Would judicial consent for assisted dying protect vulnerable people?
BMJ 2015; 351 doi: https://doi.org/10.1136/bmj.h4437 (Published 19 August 2015) Cite this as: BMJ 2015;351:h4437All rapid responses
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Firstly I would like to put your figures for assisted deaths in Oregon ('up by 430%') into context. During the first year after the legislation, when the law was new, there were 16 cases. Thereafter the number rose to about 100 per annum and has stayed thereabouts ever since, at a steady 0.3% of deaths a year. As for the law sending out messages to society beyond that of compassion for terminally ill patients there is no evidence that the suicide rate in Oregon has been impacted by the introduction of assisted dying legislation. Figures have risen and fallen since 1997 (1).
You ask if a change in the law necessary. This is for society as a whole to decide, not just doctors, yet Parliament must heed the warning from the Supreme Court that this issue must be addressed. Beyond strict legal considerations, as soon as we concede that patients are having to travel abroad to die, are taking their own lives and/or suffering bad deaths surely the answer from any doctor must be that the situation is not tolerable. One bad death is one bad death too many.
In answer to your question ‘what message do we want to send to the most vulnerable in our society?’ I suggest that the current law, which contains absolutely no safeguards, sends the message that society would rather turn a blind eye to the problems I illustrated in my piece rather than propose a solution to fix them. An assisted dying law would offer protection to potentially vulnerable people in addition to enabling greater patient choice and autonomy at the end of life.
There is also no evidence to justify your assertion that a change in the law would leave people vulnerable to coercion. The fact that between 30% and 40% of people who access the life-ending medication do not use it speaks volumes on the inaccuracy of claims of a ‘duty to die’ and instead points to the fact that dying people want to know that have the option of assisted dying if their suffering becomes unbearable (2).
You advocate compassion and we can all agree on that. But a central part of our job as doctors is to listen to our patients, and I do not see the patient voice respected in this as in other replies. It is not up to us to judge why people may want assisted dying in the face of imminent death, and perhaps compassion is best shown by listening to what patients are saying, not second guessing their requests .
(1) Public health Oregon, Vital statistics annual report Vol.2, http://public.health.oregon.gov/BirthDeathCertificates/VitalStatistics/a...
(2) Oregon Public Health Division. Oregon's Death with Dignity Act – 2014,http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResea...
Competing interests: No competing interests
Whenever this debate takes place someone is bound to say 'hard cases make bad laws'. The harsh truth is that hard cases make hard cases. I have seen two in my own family - a bad death and a suicide, both despite the presence of excellent end of life care.
My family cannot be exceptional, we have all had experiences of bad deaths both in our own circles and through our patients. Multiply our experience across the country and that is thousands of bad deaths, which are your 'hard cases'. Individually and together they represent untold suffering.
A single bad death is one bad death too many and we should not be prepared to accept them by writing them off as 'hard cases'. As long as they are happening we as compassionate doctors should be working to prevent them. We know that palliative care cannot help all patients. We doctors need to work together with politicians and lawyers - as the Canadian Medical Association is currently doing - to produce a law which protects the vulnerable and the profession while offering terminally ill patients choice and control in the face of imminent death. It is what our patients are asking for , we need to listen to them. Given that 82% of the public support assisted dying, continuing to oppose it runs the risk of our profession being viewed as out of touch, paternalistic and cruel.
Competing interests: No competing interests
We need to consider all the available evidence before taking any radical steps to change the law on ‘assisting or encouraging suicide’.[1]
Dr Davis states that my reading of the evidence[2] has “no basis in fact”.[3] To assess the fairness of this claim, readers can consult a resource where I have sought to gather relevant evidence primarily from government reports and peer review journals (though with some reference to other sources where these provide further insight).[4]
In relation to the current strategy of Compassion and Choices, Dr Davis states that it is “pure speculation”[3] that were they to succeed in persuading most states to accept an Oregon-style law, the organisation would then revert to its earlier policy of seeking to legalise euthanasia and to legalise assisted dying for other categories of patient. However, it is not speculation that the wish to persuade other states is a factor in restraining legal change in Oregon. This was openly admitted as recently as March this year by a prominent advocate of assisted dying in that state. Steve Telfer commented that a proposed extension of the law would “send the wrong message to lawmakers considering similar laws in other states”.[5] The comment was made by the President of the Board of the Death with Dignity National Center rather than a representative of Compassion & Choices, but these and other similar organisations share a common strategic vision on promoting the legalisation of assisted dying.
