Abstract
This paper puts the legal and ethical issues of physician-assisted suicide in the context of the larger debate on privacy and the right to die, which can be divided into three constituent parts: (1) a patient’s constitutionally protected right to privacy in all matters involving end-of-life treatment decisions. So long as a patient has the mental capacity to make informed consent, the government does not have a legitimate interest to override end-of-life decisions. Critical to the analysis of a patient’s refusal of life-sustaining treatment is the burden of the state to prove a patient did not have informed consent. (2) treatment decisions for patients lacking decisional capacity. In the context of mentally incapacitated patients, advance healthcare directives override state interests in preserving life. (3) the perennial ethical and legal ramifications of physician-assisted death. Because a healthcare professionals code of ethics is premised on the duty to do no harm, a patient’s right to privacy does not extend to a physician’s conduct and cannot be presented as an affirmative defense to criminal liability.
Keywords: euthanasia, end-of-life care, life-sustaining treatment, bioethics, physician-assisted suicide
Introduction
Over the next few decades, the United States is projected to experience a statistically significant expansion in the size of its elder population -measured by the number of people who reach the age of 65 and older. According to the CDC, by 2050, the size of the elder population is projected to rise above its 2012 level by a factor of two . It should come as no surprise, then, that in the coming decades a number of developments will conspire to force the courts to weigh in on the legality (and by, implication, the ethics) of a broad range of end-of-life care and right-to-die issues, generally, and physician-assisted suicide, particularly. First, advances in science will likely continue to broaden the range of options available to individuals and families making end-of-life healthcare decisions. Thus, there is likely to be a fierce debate surrounding best-practices for guaranteeing that patients can make informed choices about life-sustaining treatment, advanced healthcare directives for the purpose of safeguarding against unwanted bodily intrusions in the event of decisional incapacity, and access to reliable pain relief and other palliative care in the event of terminal illness. Additionally, an increasing ageing population will have implications for healthcare costs -in terms of costs attributable to spending on end-of-life treatments, together with the diversion of finite healthcare resources to the care of the elder population . It is in this context that the Supreme Court and state legislatures are likely to continue to weigh in on the evolving issues that are the natural outgrowth of the right to die, which can be placed into three discrete contexts: the right of mentally competent patients to refuse life-sustaining treatments; in the case of decisional incapacity, the authority of designated third parties to order the withdrawal of life-sustaining treatment; and, physician-assisted suicide. Admittedly, only a limited number of cases involving these issues has reached the Supreme Court. Even so, these decisions have redounded down to state court decisions and provided the conceptual framework for right-to-die legislation.
Definitions
Historically, the debate on the right to has been fraught with confusion due to the fact that it’s myriad applications have been lumped together without regard for the distinct clinical, ethical, legal contexts for its use (Wolf, 2005). For instance, early on, “euthanasia” was the default term used to describe three separate medical practices: cessation of life-sustaining treatment (“passive euthanasia”), assisted suicide, and physician-assisted suicide (“active euthanasia”). Today confusion abounds in spite of consensus within the medical community that these practices have contrasting ethical, legal, clinical and empirical dimensions. And so, a reasoned debate starts with precise definitions of what the right to die looks like in practice.
Cessation of life-sustaining treatment entails refusing or withdrawing life-sustaining treatment, which run the gamut from artificial ventilation and CPR to life-saving antibiotics. There is a broad consensus that healthcare professionals should defer to the end-of-life wishes of competent patients or third parties authorized to make care decisions by proxy. The U.S. Supreme Court has affirmed the fundamental right to refuse life-sustaining treatment (Cruzan v. Director, Missouri Dept. of Health, 1990).
Physician-assisted suicide involves a patient directly inducing his or her death through by means of a lethal prescription. Admittedly, the physician provides the instrumentality of suicide and provides some form of prior instruction, but the patient decides when to ingest lethal medication. Whereas there is a broad ethical, legal, and political consensus that a physician should a respect a patient’s desire to terminate life-sustaining treatment, physician-assisted suicide remains controversial and only three states have U.S. states (Oregon, Washington and Vermont. For now, most organized medical and nursing societies disapprove of assisted suicide, and many states have criminalized the practice.
