Physician-Assisted Death Notes

How do we tell when death has occurred?

Cardiopulmonary criterion – focuses on functioning of heart and lungs. Irreversible cessation of

pumping and breathing.
But what about ventilators that can maintain respiration and circulation for patients in
irreversible coma? Are these patients then to be counted as straightforwardly alive? Isn't there some
sense in which they are dead?
Whole-brain criterion – death has occurred when all brain functions, incl. Brain stem functions,
have irreversibly ceased.
What about permanent vegetative state (PVS)? Such people have irreversibly lost
consciousness, but their brain stems still function. Isn't there a real sense in which such people are
dead?

These are operational or procedural questions. What procedures can we use to determine whether
someone has died? There are also conceptual questions.

Two concepts of death: one for organisms, one for persons. This question is intimately tied to the
question of our nature, i.e. of what we 'really' are.

The concept of a person is not bodily but psychological, and therefore the end of a person would be
marked by the irreversible cessation of what psychological states or capacities are taken to be essential
to being a person.

Normally we expect biological and personal death to coincide. But we have seen that biological death
is sufficient for personal death, but it is not necessary. PVS shows that someone can be biologically
alive but personally dead. (Or does it?)

Cardiopulmonary criterion presupposes biological death concept, while higher-brain function

presupposes personal death concept. No room in this analysis for whole-brain criterion. It doesn't fit the
biological conception since many integrative bodily functions can survive the cessation of all brain
function. It doesn't fit the personal concept, since cessation of all brain functioning is sufficient for
personal death but not necessary.

Reductio counterargument to higher-brain criterion: Would it be okay to start burying or cremating a

person while she was still breathing? Higher-brain criterion says, in principle, nothing wrong with this.
(Okay? I would bite that bullet.)

Why is it (usually) a bad thing to die?

It can be surprisingly difficult to explain why it is a bad thing to die. If nothing bad can happen to us
after we are dead, how can dying be bad for us?
One response: But nothing good can happen to us, either. So then it becomes a matter of
weighing the relative likelihoods of high-quality experiences vs low-quality experiences. Most stages
of life contain a mix of intrinsic goods and intrinsic evils. But if the goods outweigh the evils over a
particular stage of your life, then that stage is good for you or worth living.
How can death sometimes be a good thing?

If death is extrinsically bad when it deprives you of a good life, then it follows that it must be
extrinsically good when it spares you from a bad life.

What is physician-assisted death (PAD)?

PAD refers exclusively to one particular way in which a physician may help to hasten a patient's death:
by providing the patient with medication at a dose level intended to cause death and that does in fact
cause death.

Unlike patient refusal of life-sustaining treatment, PAD involves administering treatment rather than
withholding or withdrawing it. It's something patients must request, rather than something they must
refuse.

Voluntary vs non-voluntary cases of PAD.

PAD differs from other end-of-life treatments in causation and intention. The administration of the
medication is unequivocally the cause of death, and the intention is unequivocally to alleviate suffering
by causing death.
Question is whether these differences draw a 'bright line' between PAD and other end-of-life
treatments.

Ethical Case in Favor of PAD

Argument from Well-Being:

Based on a simple proposition: suffering is intrinsically bad and should be relieved as far as
possible. Most end-of-life suffering can be controlled by management of adverse physical symptoms,
esp. pain. But not all suffering is physical, and not all physical suffering can be relieved by palliative
care. In these refractory cases, terminal sedation becomes an option for relief of suffering. In the same
cases, PAD can be a justifiable option also.

Pain vs Suffering: Suffering is best understood broadly as encompassing any condition of life or
experience to which we are strongly averse. Pain is a certain feeling or sensation to which we are
normally (though not necessarily) averse.

Argument from well-being to justifiability of PAD can take many forms.

Consequentialist: Assisted death would provide a great outcome for many patients, since it
would avoid a great evil for them.
Deontological: Regardless of consequences, we have a duty to relieve suffering. This duty may
be role-specific (doctor) or general (anyone in a position to relieve suffering). Some ways of acting on
the duty may be prohibited by other duties.

