The Case for Medical Aid in Dying: Part 2

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COMMENTARY

In part 1 of this series,¹ I argued that in our society, in valuing an individual’s right to choose how to live their life unless violating the rights of others, the onus is on opponents of medical aid in dying (MAID) to demonstrate why individuals with terminal illness should be deprived of the option of asking a physician to provide a means to end their life.

I considered arguments derived from fundamental principles held by opponents and maintained that they were not compelling. But opponents further argue that MAID should be rejected because of unacceptable consequences that may follow it. We are moving from arguments based on principles and ethical rules (deontological) to ones based on effects (utilitarian). The question is whether undesirable consequences are likely to be of such a magnitude and/or beyond remediation that they outweigh the positive impact of MAID. Such arguments are of 3 types: 1) safeguards to protect the individual from abuse and misuse of MAID will be inadequate, 2) MAID will undermine other important public policy priorities, and 3) permitting MAID puts us on a slippery slope that will inevitably lead to other unacceptable practices. I will consider the first 2 here and the last in the final article of this series.

Safeguards

Some safeguards are certainly important. Individuals choosing MAID should be competent and not subject to excessive external pressure by those who might benefit from their death. They should understand that the prognosis as to how long they have to live is a fallible medical judgment. They should be aware of other available treatments that they have not yet tried that may alter their life expectancy or quality of life. Palliative care options should be discussed. If there is concern that their judgment is impaired by an episode of psychiatric illness, a psychiatric assessment may be indicated. Such safeguards already apply in other situations in which individuals make important decisions about the closing phase of their life—for example, advanced directives and living wills, do not resuscitate orders, naming medical power of attorney, stopping life-sustaining treatments, voluntarily stopping eating and drinking (VSED) to hastens one’s death, and making a will. Although at times abuses undoubtedly occur in these situations, we generally feel that our existing safeguards are adequate to minimize such instances.

Opponents of MAID, however, argue that this level of safeguard is woefully inadequate.^2,3 For instance, they cite the relatively small percentage of cases applying for MAID that get psychiatric evaluations.² But what portion of patients get psychiatric assessments before we honor their living wills, advanced directives, decisions to end life-sustaining treatment, or to opt for VSED? Opponents argue that there are insufficient protections against other interested parties encouraging an individual to seek MAID. But those same interested parties could also encourage an individual to terminate life-sustaining treatment or to engage in VSED. Opponents point out that individuals often seek MAID not because they are in excruciating pain, but because they want to avoid future suffering and/or deterioration that they feel deprives them of dignity.⁴ But the same motives can lie behind the decision to stop treatment or engage in VSED, and we do not generally view them as inappropriate. Opponents have gone so far as to argue that an individual seeking MAID may be subtly influenced by their own inner fantasies and fears about death, and thus cannot exercise true autonomy in making the decision. Such unconscious factors require not a basic competency assessment, but detailed psychiatric exploration.⁵ Are opponents arguing for the universal need for psychoanalysis before electing MAID?And besides, unconscious fantasies and fears are as likely to make one fight death to the bitter end as they are to make one opt for MAID.

I believe there is something disingenuous about these arguments. They set up a standard for safeguards that could not ever be achieved in practice, and at the same time, they do not apply this standard to other decisions that hasten death. In my experience, individuals making these arguments also oppose MAID based on their fundamental ethical principles, as discussed in part 1 of this series. Is demanding impossible safeguards just a way to persuade those of us who do not share those fundamental principles?

Opponents argue that MAID is so fundamentally different that different standards for MAID are appropriate. Opponents stress that MAID is simply suicide—preferring the term physician assisted suicide (PAS)—and not fundamentally different from other suicides.⁶ Furthermore, suicide is a subset of killing. Hence, it is appropriate to it treat it quite differently than other strategies to hasten death. I argue that whereas there are important practical and ethical differences between MAID and other forms of suicide, there is in fact little ethically relevant difference between MAID and other techniques that hasten death. I see making such a distinction as a bit of medieval casuistry. Hastening one’s death is hastening one’s death—the same factors and risk for undue influence come into play in both cases. Should it not be the individual’s choice?

This is not to say that every effort should not be made, both in formulating MAID legislation and fine-tuning it once it is enacted, to optimize safeguards that are effective as well as practical. But such safeguards will never be perfect. All laws about anything result in some instances in which the outcome is other than what the law intends. Any law could be attacked on these grounds. Should we never imprison anyone because sometimes an innocent person goes to jail? Should the police not be allowed to carry weapons since they sometimes do egregious things with them? Should no one get disability benefits because some people cheat and get them undeservingly? It seems to me the logical response is not to oppose every law that could be misused, but to work in an ongoing way to fine-tune regulations and controls to minimize the undesirable outcomes.

This is an evolving process over time, as it takes experience with any law to see which regulations work and which need improvement. But it could be argued that in the meantime, some individuals may experience significant harm. That is true, but it must be weighed against the individuals who will be harmed by having to endure protracted pain, suffering, or lack of dignity by not having the option of MAID in place. This weighing of benefit versus harm involves a quantitative judgment that is difficult to make with any precision before significant accumulated experience occurs. Just as in assessing the risks and benefits of a new treatment in medicine, we must be careful not to be unduly swayed by striking anecdotes on either side.

