Physician Assistance-in-Dying

This past June, testimony from the California Medical Association contributed to a missed opportunity for California patients and their physicians. Legal counsel for CMA told members of the Senate Judiciary Committee that AB 651, the California Compassionate Choices Act, would be bad medicine. By a 3-to-2 vote, the committee killed the bill. Speaking as a doctor who has practiced medicine in this state for 36 years, I think that’s a shame.

I believe that CMA acted wrongly in throwing its weight against the bill. Reasonable minds and equally well-intended people disagree about physician assistance-in-dying. The American public favors the concept by a margin of 70 percent. A poll of CMA members has not been undertaken, but a March 2005 HCD Research survey of U.S. physicians at large indicated that 62 percent of our country’s doctors believe that with proper safeguards physicians should be permitted to dispense life-ending prescriptions. Given the strong feelings generated by the issues involved here, the division of opinion among doctors, and the lack of an assessment of CMA members’ opinions, it would have been appropriate for CMA to have followed the lead of the San Francisco Medical Society, which, for many years, has adhered to a position of “studied neutrality” in this debate. Cogent support for that concept can be found in arguments presented by Drs. Quill and Cassel in their 2003 article in the NEJM, vol. 183(3): “Professional Organizations’ Position Statements on Physician-Assisted Suicide: A Case for Studied Neutrality.” This October, however tardily, I hope the House of Delegates will approve a resolution to reform CMA’s position on this issue.

Post-mortem examination will show that there was nothing really wrong with AB 651. The thwarted legislation was carefully modeled after Oregon’s Death With Dignity Act, incorporating even more safeguards. Oregon’s law has served the people of that state well for nearly a decade. As in Oregon’s law, the provisions of California’s bill would have been limited to terminally ill, competent adults. Two physicians would have to agree on the diagnosis and prognosis, and, in California’s statute, a mental health evaluation would be mandatory. Two oral requests, a written request, and two waiting periods would be required. Once prescribed, the lethal medication would have to be self-administered. The bill specifically prohibits euthanasia. It also prohibits surrogate decision making; the patient would have exclusive power to initiate the request for a death-hastening drug and would possess sole authority for its administration. No doctor would be required to participate; coercion of any kind would be antithetical to the language and intent of the bill, which was about granting people autonomy and choice in their medical decisions. We all know that in practice physicians do sometimes hasten deaths when compassion and good judgment call for such intervention. But these actions are clandestine, unregulated, and sometimes insufficiently informed, and patient care suffers accordingly.

Improvement in the quality and availability of palliative care is sometimes offered as an alternative to physician assistance-in-dying, as if these interventions were mutually exclusive. All caring physicians favor efforts to improve pain management and other aspects of palliative care. These efforts are necessary and desirable, but the most enlightened and creative palliation is sometimes insufficient to meet the needs of dying patients. Take, for example, the case of a woman who is dying from ovarian cancer. Suppose all attempts at cure have been exhausted. Your patient has hospice care. She has benefited from the best possible palliation of symptoms related to the progression of her disease. Suppose those symptoms are now defeating every remedy save one: You can increase the dosage of her narcotic and anti-anxiety medication to the point of “terminal sedation.” But suppose that weeks ago while still fully competent she told you she would consider it anathema to linger, technically alive, but obtunded to the point where she was dispossessed of consciousness and the ability to communicate with those she loves. What can you do for her?

Medical opinion and the courts have recognized the so-called “double effect” in terminal sedation. Potential prosecutors are generally inclined to give doctors the benefit of the doubt that their intent was to relieve suffering when sedation results in the patient’s death. Nevertheless, your patient has presented you with a dilemma: You need to relieve her agony, but, in the process, you may violate her wish to avoid the unconscious lingering that she has told you she would consider to be a fate worse than death. The bill that CMA opposed would have allowed you and your patient to avoid arriving at this impasse, but, having arrived there and once placed in this dilemma, you may find it difficult to be clear about your own intent. As you increase the patient’s sedation, you may understandably feel that you are venturing onto thin ice. When one is at risk of committing an arguably criminal act, favorable odds on being given the benefit of the doubt are no substitute for the protection that would come from improved clarity and better options in the law. At present, sadly, options and clarity are both lacking.

Oregon’s Death With Dignity Act went into effect in November of 1997. Between 1998 and 2005, a total of 240,000 Oregonians died. Among their number were 246 patients who hastened their deaths with the assistance of a physician who legally prescribed for them. Another group of patients - the majority of those who requested a prescription - chose not to take the prescribed medication but reported that they were greatly comforted by knowing that a decision to do so was within their power. Opponents of Oregon’s legislation understandably worried about a “slippery slope.” Grounds for that concern have not materialized. After more than eight years, scrutiny of the Oregon experience reveals no abuse of any kind. Nearly all of the patients who have availed themselves of Oregon’s law died while receiving hospice care. Due in no small part to the social innovation of that law - twice approved by Oregon’s voters - and to the debate that surrounded that referendum, end-of-life care is better in Oregon than anywhere else in the nation.

Some of those who took issue with AB 651 have voiced a concern that economic forces might result in the best of palliative care for privileged members of society, while the economically disadvantaged would be hastened off with “a handful of pills.” Oregon’s experience argues against that concern. Those Oregonians who hastened their deaths tended to be well-educated and insured. A proponent and an opponent of this form of legislation addressed the facts in a jointly published article: “What Are the Potential Cost Savings From Legalizing Physician-Assisted Suicide?” (Battin, M. and Emanuel, E.J., NEJM, July 1998). Their studies concluded that any possible savings would be too small to constitute an economic incentive to abuse.

If our hypothetical patient lived in Oregon, she could have been legally provided with a prescription for Seconal in a quantity sufficient to give her the option of bringing about her own death, surrounded by her loved ones, at a point consistent with her own values and final considerations. Counsel for CMA suggested that legalizing physician assistance-in-dying would distort and inject mistrust into the doctor-patient relationship. Bedside experience with dying patients belies that assertion, recognizing its inherent paternalism. Patients will not be confused about the motives of doctors who respect their autonomy and their expressed wishes. Nor should we physicians be confused about our calling and our limitations. Detractors sometimes proclaim that “a physician should cure, not kill” - a truism that is vacuous in this context. Neither curing nor killing is relevant to this discussion. We are called upon to cure; yes, whenever cure is possible. But we are talking about patients who are in the process of dying. The only question is how they will die, and on whose terms? And if, as in this example, the patient dies a week or two before her life functions might otherwise cease but dies in a manner and a moment she has chosen - still able to say “goodbye” - where is the harm?

Why does the notion of scheduling one’s own imminent death cause consternation? We schedule other momentous occasions in our lives. We frequently schedule birth, knowing that while pre-maturity is a risk there are also complications when birth is too long delayed. As patients tell us, we should have the same regard for the consequences of unnecessarily drawing out the process of death. Physicians who would render compassionate assistance to their patients in accord with a law like the one embodied in AB 651 would be acting in a manner consistent with the best ethical standards of our profession.

If the protection of legislation similar to AB 651 is made available to us in California, will I ever be likely to avail myself of its offering? I don’t know a better way to answer that question than in the words of Garret Keizer, a minister whose essay “Life Everlasting” was published in Harpers Magazine (February 2005): “I do not know if I would ever use it myself. I remain seated through the credits of movies, even those I didn’t much like, and after I’ve finished my drink, I chew the pulp from the lime. I suspect I’ll want to stay for the duration ..., but the pertinent question here is not what I will do on my deathbed but what I am prepared to permit others to do on their deathbeds ..., and, on that question, I am clear.”