Fairness, Freedom and the Dying


Fairness, Freedom and the Dying

On March 22, 2002, the High Court in London ruled that Ms. B, a paralyzed patient being maintained on a machine to help her breathe (a "ventilator") is entitled to kill herself by directing her physicians to disconnect her ventilator. Director of England’s Voluntary Euthanasia Society Deborah Annetts commented: "This is a victory for common sense. The case has confirmed that patient choice must be at the center of all treatment decisions."

Meanwhile, three days prior in Strasbourg, France, Diane Pretty, suffering from motor neurone disease and paralyzed from the neck down, was present on a stretcher at the European Court of Human Rights while her attorney argued that the United Kingdom’s refusal to let her husband help her to die was a violation of her basic civil rights.

Among the simple truths we learned in kindergarten, like "take turns" and "share", was "fairness": that all persons similarly situated should be treated alike.

One might think that certainly we are all treated fairly, all treated equally when it comes to that most personal, private and—to many—religious experience in our lives: the dying process. Alas, not so. Those who are on a life support system, like a ventilator in order to breathe or kidney dialysis, or simply need antibiotics for garden-variety pneumonia or some other infection—such persons are accorded greater freedom than other dying persons.

When a person is terminally ill and in intractable suffering (suffering that cannot be relieved by the highest skill of the pain-control physician) it is reasonable for such dying person to regard life as no longer a benefit but a grave burden. And a burden he would gladly shuck off, if he could.

If such dying person is on a life support system (as was Ms. B) or needs medical treatment in order to survive, has full decision-making capacity and is not treatably depressed it is settled law that the patient may, if wished, as of right direct the removal of the life support system or refuse the essential medical treatment and thus effect death. That is the central lesson of the Karen Ann Quinlan case and the Cruzan case. And this basically was settled law in the U.K., too, even prior to Ms. B’s case. With good pain control care the dying patient in this situation can thus achieve a good death: one that is quick, pain-free and gentle.

In contrast, a patient in all respects similarly situated but not on a life support system or needing further medical treatment (like Diane Pretty) seemingly has not that freedom: the freedom to effect his or her own death. Possibly the patient suffers from a degenerative and inevitably fatal disease, like ALS (Lou Gehrig’s disease) or severe multiple sclerosis. The patient must linger on in increasing suffering. (Only in Oregon under its Death With Dignity Act is it clear that a physician may lawfully even write a prescription for a lethal dose of drugs which the dying patient may later elect to take. And even that modest advance in freedom for the dying is threatened: also last Friday attorneys at the direction of Attorney General John Ashcroft were arguing in Portland, Oregon, U.S. District Court that physicians compassionately responding to their patients under the Oregon law could be jailed for up to 20 years on account of Federal drug laws.)

Understand that we are not here considering those cases in which a patient does not want to die in order to end suffering but merely wants an intrusive life support system removed. In our scenario the patient wants to die and his doctor supports and joins in that intention. (With Ms. B, of course, her physicians resisted taking an action that would kill her. The High Court ruled they did so unlawfully.)

Is there any principled ethical difference on those facts assumed between the three means of achieving a good death: refusal of medical treatment, physician aid-in-dying (PAD), where the physician only writes the lethal prescription, and euthanasia, where the physician gives a lethal injection?

Let’s look at the factors involved. In each case physician and patient both intend that the patient die. In each case the motive of both doctor and patient is to benefit the patient: to end suffering through a hastened dying. In each case doctor and patient in effect act together to achieve that end. And in each case the result is the same: the death of the patient.

It is thus plain that there is no principled ethical difference between refusal of treatment (including removal of a life support), PAD and euthanasia on our facts. But today only if the first be available does the patient have full freedom to control his or her dying. While currently in all states save Oregon PAD is illegal and would subject the physician involved to serious jail time and loss of license. And while euthanasia, probably the most compassionate of all the three means, is illegal throughout America, including Oregon.

The three means are ethically the same, but are treated harshly differently. (Witness the savage treatment meted out to Dr. Jack Kevorkian, now in solitary confinement and facing a further 23 years in jail.) Fairness cries out that we accord to the dying freedom to write the final chapter in the book of their lives and thus to invoke whatever means they wish. It is not the proper place of government to intrude into this most personal, private and religious experience in a person’s life.

As we freed the slaves, freed women, assured freedom for reproductive choices, let us now affirm freedom for the dying by enacting state laws allowing them any of the three means, with reasonable protections against abuse. A good start would be a law much like the Oregon Death With Dignity Act, which has worked flawlessly for four years, but also permitting euthanasia (as in the Netherlands).

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.).