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BMJ No 7101 Volume 315 Editorial Saturday 19 July 1997
Physician assisted suicide, euthanasia, or withdrawal of treatmentDistinguishing between them clarifies moral, legal, and practical positionsThe Supreme Court of the United States has returned the vexing question of physician assisted suicide to state governments. In unanimous rulings last month, Chief Justice Rehnquist, writing for the court, held that there is no fundamental right to assistance in committing suicide(1) and that, legally, distinguishing between refusing life saving medical treatment and requesting assistance in suicide "comports with fundamental legal principles of causation and intent."(2) By its rulings, the Supreme Court invalidated the decisions of two of the American Courts of Appeal. In March 1996 the appeals court for the Ninth Circuit had lifted a ban by Washington state on physician assisted suicide in Compassion in Dying v Washington.(3) That court, which has jurisdiction in 13 western states, including Hawaii, had concluded that "a competent adult ... has a strong liberty interest in choosing a dignified and humane death" - including not just refusal of treatment but also "hastening one's own death." However, the Supreme Court held that the interest in question, which Chief Justice Rehnquist characterised as the "right to commit suicide with another's assistance," is not one of the "fundamental rights and liberties ... 'deeply rooted in this Nation's history and tradition'." Unequal rightsAlso, in April 1996 the appeals court for the Second Circuit, which includes Massachusetts, Vermont, and New York, had ruled in Quill v Vacco that the New York statutes criminalising assisted suicide for the terminally ill were unconstitutional in their effect on terminally ill people.(4) The appeals court had reasoned that, because existing laws allow terminally ill people to request removal of life sustaining medical interventions and to receive palliative drugs that may hasten death, those who wish to hasten their death but are not dependent on life sustaining technology are treated unequally. Hence, the court held that equal protection under the law requires that physician assistance in suicide be legally available to people who are dying. However, the Supreme Court judged that there were differences between "the long legal tradition protecting the decision to refuse unwanted medical treatment," including hydration and nutrition, and the right to assistance in ending one's life. The court's decision recognises a fundamental liberty interest in refusal of unwanted treatment but not in assistance in actively terminating life, a distinction that Chief Justice Rehnquist called both "important and logical." While the court's decision is definitive in confirming the constitutionality of existing laws that prohibit physician assisted suicide in New York and Washington, it leaves a great deal unsaid and seems to welcome further developments. Implicit in Rehnquist's opinions for the court is the idea that the states are free to experiment and to make physician assisted suicide legal if they so choose. Testing groundsAttention will now turn to the states as testing grounds for new laws on physician assisted suicide-especially to Oregon, which is the only state so far to make physician assisted suicide legal. The Oregon Death with Dignity Act was passed in 1994, not by the Oregon state legislature but through a direct vote of the populace.(5) Although the act was passed by a narrow margin, it has been held in abeyance by legal challenges. The Oregon legislature recently decided to send the issue to the voters again in November. The act as currently written permits physicians to comply with a request for lethal drugs only from a competent patient with less than six months to live. It specifies that the request must be made in writing and signed in the presence of two witnesses who agree that the patient is acting voluntarily and without duress, and is competent. At least two physicians must agree that the patient is likely to die within six months. The patient must be referred for counselling if a psychological disorder is suspected. Two waiting periods are involved: two oral requests at least 15 days apart are required to begin the process, and a minimum of 48 hours must elapse between receipt of the written request that is also required, and the provision of the lethal prescription. Physicians who follow these procedures in "good faith compliance" are immune from civil and criminal liability and from professional disciplinary action. The provisions of the Oregon law follow the model and means of physician assistance described by Timothy Quill in the New England Journal of Medicine in 1991(6) rather than the pattern of Michigan pathologist Jack Kevorkian, most of whose actions have involved carbon monoxide. Although Kevorkian has also been widely criticised for his failure to obtain second opinions or to assess patients for treatable depression and for his superficial knowledge of those requesting his services, sympathetic juries have acquitted him on three separate occasions. A slippery slope?The Oregon law is self consciously crafted to minimise abuses. The most widely feared abuse associated with legalisation of physician assistance in death is the gradual extension of such practices to include those not terminally ill, and the expansion of physician activity beyond assisted suicide to active euthanasia, both non-voluntary (when patients are unable to request or consent) and involuntary (when patients are competent but do not request or consent). This development is usually referred to as the "slippery slope," and