Did California Dodge a “Right-to-Die” Bullet?

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COMMENTARY

Physician-assisted suicide (PAS)—commonly but misleadingly called “medical aid in dying”¹ is now legal in 11 jurisdictions in the US. PAS remains an area of great controversy among physicians, medical ethicists, and various patient advocacy groups, as evidenced by numerous opinion pieces in Psychiatric Times.^2,3 While we recognize that individuals of good conscience may differ on the ethics of PAS, we have consistently maintained—as the American Medical Association has opined—that⁴:

"Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”

This position has also been consistently taken by the World Medical Association.⁵ Despite such clear statements, we and others have called attention to the ever-expanding eligibility criteria for physician assisted suicide/euthanasia (PAS/E), particularly in Canada, Belgium, and the Netherlands. In essence, every one of these foreign jurisdictions that has legalized PAS/E has eventually expanded them—a phenomenon often referred to as “the slippery slope.”⁶

The expansion typically begins with the “low hanging fruit” of end-stage or terminal illness and gradually enlarges to “chronic, nonterminal or treatment-refractory illness,” as one of us (MK) has shown.⁷

Whenever a line is drawn to limit eligibility criteria, those just outside the line protest, based on understandable (if misplaced) ethical principles of justice, fairness, and parity. Consequently, the boundaries of eligibility for PAS/E have been greatly stretched—in practice, in law, and in guidelines issued by professional organizations.⁸

As opponents of PAS/E, we often hear proponents claim that the “slippery slope” argument is merely hypothetical—an alarmist bogeyman used to scare away supporters of PAS/E.⁹ We also hear that, even if the slippery slope metaphor applies in foreign countries, “It would never happen here” in the US. We respectfully disagree. For while the angle of the slope is considerably greater in Canada and the Benelux countries than in the US, we find troubling signs of slippage here at home.

In this piece, we critically examine 2 such examples: (1) The introduction of California Senate Bill 1196, along with expanded PAS criteria in several other states; and (2) 3 cases of PAS in Colorado, in which patients with anorexia nervosa died from lethal prescribed drugs.

As many psychiatrists prepare to attend the upcoming annual meeting of the American Psychiatric Association (May 4-8), we believe it is important to call out these troubling developments.

SB 1196: A Harbinger of Things to Come?

California Senate Bill 1196 was introduced by Senator Catherine Blakespeare and represented a radical departure from existing California law.¹⁰

Among its other provisions, SB 1196 proposed the following changes¹¹:

1. It eliminated the California residency requirement for PAS.
2. It replaced the criterion of “terminal disease” with “grievous and irremediable medical condition” that is “causing the individual to endure physical or psychological suffering… that is intolerable to the individual and cannot be relieved in a manner the individual deems acceptable.”
3. It changed the criterion of the disease from “expected to result in death within 6 months” to “it is reasonably foreseeable that the condition will become the individual’s natural cause of death.” (This is identical to the vague language invented in Canada’s 2016 C-14 bill, which was never statutorily defined).
4. It included a diagnosis of early to mid-stage dementia in the definition of a “grievous and irremediable medical condition.”
5. It expanded the definition of “mental health specialist” to include neurologists and omitted any requirement for an evaluation by a psychiatrist or psychologist.
6. It authorized “the self-administration of an aid-in-dying drug through intravenous injection.” This would have allowed health care practitioners to facilitate death by inserting an IV line—not merely writing a prescription, or dispensing and preparing the lethal drugs.

Additionally, SB 1196 contained language that would have turned these practices into a quasi-research protocol by requiring the prescribing physician to report the type of lethal medications prescribed; the time from drug ingestion/administration to death; and any observed complications.

This radical bill was “a bridge too far” even for some groups that have long supported PAS. For example, the group Compassion & Choices stated, “Compassion & Choices and the Compassion & Choices Action Network respectfully oppose SB1196…” which C & C viewed as posing “…significant risks to the current medical aid-in-dying law, potentially undermining its purpose and availability.”¹²

Ultimately—and fortunately—Sen. Blakespeare withdrew this extreme proposal, and California dodged the proverbial bullet. However, in our view, the mere fact that that SB 1196 was proposed is cause for great concern, and a sign of the slippage we have witnessed in other countries.

