Euthanasia

In our ageing societies, many people fear that they will end their days in pain and ask whether death at the hands of a doctor might be an answer. But Dr Brian Pollard says that euthanasia is a dangerous and inhumane solution.

Author

Dr Brian Pollard is a bioethicist and anaesthetist who founded and directed one of Australia’s first palliative care services. He is the author of Euthanasia; should we kill the dying? and The Challenge of Euthanasia and numerous articles in medical journals on care for  the dying.

Current controversies

Euthanasia is an off-again, on-again issue in most Western countries. Forms of euthanasia are legal in the Netherlands and Belgium and in the American state of Oregon. It was legalized briefly in the Northern Territory of Australia in the mid 90s. In the minds of most people, euthanasia is a possible response to unbearable physical pain. In the Netherlands this definition has been broadened to include suffering because of a lack of meaning in life. With the help of many vociferous and persuasive lobby groups, there is little doubt it will be on the political agenda for years to come: in our ageing societies, many people fear that they will end their days in pain and ask whether death at the hands of a doctor might be an answer.

Definitions

Euthanasia is the intentional killing of another person at his/her request for compassionate motives. It may be carried out by an action, such as giving a lethal substance, or an omission, such as ceasing treatment necessary to sustain life, where that is ethically and medically required. The term passive euthanasia, often applied to the omission group, is a misnomer as it is the intention that defines the act, not the method. Assisted suicide, where one person supplies another with the means for suicide, with the intention that they will be used for that purpose, is an ethical equivalent of euthanasia. Some advocate it in the place of euthanasia, on the grounds that the doctor is deemed to be less responsible because of less direct involvement, but that is a false ethical distinction.

Use of the word ‘killing’ in relation to euthanasia can be criticised as being too emotional, but there are good reasons for its retention. First, it is an honest, accurate and descriptive word in the circumstances, and it is an effective, even necessary, antidote to the many common euphemisms, the effect of which almost always is to belittle the moral significance of what is at stake. Regrettably, absolute clarity is almost entirely lacking in the euthanasia debate. Second, failure to face the gravity of what is really being proposed is responsible for much of the confusion about euthanasia.

Why is euthanasia proposed?

Three reasons are commonly advanced for euthanasia: the relief of suffering at the end of life, respect for personal autonomy and respect for the right to die. Let’s look at each of these.

Is there pain which doctors cannot relieve at the end of life?

Suffering may be associated with physical pain when that pain is severe or not being well controlled, when it is feared (correctly or not) to have a serious or life-threatening cause, when it is not being adequately acknowledged by the carers, especially doctors, or when it is not understood. It is the emotional response to an overwhelming situation. Or it may be a response to social or personal factors, for which there may be many causes or no evident cause. Suffering is subjective - what one person can bear another finds intolerable. It cannot be measured, or compared between individuals.

When relief of suffering is given as a reason for killing, its cause must be clearly established, if possible, and if remediable, it must have been already treated adequately, by experts consulted, if necessary. To permit euthanasia by doctors for inadequately treated pain or for suffering for social reasons would clearly be unethical.

Palliative medicine has established the current standards of treatment for the terminally ill, including pain control across a wide spectrum of diseases. Though this knowledge has been freely available for several decades, it has been consistently found in studies that it is still poorly understood by many doctors. The basic skills for the correct treatment of the terminally ill should be required of all doctors who have responsibility for the dying. Unless failure to treat at these levels of competence is seen as a form of medical negligence, it is difficult to see how the deficiencies will ever be remedied.

There is more to autonomy than making a choice

Autonomy is commonly thought of as a person’s right to respect for their considered and sustained preference for matters affecting their own welfare. In fact, no one is entitled to respect for whatever they may happen to have chosen. If that were not so, my wish for you to kill me would have the same force as my wish to kill you, if that is what my happiness requires.

Genuine autonomy involves not only a right to choose but the responsibility to choose within certain limits. Respect for one’s autonomy is dependent, not on the act of choosing, but on what is chosen. It should be freely made, well considered and not infringe the valid rights of others. But it will shortly be seen that no law to enable euthanasia could be made safe from the risk that the lives of others who did not want to die would be endangered. Their right to the integrity of their life would have been infringed.

