Dan brock voluntary active euthanasia

Module 9: Euthanasia

Readings:

https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year20.pdf

https://www.huffingtonpost.com/entry/palliative-sedation-an-end-of-life-practice-that-is_us_5b3a275be4b07ad411731fa9

Videos:

https://www.youtube.com/watch?v=bvEeUB1yv-I&t=23s

Overview

Defining Key Terms

Let me begin by introducing some terminology. (If this terminology seems confusing, just roll with it. Philosophers debate how we should understand these terms.)

It is common to distinguish between euthanasia, physician-assisted suicide and terminal sedation. Terminal sedation is legal in all 50 states. Terminal sedation (or palliative sedation) is when a terminally-ill person is induced into an unconscious state for the purpose of relieving unbearable pain and suffering. This is the standard end-of-life care provided by Hospice. Those who condone terminal sedation but not euthanasia note that the doctor’s intention is performing terminal sedation is to relieve pain and not to hasten the death of the patient (euthanasia). (Philosophers who support patient’s rights find this to be merely a verbal distinction.)

It is also common to distinguish between passive and active euthanasia. Passive euthanasia is the cessation of extraordinary treatment at the patient’s request. The paradigm case here is removing life support and letting nature take its course. With active euthanasia the doctor plays a causal role in bringing about the death of a terminally ill patient. The paradigm case here is injecting the patient with a lethal dose of medication. Those who agree with passive euthanasia but not active euthanasia argue that the doctor’s intention in passive euthanasia is to honor the patient’s right to refuse treatment and not to hasten the death of the patient. Active euthanasia is wrong, some say, because it is the intentional termination of life and that doctors should not be in the business of killing patients.

It is also common to distinguish between euthanasia and physician-assisted suicide. In euthanasia the doctor plays a causal role in bringing about the death of the patient—either by removing life-sustaining treatment (passive euthanasia) or by pushing a lethal dose of medication (active euthanasia). Physician-assisted suicide is when the doctor gives the patient the means to end his or her life. Physician-assisted suicide is legal in five states (Oregon, Washington, Colorado, Montana and California). It is legal in these states for physicians to write a prescription for life-ending medication. The patient must take the medication himself or herself.

Oregon Death with Dignity Act

In 1994 Oregon became the first state in the U.S. to legalize physician-assisted suicide. After three years of legal challenges, the Oregon Death with Dignity Act became law. Residents of the state of Oregon who are terminally ill and within six months of imminent death (in the professional judgment of two physicians), who are competent of mind and who are in unbearable pain and suffering (by their own estimate) may request life-ending medication from their physician.

The newspaper article by John Schwartz and James Estrin tells the story of Arthur Wilson, 86 a World War II and Korean War veteran who has been diagnosed with a terminal illness. Wilson requested and received the lethal dose of medications, according to the Oregon law. His story is interesting: Wilson estimates that there is less than a 50 percent chance that he will ever use the medication; it’s that having the medication gives him a choice, a sense of control over his situation.

The core question in this module is this: Should terminally-ill, competent patients have the right to choose the circumstances of their death?

In the years immediately following passage of the legislation in Oregon, there was much fear-mongering:

· We can’t allow physicians to prescribe life-ending medication to terminally-ill patients because if they start prescribing the medication to terminally-ill patients they will start killing healthy patients, perhaps some against their will.

· People who are merely depressed may seek the “right” to die.

· The law will weaken physicians’ commitment to provide optimal care for dying patients.

· There will be widespread abuses, particularly with the nation’s poor and under insured.

In the 16 years since the Oregon Death with Dignity Act has been implemented, none of these fears have been realized. In fact, one of the biggest surprises since the legislation has been implemented has been the small number of patients who make use of the life-ending medication.

Dan Brock

Brock supports voluntary active euthanasia. He thinks patients who are competent of mind should have the right to choose the manner of their death. Two core principles in biomedical ethics support the right to choose: (1) the principle of autonomy, and (2) the principle of wellbeing.

The first is the principle of autonomy (also called the principle of self-determination). This principle gives patients the right to refuse unwanted treatment. Brock thinks this principle also gives terminally ill patients the right to choose the time and place of their deaths. The principle of autonomy says it is not the government’s place to make end of life decisions for competent adults. Such decisions should be left up to the individual.