Stretching the Boundaries: Slippage in Several States

This extraordinary attempt to expand California's law illustrates what many states may expect if laws permitting PAS (or euthanasia) are adopted. Indeed, contrary to the “It can’t happen here” argument, we have already seen examples of slippage in several US states. These expansionary rules may be categorized as modifications of (1) waiting periods for PAS; (2) conditions of PAS eligibility; or (3) expansion of authority to carry out PAS; or some combination of these modifications.

For example,

1. In New Mexico, advanced practice nurses and physician assistants are now allowed to carry out assisted suicide, and the waiting period between evaluation and lethal prescription has shrunk from 15 days to 48 hours. In addition, “a provider can waive the 48-hour waiting period if the patient is unlikely to survive the waiting period.”¹³
2. In Oregon, the state residency requirement has been eliminated, and if the patient’s death is predicted to be within 15 days, the lethal drugs may be prescribed on the same day as evaluation of the patient. Notably, “Prescriptions for lethal doses of medication in Oregon increased by nearly 30% in 2023, the same year an amendment to the state's Death with Dignity Act removed the in-state residency requirement for patients…”¹⁴
3. In 2022, Vermont bill S.74 was signed into law, allowing patients to request the lethal prescription using telemedicine. S.74 also got rid of the final 48-hour waiting period. Then, in 2023, Vermont removed the residency requirement from Act 39, the Patient Choice at End of Life law.¹⁵
4. In Washington State, as of 2023, physician assistants and advanced registered nurse practitioners are now permitted to prescribe the lethal drugs, and mental competency can be evaluated by any licensed ‘mental health counselor.’ If death is deemed “imminent,” the lethal prescription can be written the same day as the eligibility evaluation.¹⁶

As expansive as these recent modifications are, they pale in comparison to the radical changes proposed in SB 1196.

The Colorado Anorexia Nervosa Cases

In March of 2022, the Colorado Sun ran the following headline: “Denver doctor helped patients with severe anorexia obtain aid-in-dying medication, spurring national ethics debate.”¹⁷

The back story was this¹⁷:

“Dr. Jennifer Gaudiani, an internal medicine doctor who specializes in eating disorders, published a paper in which she describes the deaths of three patients with anorexia nervosa. One 36-year-old woman died after ingesting the lethal doses prescribed by another doctor, with Gaudiani serving as consulting physician. Another 36-year-old woman died of severe malnutrition on the same day she planned to take aid-in-dying medication prescribed by Gaudiani.”

The third patient—Alyssa B—was actually a coauthor of the paper with Dr Gaudiani. According to the published paper,¹⁸ “Dr. G prescribed the MAID medications about 6 weeks after Alyssa entered hospice care.”

The Gaudiani et al paper is notable in acknowledging that:

“Alyssa had not completed a full residential eating disorder program; never fully restored weight; never tried newer psychedelic options such as ketamine, psilocybin, or MDMA; and hadn’t had a feeding tube. Dr. G acknowledged that all but the feeding tube might ordinarily be undertaken prior to someone’s seeking end of life care for AN. Yet, [Alyssa] had been suffering for so long, and despite many conversations about all these treatment possibilities, Alyssa would not consent to any of them. Therefore, given her clarity of understanding around these issues and her sense that she could not fight anymore, everyone had to accept that they weren’t meaningful options.”

