PAS Versus Involuntary Commitment: Is There a Moral Dilemma?

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COMMENTARY

Editor's note: Read the response to this article by Drs Kious and Battin here: Physician Aid-in-Dying and the Proper Role of Physicians. Also see: Psychiatrists Must Prevent Suicide, Not Provide It.

In an influential paper, psychiatrist-ethicist Brent M. Kious, MD, PhD, and philosopher-ethicist Margaret P. Battin, PhD,¹ present what they see as a “moral dilemma.” Specifically, the authors argue that

Involuntary psychiatric commitment for suicide prevention [IPCSP] and physician aid-in-dying (PAD) in terminal illness combine to create a moral dilemma. If PAD in terminal illness is permissible, it should also be permissible for some who suffer from non-terminal psychiatric illness: suffering provides much of the justification for PAD, and the suffering in mental illness can be as severe as in physical illness. But involuntary psychiatric commitment to prevent suicide suggests that the suffering of persons with mental illness does not justify ending their own lives, ruling out PAD.

We wish to challenge this thesis and argue that the supposed “moral dilemma” Kious and Battin suggest is purely factitious. Indeed, it is easily disposed of once the underlying rationale for “physician aid-in-dying”—a euphemism for physician-assisted suicide^2,3—is exposed as inconsistent with the values of Hippocratic medicine.

Moral Dilemmas in Medical Ethics

Moral dilemmas typically arise in medicine when two courses of action represent competing goods of roughly equal “weight,” or of commensurate risks and benefits. For example, when only one kidney is available for transplant, and there are two equally appropriate recipients in urgent need of the organ, transplant physicians face a classic moral dilemma.

We do not believe that the seeming conflict between PAS and IPCSP represents such a moral dilemma, because, in our view, PAS does not represent a “moral good” of any kind. That the legislative intent behind the laws underlying these two procedures may be contradictory-or in legal conflict with one another-does not perforce create a “moral dilemma” for anyone, especially physicians. Law and ethics are not necessarily congruent domains. Indeed, Oxford University law professor Charles Foster⁴ rightly observes that Kious and Battin conflate “. . . the different functions of law and ethics.”⁴ If, as we and others argue, PAS is ethically impermissible there is no moral dilemma for physicians.^5,6 As Prof Foster succinctly puts it, “The dissonance stops (and the [Kious and Battin] article’s main complaint is resolved) as soon as PAD is taken off the statute book.”⁴

The putative intent of physician-assisted suicide-to reduce suffering and respect the patient’s autonomy-does not salvage the practice, when viewed through the lens of medical ethics. While reducing suffering and honoring the patient’s autonomy are laudable moral ends, PAS is not an ethical means to these ends. Furthermore, there are alternative means for reducing suffering, which do not entail the moral problems of PAS; eg, state-of-the-art palliative and hospice care, and-in extreme cases-voluntary stopping of eating and drinking (VSED) and palliative sedation.⁷ We do not accept the moral theory, implicit in the ideology of PAS, that eliminating suffering human beings is an ethically acceptable path to eliminating human suffering. Indeed, once we strip away the anodyne euphemisms of the PAS movement-such as “medical aid in dying”-its philosophy is reduced to the claim that the patient’s self-determination takes precedence over all other moral goods. In our view, this apotheosis of autonomy represents a radical distortion of Hippocratic values.

Assisted Suicide and Involuntary Hospitalization Are Ethically and Legally Distinct

We believe that the moral issue regarding PAS is quite clear, consistent with the position of the American Medical Association; the American Psychiatric Association; the American College of Physicians; and the World Medical Association: PAS is incompatible with the ethical principles underlying Hippocratic Medicine.^8,9 But this is clearly not the case with respect to involuntary psychiatric commitment for suicide prevention (IPCSP)-an entirely separate ethical issue from assisted suicide. IPCSP has long been upheld as an ethical means of protecting the lives and well-being of suicidal patients, as the American Psychiatric Association has affirmed.¹⁰ Importantly, ethically-based IPCSP is used only when the patient’s life and well-being cannot be secured through less restrictive means. In a move of surpassing perversity, the advocates of PAS turn this ethos on its head by enabling vulnerable individuals to end their lives-ostensibly for the sake of their well-being!