Argument from Autonomy:

By requesting PAD at the end of life, patients are attempting to manage the circumstances of their own
death. Thus a request for PAD is an exercise of autonomy.
Autonomy is a matter of being the active manager of one's life in accordance with one's own
deeply held goals and values.
Can also be consequentialist or deontological.
Consequentialist:
Deontological: Persons have a right to self-determination.

When is PAD justified?

Request: Must be requested by the patient, not by a substitute decision-maker, even if on the patient's
behalf.

Capacity: Patient must be decisionally capable. Default presumption for adult patients, but rebuttable
by mental illness, disability, other situational factors that might impair cognitive functioning. Relevant
decisional capacity for assisted death is ability to make reasoned decisions with respect to this kind of
treatment. A person may be competent to make other kinds of decision while being incompetent to
make this one.

Voluntariness: Patient's decision must be free of undue influence, coercion, etc. “Undue” generally
means fraud, deceit, duress, etc. It's too much to purge decision-making of all influences from
preferences of family, friends, etc.

Disclosure: Patient must be provided with adequate information re: treatment options in question.
Diagnosis, prognosis in absence of treatment, probability of various outcomes, risk assessments, etc.

Diagnosis: Patient must be diagnosed with a medical condition serious enough to warrant consideration
of treatment options that will hasten death. Condition need not itself be terminal. Patient must be
experiencing a degree of suffering that she herself finds intolerable and cannot be alleviated by any
other treatment acceptable to the patient.
The reason for requiring that other treatment options have been exhausted or refused is
straightforward: hastening death is final and irreversible, precluding further opportunities to rethink
one's choice. There is a mild degree of paternalism at work here – some privileging of patient well-
being over autonomy – in ensuring that assisted death is not requested prematurely or unnecessarily.

Ethical Case Against PAD

All serious arguments against PAD are deontological in nature, relying on a notion of basic duty or
basic right. Opponents of PAD can concede that PAD might be in a patient's best interest or an exercise
of the patient's autonomy and still contend that it is wrong by appealing to a right or duty.

Challenge for those who want to argue this way: Identify a feature that draws a 'bright line' between
PAD and other options that hasten death (terminal sedation, pain management, refusal of life-sustaining
treatment, etc.)

Right to life: The concept of a right to life is much-contested, but it seems to involve, at a minimum,
the right not to be killed by another. Murder violates this right. But does physician-assisted euthanasia
(PAE)? Some argue that my right to life imposes on you a duty not to kill me, and you violate that right
by actively causing my death, whether I have consented or not.
This argument against PAE relies on a hidden premise: that the right to life is inalienable. It
cannot be relinquished or waived. The latter is the more relevant to the right to life argument. To waive
a right is to relieve a particular other person (in this case the doctor) of the obligation to respect that
right. The right to life argument needs to argue that the right to life cannot be waived in this way.
The counterargument is that it seems perverse to deny someone the right to waive their right to
life when they both want to do so and would materially gain by doing so.

Sanctity of life: The common idea behind sanctity-of-life principles is that human life is 'sacred' – that
is important or weighty enough to rule out most cases of the intentional taking of life – either one's own
or another's. In some cases this might be outweighed by a competing value, but they are few and far
between.
Two deontological paths: Thomistic and Kantian. They disagree about the target or object to
which inalienable respect is owed. For Kantians it is the person herself, and for Thomists it is the
fundamental goods that constitute a person's well-being or fulfillment.
For Thomists, life itself is one of the 'fundamental goods' which people have a duty not to
'destroy, damage, or impede', for themselves or anyone else. (Other examples of 'fundamental goods'
are friendship, knowledge, aesthetic appreciation, health, etc.)
The counterargument here is that it is hard to think of life as a fundamental good if it mostly
supports intolerable suffering, which are precisely the cases in question here. At issue is under what
conception of 'life' does it count as a fundamental good. Is mere biological life a fundamental good? Is
life only a fundamental good as long as it has a reasonable expectation of supporting well-being?
But suppose biological life is intrinsically valuable. On this assumption, PAD may still be
justifiable, since if the patient's existence lacks all other fundamental goods, or enough of them to
outweigh the basic good of mere biological life, then the biological life is only of slight value. And if
there is serious suffering, then the disvalue of the suffering might be enough to make life not worth
living.
The Thomistic answer is that one must never destroy, damage, or impede a basic good (life) for
the sake of another (freedom from suffering). The flaw in this stance is that it would seem to make all
trade-offs (e.g. giving up time with friends to do meaningful work) impermissible. But if other trade-
offs are allowed (perhaps because they are unavoidable), why not this one?