Not surprisingly, the published paper and its rationale were vociferously criticized by many in the psychiatric community. For example, Dr Angela Guarda—the director of the eating disorders program at Johns Hopkins—is quoted as saying that using aid-in-dying medication for anorexia patients is “alarming” and “fraught with problems.” This is partly because “…it is impossible to disentangle this request [for PAS] from the effects of the disorder on reasoning, and especially so in the chronically ill, demoralized patient who is likely to feel a failure.”¹⁷

We strongly agree with Dr Guarda, and regard the 3 cases as exemplifying the “slippery slope” of eligibility for PAS/E in the US. Moreover, one of us [CMG] has argued that the concept of “futility” (or “irremediability”) in the treatment of anorexia nervosa is not supported by current evidence and should not serve as the basis for decision-making in this condition.^19,20

Concluding Thoughts

In our view, the phenomenon of the slippery slope is, in large part, the expectable consequence of “normalizing” or naturalizing the physician’s direct or indirect killing of the patient; ie, via euthanasia or PAS, respectively. The more widely these acts are performed, the easier it becomes to mischaracterize them as forms of “medical care.” This is epitomized in the obfuscating euphemism, “medical aid in dying.” As the American College of Physicians has stated²¹:

“Terms for physician-assisted suicide, such as aid in dying, medical aid in dying, physician-assisted death, and hastened death, lump categories of action together, obscuring the ethics of what is at stake and making meaningful debate difficult.”

In truth, assisted suicide does not “aid” the dying process—it terminates dying by terminating the patient.

By the same token, the more PAS and euthanasia are viewed as medical care, the easier it becomes to enlarge the eligibility criteria to encompass almost anyone who feels they are “suffering.” Then the slide down the slope can accelerate, from terminal conditions to chronic conditions (such as mental illness), as is happening in our culturally and geographically adjacent neighbor, Canada. That opens the path for the next drift in the evolving ethos—transforming one’s “opportunity” to seek these lethal procedures into the virtue of relieving loved ones from the burden of their condition.

Finally, we believe it essential that the APA maintain its ethical opposition to PAS/E, consistent with the American Medical Association Code of Ethics.⁴ Doing otherwise will create a schism between the APA and the AMA. Indeed, we hope that as our colleagues consider these issues at the APA meeting, they bear in mind the teaching from medical ethicist Dr Leon Kass: “We must care for the dying, not make them dead.”²²

Dr Komrad is a psychiatrist on the teaching staff of the Johns Hopkins Hospital in Baltimore, Maryland. He is also clinical assistant professor of Psychiatry at the University of Maryland, and Teaching Faculty of Psychiatry at Tulane University in New Orleans. Dr Hanson is Director, Forensic Psychiatry Fellowship, University of Maryland, Baltimore, MD. Dr Geppert is a professor in the Department of Psychiatry and Internal Medicine and director of ethics education at the University of New Mexico School of Medicine in Albuquerque. She is the lead ethicist for the western region and director of education, Veterans Administration National Center for Ethics in Health Care, and an adjunct professor of bioethics at the Alden March Bioethics Institute of Albany Medical College. She serves as the ethics editor for Psychiatric Times. Dr Pies is Professor Emeritus of Psychiatry and Lecturer on Bioethics and Humanities, SUNY Upstate Medical University; Clinical Professor of Psychiatry Emeritus, Tufts University School of Medicine; and Editor in Chief Emeritus of Psychiatric Times (2007-2010). Dr Pies is the author of several books. A collection of his works can be found on Amazon.

References

1. Coelho R, Lemmens T, Gaind KS, Maher J. Normalizing death as “treatment” in Canada: whose suicides do we prevent, and whose do we abet? World Medical Journal. 2022;68(3):27-35.

2. Kuntz L. Physician-assisted suicide: a pressing question of ethics and humanity. Psychiatric Times. January 29, 2022. https://www.psychiatrictimes.com/view/physician-assisted-suicide-a-pressing-question-of-ethics-and-humanity

3. Heinrichs DW. Medical aid in dying: burdened by suffering and loss of dignity. Psychiatric Times. January 6, 2023. https://www.psychiatrictimes.com/view/medical-aid-in-dying-burdened-by-suffering-and-loss-of-dignity

4. Council on Ethical and Judicial Affairs. Code of Medical Ethics. Opinion 57 Physician-Assisted Suicide. American Medical Association; 2016.

