Assisted suicide: Safeguards debated as bioethicist warns of unintended consequences

At a time when many states are considering assisted suicide legislation, I was interested to encounter the perspective of the well-known bioethicist Arthur Caplan who recently expressed his support for these laws on these pages.

While I appreciate Caplan’s endorsement of protecting doctors’ ability to refuse, as a matter of conscience, to participate in assisted death, I admire his insistence on restrictions or safeguards within these laws to try to avoid the kind of rampant euthanasia regime we are witnessing north of the border, there are several places where his commentary falls short.

In Canada, deaths by a physician have increased by more than 25 percent every year since legalization in 2016 and now make up over 4 percent of all deaths. Media reports have profiled physician-assisted death for non-terminally ill Canadians who were having trouble accessing medical care, housing, and social support. Caplan understandably wants to avoid this scenario.

The question, however, is how well the safeguards are really working even in the United States. Are they set up to protect the U.S. sufficiently against the Canadian scenario?

One safeguard originally built into these laws was that access to lethal drugs would be limited to state residents. States understandably did not want to become destinations for suicide tourism. But Oregon has stopped enforcing this requirement and Vermont passed a law last year overturning their residency requirement. Other states are expected to follow suit.

Another alleged safeguard is that people who are mentally ill or depressed cannot have access to lethal drugs. However, only Hawaii requires that terminally ill patients be evaluated by a mental health professional. The other states only require referral when they suspect depression or another mental disorder might interfere with decision-making.

In the 25 years of assisted suicide in Oregon, only 3 percent of patients have been referred for a psychiatric evaluation. On the one hand, this is surprising, given that by some estimates 1 in 5 Americans have some kind of mental illness. On the other hand, given that only specialized doctors are willing to prescribe lethal drugs, patients have to shop for the right doctor. In Oregon, the median length of the relationship between the patient who receives a lethal prescription and the doctor who prescribes is down to only five weeks. One can understand how psychiatric referrals get in the way of this transaction. But one also wonders whether this sufficiently protects depressed patients.

Even when a referral is made, the objective is only to determine eligibility for assisted suicide. Only one jurisdiction (the District of Columbia) requires that patients be informed about the option of mental health counseling.

Another safeguard of assisted suicide laws is to have significant waiting periods between the patient’s initial request and obtaining the prescription. This helps ensure the request’s authenticity and that the patient is not choosing rashly. The standard waiting period, endorsed by Caplan, has been 15 days but things are changing. In 2019 the Governor of Oregon signed a law allowing physicians to bypass the waiting period in certain cases. In 2021, California shortened its waiting period from 15 days to 48 hours and subsequently witnessed a 47 percen increase in lethal prescriptions. Hawaii and Washington shortened their waiting periods in 2023 and Colorado has pending legislation to shorten it. New Mexico, seeing the trend, said, “Why wait?” and started with a 48-hour waiting period.

Are people being pushed to choose an assisted death prematurely? I suggest that the ways in which some of these choices are made are subtle and stem from complex psychological and social forces that are not easily captured by evidence. For example, are we expressing to terminally ill patients that experiencing the burdens of their disease does not jeopardize their dignity when we label the alternative “death with dignity?”

About half of Oregon patients who use assisted suicide say that they don’t want to be burdens on their families. Is a choice for death authentic if it is motivated by the idea of sacrificing a potential life worth living in order to unburden one’s caregivers?

Also, in my view, it is unfortunate that some states have incorporated assisted suicide into hospice and palliative care. Hospice says to terminally ill patients, “We can give you an acceptable quality of life at the end of life.” The offer of assisted suicide contradicts this and undermines the mission of hospice.

Medicine in the 21st century is so impressive that we are genuinely surprised when the doctor tells us that nothing can be done. But medicine is not a panacea and it cannot treat mortality. The trouble with assisted suicide laws is that they present death as a neat and tidy way to solve one’s problems. The alleged safeguards are inadequate, and as they have gradually eroded, more and more people come to believe that death can solve their problems too.

Philip Reed is a bioethicist.

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