oxford handbook of bioethics

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is that an act type is morally permissible if its performance does not necessitate intending what is forbidden (where this has to be specified independently of the principle) either as an end, or as the means to some other end. Thus, in the case at hand, since the doctor can administer the lethal injection without intending either the death of the patient as an end, or the death as the means to ending his suffering, this suffices to show that the act in question is permissible quite independently of the specific intention with which the agent acts.

Second, there is the larger issue of how we are to identify acts. If the intention with which an agent acts is part of how we identify which act he is performing, then the idea that the same act can be performed with different intentions is mistaken. So the act is not simply injecting a lethal dose of morphine (which can be performed either with the intention to kill or not), but is rather the act of injecting a lethal dose of morphine as a way of controlling pain, or injecting the lethal dose as a way of killing the patient.

In any case, no matter what view one takes on the matter, it is not going to be settled by means of specific examples. As to the larger issue that Thomson raises — that intention or motive is not relevant to act-evaluation — this is a topic that badly needs further thought. One will need an investigation whose form is: which way of understanding the relation of act and intention leads to results in moral theory that are most satisfactory on the whole. The relation between motive and act-evaluation is not a new one in the history of moral philosophy, but the physician-assisted suicide debate has raised it again in a sharply focused manner.

IF PEOPL E WOULD, IN THE ABSE NCE

OF OTHERS MISTAKENLY CAUSING HAR M, HAVE A RI G H T TO DO X, CA N WE PRO H I B I T THEM FROM EXERCISING THEIR RIG HT ON T HE GROUND S O F TH E HA R M TH AT WIL L

RESULT?

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The general issue that is raised is the following: Suppose we have established some normative status for particular acts under certain circumstances. In particular, suppose we have established that some people have a moral right to do X. The right may be pro tanto or not. Then what is the relevance of the fact that some set of people are likely either to harm themselves mistakenly, or to be pressured into harming themselves, or some (possibly quite different) set of people are likely to be harmed by those who mistakenly use the right, to the question of whether we should allow doing X to be legally permissible?

It might be useful in thinking about this kind of argument in the context of physician-assisted suicide to compare it to a similar argument that occurs in the context of the prohibition of alcohol or guns. In the case of, say, alcohol the argument takes the following form. Many of us are responsible drinkers. We do not get drunk. We do not drink and drive. We do not drink and operate heavy machinery. But there are some who are not responsible drinkers. These people do a lot of damage, not just to themselves but also to their families. They cause a significant number of injuries and deaths to other drivers and pedestrians. So, on balance, we are entitled to restrict the ability of responsible drinkers to obtain alcohol in order that we reduce the amount of injury and death caused by these irresponsible drinkers. Of course, if we could have a set of policies that distinguished between the responsible and irresponsible drinkers and only denied access to the irresponsible, this is the policy that would be morally required.

But, if that is not feasible, then we are entitled to restrict some individuals from doing what is (otherwise) morally permissible. This argument has both paternalistic and non-paternalistic elements. Part of the harms we seek to avoid are the harms the alcoholic does to himself. These might include cirrhosis, or injuries to himself caused by his bad driving. In addition, there are the harms to others he inflicts. Similarly, in the physician-assisted suicide case the paternalistic argument is that people may quite freely, but mistakenly, avail themselves of the means to death. Perhaps they have been misdiagnosed, or their prognosis is more optimistic than they think. In so far as we are concerned with manipulation or pressure put on people to choose physician-assisted suicide, this is not paternalism; we are seeking to stop others from injuring such patients. The only difference between this form of argument and that which cites, say, the harm done to others by drunken drivers is that the harm is self-inflicted. But, to the extent that the cause of the decision is pressure or manipulation by others, then we are sometimes entitled to cite their actions as the cause of harm.

I am willing to concede that under certain circumstances we are entitled to restrict innocent persons because of the harms by others that are thereby avoided. What are these circumstances? There is no uniform answer to this question. One has to take into account such considerations as how significant the right in question is to the person’s leading a meaningful life. What is the mechanism by which harm is produced? Is it that exercising the right allows others to make mistakes? Allows others to deliberately create harms? Provides an opportunity to convince others to cause harms? Makes it more likely that others will reason mistakenly and enlarge the right in harmful ways? What are the alternative ways of seeking to minimize the harms at issue? Do those ways violate rights?

