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Theatre of Life and Death
Americans love conversation and public disputation about contested moral and ethical issues. I decided to visit Oregon, which has had a physician assisted suicide law in place since 1997.
Last year 96 Oregonians asked their doctors to prescribe a deadly barbiturate which they could ingest causing their own deaths; 65 of them went ahead and did so.
This mode of dying accounts for just 0.2 per cent of deaths in Oregon. In the Netherlands, euthanasia accounts for ten times that percentage of deaths, and almost a third of them occur without the patient’s explicit request.
I met with representatives from Providence Health – the largest Catholic health provider in the state of Oregon; Physicians for Compassion – doctors who have strong ethical objections to their colleagues prescribing deadly medications; medical personnel from the Oregon Health Sciences
University (OHSU) – the institution through which most of the suicide procedures are instituted; and with Barbara Coombs Lee, President of Compassion and Choices – the principal national advocacy group espousing ‘physician assisted death’.
Coombs Lee eschews use of the word ‘suicide’, suggesting that it implies that the terminally ill are mentally ill. She insists, “Assisted suicide, committed by a physician or anyone else, remains a felony in Oregon. If a physician aided or abetted the suicide of her mentally ill patient, she would and should be prosecuted.”
When seeking my meeting with Ms Coombs Lee, I wrote: “I am an Australian lawyer and Jesuit priest. I serve on the national board of St Vincent’s Health Care, one of the major health providers in Australia. I am attending the Catholic health conference in Atlanta in early June. On my way home, I will take the opportunity to come to Portland to check out your physician assisted suicide law. I am keen to hear a variety of perspectives on the workings of the Oregon law. Is there any chance I could meet with you?”
She replied: “I’m grateful for your curiosity, but would not anticipate your learning anything to impact your Catholic perspective on aid in dying. Our view is Catholic providers should not obstruct a patient’s request for aid in dying (distinguished from suicide) and should facilitate referral to cooperating physicians in appropriate cases.
Jack Kevorkian, known as Dr
Death, had just died – of
natural causes
“The states of Oregon and Washington publish yearly reports and these are available on the states’ websites.They would be good general data sources. Our website also has a large body of data.We don’t get many requests for dialogue from priests, outside a debate setting, but I’m game.”
This was too good a challenge for me. I replied, “I’m game if you are”.
Jack Kevorkian, known as Dr Death, had just died – and of natural causes.
The liberal New York Times carried an opinion piece headed “Dr Kevorkian’s victims’, pointing out that 60 per cent of those assisted in death, or killed, by Kevorkian “weren’t actually terminally ill”. In several cases, autopsies revealed “no anatomical evidence of disease”.
Kevorkian believed people had a right to commit suicide and a right to receive assistance in com- mitting suicide, regardless of whether they were terminally ill or in great pain. Coombs Lee was very careful to distinguish the aims of her organisa- tion from the modus operandi of Kevorkian.
She said, “We don’t think euthanasia is good public policy. For us, the patient being in control from beginning to end is crucially important. Even if very restricted in movement, we think it important that the patient have the consolation of knowing that they are always in control; that they can stop the procedure at any time”.
Since then, she has told the Medscape Medical News that Kevorkian was a flamboyant provocateur: he never said to other physicians, “Let’s develop a standard of care”.
Critics of physician assisted suicide and opponents of Compassion and Choices claim that physician assisted suicide is a step on the slippery slope to euthanasia, which has been pragmatically abandoned by such groups for the moment because of its rejection by Californian voters in 1988.
Ed Pellegrino, the greatest American bioethicist of the age, once pointed out that: “[T]he slippery slope is not a myth. Historically it has been a reality in world affairs. Once a moral precept is breached, a psychological and logical process is set in motion which follows what I would call the law of infinite regress of moral exceptions.
“One exception leads logically and psychologically to another. In small increments a moral norm eventually obliterates itself. The process always begins with some putative good reason, like compassion, freedom of choice, or liberty. By small increments it overwhelms its own justifications.”
