End-of-Life Choice, Death with Dignity, Palliative Care and Counseling

Posts Taggeddouble effect

The Religious Right’s Assault on Palliative Care

Anti-choice forces are taking aim at end-of-life care. They’re after people at the end of a long decline who exercise their right to stop life-prolonging technology or treatment. Their tactic is to tie the hands of doctors attending those patients, when palliative treatment might ease the patient’s chosen death. They seek to undermine the widespread agreement among doctors: Treatments can be stopped, and should be stopped as humanely as possible, when patients’ wishes are clear.

But the medical establishment’s support for patient choice exists within a particular, and peculiar, bioethical framework. Doctors usually invoke the Catholic doctrine of double effect to explain how they can perform an act, such as administering sedatives and disconnecting a ventilator, knowing the two acts will cause the patient’s death. The doctrine holds that a person is not responsible for what they know will ensue as the product of their actions, so much as what they intend. In essence, “my intention was not to cause death, my intention was to ease suffering.”

A problem arises for palliative care physicians when people question their intention. Since it is impossible to prove a thought, doctors will always be vulnerable to accusations about intentions. This vulnerability is exploited when anti-choice advocates promote legislation that 1) raise the bar on what will pass for lawful practice and thought, 2) magnify penalties for those found guilty of forbidden thoughts and intentions and 3) encourage scrutiny and whistleblowing by onlookers and medical colleagues. And the medical lobby has done little to oppose these bills.

Recent events illustrate the danger.

Georgia HB 1114, passed last month to prohibit assisted suicide. Shaped by Georgia Right to Life and the Georgia Catholic Conference (thanked from the floor of the House) and with no visible objection from the physician community HB 1114 purports to outlaw suicide assistance. Here I would like to affirm my strong support for clear laws and harsh penalties for those who incite and abet suicide.

But a mere 19 of this bill’s 57 lines address actual criminal behavior.  The bill’s drafters wasted few words on perpetrators of violence, guns, nooses and other atrocities by which online predators and other malicious enablers encourage self-destructive impulses of the mentally ill. The heinous crime of inciting a despondent or disturbed person to kill themselves seems almost an afterthought in this bill.

The bulk of the bill — 37 lines — frets over patient decision-making and medical treatment in minute detail. It focuses on doctors more than the voyeurs and predators that endanger society. The new law repeatedly specifies that any withholding, withdrawing, prescribing, administering or dispensing must be solely intended and calculated to relieve symptoms and never to cause death. Some tried to allow treatment that “eases the dying process,” but the lawmakers deemed that language too permissive and generous.

Georgia lawmakers not only paste targets on healthcare professionals, they also armed those taking aim at forbidden intentions with the state’s RICO (Racketeer Influenced and Corrupt Organization) law. The heavy artillery of RICO magnifies the state’s policing authority, extends penalties, adds civil liability and enables prosecution of individuals only tangentially involved in the patient’s care.

A recent study showed onlookers and watchful colleagues already threaten palliative care physicians with accusations of murder and euthanasia. Over half of palliative physicians report they have endured such accusations at least once, some as often as 6 times, over the past 5 years. And in the bills they promote, anti-choice advocates enable these watchdogs.

Patients need more legislative vigilance on their behalf. Dying patients need a voice in our nation’s statehouses. Without one, the creation of thought crimes, threats of exorbitant punishment and hyper-vigilant whistle-blowers could stunt the future of palliative care.

The Double Effect of Aid in Dying

The doctrine of double effect enables medical providers of every faith, in every state, to treat end-of-life pain aggressively and participate in treatment decisions that advance the time of death. Now data from Oregon demonstrates the doctrine applies to prescribing medication for aid in dying, too.

For years I have asserted that aid in dying is not really different from other end-of-life decisions and should be just as available to patients who ask. Aid in dying is the medical practice in which a physician grants the request of a mentally competent, terminally ill person for medication they may choose to ingest to advance the time of death if they fall into unbearable suffering.

At Compassion & Choices we believe the option of aid in dying is ethically and morally indistinguishable from other decisions a patient might make: to deactivate a cardiac pacemaker, submit to total sedation, or forego nutrition and hydration, renal dialysis, artificial ventilation or any other life-sustaining treatment. In these examples, patients take responsibility for decisions to advance the time of death. Their decisions about whether to request and ingest medication for aid in dying should receive the same treatment in law and medicine.

Some people believe aid in dying is qualitatively different from other decisions because of the difference between an act and an omission. But that difference is elusive. One must take action to remove a ventilator, and administering total sedation to render a patient unconscious can hardly be called an omission. So that distinction doesn’t hold up to scrutiny.

Others say aid in dying is qualitatively different from other end-of-life decisions because of intention. They say the intention in every other end-of-life decision is not to cause death, but to deliver pain relief or lift the burden of painful or intrusive treatment. Even when the patient and doctor both have certain knowledge that the action or omission will cause death, they are exempt from responsibility because that is not their intention.

The distinction between knowing an action will cause death and intending it to cause death is exceedingly important to these people because of the Catholic doctrine of double effect. The doctrine includes several conditional elements. But simply put, it holds that it is morally acceptable for a person to commit an act or omission they know will produce a bad effect if the intention is to produce a good effect. Thus, nurses and doctors, even in Catholic healthcare institutions, routinely disconnect feeding tubes and ventilators with the intention of following a patient’s advance directive and removing the burden of unwanted medical treatment. In this moral construct they do not intend the death that is 100% certain to ensue.

As the practice of aid in dying has emerged and matured over the past fourteen years it’s become clear doctors write prescriptions for aid in dying, and pharmacists fill them, in a manner fully compatible with the doctrine of double effect. Many people who receive a prescription under Oregon’s Death with Dignity law never fill the prescription. Many who fill the prescription never ingest the medication. The doctors who wrote those unfilled prescriptions are very pleased because they know their action fulfilled its intended purpose. It granted their patient control over suffering. It reassured them they would not get stuck in whatever condition they feared most. It relieved the gnawing terror that unbearable pain or nausea might consume them. It delivered the security of knowing they could spare those they loved from last images of delirium, anguish or agony. Yet it in no way caused the death of their patient.

Last year a full 40% of aid-in-dying prescriptions went unused, their recipients dying without ever feeling the need to exercise the option they had so diligently accessed. To me, this seems a perfect application of the doctrine of double effect. A physician may provide a prescription for life-ending medication with the clear purpose and intention of treating the patient’s anxiety and improving the quality of life in their final weeks. It is quite likely the patient will never ingest it.