And while we have pointedly distinguished legal from ethical issues, it is notable that IPSCP is legal, subject to various limitations and conditions, in all US states. IPSCP laws are grounded in the two principles of parens patriae (the authority of the state to protect persons legally unable to act on their own behalf) and the “police power” of the state.¹¹ There is no such broad legal acceptance of PAS in this country, which has legal status in only nine US states and the District of Columbia.¹²

Indeed, almost all states criminalize assisted suicide, and six states specifically outlaw assistance of suicide by physicians.¹³ Furthermore, in the last ten years, at least nine US states have strengthened their laws against assisted suicide/euthanasia.¹⁴ In addition, in the Assisted Suicide Funding Restriction Act of 1997, the US Congress prohibited the use of federal funds to facilitate the practice of PAS¹⁵; and, in 2017, the US House of Representatives introduced a resolution condemning PAS.¹⁶ Finally, it is notable that legislative initiatives to legalize PAS have failed more than 125 times in 50 states since 1995.¹⁷

This is not to say that the matter of IPSCP is ethically uncontroversial, or that it is not subject to misuse or abuse; but its ethical (and legal) status is far different in the US than that of PAS. It is also important to distinguish brief, emergency “holds” or emergency hospitalization (usually 48 to 72 hours) for purposes of psychiatric evaluation from long-term civil commitment. Physicians from any specialty; police officers; social workers; and others with legal standing may initiate an emergency hospitalization, whereas only a judge or magistrate may institute the long-term civil commitment of a patient.¹⁸

“Permissible” Is Not Always Ethical

Kious and Battin¹ immediately create conceptual problems for themselves by positing that PAS is “permissible.” We deny that premise, in any moral sense of the term “permissible.” We understand that PAS is legal in several US states, but we deny that it is morally or ethically permissible for any patients at all, based on long-standing principles of Hippocratic medicine.^4-6 This immediately renders moot the supposed “moral dilemma” the authors have posited. There may indeed be conflicts that arise as a matter of law-ie, difficulties reconciling the legislative rationales underlying PAS and IPSCP-but no such conflicts arise within the purview of medical ethics. Indeed, we would take the authors conditional statement (“If PAD in terminal illness is permissible, [then] it should also be permissible for some who suffer from non-terminal psychiatric illness”) and counter with the claim, “If PAS is not morally permissible for any patients, then it is not morally permissible for those who suffer from non-terminal psychiatric illness.” This is consistent with the line of reasoning pursued by Prof Foster.⁴

Thus, in our view, what Kious and Battin¹ describe is actually a pseudo-dilemma, and there is no “moral crisis” for physicians. Genuine ethical dilemmas present a choice between two equally “right” or good options. Unlike the involuntary hospitalization of suicidal patients, PAS, in our view, is manifestly wrong. In short, there is no “moral equivalence” between PAS and IPSCP; and hence, no “moral dilemma” arises for physicians who oppose PAS but support IPSCP.

Indeed, we have argued that it is morally incumbent upon physicians to oppose PAS.¹⁹ As Faith Lagay, PhD,²⁰ has pointed out,

That a state can legalize physician-assisted suicide, as Oregon has done, highlights the difference between what is legal and what is ethical; what the state allows [state] residents to do and what members of a given profession, in this case medicine, believe they ought to do.

Indeed, in our view, the American Medical Association’s third principle of medical ethics makes it incumbent upon physicians to oppose PAS laws: “A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.”²¹

“Self-Killing” Is Not the Same as Physician-Assisted Suicide

We also take issue with the way Kious and Battin¹ have framed the matter of “self-killing.” They argue that, “. . . the implicit rationale for laws allowing PAD in the US is that suffering can be an adequate reason for self-killing; but this implies . . . that suffering due to mental illnesses should at least sometimes be an adequate justification for self-killing, too.”