estimates of its probability and even evidence for its occurrence are highly contested. While Oregon will probably be the first testing ground for the United States, the Netherlands has become the first testing ground for the world, and in that country there are opposing interpretations of practice trends. Although assisting with requested euthanasia remains a criminal act, Dutch doctors have not been prosecuted when they follow strict guidelines. It remains unclear how often the guidelines are followed and whether there has been an increase or a decrease in non-voluntary and involuntary euthanasia over the past five years. A Dutch study published late last year claimed that there has been a slight decrease in such activity,(7) but differences in data gathering between the 1990 study and the 1995 study have led opponents of physician assisted suicide in the United States to conclude that there may well be a 50% increase in these unsanctioned deaths in the Netherlands and that adequate regulation is not possible.(8) A telephone survey by the Dutch Voluntary Euthanasia Society in 1996 indicated a different set of problems. According to the survey, there are still major difficulties with physicians who refuse to discuss euthanasia or refuse to help patients and with hospitals and nursing homes that refuse to participate.(9) The Oregon law has many similarities to the Rights of the Terminally Ill Act of the Northern Territory of Australia, which became effective in July 1996(10) but was overturned by the Australian Senate on 24 March this year.(11) The act was infrequently invoked and did not enjoy the support of the Australian Medical Association. Attempts to decriminalise assisted suicide in Britain have so far fallen well short of legislation. Last year the Voluntary Euthanasia Society produced a draft parliamentary bill, which has still to be debated, and McLean and Britton have produced a template for an assisted suicide act,(12) though this lacks the safeguards of the Oregon model. Pressure groups in favour of voluntary euthanasia seem to accept that it will be difficult to achieve euthanasia legislation in one step but consider that assisted suicide represents a more attainable goal. From an opinion survey of Scottish doctors, the medical profession seems less resistant to assisting suicide than to practising euthanasia.(12) Forty four states in the United States and the District of Columbia currently criminalise assisted suicide by statute or common law.(13) The American Congress has enacted legislation prohibiting the use of federal funds (such as Medicare or Medicaid reimbursement) for physician assisted suicide.(14) However, polls of the general population have repeatedly shown that about 60% of the American public favour legal reforms allowing for physician assisted suicide to end the suffering of competent patients.(15,16) Thus, the Supreme Court's decisions and opinions expressed in the cases of physician assisted suicide seem to mirror the state of the nation, reflecting the importance and complexity of the issue. A debate for a democratic societyThe Supreme Court's opinion in Washington v Glucksberg concludes: "Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society." Indeed, the extensive debate leading up to the court's decisions has engendered an explosion of attention to pain relief and other palliative care for people who are dying. It is to be expected that the debate about physician assisted suicide will continue to take new forms, including further efforts at legalisation. It is especially remarkable that this debate flourishes in the absence of any social provision for basic medical services in the United States; and it remains to be seen whether societal acceptance of physician assisted suicide will increase and how it will affect both social support for vulnerable and dying citizens and trust between patients and their doctors. Larry R Churchill
Professor of social medicine
University of North Carolina, References 1 Washington v Glucksberg, No 96-110 (US June 26, 1997). 2 Vacco v Quill, No 95-1858 (US June 26, 1997). 3 Compassion in Dying v Washington, 79 F 3d 790 (9th Cir 1966). 4 Quill v Vacco, 80 F 3d 716 (2nd Cir 1996). 5 1995 Oregon Laws, Ch 3, Ballot Measure 16 (Nov 8, 1994). 6 Quill T E. Death and dignity: a case of individualized decision making. N Engl J Med 1991;324:691-4. 7 Van der Maas P J, van der Wal G, Haverkate I, Carman M, Kester J G C, Bregje D, et al. Euthanasia, physician assisted suicide and other medical practices involving the end of life in the Netherlands, 1990-1995. N Engl J Med 1996;335:1699-705. 8 Hendin H, Rutenfrans C, Zylicz Z. Physician-assisted suicide and euthanasia in the Netherlands: lessons from the Dutch. JAMA 1997;277:1720-2. 9 Sheldon T. Dutch patients complain about poor access to euthanasia. BMJ 1996;313:961. 10 Zinn C. Doctor aids first legal euthanasia act. BMJ 1996;313:835. 11 Thornhill. Australia repeals euthanasia law. Washington Post 1997 March 25: A14. 12 McLean S A, Britton A. Sometimes a small victory. Glasgow: Institute of Law and Ethics in Medicine, 1996. 13 Choice in dying, right-to-die. Law Digest 1997 March. 14 Federal Assisted Suicide Funding Restriction Act of 1997, Pub L No 105-12, 111 Stat 23 (codified at 42 US C ß4401 et seq). 15 Bachman J G, Alcser K H, Doukas H J, Lichenstein R L, Corning A D, Brody H. Attitudes of Michigan physicians and the public toward legalizing physician-assisted suicide and voluntary euthanasia. N Engl J Med 1996;334:303-10. 16 Blendon R J, Szalay U S, Knox R A. Should physicians aid their patients in dying? The public perspective. JAMA 1992;267:2658-62.
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