The highly respected Daniel Callahan from the Hastings Center speaks of the organised obfusca- tion of the advocates for physician assisted suicide. Having abandoned euthanasia after 1988 they now want to avoid the term ‘suicide’, as one newspaper reporter has called it “a killer at the ballot box”.
Using phrases like ‘medically assisted death’,‘hastened death’, and ‘patient-directed aid in dying’, Callahan thinks the advocates are disguising their real activity and purpose which is the ‘medicalisa- tion of autonomy’ and the ‘medical legitimation’ of suicide.
Barbara Glidewell, who had been the OHSU Ombudsman for 35 years, was responsible during the first twelve years of Oregon’s Death With Dignity Act for facilitating the patient-provider process for terminally ill, adult patients making a voluntary request to access the law.
She told me that in 2010 the most frequent end-of-life concern expressed by patients seeking physician aid in dying was loss of autonomy (96 per cent), with only 10.2 per cent expressing concern about inadequate pain control.
Chuck Bentz, one of the Physicians for Compassion, shared with me the story of one of his patients, a 76-year-old athletic man with a melanoma. Chuck had known this patient and his wife for over a decade. He provided a referral to a reputable oncologist.
According to Bentz this is what happened: “As he went through his chemotherapy and radiation therapy, he became less able to do this activity, causing a depression, which was documented by his radiation oncologist. At his final visit with his medical oncologist, he expressed a wish for doctor- assisted suicide.
Bentz is concerned that this law
impacts adversely on professional
relationships between doctors
“Rather than taking the time and effort to address his depression, or ask me to respond to his depression as his primary care physician and as someone who knew him, the medical oncologist called me and asked me to be the ‘second opinion’ for his assisted-suicide.
“The oncologist told me that secobarbital “works very well” for patients like this, and that she had done this many times.”
Bentz objected and advised that there were better ways to address his patient’s needs at this time. Next he knew his patient was dead, from a lethal overdose. He obtained the death certificate which wrongly listed the cause of death as melanoma.
Bentz is concerned that this law impacts adversely not only on the doctor-patient relationship, but also on the professional relationships between doctors.
The American Medical Association still regards physician assisted suicide as unethical.
Callahan says, “In the case of Oregon, we have been assured that all is well, that no abuses are occurring. In their confidence and firmness those assurances are the equal of those expressed in the Netherlands prior to its confidential surveys” – which revealed that doctors regularly euthanase patients without their consent or without sufficient regard for the mental state of the patient.
The US Catholic Bishops, worried that physician assisted suicide will spread beyond Oregon and Washington, have just issued a statement, ‘To live each day with dignity’.
Coombs Lee replied, “We welcome the bishops’ clear statement that opposition to aid in dying is a matter of religious belief.We find it unacceptable to impose the teachings of one religion on everyone in a pluralistic society”.
But you don’t have to be Catholic to think that doctors should do no harm, that patients are free to forego futile or burdensome treatment, and that palliative care be utilised to relieve pain. Suicide will occur from time to time, but why the need to enact laws conferring medical legitimation on it and increasing its likelihood?
Laws and social policies have to
be designed for all citizens
If we look at the original Greek meaning of the word euthanasia, it means nothing more or less than a good death: from eu ‘well’ and thanatos ‘death’. Nowadays euthanasia means the direct causing of death, usually by the administration of a lethal injection by a medical practitioner. There is also the idea of physician assisted suicide or physi- cian assisted death where the doctor prescribes the lethal drugs which the patient then ingests at a later time, perhaps with direct assistance from a loved one or carer.
Laws and social policies have to be designed for all citizens. The law is not a vehicle for imposing one set of religious or moral beliefs on others. We do not live in a theocracy. I am one of those Catholics who delights and thanks God daily that I am a citizen in a free, democratic, pluralistic society where the laws are not determined by unelected bishops but by elected members of parliament and judges trained in the law.
