HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, November 7, 2008

At the End of Life, a Delicate Calculus

The New York Times reports on Tuesdays election, where Washington State joined Oregon as the second in the nation to allow physicians to prescribe lethal doses of medication to terminally ill men and women who want to hasten their own deaths.  Jane Gross writes,

Stethescope4The Washington State proposition, Initiative 1000 (PDF), passed by a margin of 59 to 41 percent, and like the Oregon measure, which withstood several legal challenges, contains many safeguards intended to prevent hasty and ill-considered decisions. Patients requesting this assistance must be mentally competent, residents of the state, have six months or less to live according to two physicians, wait 15 days after their initial request and then repeat that request both orally and in writing. They must be capable of administering the lethal medication themselves and agree to counseling if their physicians request it. In addition, these patients also must be informed by their health care providers of other feasible alternatives.

In the view of Dr. Timothy E. Quill, director of the palliative care program at the University of Rochester, these options have expanded and gained acceptance in medical circles over the past decade. In 1997, in two important cases (Dr. Quill was a plaintiff in one), the U.S. Supreme Court ruled there was no constitutional right to physician-assisted suicide and upheld a prohibition against it. But in the same ruling, the justices conceded that terminally ill patients are entitled to aggressive pain management, even if high doses of opiates or barbiturates have the “double effect” of hastening death.

That seemed a footnote at the time to the larger issue, but it arguably cracked open the door to those other feasible options, which Dr. Quill and other end-of-life experts refer to as “last resorts” in jurisdictions where it is a crime for physicians to assist in dying.

Dr. Quill’s views on physician-assisted death — a term preferred by many palliative care doctors and right-to-die organizations — are outlined in two essays published by the Hastings Center, the nation’s oldest bioethics research institute. One, entitled “Physician-Assisted Death in the United States: Are the Existing ‘Last Resorts’ Enough?” appeared in the center’s bimonthly report this fall. The other, intended to be a resource for policymakers, political candidates and journalists, is one of 36 topics framed and amplified in the center’s more recent “Bioethics Briefing Book.”

In these articles, Dr. Quill enumerated “last resort” options in the order he advises they be considered, both because of what is involved in each practice and because of the degree of acceptance among ethicists, legal experts and the general public. The essays were written, obviously, before the voting in Washington State. Dr. Quill considered it “a good time to review areas of progress in palliative and end-of-life care and consider whether [laws or ballot measures of this type] are either necessary or desirable.”

He concluded with a cautious “yes” but makes a compelling case that adding physician-assisted death to the repertoire is not, for him, the singular solution it was when he made history by publishing an account in a medical journal about his own role in a patient’s death.

First and foremost, Dr. Quill and others say, all terminally ill patients should have access to state-of-the art palliative care, both to relieve pain and other symptoms and to provide emotional support to patients and families. Often delivered as part of hospice, palliative care has come of age in the last decade: it is now a board-certified sub-specialty, Dr. Quill noted, offered in a growing number of teaching and community hospitals.

Dr. Quill recommended that a palliative care consultation be mandatory before anyone considers the following “last resorts,” which he listed from least controversial to most:

1. In the rare cases where pain and suffering remain intractable, despite top-notch palliative care, the next option should be pain management so aggressive that it may well hasten death, although that is not the primary intention. This is the doctrine of “double effect,” articulated by the U.S. Supreme Court’s decision in 1997 and relatively uncontroversial.

2. Rarely challenged, too, is a patient’s right to forgo life-sustaining therapies or discontinue them once begun. This likely would include feeding tubes, ventilators and other life-support machinery. But it could also include chemotherapy, blood pressure medication, insulin or garden-variety antibiotics. The legal and ethical argument here is that we all have the right to autonomy and bodily integrity, and to control what is done or not done to us.

3. Also considered by some to be a matter of bodily integrity is V.S.E.D., short for “voluntarily stopping eating and drinking.” Dr. Quill believes this is “more morally complex” choice than the second option, because over the last decade the practice has expanded beyond those with end-stage cancer or Alzheimer’s disease — who often lose interest in food or forget how to eat and drink — to people who are not “actively dying” but nevertheless have had enough of disability or dependence. V.S.E.D. requires “considerable resolve,” Dr. Quill said, because thirst can be persistent and death can take as long as three weeks. Physicians do not “assist” these patients but support them with symptom relief for dry mouth or sedation in the event of delirium or other complicating discomforts.

4. The “last, last resort,” and by far the most controversial of the legal methods, is sedation to the point of unconsciousness, also known as palliative or terminal sedation. Endorsed earlier this year by the American Medical Association’s Council on Ethical and Judicial Affairs, it involves an explicit decision to render a patient unconscious if pain can be controlled no other way. Food and fluid may be discontinued, and in one to three days the patient dies of dehydration.

According to data from Oregon, 341 people have died in 11 years as a result of lethal doses of medication provided by a physician. That amounts to 1 in 1,000 deaths overall per year, according to the state health department, although 1 in 50 dying patients have discussed the possibility with their doctors and one in six with their families. “Most patients will be reassured by the possibility of an escape,” Dr. Quill said, “and will never need to activate that escape.”

By contrast, when physician-assisted death is a covert operation, far more people seem to grab the chance. Data on this secret but apparently widespread practice is hard to collect, because physicians can be charged and prosecuted for a crime. But in the mid-1990s a team of researchers, Dr. Quill among them, tried to investigate the question using techniques that protected anonymity. The researchers found that between 1 and 2 percent of deaths per year had been aided, illegally, by physicians through assisted suicide or euthanasia — 10 to 20 times the rate observed in Oregon since legalization of this practice.

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I agree totally and whole heartedly. As much as medicine has helped people overcome disease it has interfered too much with the natural human process. There is a reason that herds of wildebeests leave the old, sick animals behind. It is better for the herd's health and it is the natural progression of life. I think that the stipulations for allowing it to happen are acceptably stringent.

However it's interesting how doctors are involved in every step but the last final one, the administration of the lethal drug. This is much like the death penalty where a different doctor is involved in each step so no one physician is culpable. I think this is kind of a cop out on the doctor's part. If they can make a life-or-death decision, they should be able to stick around and see it through. I don;t agree with strictly patient administered end of life drugs. What if that patient has trouble with it at the very end and the doctor helps a little bit. Will the doctor be prosecuted despite the clear intent of the patient in the first place? I see trouble brewing on this front.

Posted by: Philly MS1 | Nov 8, 2008 9:27:55 PM

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