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Ethical Equivalence

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The Ethical Equivalence of Refusal of Treatment, PAD and Euthanasia

Americans Overwhelmingly Support Removal of Life Supports

The recent article by Ezekiel Emanuel, M.D., in Archives of Internal Medicine (Jan. 28, 2002), Vol. 162, pp. 142-152, includes an almost throw-away observation that some 90 % of Americans support a patient’s right to direct a physician to remove a life support system even when this may cause the patient’s death (p. 144). At the same time, only some two-thirds support physician-assisted dying (PAD) and voluntary euthanasia (pp. 143f). Accordingly, observes Emanuel, most Americans do not see these three practices as ethically equivalent, despite the insistence to the contrary of some philosophers who have carefully considered this issue (p.144).

Again, a majority of physicians oppose PAD—and an even greater percentage oppose voluntary euthanasia—(pp. 145f). Since patient autonomy as to removal of life support systems is now universally viewed as both ethical and legal, it may be assumed that it has overwhelming support by physicians.

Perhaps the Freedom for the Dying Movement should cogently and organizedly educate the public and especially physicians as to the ethical equivalence of these three practices. If this were done, might not resistance to legalization of physician assistance in all three end-of-life situations crumble? Or at least be rendered ineffective?

Definitions

Before going further, clear definitions are called for. In all cases we here consider adult patients with decision-making capacity and not treatably depressed. PAD is the furnishing by a physician of a prescription for a lethal drug dose which the patient may or may not later self-administer to achieve death.

Euthanasia as used herein is voluntary active euthanasia by a physician. Typically the physician will inject some drug to render the patient unconscious and then follow that with a second injection, often of Pavulon, which relaxes muscles operating the lungs and brings on death. Dr. Jack Kevorkian euthanized the ALS-afflicted Thomas Youk with such a double injection method, but he added potassium chloride to stop the heart to the second injection.

Removal of a life support system is actually one example of a larger class: refusal of treatment. Another example of refusal of treatment is the decision of parents to refuse treatment for their newborn. (In the celebrated Baby Doe case the neonate suffered from Down syndrome and also had a correctible fistula in the throat that would otherwise lead to death.. The parents with concurrence of their physician refused to consent to surgery so that the infant would die. A court supported their decision.) In the interests of keeping a clear focus this article does not extend to that situation or others where the patient, by reason of infancy or otherwise, lacks decision-making capacity. Another example of refusal of treatment is the case where a patient rejoins to a physician who has advised that unless a gangrenous leg is amputated the patient will die with: “Doc, if I can’t dance, I don’t want to live.”

Refusal of Treatment Intended to Achieve Death

Before going further it is important to recognize refusal of treatment for what it actually is in the cases we are here considering. It is not just that the patient supposedly wishes to be relieved of the burden of some particular treatment (kidney dialysis or a ventilator, etc.) or assert her right to bodily integrity. This article considers cases where the patient wants to die and invokes the right to refuse treatment in order to achieve death.

In sum, this might be characterized as suicide by refusal of treatment. But, of course, it is universally viewed as ethically and legally allowed “suicide”. Thus physicians who respond to their patients—as ethically and legally required--by removing life support systems or otherwise not treating are not guilty of “assisting in a suicide” or any sort of homicide.

But recall that this is a recent development in law and ethics. The Karen Ann Quinlan case is scarcely a quarter-century old (1976). The case was brought on when the comatose Ms. Quinlan’s physicians refused her parents’ directions that her ventilator be removed. That would be murder, the physicians rejoined. The New Jersey Supreme Court held otherwise and greatly accelerated the trend to patient autonomy.

The case is worthy of close study. To some extent it is an example of the aphorism that “Hard cases make bad law.” The core holding of Quinlan is admirable and had great impact on end-of-life law. But the rationale of the New Jersey Supreme Court planted some potentially dangerous seeds.

First Amendment Claim Rejected

First, the court almost summarily rejected the Quinlan family’s alternative argument that the manner in which a dying person chooses to die is a religious act entitled to First Amendment protection. It did so by invoking the old rationale that First Amendment protections extend only to beliefs and not to actions consonant with such beliefs. While it did not cite the old Reynolds v. U.S., 98 U.S. 145 (1879) (holding that the Mormon belief in polygamy was not entitled to First Amendment protection), its citation of a host of more modern cases is founded on that rationale. But what good is a belief that one cannot act on? One should be entitled to act on one’s beliefs—religious and otherwise--unless and until one’s actions impinge on the reciprocally protected sphere of freedom of others.

Despite the New Jersey Supreme Court’s rejection in Quinlan of First Amendment protection for how we elect to die, this is an area deserving of greater analysis and court clarification. It is regrettable (or perhaps prescient in that the U.S. Supreme Court was not then prepared seriously to grapple with this issue) that the cases of Washington v. Glucksberg and Vacco v. Quill failed to make First Amendment claims, so that this issue was not considered in those cases. It thus remains open for further exposition.

Ronald Dworkin in his book Life’s Dominion characterizes such life-altering decisions (to have a child or to abort, to end one’s life) as “quintessentially religious” and entitled to First Amendment protection. And there are suggestions to that effect in some of the luminous language of Planned Parenthood of S.E. Penna. v. Casey—despite the Supreme Court’s narrow reading of it in Glucksberg and Quill.