With respect to euthanasia, the physician directly brings about the death-causing act, both directly and intentionally terminating a patient’s life. The most typical application of this practice appears in the form of a legal injection. Overall, the debate on euthanasia demarcates the lines between voluntary, and nonvoluntary forms of euthanasia . In the former, the patient has expressed a desire to receive a lethal injection, whereas the latter arises in the context of a patient who lacks the decisional capacity to make an informed decision.
These definitions are only intended to provide a starting in the debate, and is not meant to be exhaustive. For example, for those decidedly against the practice of assisted suicide, there is no principled distinction between the cessation of life-sustaining treatment and assisted suicide. From this perspective, any act that has death as a predictable consequence runs afoul of the Hippocratic writings that are the cornerstone of the professional code of ethics underlying the healthcare profession.
A comprehensive body of ethical, philosophical and theological literature now exists to flush out the finer points of either sides of the debate on the right to die. As a legal matter, the Supreme Court has recognized the distinctions between physician-assisted suicide and refusing life-sustaining treatment. With regard to the former, the state interest in preserving life overrides a physician’s desire to respect the patient’s wishes, whereas in the later, a patient’s right to privacy in end-of-life care trumps the governmental interests in the balance of rights.
Privacy and the Right to Die
Re: Mentally Competent Patients
Historically, the refusal of life-sustaining treatment has been recognized as one of the constitutionally protected liberty interests guaranteed by the Fourteenth Amendment. In practice, exercise of this right entails an individual’s autonomous decision-making authority over end-of-life care. Of course, when these decisions are the basis of a legal challenge, courts often balance these rights against the state’s police power to preserve and secure life . Even so, courts are unlikely to rule against the express wishes of a mentally competent patients, even if unwanted intrusion is supported by good intentions (In re Brown, 1985), the refusal of treatment is imprudent (In re Yetter, 1973) or death is a predictable consequence of the decision.
The doctrine of informed consent has also formed the basis of respecting a patient’s desire to refuse life-sustaining treatment. Informed consent presupposes that the patient has mental capacity -defined as the ability to comprehend the implication of his treatment decision to understand information relayed by healthcare professionals . Two essential tenets underlie the doctrine of informed consent: (1) the opportunity to accept or refuse medically prudent treatment; and (2), the state does not have a compelling interest to override these decisions.
Re: Patient’s Lacking Decisional Capacity
Whereas the legality and ethics of the of refusal life-sustaining treatment is rather straightforward in matters involving mentally competent patients who have informed consent, difficulties emerge in the context of patients lacking decisional capacity due to illness or injury, and, who, as result, must cede end-of-life care decisions to third parties by proxy. In such cases, it is preferable that a patient’s wishes have been expressed through an advance healthcare directive such as a living will, power of attorney, or healthcare proxy (Storar v. Storar, 1981; Stouffer v. Reid, 2010). An advance healthcare directive is a legally binding document that ensures that in the event that a patient is not in a position to make healthcare decisions as result of illness or another form of incapacitation, his wishes cannot be overridden by the state. Absent an advance healthcare directive, courts are forced to rely on less persuasive factors, such as testimony from family and friends, as well as prior lifestyle choices of the patient.
Cruzan v. Director, Missouri Dept. of Health (1990) was the first Supreme Court case that involved the legal question of making end-of-life care decisions for a patient who has lost decisional capacity. Cruzan arose in the context of parents seeking to withdraw life-sustaining treatment for a patient who fell into a permanent vegetative state. The patient in question did not have an advance directive, so the Supreme Court had to balance the state interest to keep patient alive against her parent’s wish to withdraw life-sustaining treatment. Ultimately, the Court remanded the case back to a Missouri trial court, where the patient’s family was allowed to introduce testimony from the patient’s friends who persuaded the trial court that the patient would not have wanted to be kept alive in vegetative state.