But I also think that, when we are justified in restricting the right, we are obligated to adopt the least restrictive alternatives available. We should first concentrate our restrictions on those who are known or likely to be the direct causes of harms. If we are concerned about drunk drivers, then that is the class we should seek to

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restrict. We can use random highway stops, ignitions linked to breathalyzers, heavier penalties for those caught driving intoxicated, imposing liability on bartenders who continue to serve intoxicated customers. It is only if such policies fail to do much in the way of reducing injuries to others that we should consider the possibility of prohibition. I am ignoring here all the issues about whether prohibition can work, and its costs in illegal activities, corruption, etc. And in terms of restriction of the responsible, a scheme of licensing would be better than forbidding all access.

It is also more reasonable to forbid activities that do not have a major impact on the meaning or significance of a person’s life. I like my wine as much as anybody, but I do not think that not being able to drink it would make anyone’s life a less good one — although it might make it less pleasurable. Whereas, say, denying homosexuals the right to the only sexual life available to them is quite a different sacrifice.

To return, then, to the case of the regulation of physician-assisted suicide: since the conduct being regulated is one relevant to a central part of a meaningful life, namely the determination of the mode and timing of the ending of one’s life, and since it is aimed at avoiding a great evil, unrelenting pain and suffering, the burden of proof has to be significant for those who favor forbidding the activity.

Since there are both paternalistic and non-paternalistic justifications, let us look at them separately. Assume that the only dangers we were looking at were the dangers of mistake on the part of the patient. Would we be justified in forbidding physician-assisted suicide?

I do not believe so. There are many instances in which people can make mistaken judgments, which can result in their deaths. People who engage in dangerous activities such as mountain climbing or hang-gliding, people who agree to clinical trials of untested therapies, people who work in dangerous occupations such as high iron construction. We do not believe that the fact that some of them will die needlessly is a good reason for forbidding the activities in question. The most relevant comparison is with patients who wish either to withdraw or not to initiate life-saving treatment. They are subject to exactly the same risk of misdiagnosis, new cures discovered, and so forth. But we forbid legal interference with their decisions provided they are competent.

So if we are to forbid physician-assisted suicide it must be on the grounds of the risks of non-paternalistic harms. Again for the sake of argument, and not because I believe the evidence is very strong, let us assume that there are non-negligible risks of harms imposed on patients against their will. In the words of the New York State Task Force, prohibitions on physician-assisted suicide are justified ‘by the state’s interest in preventing the error and abuse that would inevitably occur if physicians were authorized to . . . aid another person’s death’ (New York State Task Force on Life and the Law 1994: 68). Note the use of the word ‘inevitably’ in this concluding judgment. This implies that there is no scheme of regulation that would not keep

these harms within some reasonable bounds. Of course, no scheme would reduce the risk to zero, but that is not required in order for legalization to be warranted.

Since we are assuming a right on the part of those who wish physician-assisted suicide, we must look for the least restrictive alternative for regulating the practice given the risk of serious harms. I believe one of the advantages of physician-assisted suicide over active voluntary euthanasia is that many of the risks of harm are sharply reduced. For example, David Velleman claims that

once euthanasia is established as a ‘therapeutic’ alternative, the line between patients competent to consent and those who are not will seem irrelevant to some doctors . . . As with other medical decisions, some doctors will feel they can and should make a decision in their patient’s best interests, for patients clearly incapable of consenting and for those with marginal or uncertain capacity to consent. (Velleman 1992: 678)

But how is this supposed to work in the case of physician-assisted suicide? Are these doctors going to forge written documents, procure willing colleagues to give a second opinion, inject a lethal dose and claim the patient took pills himself ?