The second principle that Brock appeals to in support of active euthanasia is the principle of wellbeing. Brock notes that this principle may at first seem to conflict with the principle of self-determination in cases where the patient requests euthanasia. But this conflict arises only for those who think that life is the ultimate good. But for people who are in unbearable pain, death can be more appealing than life. “Life is no longer considered a benefit by that patient, but has now become a burden” (p. 647).

As Brock notes, most of those who oppose euthanasia acknowledge that there are cases in which patients welcome death as the end of suffering. However, these critics argue that it is still wrong. Active euthanasia is the direct and intentional killing of an innocent human being. If killing innocent people is always wrong, then active euthanasia is also wrong.

Brock argues this line of reasoning is confused. He asks us to consider the case of a patient on a respirator. She is competent of mind and finds her situation unbearable. There is no chance that she will recover and breath on her own again. She is persistent in her request to be removed from the respirator, even though she knows that she will die. All agree that the patient has a right to refuse treatment. In this case, the physician has a duty to unplug the respirator. In this situation, the doctor is commonly said to have “let the patient die”.

But Brock asks us to suppose further that the patient has a greedy son. The son thinks his mother will never agree to pull the plug. He is afraid that his inheritance will be dissipated by a lengthy and costly hospital stay. So he goes into her room and turns off the respirator. She soon dies. When the hospital staff realizes what has happened, they confront the son. But he replies, “I didn’t kill her. I simply let her die.”

Brock’s point here is that if the son can’t use the excuse, “I simply let her die,” then the doctor can’t use this excuse either. The point is that the removal of the respirator was the direct cause of the patient’s death. Brock argues that some killings are ethically justified. When the doctor removes the respirator, he kills the patient. And this killing is ethically justified. Voluntary active euthanasia is the killing of a patient. But it is an ethically justified killing.

To generalize the point, Brock thinks there is no ethical difference between killing and letting die. Suppose, for instance, that I know you cannot swim. We are out on a boat. I push you into the water. You drown. Here we would say that I have killed you and not that I simply let you die. But suppose, next, that you slip and fall into the water. I refuse to toss out the flotation device. Here we might say that I let you die. In the first case we would say that I killed you. In the second case we would say that I let you die. It really doesn’t whether we describe it as “killing” or “letting die”. I have still done something (or failed to do something) that has resulted in the death of an innocent person. In both cases, I have acted reprehensibly.

Brock next turns his attention to the institutionalization of voluntary active euthanasia. Brock is a utilitarian. He asks whether the good outweighs the bad at the level of public policy. What are the good consequences of legalizing euthanasia? First, Brock notes that legalization would allow medical professionals to respect the patient’s right of self-determination. Competent adults have the right to make their own end-of-life decisions, free of coercion from their medical practitioners or the federal government.

Second, legalizing euthanasia would benefit a wider group of people. Polls show that the majority of Americans support active euthanasia. Most Americans think euthanasia should be an option for terminally-ill patients. Yet few report they would utilize euthanasia themselves. By legalizing euthanasia, people can rest assured that if they ever wanted it, euthanasia would be a legal option. Think back about the case of Mr. Wilson. He didn’t want to die. He wanted a sense of control over his death. Having the medication in hand gave him a sense of control that his failing health had striped from him.

Third, legalizing euthanasia would reduce the amount of pain and suffering people experience. This is the argument from mercy. There are patients who experience unbearable pain in suffering in their final weeks and days. Legalizing euthanasia would give them the option of a quick and painless death.

The fourth and final positive consequence of legalizing euthanasia is that once the patient has accepted the inevitability of death, a quick and painless death is more humane than a protracted death full of suffering. People who die quickly or die in their sleep are said to have a “good death”. People who suffer through a prolonged death from say, bone cancer, are said to be unlucky. For some people suffering from prolonged illness, euthanasia may be a more humane option.

Having reviewed the good consequences of euthanasia Brock turns his attention to the bad consequences of euthanasia. Since he supports voluntary active euthanasia he needs to explain why the bad do not outweigh the good. The first bad consequence of legalizing euthanasia is that it is contrary to the role of the physician. The fundamental job of the physician is to heal. Permitting physicians to perform euthanasia would be incompatible with their role as healers. Some philosophers go so far as to say that legalized euthanasia would undermine the trust society places in physicians. They say that the “moral core” of medicine is under attack. If doctors are permitted to kill, patients will fear going to the doctors.