The impact of the Cruzan decision was two-fold: 1) to the extent that a patient’s end-of-life wishes are unclear in the event of decisional incapacity, courts are persuaded by third-party testimony from people who knew patient; 2) a patient’s right to privacy is transferable to third parties making their end-of-life decisions. What’s more, the most significant implication of the Cruzan decision is that the state’s recognized police power to protect life does not trump privacy rights in the balance of interests. Overall, the governmental interest in cases involving mentally, incompetent patients has four dimensions: (1) preservation of human life; (2) safeguarding the interests of indigent patients; (3) forestalling suicide; and (4) regulating the ethical integrity of healthcare professionals (SUPERINTENDENT OF BELCHERTOWN STATE SCHOOL. v Saikewicz, 1976; Matter of Quinlan, 1976). The most significant of these government interests is the preservation of life.
Physician-assisted Suicide
Despite the long-held tradition of considering most right to die issues as falling under a patient’s right to privacy, this tradition has not extended to physician-assisted suicide (PAS). This reluctance reflects the fact that PAS represents a perennial ethical dilemma in modern medicine because it seems incompatible with the Hippocratic Oath, which presupposes, among other things, that a healthcare professional is bound by a professional code of ethics. This code of ethics is premised on the understanding that a physician will do no harm, which would seem to preclude the active participation in acts which have the predictable consequence of inducing death (See e.g. Callahan, 2005; Weir, 1997).
Accordingly, the Supreme Court has not recognized privacy and the right to die as shielding physicians from criminal liability for assisted-suicide. This reluctance draws on the common-law tradition of deducing intent in an effort to demarcate the lines between two acts that produce the same physical consequence. In the context of the “right to die” debate, this tradition has taken the form of inferring physician intent for purposes of drawing the line between a patient who forgoes life-sustaining treatment and a physician who brings about death through the administration of lethal doses of medication or other intentional means which have the predictable effect of hastening death. In the former case, it can be said that a patient’s right to privacy is implicated, whereas the former involves a physician intentionally and knowingly contravening the government interest in preserving and securing life.
In recognition of the principled distinction between assisted suicide and a patient’s refusal of life-sustaining treatment, the Supreme Court has not recognized assisted suicide as a fundamental liberty interest. The Supreme Court’s decision in Washington v. Glucksberg (1997) establishes the conceptual framework for assisted suicide cases. This case involved a due process challenge to a Washington state statute that barred physicians from facilitating the suicide of terminally ill patients who desired to hasten their death. At issue was a statute that made it a felony to advocate suicide for the terminally ill. The criminally liability attached to the statute included a prison term of five years, together with a $10,000 fine. The U.S. District Court for Washington sided with the petitioners in this case, which included physicians, patients and an NGO. However, on appeal, the Ninth Circuit Court of Appeals sided with the state. However, a subsequent en banc decision reversed the prior decision. Once this case reached the Supreme Court, the majority opinion narrowed the analysis to whether the Washington state law contravened the Fourteenth Amendment. The Court ultimately ruled that the statute at issue was not in violation of the Fourteenth Amendment.
The reasoning of the Gluckberg decision can be summarized as follows: The constitutionally protected liberty interests guaranteed by the Fourteenth Amendment sync with the nation’s traditions. Accordingly, there is no fundamental right to physician-assisted suicide in America’s tradition. More importantly, state prohibitions are valid so long as they are supported by compelling government interests. With respect to the Washington law barring physician-assisted suicide, the prohibition at issue is supported by four legitimate government interests: (1) the state has a legitimate interest in the preservation of human life, which includes efforts to prevent suicide; (2) the state has a legitimate interest to enforce a physician’s code of professional ethics, which mandates that healthcare professionals save lives and abstain from committing harm; (3) the government has a legitimate interest to safeguard the interests of vulnerable populations, including, but not limited to, the elderly and disabled from undue influence involving end-of-life care; and (4) the potential for physician-assisted suicide to redound to cases of voluntary and involuntary suicide justifies the state interest in forbidding its practice.