Is there an internationally recognized right to die?

The right to die  -- understood as the right to ask another to take one's life -- does not appear in any statement of natural human rights or in any document of morals, law or ethics. It appears only as an assertion which is not argued, and its putative existence receives a surprising level of uncritical support. In the context of euthanasia, it means three things - the right to have another person take one’s life on request, the right of that person to kill when asked and the right to have both those acts protected by law. That is an astonishingly large range of claims, especially as at present the such a claimed right to die may reasonably be regarded as having no validity at all, not having been proven. Genuine rights are not made by asserting them.

Though various human rights are mentioned and appealed to in the euthanasia debate, it is notable that the undoubtedly genuine right of every person to the integrity of their life is seldom among them. The 1948 United Nations’ Universal Declaration of Human Rights is the most widely acclaimed and accepted statement of human rights, compiled at a time when member states of the UN, horrified by their discovery of the then recent extent of the abuse of natural rights, were resolved to ensure that this should never happen again. It describes the right of each person to his/her life as equal, inherent, inviolable, inalienable and deserving of the protection of law. This means that the right is not to be made dependent on its quality at a particular time, that there are no exceptions and the right may neither taken away nor given away. That right is the basis for the law on killing in virtually every nation, even those that allow euthanasia as an exception.

The ethical status of patient killing by doctors

The World Medical Association, the international pacesetter in medical ethics, issued a declaration on medical euthanasia in 1987, and another on assisted suicide in 1992. The former states “Euthanasia is...unethical. This does not prevent the physician from respecting the desire of a patient to allow the natural process of dying to follow its course in the terminal phase of an illness’. The other declaration includes much the same statement and adds ‘Physician-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession’. Additionally, each country has its own ethical statement of guidance for its own doctors on the matter, but as far as I know, only the Netherlands, Belgium and the American state of Oregon support medical killing.

The law values every innocent life equally

Before considering the legalisation of euthanasia, the existing laws on killing may be discussed briefly. Any euthanasia law would form part of the criminal code. Historically, its statutes are intended to provide equal justice for every citizen, but particularly for the vulnerable, and consent is not to be accepted as a defence to violations. Codes differ in detail throughout the world, but universally they concern acts that are thought wrong and so, violations are not wrong because they are illegal - they are illegal because they are wrong. Code principles may be ignored, and the resultant law may be validly enacted, but it is unlikely it would be safe or effective in achieving only its particular purpose. The legalization of euthanasia would forever change fundamental concepts upon which our laws are based.

Justice cannot safely be allowed to rest on personal opinions because they cannot be settled by objective argument, and to the extent that a law might rely on subjectivity, it would be unjust and open to abuse. Yet with euthanasia, the view that another person’s life had lost such value that it may be taken on request would always be dependent on the observer’s personal values. There are no objective criteria whereby every observer could form that same view in given circumstances.

Similarly, the principle of equality in criminal law would be, not simply altered but overturned by euthanasia law, where a group of innocent persons was defined as having their lives exempt from the general protection offered to all others. In this context, an innocent person is one who poses no threat to others. As for the disallowance of a plea of innocence because the victim consented, this plea would be implicit in every instance of voluntary euthanasia.

Current law protects the dignity (from the Latin, dignus = worth) of every innocent human life. Its intentional destruction is the greatest crime, in recognition of the fact that every innocent person has a right to the integrity of his/her life, that is, not to be killed. In a society where life was highly valued, it would be the first right to be considered and protected for without life, no other right can exist.  

Should euthanasia be legalized?

Because it is widely recognised that illegal euthanasia already takes place in most Western countries, some now claim that legalisation would at least introduce some measure of control over its circumstances, and thus legalisation is sought. In order to try to determine whether this is a wise prediction or simply a dear wish, it is necessary to refer to those studies which have scrutinised both current euthanasia laws and proposed draft laws, and to examine practices in those places where euthanasia is already legal.