For Kantians, 'it is impermissible not to respect every human being, oneself or any other, as a rational
creature.' This principle then supports a duty not to injure or kill oneself or another person. Since the
worst injury one can inflict on another is (presumably) death, it follows that PAD is impermissible.
Counterargument: The conclusion follows only if we accept the premise that PAD inflicts a
harm or injury. But this is to equate cessation of life as harm. We cannot simply take for granted that to
end a person's life is ipso facto to do her harm. Indeed, if her suffering is great enough, cessation of life
may be a benefit.
This argument also fails to spell out why suicide is a failure to respect oneself as a rational
creature. Insofar as rationality is at issue at all, the decision to end one's own suffering can easily be
seen as an expression of one's rational nature rather than a perversion of it.

Doctrine of double effect:

This is a response to the need for a 'bright line' to distinguish PAD from other end-of-life treatment
modalities. The argument is that PAD differs from other options in two important ways: it is intended to
cause the patient's death and it is in fact the cause of death.
Re: intention, PAD differs from high-dose opioids for pain control and terminal sedation. In
both those cases, the intended goal is to relieve suffering. Should the patient die, that would be an
unintended side effect, even if foreseen.
This intended/foreseen distinction also differentiates PAD from many cases of refusal of
treatment, where the patient's aim is not to hasten death but to avoid distressing side effects likely to be
futile.
This argument might work for cases like refusing chemotherapy. But what about removing a
ventilator or a feeding tube? In these cases, hastening death seems to be the goal. So does this mean
that appeal to intention doesn't suffice to isolate PAD as uniquely ethically objectionable?

Ethical significance of the intending/foreseeing distinction derives from the doctrine of double effect,
which holds that it is impermissible to bring about a harm to a person as an intended effect, while it
would be permissible (in otherwise identical conditions) to bring about the same harm as an unintended
(and foreseeable) side effect.
This doctrine conforms well to many of our intuitions. E.g. many people think there is an
important ethical difference between deliberately targeting innocent civilians in warfare and targeting
military facilities even though doing so will foreseeably result in civilian casualties.

Counterargument: The doctrine of double effect applies only to harms. However, for many dying
patients who are experiencing great suffering, death comes as a benefit rather than a harm. In these
cases, the doctrine of double effect just seems inapplicable. Therefore it cannot establish that PAD is
ethically impermissible.

Doing vs allowing:

Here we shift focus from intention to causation. PAD can be contrasted with most cases of refusal of
treatment in that, in the former, the patient's death is caused by the lethal dose of medication, whereas
in the latter the patient dies as a result of the underlying medical condition.
Briefly, this argument tries to draw an ethically meaningful distinction between actively killing
and passively allowing to die.
This distinction doesn't always let us draw a hard line. E.g. re: aggressive pain management and
terminal sedation, there are instances where these measures hasten death, and in those cases they are
helping to make it happen, not merely allowing it.
In general, determination of death can be a complicated and controversial matter. E.g. if a
patient refuses food or water, they may die not of the disease but of dehydration or malnutrition. Or at
the very least, they will die sooner than they otherwise would have, as a direct cause of the lack of
water or food. So it's not always possible to draw a fast distinction between 'killing' and merely
'allowing to die'.
So this argument, too, does not isolate PAD as uniquely ethically objectionable.

The ethical significance of the killing/letting die distinction derives from the broader principle that it is
impermissible to inflict harm on a person, while it is permissible (in otherwise identical conditions) to
allow the same harm to happen to him or her. This is commonly known as the principle of doing and
allowing.
This principle conforms to many of our ethical intuitions. E.g. many people believe that while it
would clearly be wrong to killa child, it is not wrong to fail to donate money to famine relief in
Somalia, even though the donation would have prevented the death of a child.