If legal constraints on assisted suicide do not contravene Due Process under the Fourteenth Amendment, as the Court held in the Glucksberg decision, what are the implications for other rights guaranteed under this amendment, such as equal protection under the law? The Supreme court answered this very question in another important “right to die” case decided in the same year as the Glucksberg decision. Vacco v. Quill (1997) arose in response to a New York law that attached criminal liability to physician-assisted suicide. In relevant part, the prohibition did not encompass contexts where a patient refused life-sustaining treatment, and only sanctioned physicians who assisted a patient’s suicide (either by withdrawing life-sustaining treatment or other intentional acts that induce death). And so, the bar at issue was challenged through a series of legal challenges under the theory that the statue contravened equal protection under the Fourteenth Amendment. From the perspective of the equal protection challenge, the law did not treat all mentally competent patients equally. The U.S. District Court ruled against the legal challenge, holding that the New York prohibition against assisted suicide was consistent with the traditional police power of the states to preserve and secure human life. On appeal, the Court of Appeals for the Second Circuit disagreed, reversing the District Courts verdict on the theory that the bar drew unprincipled distinctions between two acts that produced a similar result. From this perspective, forgoing life-sustaining treatment was no different from making the decision to withdraw treatment. On appeal, the Supreme Court overturned the Second Circuit’s ruling, holding that the New York statute did not run afoul of the Equal Protection Clause of the Fourteenth Amendment. The Court’s analysis had two dimensions: (1) Consistent with the Glucksberg decision, there is a government interest in forestalling physician-assisted suicide; (2) “Liberty,” for purposes of the Fourteenth Amendment does not encompass the right to die via physician-assisted suicide.
Overall, the Vacco and Gluckberg cases resolved two important legal questions: whether states had a legitimate interest in barring physician-assisted suicide, and whether the right to die was an absolute right. Unresolved were the legal questions surrounding the power of the federal government to regulate state efforts to legalize some forms assisted suicide. That opportunity came nearly a decade later, when the Supreme Court heard the case of Gonzalez v. Oregon (2006). This case arose in the context of attempts by the U.S. Attorney General to put restrictions on lethal prescriptions of drugs regulated under the Control Substances Act.
The factual background of the case can be summarized as follows: In 1997, with the passage of the Oregon Death with Dignity Act, the state of Oregon became the first in the nation to legalize assisted suicide. In an effort to sidestep the Oregon law, Attorney General John Ashcroft issued an Interpretive Rule that specified that lethal prescriptions of federally controlled medications were an illegitimate medical purpose, and, thus, were in violation of the Controlled Substances Act of 1970. In response, Oregon challenged this action through a series of legal challenges to the Interpretive Rule. The U.S. District Court for Oregon granted an injunction against the rule, whereas the Court of Appeals for the Ninth Circuit overturned the District Court’s decision. The Supreme Court affirmed the Ninth Circuit’s ruling but employed a different legal theory of the case. For instance, the majority opinion agreed that the Controlled Substances Act conferred broad authority to regulate the administration of scheduled medication. Even so, the Court held that this power did not encompass restrictions on the medical purposes of drugs that were themselves not barred under federal law.
Conclusion
Over the last few decades, an examination of the developments in court decisions and legislation passed at the state level, suggest the Supreme Court is unlikely to attenuate the police power of the state to preserve life, even as patients retain a broad right to privacy in their end-of-life- treatment decisions. Consistent with these trends, the right to privacy prevails even in the situations where healthcare professionals disagree with a patient’s informed consent. Concerning physician-assisted suicide, courts are unlikely to consider it a liberty interest so long as courts consider it outside of nation’s traditions. Accordingly, as a matter of law, restrictions on assisted-suicide do not contravene due process under the Fourteenth Amendment (Washington v. Gluckberg); neither does it violate equal protection under the law (Vacco v. Quill). Overall, three principles form the cornerstone of the Supreme Court’s “end-of-life” jurisprudence: 1) the government has a compelling interest to bar assisted suicide; 2) assisted suicide is not a fundamental liberty interest; and 3) there is a principled distinction between a physician who respects a patient’s desire to forgo life-sustaining treatment and one who actively brings about the death-inducing act by issuing a lethal prescription.
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