The reports of five government-sponsored inquiries in four countries into the consequences of legalising euthanasia have been published, where oral and written evidence had been taken from a wide range of community and professional sources. They all concluded that such law could never be made free of the likelihood that the lives of some others who did not wish to die would be endangered. This conclusion was reached unanimously by three of them, each of which included members (in the Australian state of Tasmania it was a majority) who originally supported the concept of euthanasia.
These inquiries and their published reports are:

• Select Committee on Medical Ethics, House of Lords, January 1994.
• New York State Task Force on Life and the Law, titled Euthanasia and Assisted Suicide in the Medical Context, May, 1994.
• Senate of Canada, June, 1995, titled Of Life and Death.
• Community Development Committee, Parliament of Tasmania, titled The Need for Legislation on Voluntary Euthanasia, 1998.
• Social Development Committee, Parliament of South Australia, Report of the Inquiry into the Voluntary Euthanasia Bill 1996 , October 1999.

This quote from the Report of the New York State Force embodies much of their thinking:

‘For purposes of public debate, one can describe cases of (assisted suicide and) euthanasia in which all the recommended safeguards would be satisfied. But positing an ‘ideal’ or ‘good’ case is not sufficient for public policy, if it bears little relation to prevalent social and medical practices. No matter how carefully any guidelines are framed, (assisted suicide and) euthanasia will be practised through the prism of social inequality and bias that characterises the delivery of services in all segments of our society, including health care. The practices will pose the greatest risks to those who are poor, elderly, members of a minority group, or without access to good medical care’.

All of these reports have pointed out areas in which the opportunity for abuse would be present. These are: requiring more than one doctor to certify, the requirement for a psychiatric consultation, medical certification, the inability to know whether there was coercion, the requirement to give adequate information, the requirement of time to reflect, permitting the doctor to be the sole source of information to a coroner and finally, the absence of a requirement for the doctor to keep, and make available for examination, private records before, during and after the event, an omission found in every draft. One does not have to wait to observe a law in practice to know whether it is safe, it is unsafe if it has known opportunities for abuse, and the greater they are, the more unsafe the law. Most drafts include many defects.

The slide from voluntary into non-voluntary euthanasia

The greatest abuse of euthanasia is the killing of patients without their knowledge or consent, known as non-voluntary euthanasia (NVE). Since this is generally construed as a malevolent act, it is often argued that doctors, who are in the main honourable, would never do this.

While others debate the significance of the statistics on euthanasia from the Netherlands, the Dutch know they carry out NVE, that its practice has reached so far ahead of regulation that it is probably unstoppable, and all that can be done is to try to explain it. The Remmelink Report and the statistical survey on which it was based first uncovered and reported this practice for the year 1990, when 1,000 instances were recorded. Since the Dutch define euthanasia only as ‘taking life at the patient’s request’, they do not use the words ‘non-voluntary euthanasia’, calling it a ‘life-terminating act without explicit request’.

But three years before, in 1987, the Royal Dutch Medical Association had written ‘if there is no request from the patient, then proceeding with the termination of his life is juridically a matter of murder or killing, and not of euthanasia’. By their own standard, Dutch doctors were carrying out medical murder in 1990, and have continued to do so. When the survey was repeated five years later, the only conclusion that could be drawn about NVE was that ‘since 1990, the ending of life without the patient’s explicit request seems to have decreased slightly’.

To present these figures comparatively in a more familiar idiom, an American observer has estimated that, if NVE had been practised in the US at the same rate as prevailed in the Netherlands in 1990, the figure in that year would have exceeded the ‘combined total of all deaths from suicides and homicides’.

Though euthanasia is not legal in Australia or the United States, it is known from medical sources that doctors practise NVE in both countries, possibly as often as voluntary. Recently, a book by an academic Australian lawyer has supported these claims, in which it documents the most alarming practices in both places and high levels of contempt for the national laws on killing.

These figures should not come as any surprise, if life-taking to relieve suffering is regarded as merciful, rather than malicious. If taking the life of a suffering patient who requested it were truly providing a benefit, it would simply be logical for some doctors to think it would be discriminatory to withhold that benefit from similarly suffering patients, just because they could not ask. If they were not constrained by the present law from extending their practice so far, why should anyone suppose they would respect a new law, especially as there will be little chance of their detection and prosecution for practices carried out in private. Even Harold Shipman, the British family doctor who may have killed hundreds of his patients, was found out only when he overreached himself.

