Medical Aid in Dying and the “Slippery Slope” Argument

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COMMENTARY

A mainstay for opponents of medical aid in dying (MAID) for the terminally ill has long been the slippery slope argument. Rather than argue directly against MAID for the terminally ill, which puts them at odds with the majority of US citizens and physicians,^1-4 they argue that MAID should be rejected because it will inevitably lead to unacceptable expansions to other populations.

They say it will expand from the terminally medically ill, to non-terminal medically ill patients with intractable pain and suffering, to advanced directives for dementia, to psychiatric patients with intractable mental pain and suffering, or to anyone who simply finds life unbearable. It is best, they argue, to stop this by opposing the first step.

The most recent iteration of this argument is an article by Komrad et al,⁵ who argue that this process is already happening not only in other countries, but in the United States as well. There are problems with this argument both in principle and in their interpretation of the specific facts.

There are numerous logical pitfalls in applying the slippery slope argument that I have reviewed elsewhere.⁶ These were well described in an excellent article by the philosopher and ethicist Bernard Williams.⁷ In the article, Williams points out that there are 2 assumptions behind a slippery slope argument.

The first is that what is at the bottom of the slope is something we all see as horrible, even if the first step is desirable. He points out that advocates of such an argument frequently think the first step is wrong, as well, but are not sure they can persuade others. If I think A is wrong but you do not, I may get you to agree to oppose A if I can convince you that it inevitably leads to B, then to C, and so forth, until we reach some point that we both agree is wrong. For this argument to work, one also must accept the second assumption: that the slide down the slope, once begun, is unstoppable.

The primary problem is that, unless these assumptions are examined critically in each case, a slippery slope progression can be constructed to attack anything, limited only by the imagination of the attacker. First, it should not be assumed that every movement on such a progression is a bad thing. With any sequence of this sort, each proposed step needs to be assessed on its own terms and either supported if it is acceptable or opposed if it is not.

Which expansions are desirable is a legitimate question for public debate. In the case of MAID, there is majority support for it in cases of terminal illness and progressively less support in this country as one moves along the sequence.

Second, what is the evidence that the progression is unstoppable and already happening here? Experiences from other countries with different overall attitudes are not directly applicable to the United States. Belgium, the Netherlands, and even Canada have very different cultural attitudes about these matters. Citizens in these countries have found further expansions of MAID desirable, unlike citizens in the United States.

Even Canada, despite its geographical proximity, has a radically different view of the government’s obligation toward its citizens. Consider the categorical difference in approaches to health care between Canada and the United States. Each change to Canada’s law was driven by a legal challenge from an individual whose circumstance excluded them from access to MAID.⁸ By contrast, in 1997, the US Supreme Court upheld a ban on assisted suicide and declined to acknowledge it as an individual protected right.⁹ Since that opinion, states have been free to either permit or ban MAID, resulting in a patchwork of laws across the nation, similar to what is now happening with abortion laws.

So let us look at the experience here. It is extensive, with MAID approved for the terminally ill—in some cases, for more than 25 years—in 10 states and the District of Columbia. What is the evidence for a slippery slope? Several procedural changes have occurred in some places involving issues such as waiting times, which health professionals can provide the necessary services, and residency requirements. None of these involve expanding the kind of patient who is eligible. This remains limited to the terminally ill in all US jurisdictions.

Rather than viewing such modifications as “stretching the boundaries,” they are viewed as procedural improvements based on data and experience. One study from Kaiser Permanente Southern California¹⁰ showed that 20% of patients who requested MAID died or lost capacity during the 15-day waiting period, so shortening the waiting period makes sense.

But Komrad et al,⁵ cite 2 further developments that concern them. The first is the introduction of California Senate Bill 1196, which proposed significant expansion of the types of patients who are eligible for MAID. They argue that the fact that it could even be proposed shows the slippery slope is a reality. But the real lesson in this case is that it is not inevitable if the next proposed step is unacceptable to most individuals. Given the public reaction against this proposal, it was withdrawn and never even put to a vote.

This is exactly how the system should work. Any legislation can be proposed by anyone at any time. The test in a democracy such as ours is whether it is enacted in the face of majority opposition. The case of California Senate Bill 1196 passed that test.

The second example the authors offer relates to 3 patients with severe anorexia nervosa. Seeing these cases as expansions of MAID is simply misrepresenting the facts of the cases. The basis of this claim derives from an article by an eating disorder specialist in Colorado involving 3 patients with what she termed “terminal anorexia.”¹¹ All 3 patients had suffered from severe anorexia nervosa for many years, had failed to achieve anything beyond brief temporary improvement, and were tormented by living with their condition. All were unhappy with aspects of their prior treatment experiences and refused intensive residential care.

As their conditions progressed, all 3 were again approaching states where medical complications of their food restrictions put their health in imminent danger. It is important to remember that in all jurisdictions in this country, whether or not MAID legislation is in place, any competent adult with intact decision-making capacity may refuse potentially lifesaving treatment.

The crucial question in each of these cases was whether the distortions intrinsic to anorexia interfered with their decision-making capacity such that the patients were not competent to make the decision to refuse aggressive treatment. Each of these patients was assessed and judged to be competent. Whether they should have been so judged is a difficult and controversial question, and I do not intend to take a stand on this.