Again, however, the doctrine of doing and allowing applies only to harms, not to benefits. So this
doctrine, too, is inapplicable to end-of-life scenarios where death is a benefit for the patient and so can
provide no support to distinguish PAD from other forms of treatment.
Difference Between PAD and Other End-of-Life Treatment Options?

So it's surprisingly hard to show that an ethical 'bright line' exists between PAD and other means of
alleviating suffering during dying. Two reasons for this:
1 The best justification for the other forms of end-of-life care – a justification that invokes the
values of patient well-being and autonomy – seems to apply equally to PAD.
2 There seems to be no difference between PAD and these other measures that makes an ethical
difference. Such a difference has been sought in notions like the right to life, the sanctity of life,
intention, and causation. We've seen that all of these fail to draw the required 'bright line.'

The Case for Legalizing PAD

The ethical status of PAD is neither necessary nor sufficient to determine its legal status.
After all, when discussing the ethics, we are talking about the moral evaluation of a particular
act, whereas re: the legal question, we must consider the impact on society as a whole, e.g.
enforceability, costs of enforcement, burden of sanctions, spillover onto third parties, etc.
Certain acts can be wrong but not a good idea to outlaw, e.g. lying, adultery.
It may also be that an act can be morally permissible but still not a good idea to legally allow.
Some people think PAD falls into this class. They concede that there are cases where PAD is the right
thing to do, but they don't trust any legal policy to reliably discriminate these cases from cases where it
isn't. Or they think a policy that allows PAD will allow unacceptable risks to fall on vulnerable third
parties.

Argument from Compassion

One of the civic virtues we expect of citizens in any decent society is compassion, including sympathy
for those who find themselves in terrible circumstances and a disposition to do what we can to help
them. Compassion is owed to those whose lives have been blighted by natural disaster, war, poverty,
bigotry, abuse, or personal violence. Compassion is also owed to those in the dying process, if that
process includes serious suffering.
Just as we have the concept of medical futility for cases in which any further treatment of the
patient's diseases condition would be useless, so we must also face the fact of palliative futility, when
none of the standard palliative measures can restore to the patient a life worth living.

Big picture: In developed societies a majority of people die in health care institutions rather than at
home. For a majority of these people some end-of-life treatment decisions are made. A minority of this
majority, mainly those with advanced cancers, will decide to forgo any further treatment of their
disease condition and enter palliative care. A minority of that minority will continue to find their
symptoms (whether physical or psychosocial) sufficiently distressing that they will wish to hasten their
death. Some members of this group will want to achieve this end by PAD. Their numbers will not be
great (no more than 3% of all annual deaths in a given jurisdiction), but their suffering will. It is the
mark of a compassionate society that it respond most to those minorities whose need is greatest.

Argument from Respect

The basis of respect is a willingness to acknowledge others' right to make their own decisions about
their lives in accordance with their own value system. If respect requires allowing others to live their
lives according to their own lights, then it must also allow them to manage their dying process the same
way. If, as a society, we value respecting others' autonomy, then we should legalize PAD.
For the minority who will choose PAD, their choice is an affirmation of their values, their
priorities, and their self-determination. To deny them this is to treat them with disrespect.

Argument from Freedom of Conscience

The ethical issues concerning PAD are complex and intricate. Reasonable people can disagree about the
ethical status of PAD. The only political solution that equally respects the conscience rights of all is a
policy that allows access to PAD for those who choose it and does not force it on those who don't.
This argument is a powerful one because it starts from a weak assumption that most will
concede, i.e. that PAD is a contested issue on which reasonable persons can disagree.

Argument from Parity

Fundamental principle of equity: the law should treat like cases alike and different cases differently.
E.g. cannabis legalization. Alcohol and tobacco are legal. Cannabis is at least no less harmful than
either of them, so equity seems to dictate that it should be legal too.