Principles tend to expand to the limits of their logic. When the grounding principle of euthanasia is that it provides a benefit to the sufferer, it simultaneously provides the justification for NVE for those who suffer as much or worse, but who cannot ask. One must rationally expect that it will happen and it will be futile to hope that making new law will regulate euthanasia.  

Euthanasia would be open to serious abuse

Such are the demands of justice, compassion and mercy that many states now will not permit the legal taking of life, even for a convicted serial killer, partly because errors are known to be possible, despite all due care. Where capital punishment is permitted, great care is still required when dealing with suspected criminals, on account of the risk of wrongful life-taking. They are allowed legal representation, a public trial, strict rules of evidence and, if found guilty, avenues of appeal. In adopting these precautions, the state acknowledges that it has the responsibility to protect innocent life, and that it alone must be that life’s ultimate defender.

The community understands and supports those measures. How radically different then would be the case if the state were to enact any of the proposals to legalize euthanasia, of the type commonly put forward, demonstrably open to abuse, and how ruinous for the repute of the criminal law to be seen to be adopting such widely divergent standards, especially when in one series, all the victims would be innocent. 

It was the view of the House of Lords Committee that euthanasia law ‘would give rise to more, and more grave, problems than it sought to address’. Because abuse would be easy to conceal and be undetectable, it could then appear to naive observers that matters had improved, when actually they may have deteriorated. To expose the most vulnerable patients to this added risk should be seen as unacceptable.

A dangerous risk

We already have laws to regulate killing. Like every other part of the criminal law, they prove to be imperfect in practice. Present laws on euthanasia fail because evidence of acts in private is hard to obtain, and the political will to prosecute is lacking due to the emotional impact of the desperate plight of some of the dying, much of which, it needs to be repeated, could have been effectively treated by better medical skill. It is one thing for courts to decide on lenience when desperate people are driven to desperate acts but it is quite another to fatally compromise a valuable and necessary part of the criminal code by ill-conceived and ill-considered changes, the end result of which will be literally unknowable, but almost certainly worse than the present position.

Making an act legal is equated in the minds of many with official approval. If, then, the state legalized voluntary euthanasia and, as a result, community levels of respect for human life were lowered, as undoubtedly they would be, and if the future costs of medical care continued to rise to levels that were thought unsustainable, as undoubtedly they will, and if a ‘beneficial’ remedy was already to hand, as it would be, then it would be dangerously naive not to suppose that legalized voluntary euthanasia would merge, sooner or later, into non-voluntary. For the sake of the vulnerable, legalising voluntary euthanasia needs to be seen realistically as the first of two steps in a logical progression. 

Quotes

• Those who advocate euthanasia do so in the name of compassion. In this they are undoubtedly sincere, but misguided. Compassion is derived from Latin and means to 'suffer with', and in the context of dying persons, it translates as walking the rest of life's journey beside them, seeking their comfort at every stage. To kill them is a form of abandonment, precisely because the journey is found too tough by others.... • Brian Pollard
  

•  I never want to wonder whether the physician coming into my hospital room is wearing the white coat of the healer or the black hood of the executioner. -- Alexander Capron, American lawyer
  

• Euthanasia is a long, smooth-sounding word, and it conceals its danger as long, smooth words do, but the danger is there, nevertheless.  -- Pearl S. Buck, Nobel-Prize winning novelist
  

• This life in us. . . however low it flickers or fiercely burns, is still a divine flame which no man dare presume to put out, be his motives never so humane and enlightened. To suppose otherwise is to countenance a death-wish. Either life is always and in all circumstances sacred, or intrinsically of no account; it is inconceivable that it should be in some cases the one, and in some the other. ~  Malcolm Muggeridge, English journalist and editor
  

Reports

Submission to the House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill, The Linacre Centre for Healthcare Ethics,  September 2004