In 1995 John Paul II issued a papal encyclical entitled Evangelium Vitae. He said: For a correct moral judgment on euthanasia, in the first place a clear definition is required.
Euthanasia in the strict sense is understood to be an action or omission which of itself and by intention causes death, with the purpose of eliminating all suffering. “Euthanasia’s terms of reference, therefore, are to be found in the intention of the will and in the methods used”.
Euthanasia must be distinguished from the decision to forego so-called “aggressive medical treatment”, in other words, medical procedures which no longer correspond to the real situation of the patient, either because they are by now dis- proportionate to any expected results or because they impose an excessive burden on the patient and his family.
In such situations, when death is clearly imminent and inevitable, one can in conscience “refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted”.
To forego extraordinary or disproportionate means is not the equivalent of suicide or euthanasia; it rather expresses acceptance of the human condition in the face of death.
Pope John Paul II then went on to make a formal declaration: I confirm that euthanasia is a grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a human person.
This doctrine is based upon the natural law and upon the written word of God, is transmitted by the Church’s Tradition and taught by the ordinary and universal Magisterium.
Depending on the circumstances, this practice involves the malice proper to suicide or murder.
Moral theologians and canonists delight in debating how authoritative this papal declaration is when couched in all this high sounding language.
I suggest that it is no disrespect to the papacy nor to Catholicism to assert that very few of you are likely to lie on your deathbeds debating with your relatives just how authoritative this teaching is. In any event you will note that the Pope has acknowledged that there is a need to take into account various distinctions and qualifications when declaring the immorality of euthanasia.
A generation ago, many Catholics thought it was wrong to administer large doses of morphine to a dying person if that would shorten their life. They failed to draw a critical distinction. It is wrong to do something intending to shorten the life of a person. It is not wrong to do something intending to relieve someone’s pain even if that action would have the unintended side effect of shortening the life of the patient.
A generation ago, many Catholics thought you were obliged to avail yourself of whatever medical treatment you could afford to lengthen your life. No, we believe death awaits us all on the journey to the Father.We are not obliged to endure therapeu- tically futile or overly burdensome treatments.
You will know enough of my involvement in the public square to know that I think it is not sim- ply a matter of saying: I believe X is wrong, or my Church teaches X is wrong; therefore there should be a law prohibiting X. Take the simplest case. We all believe that except in some circumstances (such as the Nazis demanding to know whether you are harbouring Jews) it is wrong to lie, even if it be right not to tell the whole truth or acceptable to maintain some moral reservation about telling the whole truth. But that does not mean there should be a law against lying.
Yes, it is appropriate to have a law prohibiting lying in some circumstances such as when swearing a statutory declaration or when entering into an insurance contract. But it would be just plain silly to make a law prohibiting lying in all circumstances, or even in all morally clear circumstances. In any event, such a law would be completely unenforce- able and capriciously and arbitrarily applied.
In 1995, the Northern Territory Parliament passed Australia’s first euthanasia law: The Rights of the Terminally Ill Act (NT). In 1997, the Commonwealth Parliament overrode the Territory law with its own Euthanasia Laws Act. The Commonwealth law did not repeal the Territory law but it rendered it inoperative.
I was a strong supporter of the Commonwealth law because I thought the NT euthanasia law would impact very adversely on the health of Aboriginal Territorians, many of whom said they would be scared ever to go to hospital if white doctors were able to kill them.
We are not obliged to endure therapeutically futile treatments
Three years ago, I said to the (Australian) Senate committee:
[W]hat has changed in ten years? In terms of what has changed, if you look at the United States, Oregon is still the only state which has euthanasia. Since the Commonwealth exercise the US Supreme Court has said there is no right to euthanasia. Lord Joffe’s United Kingdom legislation has gone down, and we have had very clear statements from the medical authorities in the United Kingdom and a quite eloquent submission here from the Australian Medical Association. So it would seem to me that on balance nothing has changed or, if anything, the anti-euthanasia case is probably slightly strength- ened if we look at developments in equivalent jurisdictions.