5. World Medical Association. WMA declaration on euthanasia and physician-assisted suicide. October 2019. Accessed May 2, 2024. https://www.wma.net/policies-post/declaration-on-euthanasia-and-physician-assisted-suicide/

6. Komrad MS. Medical aid in dying: a slippery slope. Psychiatric Times. August 27, 2021. https://www.psychiatrictimes.com/view/medical-aid-in-dying-slippery-slope

7. Komrad MS. Euthanasia and assisted suicide for psychiatric patients: lessons from Europe, Canada and the US. December 2, 2023. Accessed May 2, 2024. https://www.youtube.com/watch?v=BnMi6J_SmJ8

8. Pullman D. Slowing the slide down the slippery slope of medical assistance in dying: mutual learnings for Canada and the US. Am J Bioeth. 2023;23(11):64-72.

9. Potter J. The psychological slippery slope from physician-assisted death to active euthanasia: a paragon of fallacious reasoning. Med Health Care Philos. 2019;22(2):239-244.

10. Bluth R. Lawmaker withdraws sweeping California bill to expand assisted dying. Politico. April 17, 2024. Accessed May 2, 2024. https://www.politico.com/news/2024/04/17/lawmaker-withdraws-california-bill-assisted-dying-00152840

11.End of LIfe Option Act, 1196, California Senate (2023-2024). Accessed April 23. https://legiscan.com/CA/text/SB1196/id/2963562

12. Compassion and Choices. Statement in Response to SB 1196, Legislation to Expand California’s End of Life Option Act (SB380). March 20, 2024. Accessed May 2, 2024. https://web.archive.org/web/20240416092810/https://www.compassionandchoices.org/news/statement-in-response-to-sb-1196

13. Compassion & Choices NM. New Mexico: Introduction to Medical Aid in Dying. Accessed May 2, 2024. https://www.compassionandchoices.org/docs/default-source/new-mexico/nm-medical-aid-in-dying-final-6-23-21.pdf

14. Wyatt S. Prescriptions for lethal doses of medication in Oregon increased by nearly 30% in 2023. Salem Statesman Journal. March 21, 2024. Accessed May 2, 2024. https://www.statesmanjournal.com/story/news/health/2024/03/21/oregon-lethal-medication-prescriptions-increased-nearly-30-in-2023/73047612007/

15. Patient Choices Vermont. Guidelines and checklist for non-residents of Vermont and their doctors. Accessed May 2, 2024. https://www.patientchoices.org/non-residents.html

16. End of Life Washington. The protecting access to medical aid-in-dying act. Accessed May 2, 2024. https://endoflifewa.org/the-law/

17. Brown J. Denver doctor helped patients with severe anorexia obtain aid-in-dying medication, spurring national ethics debate. Colorado Sun. March 14, 2024. Accessed May 2, 2024. https://coloradosun.com/2022/03/14/denver-doctor-gaudiani-aid-in-dying-aneroexi a-patients/

18. Gaudiani JL, Bogetz A, Yager J. Terminal anorexia nervosa: three cases and proposed clinical characteristics. J Eat Disord. 2022;10(1):23.

19. Geppert CM. Futility in chronic anorexia nervosa: a concept whose time has not yet come. Am J Bioeth. 2015;15(7):34-43.

20. Westmoreland P, Geppert C, Komrad MS, et al. “Terminal anorexia”: an invalid construct that does not justify medical aid in dying. Psychiatric Times. October 11, 2023. https://www.psychiatrictimes.com/view/terminal-anorexia-an-invalid-construct-that-does-not-justify-medical-aid-in-dying

21. Sulmasy LS, Mueller PS. Ethics and the legalization of physician-assisted suicide. Ann Intern Med. 2018;168(11):834-835.

22. Kass LR. Dehumanization triumphant. First Things. August 1996. Accessed May 2, 2024. https://www.firstthings.com/article/1996/08/dehumanization-triumphant