We certainly acknowledge that psychiatric illness is often a cause of significant suffering, though we would take issue with the very broad claim that either mental or physical suffering “. . . can be an adequate reason for self-killing.” (Is all such suffering, even for a day or a week, adequate reason for self-killing? Is suffering that can be substantially relieved with appropriate treatment adequate reason for self-killing?). However, even if it were true that “. . . suffering due to mental illnesses should at least sometimes be an adequate justification for self-killing . . .” it would hardly follow that physicians are acting ethically when they assist in a patient’s self-killing (suicide). Rather, it is our calling as physicians to do all in our power to offer help and give hope to distressed and suffering patients who seek to end their lives.^5-7

“Self-killing” (suicide), of course, has occurred in many forms for all of recorded human history. In contrast, physician-assisted suicide is a relative newcomer to medical ethical discourse and is largely contemporaneous with the “consumer movement” that began in the 1960s.²² Self-killing per se has nothing fundamentally to do with the ethics of physician-assisted self-killing. On the contrary: a core ethos of psychiatry is to help people find a path to a better future; mobilize their support systems; and provide other resources to fortify hope. Psychiatry can also play a unique role in helping patients requesting PAS find meaning in their suffering.¹⁹ Unfortunately, most PAS laws do not require mental health professionals as part of the initial evaluation process; hence, the unique skill set of psychiatrists is rarely deployed in behalf of the suicidal patient.

Autonomy Is Not the Issue

For similar reasons, the issue of the patient's “autonomy” raised by Kious and Battin¹ proves to be a red herring. For example, they write that, “. . . respect for autonomy is an important part of the justification for the [PAS] laws in Hawaii and other states. . .” But once again, we must distinguish between what underlies legislation and what underlies medical ethics. Furthermore, even if some notion of “autonomy” led to the conclusion that mentally competent patients ought to be at liberty to end their own lives-for example, via VSED²³-it would by no means follow that physicians ought to be involved in prescribing lethal drugs to patients who want to end their lives. Nor would such a notion of unimpeded personal liberty amount to a “right” to assisted suicide at the hands of physicians-a right the US Supreme Court (USSC) has said does not exist (eg, in Quill v. Vacco, 80 F.3d 716 [2d Cir. 1996]). As the USSC pointedly noted, “The distinction between letting a patient die and making that patient die is important, logical, rational, and well established.”²⁴[italics added]

Kious and Battin¹ further opine that,

. . . it is clear that the justification for PAD laws in the US, as elsewhere, depends in large part on the recognition that suffering-whether due to painful sensations or to the loss of dignity, self, or independence-can sometimes be an adequate reason to end one’s own life, and that persons who suffer severely because of a terminal physical illness and who retain decision making capacity should be allowedto pursue PAD.”¹[italics added]

This line of argument radically mistakes the ethical question facing physicians. It is not a question of whether suffering patients “should be allowed to pursue” physician-assisted suicide; clearly, a few states (Oregon, California, etc.) have ruled that they should be. (That PAS is legal in these states does not mean that it is ethically sound or good social policy). Rather, the question is whether physicians are ethically justified in complying with, or assisting in, the patient’s pursuit of assisted suicide. We say the answer is no, consistent with the numerous professional medical organizations cited above. As Dr Leon Kass²⁵ has argued,

The legalization of physician-assisted suicide [perverts] the medical profession by transforming the healer of human beings into a technical dispenser of death. For over two millennia the medical ethic . . . has held as an inviolable rule, ‘Doctors must not kill.’ The venerable Hippocratic Oath clearly rules out physician-assisted suicide. Without this taboo, medicine ceases to be a trustworthy and ethical profession . . .

Indeed, we would go further and argue that there is very little ethical difference between handing the patient a lethal prescription and handing him or her a loaded gun. (The differences are mainly instrumental and esthetic). Neither action comports with the ethics of Hippocratic medicine. Both shred the fabric of medical ethics beyond repair. Both constitute what Foster⁴ rightly calls “a distortion of the doctor-patient relationship.”

In short, psychiatrists strive to prevent suicide-we do not provide it. In the words of Dr Leon Kass,²⁵ “We must care for the dying, not make them dead.”

Dr Pies is Professor Emeritus of Psychiatry and Lecturer on Bioethics & Humanities, SUNY Upstate Medical University; Clinical Professor of Psychiatry, Tufts University School of Medicine; and Editor-in-Chief Emeritus of Psychiatric Times (2007-2010). Dr Hanson is Director of the Forensic Psychiatry Fellowship at the University of Maryland. Dr Komrad is on the psychiatry faculty of Johns Hopkins, University of Maryland, and Tulane University. Dr Geppert is Professor of Psychiatry and Medicine, and Director of Ethics Education, University of New Mexico School of Medicine; and Ethics Section Editor of Psychiatric Times.