Similarly, outlawing PAD while allowing other end-of-life treatments that hasten death requires a
'bright line' between PAD and these other treatments. We've seen that that bright line does not exist.
Therefore, equity demands that we treat PAD like we treat these other treatments, i.e. as 'like cases', and
allow it just as we allow them. Without this bright line, the distinction between PAD and the other
treatments is arbitrary and unjustified.
However, this is as much an argument for prohibiting all of these forms of treatment and care as
it is for legalizing PAD.
This argument also assumes that ethical equivalence implies legal equivalence. But this does not
necessarily hold. Those who believe PAD is ethically equivalent to other end-of-life treatments (and
that all are ethically permissible) may still hold that it should be illegal because it puts vulnerable
persons at risk, either because safeguards put in place will be open to abuse or because a 'slippery slope'
will eventually lead to unethical practices. If these contentions can be supported, then that would be a
relevant difference between PAD and other end-of-life treatments that would work in favor of
outlawing PAD.

Argument from Democracy

Every question that Gallup has posed to the general public on legalizing PAD has elicited majority
support for nearly 20 years. PAD has also achieved ballot success in Oregon, Washington, and
Colorado.
This suggests an argument from democracy:
1 In a democracy the will of the majority should prevail.
2 A majority of Americans support legalizing PAD.
3 Therefore PAD should be legal in the US.

This argument needs to be modified to take account of federalism. i.e. the decision of whether or not to
legalize PAD is a state matter. So the best that can be said is that state legislatures should legalize PAD
in those states where PAD legalization has majority support. (The statistics cited above apply
nationally.)
This argument is also vulnerable to the charge that it assumes that the legitimate function of
legislators is to 'rubber stamp' their voters' preferences. Some hold that this assumption is unwarranted
and that legislators are elected to exercise their own personal judgment on such matters.
Finally, there is the objection that not all majority preferences are morally or socially legitimate.
Majorities can favor evil as well as good. If a majority of people in a state wanted to go back to
enslaving black people, that would not be a reason to make it legal to enslave black people. So the most
we could say is that legislative action should reflect majority opinion when that majority opinion is
independently morally defensible.

The Case Against Legalizing PAD

Most arguments against legalizing PAD take the same form: they concede that a regime providing legal
access to PAD would benefit some dying patients, but they hold that it would come at too high a cost to
others. i.e. they identify an element of unacceptable public risk.

60 years ago Yale Kamisar summed up the main practical objections to legalizing PAD:
'I see the issue, then, as the need for voluntary euthanasia versus 1) the incidence of mistake and
abuse, and 2) the danger that legal machinery initially designed to kill only those who are a nuisance to
themselves may someday engulf those who are a nuisance to others.'
The first of these is the Abuse Argument. The second is the Slippery Slope Argument. The
common feature of the two arguments is the claim that while the written policy allowing PAD may only
cover cases where it is justified, actually implementing the policy will inevitably result in more cases
where it is unjustified that is justified by the cases where it is unjustified. i.e. both argue that there will
inevitably be slippage from justified to unjustified.

The Slippery Slope Argument

The slippery slope argument latches on to the second of these objections. The objection rests on the
claim that the conditions under which PAD is allowed will inevitably be expanded to include cases
where PAD is morally objectionable.

The argument goes like this:

Empirical claim: If the Oregon policy is implemented, then (certainly, inevitably, or at least highly
probably) it will mutate into an expanded policy.

Normative claim: At least some cases of assisted death permitted by the expanded policy (but not by
the Oregon policy) will be ethically unacceptable.

The challenge for this argument is that it's hard to imagine an expanded policy that makes both claims
true. Therefore the policy does not seem very vulnerable to the slippery slope argument.
Also, the slippery slope argument also seems to argue for outlawing other end-of-life treatments
that hasten death, such as terminal sedation, high-dose opioids, etc. To allow such treatments is already
to be on top of the slope.