Perhaps what is meant is that the slippery slope will appear. Once we have physician-assisted suicide, active voluntary euthanasia will inevitably follow. But, in addition to the absence of any evidence for this claim (we have no empirical data on a society that has adopted only physician-assisted suicide and then seen active voluntary euthanasia come into effect as well), the moral issue is posed most clearly here. We are denying citizens who have a moral claim to an exercise of their liberty (access to physician-assisted suicide) not because they will misuse the liberty to harm others, not because if they exercised this particular liberty others would misuse that liberty to impose harms on others, but because if they have this liberty then others will press for legislative changes to allow a different liberty (active voluntary euthanasia) that will then impose harms on others. I cannot think of another instance in which this argument is justified for imposing legal restrictions on otherwise permissible liberties.

The closest argument that I can think of is that which argues against making some exception to freedom of speech, say by prohibiting hate speech, because of the fear that the relevant authorities, say the administration of a university, will be led to make further (unjustified) exceptions. But in this case what we fear is the abuse of power by authorities over which we have very little power. It is not the fear that legislatures or elected officials will be swayed by their constituents to enact dangerous policies.

David Velleman, who thinks the arguments for legalization must proceed more slowly, recognizes that ‘these collateral harms might have to be tolerated if there were a fundamental right to choose between life and death. We can’t deprive all people of a choice to which they are morally entitled just because some people would be better off without it’ (Velleman 1999: 620). It is only because he thinks there is no such right that he believes the danger of collateral harms have important weight in the argument.

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IS PHYSI CIAN-ASSISTE D SUIC IDE REALLY

NECESS ARY ?

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An important argument against physician-assisted suicide and euthanasia, which has not received much attention, is that there are alternative ways of achieving the end of control over one’s mode and time of dying that avoid some of the problems with physician-assisted suicide. This is not the argument that pain and loss of dignity can be handled by a greatly expanded system of hospice care. Of course everyone agrees that much more attention should be given to the alleviation of suffering at the end of life. It is an empirical question of whether (almost) all forms of pain can be handled by doctors who are trained in pain relief, and are willing to administer whatever it takes to control pain. And much progress has been made in recent years in the training of physicians in palliative care. Ironically, surely some of this is the result of the publicity and attention given to the Oregon experiment, and to the responsibility that physicians who oppose physician-assisted suicide have for doing more for their patients in extremis.

It is important, however, to note that pain is not the only issue. Those who are incontinent, or paralyzed, or unable to think clearly, or free from pain but in a mental state that is disconnected from reality, or slowly losing their ability to control their muscles, are not in pain. But they are suffering. And pain medication is not going to help them.

In addition, there is the point that Velleman has stressed, that there are people who because of their suffering have lost their sense of self — of who they are. Again, psychiatric assistance can be useful and ought to be provided. But there comes a point at which the life of the patient (in their eyes) is one of degradation and misery. What they want is to end their life, not to have it extended in a slightly improved fashion. Again, those whose pain would be intolerable without large doses of pain medication can find their pain decreased but at the cost of losing contact with the world around them — in particular with those loved ones with whom they would like to communicate.

The argument that I think is more significant is that there is an alternative say in which patients can retain control over their living or dying. They can always refuse food and water. They will die more slowly than with physician-assisted suicide but die they will. It might be objected that this mode of dying is quite unpleasant and patients should not have to choose this way of dying. The empirical evidence, however, is that provided adequate hydration of the mouth is maintained, this is not a particularly unpleasant way to die. People who are terminally ill generally do not have a good appetite, so that the deprivation of food is not perceived as serious. And at least for a while such patients are able to maintain contact with their friends and loved ones.

Why then, the argument goes, should we institutionalize a practice that at least might have harmful consequences? Why should we take risks when there is a nonrisky alternative; one that is simply an extension of the recognized right to refuse medical treatment? There is a further point, which is that the process of assisted suicide is itself not well understood. The dosage, the mode of administration, is quite imperfect. Patients throw up the medication. Others wind up in coma or persistent vegetative state. Indeed some think the Oregon figures are fishy simply because there are no reports of bungled assisted suicide. Although they report cases in which the patient lingers on for substantial periods of time, all the patients did die eventually.

What we ought to do is expand our system of palliative care, at the same time informing patients of their right to refuse food and water and giving them the best evidence we have about what the process would be like. I think this is clearly correct, but what is less clear is whether this is a good reason to continue to keep physician-assisted suicide illegal — except for the state of Oregon.