In relation to the impact of assisted dying legislation on (non-assisted) suicide rates, the reason for stopping at 2010 is simply that the figure is based on a report into suicide rates in Oregon 1999 to 2010.[6][7] The reason for choosing the specific age range is that this age range saw a statistically significant increase while the changes in other age ranges were not statistically significant. The suicide rates in Oregon have indeed gone up and down, but there is no doubt that in recent years suicides in Oregon have increased faster than the rate of suicide in the USA as a whole. More work is needed to analyse the available data on suicide rates in relation to legalisation of assisted dying, but it reasonable in the first instance to point to the apparent rise in the suicide rate in the state that has the longest history of this practice.
In relation to the number of prescribing physicians, it is indeed important to use “the most relevant and recent data”,[3] but this requires knowing not only how many different physicians wrote prescriptions but how many were written by each physician. As far as I am aware, the most recent data for this breakdown of prescriptions is for the years 2001 through 2007.[8] The figure from 2014 of 83 physicians writing 155 prescriptions does not clarify whether or not a small number of physicians wrote most of these prescriptions. For example, for the years 2001 through 2007, 271 deaths were assisted by 109 different physicians, but of these, 72 wrote one prescription; 17 wrote two; 17 wrote between three and ten; and three physicians wrote more than 10.[8] The available data does not show whether or not there was a similar pattern in 2014. Hence I cited the most recent relevant data.
Virtually all summaries of assisted dying throughout the world, including the summary in the BMJ,[9] consider European countries that have legalised euthanasia or assisted suicide as well as the Oregon model. Even if Oregon is the model for the legislation currently before parliament, it would be remiss not to consider the experience of all of those countries that have legalised some form of medically assisted death. My reading of this evidence is that it raises significant concerns, but I would encourage readers to go to the sources and interrogate the evidence themselves.[4]
[1] The Director of Public Prosecutions. Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide https://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy....
[2] D.A. Jones. Evidence of the adverse impact of assisted suicide and euthanasia. Rapid response to J. Davis, I. Finlay. Would judicial consent for assisted dying protect vulnerable people? BMJ 2015;351:h4437 http://www.bmj.com/content/351/bmj.h4437/rr-10
[3] J. Davis. Response to Prof David A Jones. Rapid response to J. Davis, I. Finlay. Would judicial consent for assisted dying protect vulnerable people? BMJ 2015;351:h4437 http://www.bmj.com/content/351/bmj.h4437/rr-38
[4] D.A. Jones. Assisted Suicide and Euthanasia: A Guide to the Evidence http://www.bioethics.org.uk/evidenceguide.html
[5] J. Mapes. Bill to expand Oregon's Death with Dignity Act runs into a buzz saw of opposition. The Oregonian/OregonLive March 03, 2015 http://www.oregonlive.com/mapes/index.ssf/2015/03/bill_to_expand_oregons...
[6] http://www.comedsoc.org/Suicide_-_Oregon_Ranked_2nd.htm?m=66&s=520
[7] Centers for Disease Control and Prevention. Suicide Among Adults Aged 35–64 Years — United States, 1999–2010. Morbidity and Mortality Weekly Report (MMWR) May 3, 2013 / 62(17);321-325 http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6217a1.htm?s_cid=mm6217a1_w
[8] K.R. Stevens. Concentration of Oregon's Assisted Suicide Prescriptions & Deaths from a Small Number of Prescribing Physicians. Physicians for Compassionate Care Educational Foundation 18 March 2015. http://www.pccef.org/resources/documents/ConcentrationofOregonsAssistedS...
[9] O. Dyer, C. White, A. García Rada. Assisted dying: law and practice around the world BMJ 2015;351:h4481 http://www.bmj.com/content/351/bmj.h4481
Competing interests: I am Director of the Anscombe Bioethics Centre
Yes it would. I would like to be able to give my instructions now regarding my end of life care. Whilst I am in my right mind I feel I should be able to do no-one else's. If I choose to end it that is my choice. No-one else's.
Too many of the people making decisions about my end of life rights are young. These decisions about changing the law should be made by people who know more about suffering and dying.