Models designed to project risk and harm can be useful to consider, but they are notoriously unreliable, given that they always involve a host of assumptions that are only approximately true in the real world. As fallible human beings, the best we are likely to do is to make reasonable attempts to provide sensible safeguards and be prepared to fine-tune over time as experience accumulates. This is the equivalent of post-marketing reports of adverse effects with a new therapeutic agent.

Undermining Public Policy Priorities

Opponents have further argued that allowing MAID could adversely impact several important public policy priorities. The concern has been raised that, once available, MAID will encourage a reduction in resources made available for palliative care and improved treatments for terminal illnesses, as well as research dollars in these areas.^3,6 It is unclear to me why this would be the case. It is unlikely that more than a small percentage of individuals with terminal illnesses will opt for MAID, and the need for better palliative care as well as definitive treatments of life-threatening illnesses will remain. There is always a battle between worthy medical projects for the limited funding available, but in comparative terms, MAID requires very little of the health care dollar and is unlikely to meaningfully reduce what is available for other purposes.

Another version of this argument is that if society made optimal palliative care available and affordable to all, there would be no need for MAID.⁶ There are 2 points to be made here: (1) Even optimal palliative care cannot always prevent levels of suffering and/or loss of dignity that the individual patient may deem unacceptable to them, and (2) it is insensitive to the individual’s unique predicament to say that because society should make better, affordable palliative care available but does not, the individual should be deprived of the option of MAID.

Consider the case of “Mr Smith,” a man diagnosed with a terminal illness who is told that without treatment X, he is likely to die after considerable suffering in 3 to 6 months. With treatment X, he may live 1 to 2 years before succumbing to his illness. Treatment X is not covered by Mr Smith’s insurance and will deplete the bulk of his modest savings on which he and his healthy spouse were counting for their retirement years. No one in his family is pressuring him on this issue, but he is not willing to leave his wife in such a financially precarious condition. I agree with those who feel it is a travesty that Mr Smith is faced with this dilemma in a society as affluent as ours, and I support the fight for more equitable and affordable health care for our citizens. But given his current reality, should Mr Smith be deprived of choosing to make this sacrifice to provide for the person he loves?

Another aspect of public policy is the concern that MAID legislation could put physicians in situations where they were compelled to play some role in it despite their ethical objections. It is important to note that no current or proposed MAID legislation requires physicians to participate in any capacity. Could they be pressured to do so by a public or private employer? It seems relatively straightforward to safeguard against this possibility, as is done in current legislation. Concerns have been also raised about indirect collaboration with MAID being required of a physician who objects on ethical grounds. For instance, hypothetically, if a psychiatrist is treating a patient who requests MAID, the psychiatrist may be asked to do a competency assessment of the patient. It seems clear that the psychiatrist could refuse to participate. In that case, however, another psychiatrist may be asked to do the evaluation, and that psychiatrist could, with the patient’s permission, request treatment records from the first psychiatrist to aid his evaluation. There is a legal obligation to supply the records in such a case. Is the first psychiatrist being compelled to participate in a process they find morally objectionable?⁴ I think this is a pseudo-dilemma. By law, medical records are the property of the patient held in our possession. They have a right to those records for whatever purpose they choose. It is not our place, as physicians, to judge the ethical acceptability of their purposes, and supplying records is not an endorsement of those purposes.

Concluding Thoughts

Could future MAID legislation, or court decisions interpreting such legislation, in some way compel physicians to participate in a practice they find ethically unacceptable? I think that is extraordinarily unlikely, but should that occur, that would be something worth fighting against. But because it cannot be guaranteed that such a thing could not happen in the future, is that a basis for rejecting MAID as currently construed? To argue that it is constitutes an instance of one of the most pervasive species of argument employed by opponents of MAID: the slippery slope. Because this sort of argument is so important in this debate, it requires a careful consideration, which will be the focus of the final article in this series.

Dr Heinrichs is a psychiatrist in Ellicott City, Maryland.

The opinions expressed are those of the author and do not necessarily reflect the opinions of Psychiatric Times™.

What are your thoughts on MAID? Share your questions, concerns, and potential solutions via PTEditor@mmhgroup.com.

References

1. Heinrichs D. The case for medical assistance in dying: part 1. Psychiatric Times. https://www.psychiatrictimes.com/view/the-case-for-medical-aid-in-dying-part-1

2. Geppert CM, Pies RW. Two misleading myths regarding “medical aid in dying.” Psychiatric Times. 2018;35(8). https://www.psychiatrictimes.com/view/two-misleading-myths-regarding-medical-aid-dying

3. Pies RW. Deferring to the mastery of death: Hippocrates, Judge Gorsuch, and the autonomy fallacy. Psychiatric Times. 2017;34(4). https://www.psychiatrictimes.com/view/deferring-mastery-death-hippocrates-judge-gorsuch-and-autonomy-fallacy

4. Pies R. Physician-assisted suicide: an egregious boundary violation. Psychiatric Times. January 11, 2022. https://www.psychiatrictimes.com/view/physician-assisted-suicide-an-egregious-boundary-violation

5. Pies RW, Geppert CMA. Physician-assisted suicide and the autonomy myth. Psychiatric Times. October 27, 2021. https://www.psychiatrictimes.com/view/physician-assisted-suicide-and-the-autonomy-myth

6. Pies RW, Komrad MS, Geppert CMA, Hanson A. Against assisted suicide. Psychiatric Times. July 8, 2021. https://www.psychiatrictimes.com/view/against-assisted-suicide