But how convincing is this claim? Brock notes that if euthanasia were truly voluntary, then no rational agent would have grounds to fear. Another point Brock could have made is that the core duty of physicians is not to heal; the core duty of physicians is to inform patients of their condition and educate them about possible interventions. The patient, on this view, has the final say in selecting the course of treatment. Let me also point out that doctors have been killing since 1973. Yet it is far from clear that permitting abortion has undermined the moral core of medicine. Pregnant women still seek prenatal care despite the fact that there are doctors who perform abortions.

The second bad consequence of legalizing euthanasia is that it would weaken society’s commitment to providing optimal care to dying patients. As Brock notes, health care is constrained by cost. If euthanasia is significantly less expensive than prolonged treatment, then society might become less committed to providing expensive, long-term care to dying patients.

Is this a good objection to legalizing euthanasia? Brock doesn’t think so. He notes that in areas where euthanasia is legal, very few people actually use it. Note, also, that Brock only supports voluntary active euthanasia. If patient’s are refused appropriate palliative care and other treatment (in the hopes that they will opt for euthanasia) then this isn’t voluntary euthanasia. This is coercion.

The third bad consequence of legalizing euthanasia is that legalization may serve to weaken patient’s rights to refuse unwanted medical treatment. There are many in the medical field today who uphold patient’s right to refuse treatment but who also oppose euthanasia. If patient’s right to choose entails the right to decide one’s own death, then those who support the patient’s right to stop treatment may withdraw their support.

Brock finds this objection unconvincing. Patients’ rights to refuse treatment has been established by both medical practice and law. In countries that permit euthanasia, clear safeguards are set in place to prevent abuse.

The fourth bad consequence of legalizing euthanasia is that it would give patients yet another option, and sometimes more options can mean more stress. Typically, continuing on is a given. But if patients are given the option to “check out” denies them the default option of continuing on. Thus the option of euthanasia leaves some patients less well off. Brock rejects this objection on the grounds that the majority of Americans support giving competent patients the right to make their own choice. It would be odd if the majority of Americans supported a social policy that left them worse off.

The fifth and final bad consequence of legalizing euthanasia is that it would lead to abuse. As Brock notes, this is the most serious objection to voluntary active euthanasia. Critics who run this line of argument accept that there are cases where euthanasia is appropriate—where the patient is genuinely competent of mind, where the patient is in unbearable pain and suffering and the patient freely chooses euthanasia. But given the possibility of abuse, the state should not permit euthanasia in any case.

I want to note that Brock’s essay was published in 1992. Back then, there were questions about whether the safeguards put in place in states such as Oregon were sufficient to protect dying patients from coercion. Indeed, people back then thought that the uninsured and the underinsured would be subtly pushed into euthanasia as a means of defraying some of the cost of providing long-term palliative care. However, it has been 15 years since Oregon instituted the Death with Dignity Act. In that time there has not been a single case of coercion. The majority of patients who get the life-ending medication never use the medication. It is interesting that people who opt to get the script filled have higher than average education and higher than average income. This shows that it is not the poor who are availing themselves of this option; it is the upper middle class.

Daniel Callahan

Callahan opposes voluntary active euthanasia and physician-assisted suicide. He thinks the widespread acceptance of euthanasia in society today is emblematic of three important turning points in Western civilization. First, he notes that Western civilization has made progress in upholding the dignity of life. Many countries restrict the flow of guns and other weapons. Most post-industrialized countries have abolished capital punishment because it is inhumane. Even killing in war is limited. In a time when Western civilization making great strides to protect innocent life, many support the practice of euthanasia, the killing of one human being by another.

The second turning point Callahan mentions is the notion that self-determination an absolute value. It is not, Callahan says. The third turning point is that the supposed right of self-determination is sufficient to alter the core purpose of medicine. Historically, the fundamental job of the physician has been to heal. The acceptance of euthanasia by the mainstream public today significantly alters the role of the physician.

Callahan considers four arguments in support of voluntary euthanasia and then explains why he thinks each is unconvincing: (1) The argument from self-determination and patient wellbeing, (2) The conflation between killing and letting die, (3) the lack of evidence showing voluntary active euthanasia has negative consequences, and (4) the compatibility of euthanasia and medical practice. Following Callahan, we will consider each of these arguments in turn.

The first argument Callahan considers is the argument from self-determination. He notes that self-determination is an important value. People should be free to pursue their own conception of the good life. But applied to the case of euthanasia, something other than self-determination is at work. Euthanasia is not just the individual killing himself or herself. Euthanasia involves physicians killing patients. Callahan thinks the patient’s self-determination cannot place an obligation on physicians to kill them. On Callahan’s view, the principle of self-determination does not permit patients to waive their right to life, nor does it permit physicians to kill patients.