Competing interests: No competing interests
An option is just that an option. 30,000 people die each year in Oregon, maybe 70 people use the option to take an oral medication to end their suffering. The point, most people do not use it, it simply makes people feel better to know they could if they need to. Maybe half of people who first apply end up getting the prescription and a third of those who get the prescription never use it. They have to make two oral requests 15 days apart and a written witnessed request to their doctor; it needs 2 doctors to say the pt is terminal. the pt = person needs to be mentally competent and provided with options, treatment, hospice, required to have those elements met.
I totally support someone else's right to their religious freedom but the USA was formed in part to support Religious freedom so someone else's religion should not be able to control my choice, with my doctor.
1. we should treat people if we can
2. if we can not treat the disease we should do a great job to palliate symptoms so no one needs to use such an option. We should treat depression, pain, and suffering like SOB
3. we should use palliative sedation if desired and needed
4. only after every step, the person the patient should have their own choice if a competent person with less than 6 months to live by 2 doctors, feels it is their choice to end their suffering; I think that should be their choice. They have to request it, they have to take it themselves, it is just an option they do not need to take and they can abandon it at any time. An option is just an option.
My 95 year old Mom was upset feeling she might need to travel to Switzerland near the end; she was in no condition to have to make such a trip.
My girlfriend with stage 4 cancer around her heart, lungs, short of breath told me she did not want to have to move to Oregon because she did not want to linger and suffer. We have been able to treat her medically and she is doing surprisingly well but still she would feel better to have the OPTION in California, even if she never chooses nor needs to use it.
Competing interests: No competing interests
Some interesting points have been raised in this series of rapid responses. Anne Doherty (21 August) has commented that the Bill does little to explain how capacity is to be assessed, and in fact the Mental Capacity Act does not explain how capacity is established: the Act states that until proven absent, mental capacity must be assumed present, and it describes (in its section 3) how a mentally-capable person makes a decision. Karen Lesley Sanders (21 August) has pointed out that this Bill is not about voluntary euthanasia: 'The doctor is not being asked to 'play God' in deciding what is best for their patients'. And Marion Clarke (21 August) has pointed out that 'It would also not apply to other vulnerable groups of vulnerable people such as the disabled and the elderly unless they were terminally ill and also competent to make such a decision'.
The latter point is something also raised within the Mental Capacity Act, where the presence of section 4(5) of the Act, seems to make it possible for a patient who is mentally-capable and suffering intolerably, to refuse life-sustaining treatment and thereby to end his or her own suffering: but a patient who is mentally-incapable and, seemingly, suffering intolerably must be kept alive, because a best-interests decision must not seek to end a person's life. That is something very 'uncomfortable' about the combination of self-determination for the mentally capable, but 'best-interests decision-making' for the long-term mentally incapable: however, in this case, I think we do have to live with the discomfort - making a best interests decision 'that this person would be better off dead' seems to be too ethically dubious. Quite a different thing, from a mentally-capable person telling you 'that I would be better off dead, now'.
Insisting that the mentally capable must endure suffering while they are dying, if they choose not to, seems to me to be an unreasonable position. And setting aside any issues of whether patients should 'ethically' consider others when making their decisions, there is not any ‘test of unselfishness’ in the legal concept of mental capacity: patients are legally entitled to make decisions which others might see as ‘selfish or cruel’.
As for ‘the decisions individuals make are influenced by others’ – true in general, and of all of us: this ‘people are not ‘truly autonomous’' discussion, is a complete red herring.
Competing interests: No competing interests
Under the proposed legislation, it would be up to GPs and a High Court Judge to decide whether a patient’s request to die is “voluntary, clear, settled and informed”. However, it is not clear how this would be determined. It is not possible, despite the best intentions, to comprehend the subconscious influences which have led a dying person to come to such a decision; ones they themselves may not acknowledge. More worryingly, it will be difficult for a GP or a High Court Judge accurately determine whether a patient’s request to die is due to guilt over ‘being a burden’, financial or familial pressure.
No decision is made entirely independently. We are all influenced by external forces; be these family, high profile media campaigns, or the laws and surrounding culture. By legalising something previously unthinkable, we risk a shift in attitudes and an increase in the number contemplating and choosing assisted dying. Between the introduction of the 'Death with Dignity Act' in Oregon in 1998 and 2012 there was a 430% increase in deaths by assisted suicide (1). The law itself has an immeasurable influence on the psyche of a society.