The first important thing to note is that the argument does not show that refusal of food and water (henceforth rfw) is morally speaking an improvement over physician-assisted suicide. It is not as if in rfw but not physician-assisted suicide the intention of the physician is morally superior. In neither case need the physician intend the death of her patient. In the former case the physician need only intend to follow the wishes of his patient to cease all treatment as well as food and water. But in the latter case the physician may only intend to provide his patient with the security of ultimate control over her living or dying, and may even think that the patient is less likely to end her life prematurely as a result of being so empowered. It is true that in the case of physician-assisted suicide the doctor must prescribe the lethal medication but in the former case the doctor must order nurses and orderlies not to provide the normal food and water.

In neither case is the cause of death the illness of the patient. In one case it is the lethal medication (if the patient chooses to take it) and in the other it is the lack of food and water (if the patient chooses not to take them). So the argument cannot be that rfw is superior to physician-assisted suicide on moral grounds.

The argument might be that there are risks to legalization of physician-assisted suicide that are not present in the current state of legalized rfw. Again the matter is not so clear. In both cases there is a possible danger of manipulation by either patients or family. In both cases the doctor is responsible for taking steps that may lead to the death of his patient and it is possible this might have some effect on the doctor – patient relationship. In both cases there is the issue of whether they should be restricted to the terminally ill or extended to the incurably ill and suffering. Actually it appears as if rfw is already something that the incurably ill have a right to demand, so I suppose the issue would be whether we should require forced nutrition for those not terminally ill. Since the risks seem similar, again

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this is not reason for relying only on rfw and keeping physician-assisted suicide illegal.

The argument has to be that we should stay with the status quo and not enlarge the options thereby increasing the risks. We should simply concentrate on making sure there are adequate safeguards in place to ensure that rfw is not misused or abused. For those whose pain cannot be controlled sufficiently during the process of dying from lack of nutrition and hydration we can resort to terminal sedation, the administration of sufficient medication to induce unconsciousness.

Whether this argument works is partly a matter of determining whether the additional risks could not be adequately handled by the same kinds of safeguards that we would put in place to limit the risks of rfw, and whether there are benefits to physician-assisted suicide that could not be achieved with only rfw.

There is, however, a further argument that must be considered which weighs in favor of legalizing physician-assisted suicide. We know that physician-assisted suicide and voluntary euthanasia do take place, and in not insignificant numbers. Some even use this fact to argue against legalization by saying that doctors do in fact help patients to die and it is better to let this continue without making this public via legalization. On this view a certain amount of hypocrisy is a desirable feature. But I should think that those who are worried about risks and abuse ought to worry about what is going on in the sub rosa practice of assisted suicide. It seems to me a way of risk-reduction to bring the whole situation out in the open, with public scrutiny as has been done in Oregon.

WHEN, A ND FOR WHAT ?

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The next set of issues I wish to discuss are, first, the question of when persons ought to be eligible for physician-assisted suicide — i.e. should it be limited to those who are competent at the time of death or extended to those who, while competent, agreed, but who are now incompetent — and the question of what conditions ought to be necessary, i.e. are only those suffering from terminal illness to be allowed to request physician-assisted suicide?

Felicia Ackerman raises an interesting question in a provocative article: is the idea that legal physician-assisted suicide should be limited to certain specific conditions, i.e. terminal illness, a consistent one (Ackerman 1998)? Her claim is that, while it may be consistent to argue either for the complete legalization, or the complete prohibition, of physician-assisted suicide, the position that argues for a limited legalization is morally untenable. Her reasons are quite varied: some are supposed counter-examples; some appeal to the underlying rationale for wanting physician-assisted suicide to be available; some involve appeal to empirical factors.

One difficulty in her argument is a failure to distinguish between a general legal right to request assistance in suicide and a specific right to request assistance from physicians. These are logically independent of one another. While it is obvious that one may be in favor of physician-assisted suicide without being in favor of allowing others to assist suicide, it takes a moment’s thought to realize that it is also possible to believe that one ought to have a right to request assistance from anyone while thinking it should be illegal for physicians to provide such assistance. One might hold this view because, say, one thought that allowing physicians to use their medical skills to cause death is a perversion of the role of physician. I do not think this is true in general, but there may be specific cases in which it does hold (G. Dworkin 2002).

