Saturday, June 02, 2007

Kill Me Now


[Before Dinah inserts this I'll do it myself. Click here to comment on Double Billing. I've decided I should change the name of my story to Double Celling.]

I've been neglecting the blog horribly lately and I apologize. I have no excuse except to say that I've been either out of town or pleasantly distracted. I'm back now.

The thing that got me blogging again was the news report that Jack Kevorkian has been released from prison. As Dinah would put it, that's a Clinkable topic if there ever was one.

The idea of physician-assisted suicide began historically in the idea of informed consent. Usually treatment decisions are made by competent patients after proper informed consent. Medical decision-making for incompetent patients is sometimes made by third parties using something called a "substituted judgement" model, meaning that the decision-maker makes a choice that is consistent with what the patient would have wanted if he had been competent. In 1976 the New Jersey Supreme Court decided that substituted judgement could also be used when the medical decision involved life-sustaining procedures. See In Re: Quinlan for details.

In 1990 the U.S. Supreme Court decided Cruzan v. Director (497 U.S. 261). Nancy Cruzan was in a persistent vegetative state and her parents asked the hospital to remove the parental nutrition and fluids that she was receiving. The hospital refused to do so without a court order. Cruzan didn't have a living will, although Missouri had a statute providing for this. She had previously made statements to housemates that she would not want to live under these circumstances. The trial court ruled that the treatment could be removed, but the state supreme court reversed this because they felt that Cruzan's statements to housemates did not rise to the level of the "clear and convincing" evidence required under the living will statute. Thus, the Supreme Court stepped in. This was a case of high national interest---at least 17 amici briefs were filed by religious, medical and right-to-life organizations. At issue was the question of whether or not the incompetent patient's wishes---what the patient would have wanted if competent---had to be proven to a level of clear and convincing evidence. The Supreme Court found that this standard was appropriate, and also clearly stated for the first time that incompetent patients had a right to refuse life-sustaining treatment.

Now we get to physician-assisted suicide. Previously the issue was the withdrawal of care. Now we come to the idea of permissively providing a means to die. Quite a different scenario indeed. The two cases relevant to this are Vacco v. Quill and Washington v. Glucksberg. It was clear that physician-assisted suicide was a new legal issue emerging on both the East and West coasts, so the Supreme Court waited for the cases to percolate up their respective appellate systems and decided them together.

Vacco is a 1997 case arising from New York in which three physicians claimed that it was appropriate to provide a means of suicide for patients wishing to end their lives. In New York there was a law against helping someone commit suicide. The physicians alleged that there was no difference between withholding life-sustaining treatment and providing a means of death, and that banning this was a violation of due process and equal protection. The Supreme Court disagreed: "Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently."

In Glucksberg four physicians and three terminally ill patients posed essentially an identical argument: that Washington's ban on assisted suicide was a violation of equal protection. Again, the Supreme Court disagreed stating that to overturn this law would go against decades of legal tradition and the prevailing policies of most U.S states. The Court also expressed concern about the potential consequences of such a decision:

"These interests include prohibiting intentional killing and preserving human life; preventing the serious public health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting the medical profession's integrity and ethics and maintaining physicians' role as their patients' healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards voluntary and perhaps even involuntary euthanasia."

In summary, there is presently no constitutional right to assisted suicide. States are left free to ban or regulate this as they see fit. Oregon has a law allowing assisted suicide, the Death With Dignity Act.

And now for the correctional twist. (C'mon, you know there had to be one.) In our last podcast, Forced Treatment, we talked about physician participation in executions. For those of you who like to meditate on ethical dilemmas, comment on this: Considering the information presented here, what do you think about death row inmates who competently waive their right to appeals and volunteer for execution? As a matter of law, should physicians be allowed to participate in this?

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And thanks to OmniBrain for putting up the cat picture. It was just the thing I needed for this post.