Is a change in the law even necessary? In the UK, fewer than 30 people a year travel to Switzerland to commit assisted suicide (2). Under current legislation, it is illegal for an individual to assist someone to take their own life, carrying a discretionary sentence of up to 14 years. However, between 2009 and 2015 only one case resulted in prosecution (3). Currently, the law protects the vulnerable by providing a deterrent to those wishing to coerce them, whilst treating the few exceptional cases humanely.
Ultimately, we must decide what message we wish the law to send to the most vulnerable in our society. We need to discuss which reasons, if any, are acceptable for choosing an assisted death. Unbearable pain? Loss of independence? Financial concerns? Is being a burden to family a valid reason? It is interesting to note that in 2013 61% of those undergoing assisted dying in Washington state cited being a burden to family as a reason for ending their lives (4). The top three reasons for requesting assisted dying in Oregon are ‘loss of autonomy’, being ‘less able to engage in activities making life enjoyable’ and ‘loss of dignity’ (1). None of these reasons are medical. What do we understand by dignity? Is a person’s dignity based on the abilities of that individual or rather the way a society treats them? Assisted dying is a very final medical answer to perhaps solvable, undiscussed, non-medical problems.
Opening the door to assisted dying will promote the belief that the suffering of our sick and elderly should be resolved by the ultimate sacrifice on their part and leaves them vulnerable to coercion. We believe the correct response to those who suffer is the improvement in the way we care for them, with increased funding for palliative care, support and - most paramount – compassion.
Salma Haddad
Jessica Martin
1. Oregon Public Health Division. Oregon's Death with Dignity Act - 2014 [accessed 25 August 2015]. Available from: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResea....
2. Gauthier S, Mausbach J, Reisch T, Bartsch C. Suicide tourism: a pilot study on the Swiss phenomenon. Journal of Medical Ethics. 2015;41(8):611-7.
3. Crown Prosecution Service. Latest assisted suicide figures. [accessed 25 August 2015 ]. Available from: http://www.cps.gov.uk/publications/prosecution/assisted_suicide.html.
4. Washington State Department of Health. Washington State Department of Health 2013 Death with Dignity Act Report Executive Summary [accessed 25 August 2015]. Available from: http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109-DeathWithDignityA....
Competing interests: No competing interests
Scaremongering, with no basis in fact, contributes nothing to this important debate. For example
“[Compassion in Choices] is trying to persuade all the other states in the USA to enact similar laws and is unwilling to support further changes in Oregon until more states have followed suit.”
The law has not changed in Oregon because the State legislature recognises that the current law is operating safely and fulfills the needs of dying patients. Compassion in Choices campaign in other States because they believe all dying Americans should have the right to access an assisted dying law if they meet the law’s criteria. To suggest that once this is done they will then campaign to extend these rights to those who are not dying is pure speculation.
“There is also clear evidence of untreated depression among those who have died by assisted suicide in Oregon, and a clear decline in the numbers of psychiatric evaluations, down to 2.9% in 2014.”
The number of referrals have declined, not because physicians in Oregon are displaying a lack of concern for their patients’ well being, but because they are becoming more confident in screening out patients who do not meet the safeguard of mental capacity. Doctors in this country display the same level of competency when they assess a patient’s mental capacity to make decisions concerning the right to refuse treatment. Of course there may be a small number of cases where further assessment is necessary, and this is why the Assisted Dying Bill mandates a referral to a specialist should either assessing doctor have doubt as to a person’s capacity.
“In Oregon between 1999 (two years after the law was introduced) and 2010 the suicide rate among those aged 35-64 increased by a massive 49% in Oregon (compared to 28% nationally).”
It is unclear why Professor Jones cites figures for a specific age range and stops at 2010. When the suicide rate is viewed as a whole up until the most recent data from 2013, it is clear that there have been small rises and falls in the suicide rate since 1997, and indeed prior to 1997, yet overall figures have been relatively consistent since 1980 (1). There is absolutely no evidence that legislating for assisted dying has affected the suicide rate in Oregon.
“There is also evidence that those assisting suicide are not doctors who know the people well but are a small number of zealous advocates. Between 2000 and 2007 almost a quarter of all lethal prescriptions in Oregon (62 out of 271) were provided by just three doctors.”