So an argument for the right to assistance in killing oneself that relies on the value of autonomy may not be inconsistent with an argument for limiting physicianassisted suicide to, say, terminally ill persons — even if the latter argument also relies, in part, on an appeal to the value of autonomy. What is special about physician-assisted suicide is that it is death that takes place in the medical context and in the course of the practice of medicine. One might even think that there ought to be people who are trained in giving advice to others as to how they can commit suicide, and even assisting them to die if for some reason they are unable to kill themselves, say, because they are paralyzed. But one still might restrict physician-assisted suicide to those who are already part of the medical context. One might, for example, believe that lethal injection as a mode of execution ought to be available to those prisoners who prefer to die this way, but that doctors should not be executioners (G. Dworkin 2002).

The question then arises — within the medical context — how broadly should the conditions that warrant physician-assisted suicide be specified? Is there any special reason to focus on terminal illness? After all, if relief of suffering is an important part of the rationale, then it would appear more important to relieve the suffering of those who are not terminal and will suffer longer. And while those who are not dying shortly have a longer period in which it is possible that cures for their condition may be discovered, this seems a slim reed upon which to distinguish the cases.

There are certainly pragmatic considerations for limiting the scope of physicianassisted suicide in a period when it is difficult to get any change in the status quo. And it is certainly reasonable to want to try out such reforms on a small scale before widening their scope. But, apart from such pragmatic matters, the arguments for extending physician-assisted suicide at least to those who suffer acutely and whose suffering is not easily remediable seems strong. By ‘suffering’ I mean more than physical pain. Consider someone with ‘lockedin’ syndrome — who is totally paralyzed (with perhaps eye blink motion) and completely conscious. Since some patients may experience this not only as mentally torturous but also as a condition that denies them all meaningful life,

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the case for death seems as secure as that for someone with painful metastasized cancer.

Opponents will immediately raise the issue of where the line should be drawn. Recall the patient in The Singing Detective who suffers from a terrible skin affliction that is not only painful but limits his range of motion and the use of his hands. Is he a candidate for physician-assisted suicide? Or what about a person suffering from morbid obesity, weighing 800 pounds, confined to his bed, unable to work. Or consider a person whose face has been eaten away by flesh-eating bacteria and cannot bear to face the world. All of these would meet the criterion proposed by Professor Kluge of the University of Victoria — an incurable, irremediable disease or medical condition that the patient experiences as incompatible with her fundamental values.

My own view is that one should accept something like this condition and that it is a matter of judgment for the physician as to whether the facts of the particular case fall under this criterion or not. If, in his judgment, they do, then the law ought to allow assisted suicide.

Another important issue is whether euthanasia ought to be available by means of advance directives. This question can be put as follows: Given that competent patients have some kind of right based on autonomy to request assisted dying, does such a right extend to their situation when they are no longer competent? This could be because they are in a coma or a persistent vegetative state, or because they are demented. This is a genuinely difficult issue, on which philosophers have come to very different conclusions (R. Dworkin 1993; Shiffrin 2004). On the one hand, if we do not allow advance directives, then we prevent those who wish their life to be ended, rather than living on in a condition which they regard as incompatible with their most basic values, from being able to achieve their wishes. On the other hand, if we carry out such advance directives, then we end the lives of those who do not contemporaneously express a wish to die. Indeed, at the time they may not wish to die. If we think of the person as divided into stages, then the earlier person is clearly the most competent decision-maker, but the later person is the one whose life will be shortened. It is she who bears the consequences of the earlier decision. I believe that becoming clearer about the issue in this case will require further thought about the authority of earlier versus later stages of a person’s life, about the significance of the fact that demented or comatose persons do not have the power of autonomy they once possessed, and what respect for the person comes to in situations like this. It is also clear that the issue of dementia is different in important ways from the issue of lack of consciousness. It is crucial in the former case that the person is able to express wishes and desires, including the fact that they do not wish to die.