The second argument is that there is no significant moral distinction between killing and letting die—that there is no distinction between active euthanasia and the cessation of extraordinary treatment at the patient’s request. Callahan finds this argument unconvincing. There is, he says, a difference between a sin of omission and a sin of commission. This is the distinction between causality and culpability. When a physician stops treatment at the patient’s request, it is not the doctor that is causing the death of the patient; it is the patient’s underlying medical condition.

The third argument is that there is little evidence that active euthanasia has negative consequences. Callahan cites evidence to the contrary. He claims that abuse is inevitable, that any safeguards put in place would be insufficient and that there would be no way to enforce the law. Callahan says that he is convinced that significant numbers of people have been coerced into euthanasia. He notes that policing euthanasia is likely to take a back seat to policing other crimes. He also points out that the language “unbearable suffering” is entirely subjective.

The fourth and final argument that Callahan considers and rejects is that euthanasia is compatible with the aims of medicine. Callahan argues that any physician who participates in a patient’s suicide has already abandoned the core purpose of medicine. Callahan argues that it is not the place of the physician to make value judgments on patient’s lives—the physician cannot be asked to specify which people’s lives are worth living and which are not. “It is not medicine’s place to determine when lives are not worth living or when the burden of life is to great to be borne.” (p. 662).

Are these objections convincing? I want to return to the Oregon Death with Dignity Act. First, we have no evidence that this law has been abused. Second, this law does not require physicians to prescribe life-ending medication. The law allows physicians who have no problem prescribing the medication to do so. Third, it is not the physician who decides when suffering is unbearable. According to the language of the law, the suffering must be unbearable in the patient’s own estimate.

John Arras

Arras writes as a man stunned by the changing tide of history. Back in the day talk of euthanasia and physician-assisted suicide was quickly overturned by the weight of law and morality. The article by Arras was published in 1998, just one year after the U.S. Supreme Court affirmed that patients had a constitutional right to enlist their physicians in hastening their death by means of prescription for lethal medication. Just as the right to privacy gives women the right to terminate an unwanted pregnancy, the right of self-determination grants terminally-ill patients the right to seek life-ending medication.

Judge Reinhart who wrote the majority opinion contends “ that our society already has effectively erased the distinction between merely allowing patients to die and killing them” (p. 663). He argued that “by allowing patients or their surrogates to forgo life-sustaining medical treatments, including artificially administered nutrition and hydration, and by sanctioning the administration of pain-killing drugs that might also hasten death, our society already permits a variety of ‘death inducing’ practices” (p. 663). Reinhart concludes that the risks of permitting euthanasia and physician-assisted suicide are “only different in kind and not degree” (p. 663).

Let me pause here because I think this is a powerful argument. Terminal sedation (or palliative sedation) is legal in all 50 states. Physician assisted suicide is legal in only five states. What is the difference between palliative sedation and physician-assisted suicide? In both cases, medication is given that will hasten the death of the patient. In both cases, the medication is administered to relieve the patient’s pain and suffering. The only difference is that with physician-assisted suicide the doctor is upfront about what he or she is doing—the doctor is administering medication that will relief suffering and hasten the death of the patient.

Arras, himself, is sympathetic to the core values that support physician-assisted suicide. Patient autonomy and self-determination are important values. But he thinks that the legalization of physician-assisted suicide would have disastrous effects on society. He states the central aim of his paper in the following terms.

I shall argue that in order to do justice to the very real threats posed by the widespread social practices of PAS and euthanasia, we need to adopt precisely the kind of policy perspective that the circuit courts rejected on principle. Thus, this essay presents the case for a forward-looking, legislative approach to PAS and euthanasia, as opposed to an essentially backward-looking, judicial or constitutional approach. (p. 664)

Arras then says, “I remain open to the possibility that a given legislature, presented with sufficient evidence of the reliability of various safeguards, might come to a different conclusion” (p. 664). Your job in this essay is to determine whether the Oregon Death with Dignity Act contains appropriate safeguards.

Many of the arguments covered in the article by Arras have been discussed in detail already in this module. He considers the argument from autonomy or self-determination and the argument from mercy. Arras notes that these arguments only hold weight if sufficient safeguards are in place to prevent abuse.

