By Peter Rogatz, MD
The approach of life’s end is difficult for most patients and their families. Despite the best efforts of health professionals, some patients reach a point of unrelieved suffering and seek to hasten the inevitable end. In response to such deeply felt needs, as of August 2021, ten states in the U.S. have adopted legislation that offers a pathway for patients who meet carefully shaped criteria to receive medical aid in dying (MAID). These states are Oregon, Washington, Vermont, California, Colorado, New Jersey, Maine, Hawaii, New Mexico and the District of Columbia. Canada, too, has such legislation. Montana authorizes MAID by a court decision and North Carolina may permit such aid as there is no statutory prohibition. Other than the jurisdictions mentioned above, it is illegal everywhere else in the U.S. for any person (physician or not) to aid a patient to hasten her or his death with prescribed medications (or by any other means).
All MAID laws provide criteria carefully designed to prevent abuse. Details vary from state to state, but the following are typical:
- The patient must be terminally ill as determined by two physicians.
- The patient must understand his/her condition and prognosis, which must be verified by two physicians.
- All reasonable palliative measures must have been presented to, and considered by, the patient.
- The patient must clearly and repeatedly request assistance in dying.
- A psychiatric consultation must be held to establish if the patient is suffering from a treatable depression.
- The prescribing physician, absent a close pre‑existing relationship (which would be ideal), must get to know the patient well enough to understand the reasons for her/his request.
- No physician should be expected to violate his/her own basic values. A physician who is unwilling to assist the patient should facilitate transfer to another physician who would be prepared to do so.
- All of the foregoing must be clearly documented.
Reflecting the growing respect that MAID has achieved, recent surveys indicate a substantial majority of New York State physicians consider MAID justified under some circumstances. Although efforts to enact permissive legislation are underway in many states, strong resistance, primarily from conservative religious groups and some disability rights organizations, is delaying progress. A substantial majority of Republican legislators have voted against MAID legislation even though it enjoys widespread support from the public (including a majority of self-identified Republican voters).
I believe the arguments put forward in opposition are unreasonable and I want to explain why. Below are several of the most frequently heard objections:
First, much weight is placed on the Hippocratic injunction to do no harm. However, withdrawal of life sustaining treatment (for example, disconnecting a ventilator at a patient’s request) is widely accepted, yet this requires a more definitive act by a physician than prescribing a medication that a patient has requested and is free to take or not, as he or she sees fit. Why should the latter be perceived as doing harm when the former is not? The physician who complies with a plea for final release from a patient facing death under unbearable conditions is doing good, not harm, and her or his actions are entirely consonant with the Hippocratic tradition.
Second, it is argued that pain always can be medically controlled and does not justify hastening death. Aside from the fact that pain cannot always be controlled, pain is not the most common reason why patients seek to end their lives. Severe body wasting, intractable vomiting, urinary and bowel incontinence, immobility and total dependence are more frequently reported elements than pain in the desire for hastened death.
Third, opponents of MAID say that requests for such aid are not frequent enough to warrant changing the law. Interestingly, although some physicians say they have rarely received such requests, others say this happens often. This is a curious discrepancy but I think it can be explained: the patient who considers seeking such help will cautiously test a physician’s receptivity and simply won’t raise the question with a physician who is unreceptive. Thus, there are two subsets of physicians: those who are open to the idea of medical aid in dying and those who are not. Patients are likely to seek help from the former, but not from the latter.
Fourth, it has been claimed that once we open the door to MAID, we will find ourselves on a slippery slope leading to coercion and involuntary euthanasia of vulnerable patients. Why so? We have learned to grapple with many slippery slopes in medicine, such as DNR orders and withdrawal of life support. We do not deal with those slippery slopes by prohibition, but rather by adopting reasonable ground rules and setting appropriate limits. Why discount the real harm of failing to respond to the pleas of real people in favor of some theoretical harm that might or might not be done to others at some future time and place?
We should not glibly disregard the possibility that society would view vulnerable patients as a liability and might manipulate them to end their lives prematurely, but that risk is minimized by applying strict criteria, as has been done in all of the jurisdiction in the U.S. that allow medical aid in dying (see details above). Furthermore, this argument assumes that termination of life is invariably an evil against which we must protect vulnerable patients who are poor or otherwise lacking in societal support. However, by definition, we are speaking of patients who desperately wish final release from unrelieved suffering and whose wishes, exactly because they are poor and vulnerable, are often ignored.
Fifth, some opponents of MAID assert that such legislation would increase the risk of suicide. I believe the opposite. Rather than opening the flood gates to ill-advised suicides, MAID is likely to reduce the incentive for suicide, because patients who fear great suffering in the final stages of illness would have the assurance that help would be available if needed and they would be more inclined to test their own abilities to withstand the trials that lie ahead.
Finally, it has been argued that the status quo is acceptable, that a patient who is determined to end his or her life can find a sympathetic physician who will provide the necessary prescription and that physicians are virtually never prosecuted for such acts. There are at least four reasons to reject the status quo: (1) It forces patients and physicians to undertake a clandestine conspiracy to violate the law, thus compromising the integrity of patient, physician and family. (2) Such secret compacts, by their very nature, are subject to faulty implementation with a high risk of failure and consequent tragedy for both patient and family. (3) The assumption that a determined patient can find a sympathetic physician applies, at best, to middle- and upper-income persons who have ongoing relationships with their physicians; the poor and vulnerable almost never have such an opportunity. (4) Despite glib assurances to the contrary, covert action would place a physician in danger of criminal prosecution or loss of license and, even if unlikely, that risk certainly inhibits some physicians from doing what they believe is proper to help their patients.
Life is the most precious gift of all, but there are some circumstances where a patient may feel that life has lost its value. A competent person who has thoughtfully considered his or her own situation and finds that unrelieved suffering outweighs the value of continued life should not have to seek drastic or violent solutions when more merciful means exist. No physician should be obliged to provide MAID, but those who wish to fulfill what they perceive to be their humane responsibilities to their patients should not be forced into covert actions.
All physicians are bound by the injunction to do no harm, but harm may result not only from the commission of a wrongful act, but also from the omission of an act of mercy. While not every physician will feel comfortable offering help in these tragic situations, many believe it is right to do so and our society should not penalize or otherwise deter such humanitarian behavior.
Dr. Peter Rogatz is a founding member and Vice President of End of Life Choices New York. He is a retired internist, hospital, medical school and Blue Cross executive and a member of the Bioethics Committee of the Medical Society of the State of New York.