My point is to stress that the decision has nothing whatsoever to do with MAID. Once that judgment was made, however, these patients were free to refuse further treatment and eventually became terminally ill due to the medical complications of starvation. At that point, they were in the same position as a cancer patient who refuses further aggressive treatment and accepts that they will die from their disease. If they live in a jurisdiction that allows MAID, that becomes one of their options for navigating their own death.

After this crucial decision was made, all of these patients eventually became so medically compromised that they were judged to be terminally ill from starvation and likely to die within 6 months.

All 3 were admitted to hospice or palliative care programs. One never requested MAID and died from complications of starvation. Another did request MAID and was given a prescription for lethal medication. She did not take the prescription for some time, but eventually was admitted to a hospice program and, after consulting with her family, took the lethal medication and died peacefully in their company. The third patient also requested and received lethal medication after entering hospice. She never took the medication and died from complications of starvation.

I strongly urge anyone interested in this issue to read the original article. Its primary thrust is not related to MAID; in fact, only 1 of the 3 patients died from self-administered lethal medication. Rather, the central point of the article is to argue that there is such a thing as terminal anorexia and to attempt to outline some criteria for identifying it. These patients did not qualify for MAID based on their anorexia. They qualified only at the point that their medical conditions constituted a terminal illness with a life expectancy of less than 6 months—the same criteria that qualified them for hospice care.

A final thought on these cases: Komrad et al⁵ cited a quote by eating disorder specialist Angela Guarda, MD (which was published originally in the Colorado Sun¹²), that I found deeply disturbing: “It is impossible to disentangle this request [for MAID] from the effects of the disorder on reasoning, and especially so in the chronically ill, demoralized patient who is likely to feel a failure.” If this is viewed as a reason to refuse the request, it opens the door to an unacceptable level of malignant paternalism.

The presumption should always be that the patient is competent, with the burden for arguing otherwise falling on the evaluating mental health expert. To ask the patient to prove their competence to an expert who has already declared that their competence is impossible to determine is a dangerous precedent in a free society.

Law and medicine have evolved over the past 50 years to accept patient autonomy in refusing or discontinuing life-sustaining treatment, appointing health care agents to speak on their behalf, or deciding to withhold nutrition and hydration to hasten death. We also accept that the amount of medication needed to relieve pain for a terminally ill patient could result in death. Yet, we allow patients to choose. MAID is simply another end-of-life option within the context of empowering patient-centered care.

Dr Heinrichs is a psychiatrist in Ellicott City, Maryland. He is a long-standing member of the executive committee of the Association for the Advancement of Philosophy and Psychiatry. He has published on a range of topics at the interface of philosophy and psychiatry including medical ethics.

References

1. USA Omnibus—cross tabulation report, November 2021. Susquehanna Polling and Research Inc. 2021;18-19.

2. Brown AJ, duPont N, Alvarez RD, et al. MAID ready for primetime?: a survey of SGO members regarding medical aid in dying (MAID). Gynecol Oncol Rep. 2021;37:100829.

3. A decade of changes in oncologists’ attitudes. Medscape. January 29, 2021. Accessed June 15, 2024. https://www.medscape.com/slideshow/2020-ethics-rpt-oncology-6013582#5

4. Life, death and painful dilemmas: ethics 2020. Medscape. November 13, 2020. Accessed June 15, 2024. https://www.medscape.com/slideshow/2020-ethics-report-life-death-6013311#2

5. Komrad MS, Hanson A, Geppert CMA, Pies RW. Beyond terminal illness: the widening scope of physician-assisted suicide in the US. Psychiatric Times. June 6, 2024. Accessed June 15, 2024. https://www.psychiatrictimes.com/view/beyond-terminal-illness-the-widening-scope-of-physician-assisted-suicide-in-the-us
6. Heinrichs DW. The case for medical aid in dying: part 3. Psychiatric Times. September 6, 2022. Accessed June 15, 2024. https://www.psychiatrictimes.com/view/the-case-for-medical-aid-in-dying-part-3

7. Williams B. Which slopes are slippery? In: Altham JEJ, Harrison R, Eds. Making Sense of Humanity: And Other Philosophical Papers. Cambridge University Press;1995:213-223.

8. Case 35591: Carter v Canada. Supreme Court of Canada. February 6, 2015. Accessed June 15, 2024. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14637/index.do

9.Vacco v Quill, 521 US 793 (1997). Justia. Accessed June 15, 2024. https://supreme.justia.com/cases/federal/us/521/793/

10. Nguyen HQ, Gelman EJ, Bush TA, et al. Characterizing Kaiser Permanente Southern California's experience with the California End of Life Option Act in the first year of implementation. JAMA Intern Med. 2018;178(3):417-421.

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

12. Brown J. Denver doctor helped patients with severe anorexia obtain aid-in-dying medication, spurring national ethics debate. The Colorado Sun. March 14, 2022. Accessed June 15, 2024. https://coloradosun.com/2022/03/14/denver-doctor-gaudiani-aid-in-dying-aneroexia-patients/