Narrowness of Rationale

The second major problem in Quinlan is the narrowness of its rationale: it was based solely on the patient’s right to autonomy in rejecting treatment, an outgrowth of the common law right to bar a battery, an unconsented touching. The court did not go on to consider whether a dying patient has a right to hasten dying, in sum a right to suicide. The Quinlans, good Roman Catholics, as was their counsel, Paul Armstrong, Esq., now a Superior Court judge, did not see fit to present the case in that form. But had Ms. Quinlan been awake and invoked the right to refuse her ventilator in the face of the unanimous “expert” medical opinion (accepted by the New Jersey Supreme Court) that so doing would almost immediately cause her death, at common law this would be suicide. (In the Nancy Cruzan case there is an observation by Justice Antonin Scalia that a knowing refusal to take in food is at common law suicide.) In fact, Ms Quinlan was “weaned” from her ventilator and lived another nine years without it.

In many cases (if not, indeed, most) refusal of treatment by a dying patient is a decision for legally permitted suicide. The patient knows this and so do physicians, RNs and other staff involved.

Passive vs. Active Euthanasia

Thus we have three types of life-ending services: PAD, euthanasia and refusal of treatment. Let us examine the arguments for and against their ethical equivalence. James Rachels proposed the ethical equivalence of removal of life supports (“passive euthanasia”) with voluntary active euthanasia in three powerful pages in  “Passive and Active Euthanasia”, New England Journal of Medicine 202:78-80 (Jan. 9, 1975) . He did so by proposing a now celebrated contrasting scenario.

And while he did not expansively probe the philosophic foundations for his conclusion—and that assumedly of most of his readers—that active euthanasia cannot be ethically distinguished from passive euthanasia, it seems that this lack of a principled difference arises from the fact that both major streams of ethical thought in the West view the two scenarios as ethically equivalent.

There are in the West two great streams of ethical thought: the intention school, exemplified by Kant, and the results-oriented school exemplified by Utilitarianism and pragmatism. But they do not differ in their conclusion as to the ethicality of each of the three means of achieving death, at least where patient and physician are joined in intending such end.

That is, in the case of an adult patient with decision-making capacity who wants to die and whose physician joins in that objective, in all three types of dying there is the intention by both patient and physician to achieve death. If the intention be unethical (and thus the act, in accordance with this school of ethics) it will not be because of the particular means employed: whether refusal of treatment, PAD or euthanasia. But rather on account of other factors making the intention unethical.

Under a results-oriented approach, again, the particular means used will not affect the conclusion as to ethicality. All three means bring about the death of the patient. If that result be unethical, it will be on other bases than the particular means used to achieve death.

By way of example, the most enduring argument against suicide is that we owe service to God and wrongfully deprive Him of such service if we effect our deaths prematurely. This argument is the core of Genesis 9:5 (“I will require the life of man”) and was in substance put forth by Socrates (as per Plato’s account of his last hours in the  Phaedo ), by Augustine and by Aquinas. And it is a part of the great English commentators’ rationale denouncing felo de se (one who has committed a felony on himself): it is a grave offense against “Nature, God and King”.

But the means used to effect one’s death does not affect that argument. A theist believing that only God may rightly choose the moment of our deaths should have the same reaction to a premature death brought on by any of the three means: refusal of treatment, PAD or euthanasia.

Similarly, if one believes that each of us owes service to the community, so that our premature death wrongly deprives the community of such service, the manner in which that premature death is effected should not alter that conclusion.

(A rejoinder to those arguments of service owed is that a dying person has no further service to give to God or community: the reason for the rule, at least in those cases, fails. And it may be recalled that Socrates accounted himself a suicide, but one excused from the general ruling barring it by reason of the “necessity” thrust upon him. But a critique of the arguments against suicide is not the purpose of this essay: rather, assuming their cogency for their exponents do those arguments actually support a principled ethical difference among the three means by which one may choose to die?)

The common reaction that there is an inherent difference between the action of euthanasia and PAD vs. the non-action of refusal of treatment is not really in point. Of  course there is a difference. But is it a difference that invokes a principled ethical differentiation? Is there a sound ethical reason why the one should be characterized as ethical and the other as not? At least where the intentions of all involved are identical and the results identical?

Ordinarily, No Legal Duty to Others

At common law one has no duty to save another person, at least where there is not a special relationship invoking that duty, as with a lifeguard at a swimming pool, a fireman, or a physician. Thus one may without criminal or civil liability blithely walk past a child drowning in a shallow ditch. And one need not avert a blind man from walking over a cliff.

Most of us would judge the on-lookers involved in such situations to have an ethical duty to act. We conclude that we are not alone ethically responsible for what we do, but also for the consequences that reasonably ensue which could have been avoided at little or no cost to ourselves. Thus we were not surprised when President William Clinton expressed a measure of ethical responsibility for the massacres in Rwanda in which 800,000 were slain: we could have avoided much of what happened at little cost to the nation had we intervened. Again, there is some criticism of Pius XII for his supposed failure to act more resolutely in defense of the Jews during World War II.

By the same rationale, a physician who sits by without acting effectively while his patient undergoes a long and tortured dying is ethically responsible for what ensues. A difficult dying is a type of medical emergency. And the physician is ethically called upon to respond to it effectively.

Let us not indulge in sophistry. A physician who can do nothing further to cure and nothing further to relieve her dying patient’s severe suffering would be less than human if she did not wish for her patient’s quick death and thus an end to senseless suffering.

Whether that physician responds to the patient’s repeated entreaty to “Help me die” by removing a life support system, by PAD or by euthanasia, in all three cases both intention and result are the same. In sum, there is no principled ethical difference among these three means to serve the dying patient.

In this context, helping the public and physicians to recognize this ethical fact may well bring acceptance of PAD and euthanasia up to the 90% mark now current for refusal of treatment. (Interestingly, this is about the level of support for the Dutch way of dying now current in the Netherlands.) In such an environment it would appear that decriminalization of PAD and of euthanasia under reasonable rules barring abuse could easily be achieved.


This essay was written by Winthrop Thies, former President of The Hemlock Society of New Jersey (the predecessor organization to Compassion and Choices of New Jersey, Inc.).