Arras then considers three objections to the legalization of euthanasia and physician-assisted suicide. The first is that euthanasia violates the general injunction against killing innocent persons. (He notes that this objection is convincing for individuals who think God has an injunction against suicide.) The second objection is that it is the physician that is being called upon to kill patients. He notes that many believe this is contrary to that for which the medical profession stands. The third objection is that although there may be clear-cut cases in which physician-assisted suicide is warranted, the state should nonetheless ban the procedure because the harms posed by legalization would outweigh the good of permitting it in certain cases.

I will not go through all of these arguments again. Your job in this essay is to determine whether (to use Bock’s phrase) the good of legalizing physician-assisted suicide outweighs the bad. Do you think giving competent terminally-ill patients the right to make their end-of-life decisions would undermine trust in the medical community?

The Philosopher’s Brief

This brief was written by six moral and political philosophers (Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon and Judith Jarvis Thomson) and presented to the U.S. Supreme Court in 1997. In this brief the philosophers “ask the Court to recognize that individuals have a constitutionally protected interest in making those grave judgments themselves, free from the imposition of any religious or philosophical orthodoxy by court or legislature” (p. 693).

Dworkin et al. note that:

States have a constitutionally legitimate interest in protecting individuals from irrational, ill-informed pressured, or unstable decisions to hasten their own death. To that end, states may regulate and limit the assistance that doctors may give individuals who express a wish to die. But states may not deny [terminally-ill patients] the opportunity to demonstrate, through whatever reasonable procedures the state might institute—even procedures that err on the side of caution—that their decision to die is indeed informed, stable, and fully free. (p. 693)

Dworkin et al. note that opposition to physician-assisted suicide is most often prompted by religious convictions. Such convictions may help one guide one’s own life. But one person’s religious convictions cannot be imposed on the whole of society—and certainly not in the name of the Constitution which calls for separate of church and state.

Dworkin et al. cite the U.S. Supreme Court decision in Planned Parenthood v. Casey (1992).

It flows from the right of people to make their own decisions about matters ‘involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy. (p. 693)

The Court’s decision in Planned Parenthood v. Casey (1992) rests on the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The court affirmed that competent adults living in a free society must be permitted to make their own decisions for themselves without coercion from others—decisions about religious faith, political and moral allegiance, marriage and procreation. This freedom encompasses “the right to exercise some control over the time and manner of one’s death” (p. 700).

Review Questions

[1] State the central features of the Oregon Death with Dignity Act.

[2] It has been 16 years since the Death with Dignity Act was implemented. Conduct Internet research and list any negative consequences of the implementation of this legislation. Have any of the fear-mongering concerns come true? Is it fair to describe such concerns as “fear-mongering”?

[3] The following terms are not well defined in your textbook: active euthanasia, passive euthanasia, voluntary euthanasia, non-voluntary euthanasia and involuntary euthanasia, and physician-assisted suicide. Conduct an Internet search and define these terms.

[4] Brock lists five “good consequences” of permitting euthanasia. These may be considered arguments in support of euthanasia. They are the following: (1) the argument from self-determination, (2) the argument from reassurance, (3) argument from relief of unbearable pain and suffering, (4) the argument from mercy, and (5) the argument from the principle of humaneness. Carefully explain each of these arguments.

[5] Brock lists five “bad consequences of permitting euthanasia. Again, these may be considered arguments against permitting euthanasia. They are the following: (1) Allowing physicians to prescribe life-ending medications would undermine the very core of the practice of medicine, (2) permitting euthanasia would weaken society’s commitment to provide optimal care for patients, (3) permitting euthanasia might erode society’s support for the right of patient’s to refuse treatment, (4) allowing patients to choose may overwhelm them—additional options may make patients “worse off”, and (5) permitting euthanasia might weaken laws against homicide. Carefully explain each of these arguments.

[6] Take each argument against euthanasia. On what grounds does Brock criticize these arguments? Do you think Brock’s criticism is sound or do you think any of these arguments retain merit?

[7] Arras considers (and rejects) the argument from self-determination and the argument from mercy. On what grounds does Arras reject these arguments? Do you find his critique convincing?

[8] Arras considers three objections to PAS and euthanasia: (1) the practice is inherently immoral, (2) it’s wrong to ask physicians to kill, and (3) the practice will expand to non-terminal patients and other such abuses. Evaluate these objections in light of the 2012 Report by the Oregon Health Department. Have any of these negative consequences actually happened?