The Abuse Argument

Chief Justice Rehnquist: 'The constitutional requirement that Washington's assisted suicide ban be
rationally related to legitimate government interests is unquestionably met here. These interests include
protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable
groups from indifference, prejudice, and psychological and financial pressure to end their lives.'
We must distinguish two aspects of this issue of protecting the vulnerable: protecting against mistakes
(e.g. misdiagnosis) and abuse.
It's best to concede up front that there will be mistakes: patients will sometimes be
misdiagnosed and prognoses will turn out to be off the mark. Doctors are human and medicine is an
imperfect practice even at its best.

The likelihood of mistake in cases where PAD is in question is small. Therefore the case against
legalization must rest on the claim that the need for PAD is not compelling enough to outweigh even a
small likelihood of mistake. But it seems reasonable to think that the need is great on the part of the
minority of dying patients whose suffering cannot be adequately controlled by other palliative
measures. An acceptable policy must include safeguards designed to reduce the probability of medical
error to a minimum. But it cannot be reduced to zero, and it seems cruel to deny the relief of PAD to
those in need of it by insisting on medical infallibility.

What about abuse? In what ways might a policy of legal PAD be abused? How likely are the abuses?

Gender: Some worry that requests for PAD by women might not be genuinely autonomous or that
women might be particularly susceptible to 'the ideal of feminine self-sacrifice'.
However, the available data do not reveal 'a significantly higher incidence' among women. So in
jurisdictions where PAD is legal, women are not electing PAD in numbers out of line with their
proportion in the general population.
However, women's reasons for electing PAD might differ from men's, i.e. might more often
have something to do with being a burden on their families. However, overall, 'burden on family' ranks
fairly low on the list of stated reasons, well below loss of independence, loss of dignity, and wanting to
control time and manner of death.

Age: Again, the data do not indicate that the elderly are especially prone to dying as a result of PAD,
and so it would be hard to make a case that they are victims of its abuse.

Poverty: The concern here is that the poor might be overrepresented among those who opt for PAD,
either because they cannot afford high-quality palliative care or because they are subtly steered in that
direction by physicians who prefer to treat their more affluent fellow patients.
However, such data as we have do not support these hypotheses. Ironically, the chief reason for
concern about the poor might end up being exactly the opposite: if they are underrepresented among
patients who opt for assisted death, as it appears they are, then maybe they do not yet have adequate
access to this service.

Race/Ethnicity: In the US race correlates highly with poverty, and there is evidence that African
Americans on the whole receive less adequate medical treatment than whites. The Oregon data,
however, do not support the conclusion that assisted suicide is skewed toward racial or ethnic
minorities. However, Oregon does not have a large black population, so it may not be safe to
extrapolate this experience to other states.

Disability: Opponents of legalization have cited societal discrimination against persons with disabilities
and the lack of acceptable alternatives available to them as reasons for doubting whether a request for
assisted death by a disabled person could ever be genuinely autonomous. They are also concerned that
both cost-cutting considerations and devaluation of the lives of disabled persons by physicians will lead
to pressures to opt for assisted death.
 Commentators on the other side of the debate tend to acknowledge the legitimacy of these
concerns but respond by arguing that characterizing persons with disabilities as incapable of
autonomous decision-making simply perpetuates a negative stereotype about them and that denying
them access to assisted death on that ground constitutes an objectionable form of paternalism.
There are also serious ambiguities surrounding the definition of 'disability' that affect this
question.

Author's conclusion: 'Drawing up the appropriate regulatory framework is a balancing exercise. If we

prohibit PAD entirely, then we will force some dying patients to endure needless suffering. Similarly, if
we permit it but insist on airtight, then the regulatory regime itself will stand in the way of effective
relief for many of these patients. On the other hand, if we permit the practices with no safeguards, then
we will be exposing some patients to avoidable risks. So we have to aim somewhere in the middle, at a
reasonable set of safeguards to prevent most abuses, knowing that compliance will be imperfect. There
are costs to both permitting PAD and limiting it: the permission risks harm to third parties (through
abuse), and the limitation risks harm to the intended beneficiaries of the policy (by limiting access). As
we raise the bar of regulation, we decrease the risk to third parties and increase it for patients. As we
lower the bar, the reverse will be true. The best regulatory regime is the one with the optimal balance of
these costs. No regime can eliminate all of them.'