Again, it is important to use the most relevant and recent data, rather than selecting data that suits one’s argument. The most recent data show that there were 155 prescriptions for life-ending medication written in 2014, and these prescriptions were written by 83 different physicians.
One major barrier to more doctors being involved in the process is the large number of hospitals in Oregon owned by the Catholic Church, and the fact that these hospitals prohibit any staff members from considering or participating in a request for assisted dying (2). (It is worth noting at this point that the purpose of the organisation of which Professor Jones is a director, the Anscombe Bioethics centre, is to “serve the Catholic Church”) (3).
“The claims of Margaret Battin and others that the Oregon law does not impact on vulnerable groups have been answered by Ilora Finlay and Robert George”
I would like to direct readers towards the authors’ reply to Baroness Finlay and Professor George’s analysis of their work (4). In summary, they “welcome further attempts to examine what really happens where physician assistance in dying is legal […] However, [they] do not welcome the seemingly ideologically biased assumption evident in the Finlay and George critique”.
Of course some people have genuine concerns about this Bill and I, like Professor Jones would encourage those people to examine the evidence for themselves. But, as Fiona Godlee, editor in Chief of the BMJ, has reiterated (5), there needs to be a full and fair debate on this issue. Our patients deserve no less and blanket opposition ignores the fact that not only the Supreme Court but also the majority of our patients are calling for a change in the law
(1) Public health Oregon, Vital statistics annual report Vol.2, http://public.health.oregon.gov/BirthDeathCertificates/VitalStatistics/a...
(2) A. Gumbel. Assisted dying: legal in Oregon since 1997, but still surrounded by taboos. The Guardian, 12 July 2014
http://www.theguardian.com/society/2014/jul/12/assisted-dying-legal-oreg...
(3) Anscombe Biotethics Centre, About Us http://www.bioethics.org.uk/page/about_us/our_history
(4) M. Baton et al. Legal physician-assisted dying in Oregon and the Netherlands: The question of “vulnerable” groups. A reply to I.G. Finlay and R. George. 21 July 2011 http://jme.bmj.com/content/37/3/171/reply
(5) F. Godlee. Assisted dying—time for a full and fair debate. BMJ 2015;351:h4517 http://www.bmj.com/content/351/bmj.h4517
Competing interests: No competing interests
As we are all aware, if judicial approval was granted for consent to assist in dying, there would be no return and this step would certainly open doors for matters not yet fully considered and comprehended by clinicians and patients. I realise the case is being argued that this is for individuals with terminal illness and a specifically defined prognosis, but those in healthcare know that very often you can't provide a set duration in prognosis, despite best efforts to do so, therefore the lines have already become blurred. I agree with Ilora Finlay's points.
Competing interests: No competing interests
Re: Would judicial consent for assisted dying protect vulnerable people?
I agree wholeheartedly with Dr Jacky Davis that judicial consent will protect the vulnerable. Jacky is coming to the discussion with an open display of her credentials and interests. Her adversary, Professor Ilora Finlay, is somewhat less candid.
Why? Because the baroness seems oddly reluctant to disclose the fact that the Roman Catholic Church funded her trip to Wellington, New Zealand, in August 2012, where she spoke on that Church’s behalf at a conference on palliative care (http://www.catholicfoundation.org.nz/grants.php).
As a humanist I try to respect the wishes of my fellow-humans. The suffering endured by so many of the terminally ill causes me untold grief. When death is the only means by which that suffering can be ended then death it must be, when and by whatever means the sufferer chooses it.
Alas, it’s becoming increasingly clear to me that “people of faith” rarely share my understanding, and my humanitarian concerns. Their decisions are all too often derived from ancient teachings and edicts that have no basis in modern science and rationality.
That is all very well, and the churchgoers are entitled to their beliefs. But they must not impose those beliefs on others. This they have done for centuries. So accustomed have they become to doing so unhampered that, when dissenting voices are raised, they consider those voices to be “oppressive”.
They are nothing of the sort. In this instance, ours are the voices speaking out for the weak and highly vulnerable. And, quite often, those whose illnesses have rendered them voiceless in the literal sense in the final phases of their illness.
I join Dr Davis in her striving for a more compassionate approach to assisted dying, and fully support her call to embrace the Marris-Falconer Bill.
Competing interests: No competing interests