For further reading:

The Danger of Assisted Suicide Laws. Part of the Bioethics and Disability Series. National Council on Disability. October 9, 2019.

References

1. Kious BM, Battin MP. Response to Open Peer Commentaries on “Physician Aid-in-Dying and Suicide Prevention in Psychiatry.” Am J Bioeth. 2019;19:W14-W17.

2. Pies RW. Brittany Maynard and the loose language of suicide. Medscape. November 19, 2014. https://www.medscape.com/viewarticle/835014. Accessed October 22, 2019.

3. Pies R. Assisting Suicide is Not Assisting Nature. Psych Central Professional. Apr 25, 2017. https://pro.psychcentral.com/assisting-suicide-is-not-assisting-nature. Accessed October 22, 2019.

4. Foster C. Kious and Battin’s Dilemma Resolved: Outlaw Physician Aid-in-Dying. Am J Bioeth. 2019;19:50-51.

5. Yang T, Curlin FA. Why Physicians Should Oppose Assisted Suicide.JAMA. 2016;315:247-248.

6. Kass LR. Leading a Worthy Life: Finding Meaning in Modern Times. A Dignified Death and Its Enemies: Why Doctors Must Not Kill. New York: Encounter Books; 2017.

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9. WMA Statement on Physician-Assisted Suicide. World Medical Association. February 21, 2019. https://www.wma.net/policies-post/wma-statement-on-physician-assisted-suicide. Accessed October 22, 2019.

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14. Schadenberg A. In the Last Ten Years, at Least Nine U.S. States Have Strengthened Their Laws Against Assisted Suicide/Euthanasia. Euthanasia Prevention Coalition. April 3, 2019. http://alexschadenberg.blogspot.com/2019/04/in-last-ten-years-at-least-nine-us.html. Accessed October 22, 2019.

15. H. Rept. 105-46 - Assisted Suicide Funding Restriction Act of 1997. https://www.congress.gov/congressional-report/105th-congress/house-report/46/1. Accessed October 22, 2019.

16. H.Con.Res.80 - Expressing the sense of the Congress that assisted suicide (sometimes referred to as death with dignity, end-of-life options, aid-in-dying, or similar phrases) puts everyone, including those most vulnerable, at risk of deadly harm and undermines the integrity of the health care system. https://www.congress.gov/bill/115th-congress/house-concurrent-resolution/80/text. Accessed October 22, 2019.

17. Patients Rights Council. Issues (United States). http://www.patientsrightscouncil.org/site/laws-issues-by-state. Accessed October 22, 2019.

18. Simon RI, Shuman DW. Clinical Manual of Psychiatry and Law. Washington, DC: American Psychiatric Press; 2007.

19. Komrad MS, Pies RW, Hanson AL, Geppert CMA. Assessing Competency for Physician-Assisted Suicide Is Unethical. J Clin Psychiatry. 2018;79(6).

20. Lagay F. Physician-Assisted Suicide: The Law and Professional Ethics. Virtual Mentor. 2003;5:17-18. https://journalofethics.ama-assn.org/article/physician-assisted-suicide-law-and-professional-ethics/2003-01. Accessed October 22, 2019.

21. American Medical Association. AMA Code OF Medical Ethics. https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/principles-of-medical-ethics.pdf. Accessed October 22, 2019.

22. Pies RW. Physician-Assisted Suicide and the Rise of the Consumer Movement. Psychiatric Times. 2016;33(8).

https://www.psychiatrictimes.com/couch-crisis/physician-assisted-suicide-and-rise-consumer-movement

23. Ganzini L, Goy ER, Miller LL, et al. Nurses’ experiences with hospice patients who refuse food and fluids to hasten death. N Engl J Med. 2003;349:359-365.

24. State may ban physician-assisted suicide - Vacco v. Quill, 117 S. Ct.  2293 (U.S. 1997). https://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm. Accessed October 22, 2019.

25. Kass LR. Dehumanization triumphant. First Things. August 1996. https://www.firstthings.com/article/1996/08/dehumanization-triumphant. Accessed October 22, 2019.