly liable for granting a patient’s request for PAS when he feels as though either of these two feared abuses are occurring.[18] [19] Oregon further attempts to prevent these abuses through its requirement that two witnesses verify that the patient’s request for PAS is ‘voluntary and not coerced,”[20] and limits the effect of coercive family members by requiring that at least one of the witnesses not be a family member or entitled to any portion of the patient’s estate.[21] However, opponents of PAS argue that these witnesses do not provide adequate protection against these potential abuses, as they believe that a coercive family member would be able to coerce the witness as well.[22] Whether or not these legislative safeguards are sufficient to protect against these two abuses is a heated debate in itself.

Opponents of PAS also fear that the legalization of the practice would lead to abuses by health insurance companies. Opponents fear that the legalization of PAS would allow for insurance companies to force terminally ill patients to use PAS by agreeing to pay for PAS while refusing to pay for hospice.[23] Advocates rebut this argument by arguing that PAS is not an alternative to hospice or other end of life care, but opponents note that because PAS is less expensive than hospice, the legalization of PAS will affect health insurance companies’ determinations of what they will cover.[24] Advocates believe that, because health insurance is regulated by the state, this determination could be controlled through legislation.[25] For example, the legislature could require insurance companies that cover PAS to cover hospice as well.[26] Additionally, advocates of PAS believe that legalization would actually solve a problem that relates to insurance companies. Because many life insurance policies refuse to pay proceeds when the insured commits suicide, advocates believe that the legalization of PAS would provide a gateway for the terminally ill to end their lives with the knowledge that their families will still receive life insurance proceeds.[27]

Another argument made against the legalization of PAS is that a patient only requests PAS if he suffers from a depression.[28] This argument is supported by studies revealing that depression in terminally ill patients frequently goes undiagnosed, and that once it is diagnosed and treated, a significant amount of patients who had originally pursued PAS change their mind.[29] However, advocates of the law counter this argument by stating that legislative safeguards, such as a requirement for every patient seeking PAS to see a psychiatrist, would prevent this outcome.[30]

Finally, opponents of PAS note that physicians are fallible, and that there is often uncertainty in diagnosis and prognosis of an illness.[31] As a result, there are often times when patients live for much longer than doctors expected, and there are situations in which patients miraculously recover.[32] Opponents to PAS believe that PAS should not be legalized for this reason, as people would be ending their lives when they potentially could have recovered and survived.[33] Furthermore, opponents also believe that the legalization of physician assisted suicide would undermine the role of the physician as a “healer,” a role that is entrenched in the Hippocratic Oath[34]

Conclusion:

Both opponents and advocates of PAS have compelling arguments, and the debate is only just beginning. This analysis suggests that it is nearly impossible to determine whether the legalization of PAS would protect the individual’s right to autonomy or lead to terrible abuses. However, it seems that legalizing PAS and implementing adequate safeguards to prevent abuses would be the best way to preserve a patient’s personal autonomy while taking into account the various arguments opponents have to the practice. Because of the strong arguments both sides hold, the debate on whether or not terminally ill patients have the right to end their lives through the practice will likely be an unsolved issue for many years to come.

[1] Definition of Physician-assisted Suicide, MedicineNet.com, http://www.medicinenet.com/script/main/art.asp?articlekey=32841 (last updated Sept. 20, 2012).

[2] Catherine E. Schoichet, Brittany Maynard on Decision to Die: Now ‘doesn’t seem like the right time,’” CNN (Nov. 3, 2014), http://www.cnn.com/2014/10/29/health/oregon-brittany-maynard-video/.

[3]  Bill Brigs, Brittany Maynard’s Death: Why is Brain Cancer So Lethal?, NBC (Nov. 4, 2014), http://www.nbcnews.com/health/cancer/brittany-maynards-death-why-brain-cancer-so-lethal-n240841 /.

[4]Debbie Ziegler, Mother of Right-to-Die Brain Tumor Sufferer Tells of Final Moments and Why She Wants Assisted Dying Everywhere, Daily Mail (Feb. 16, 2015),

http://www.dailymail.co.uk/news/article-2951622/My-daughter-Brittany-Maynard-died-husband-stroking-hair-read-poetry-mother-right-die-brain-tumor-sufferer-tells-wants-assisted-dying.html#ixzz4NHWkT6WI (“Most frightening to Brittany was a high likelihood of long-term effects: decreased intellect, memory impairment, confusion, personality changes and alteration of the normal function of the area irradiated.”).

[5] Barbara Coombs Lee, Brittany Maynard’s Memory is Helping Us Achieve Death with Dignity,  Time (Jan. 28, 2015), http://time.com/3687736/brittany-maynards-legacy-death-with-dignity/.

[6] Catherine E. Schoichet supra note 2.

[7] Belinda Luscombe, Why a Young Woman with Brain Cancer Moved to Oregon to Die, Time (Oct. 8, 2014), http://time.com/3481599/brittany-maynard-death-with-dignity-oregon-right-to-die-law/ .Catherine E. Schoichet d Her Own Life. Nicole Weisensee Egan. November 2, 2014 at 7:35 PM EDT.rywhere.”

[8] Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People (Nov. 2, 2014), http://people.com/celebrity/terminally-ill-woman-brittany-maynard-has-ended-her-own-life/.

[9] Death with Dignity Around the U.S., DeathWithDignity.org, https://www.deathwithdignity.org/take-action/ (last updated Nov. 9, 2016).

[10] See Washington v. Glucksberg, 521 U.S. 702 (1997). See also Vacco v. Quill, 521 U.S. 793 (1997).

[11] Id.

[12] Id.

[13] Alexander R. Safyan, A Call for International Regulation of the Thriving “Industry” of Death Tourism, 33 Loy. L.A. Int’l & Comp. L. Rev. 287 (2011). See also Vacco, 521 U.S. 793 at 798.

[14] FAQs, DeathWithDignity.org, https://www.deathwithdignity.org/faqs/ (Last visited Nov. 13, 2016).

[15] Death with Dignity Around the U.S., DeathWithDignity.org, https://www.deathwithdignity.org/take-action/ (last updated Nov. 9, 2016).

[16] Helene Starks, et al., Physician Aid in Dying, Ethics in Medicine (April 2013), http://depts.washington.edu/bioethx/topics/pad.html.

[17] Mary Harned, The Dangers of Assisted Suicide: No Longer Theoretical, Defending Life 513, 514-17 (2012).

[18] OR. REV. STAT. §127.890(2)-(3).

[19] Id. §127.825.

[20] Id.

[21] Christina White, Physician Aid-in-Dying, 53 Hous. L. Rev. 595, 619 (2015).

[22] Id.

[23] Margaret K. Dore, Note “Death with Dignity”: A Recipe for Elder Abuse and Homicide (Albeit Not by Name), 11 Marq. Elder’s Advisor 387, 398 (2010).

[24] Id.

[25] Christina White supra note 21, at 620.

[26] Id.

[27] Richard Reich, Life Insurance & The Right to Die Movement,LifeInsure.com (Feb. 29, 2016), http://www.lifeinsure.com/life-insurance-right-die-movement/.

[28] Mary Harned supra note 17.

[29] Id. at 514-15.

[30] Christina White supra note 21, at 622.

[31] Helene Starks supra note 16.

[32] Id.

[33] Id.

[34] Australian Human Rights Commission, Euthanasia, Human Rights, and the Law at 58 (2016).

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