But there is gradual change occurring. There is still no law permitting euthanasia or physician assisted suicide in the UK. But in the US, Montana and Washington State have now gone down the path of Oregon. And here in Australia, there have been recent failed attempts to introduce euthanasia laws in Western Australia, South Australia and Tasmania.
Not all persons agitating these laws are morally insensitive, callous individuals. Some of the advocates are the most humanitarian, caring individuals you could hope to meet. Usually they are concerned to protect the human dignity of that small group of persons whose pain cannot be appropriately managed, or who fear the loss of control on approaching death, preferring to have the final say on how they exit this world. Those of us who espouse human dignity must always have a concern for unmanageable pain and for human autonomy.
When is the state entitled to place limits on the exercise of individual autonomy? We would usually answer that question in the same way that we answer questions about the limits on human rights. My right to X is limited by your right to Y. For example, my right of free speech is limited by your right to a good reputation. Also my right to Z is limited by the extent to which the exercise of that right would impact adversely on the public interest or the common good. That’s why we have no problem in limiting the freedom of the person to ride in a car without a seat belt.
If you were forcibly to insert a
feeding stent in me without my
consent that would be an assault
If we do not legislate to permit physician assisted suicide or euthanasia, there will still be cases where individuals decide that they have had enough of life, requesting the withdrawal of even hydration and nutrition. Even if we would regard such withdrawal as wrong, we need to respect the bodily integrity and moral autonomy of the mentally competent person who makes such a request whether now or by means of an advance directive.
If I am mentally competent, I am entitled to lock myself in a room depriving myself of food and water. And you have no right or obligation to interfere with my bodily integrity. If you were forcibly to insert a feeding stent in me without my consent that would be an assault.
If the person is not mentally competent, such withdrawal could not be justified. There is the difficulty of providing adequate safeguards for vulnerable individuals in their dying days.
Two years ago there was a lot of attention on Mr Christian Rossiter’s request for termination of hydration and nutrition. The WA Supreme Court gave the go ahead. But he decided not to continue the request.
A month after the judgment the media reported on Mr Rossiter’s condition, speculating that he might die soon from a respiratory infection. The Sunday Age reported: “The sad irony here… ‘is that [after the court case] he’d picked up a bit in himself, because people have been paying him attention’. He’d been particularly cheered by the ministrations of an outreach carer from Perth Home Care services.
“The Sunday Age understands the woman, who has been refused permission to speak to the media, had encouraged Mr Rossiter to record his life story, notably about his childhood in South Africa, with the idea of publishing a memoir.”
What then was the court case about? He may well have been suffering intense pre-mortem loneliness, as distinct from depression. He died of a chest infection more than a month after the court gave the all clear for his carers to terminate hydration and nutrition should he request it.
Euthanasia advocates usually concede that there is a need to set limits on the class of patient entitled to seek euthanasia – usually mentally competent adults who are not depressed and who are ter- minally ill and enduring unbearable pain. But no advocate has yet come up with a draft bill contain- ing watertight definitions.
As we contemplate the increasing demands of our ageing population on scarce health resources, let’s not demonise all those who advocate euthanasia or physician assisted suicide. But let’s hold them accountable for the unintended but foreseeable consequences of their policies.
Above all, let’s remember: even if there be a euthanasia law passed, there is no compulsion on any of us to avail ourselves of it, and there ought be capacity for all medical practitioners and health care facilities to opt out on the grounds of conscientious objection.
In short, as my mother said, “Don’t kill, and look after people when they are dying”.
Fr Frank Brennan SJ is Professor of Law at the Public Policy Institute, Australian Catholic University and Adjunct Professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.
