Chapter 6 - Crafting Public Policy on Assisted Suicide and Euthanasia

				 Chapter  6			page  117




     Modern medical advances have posed unprecedented dilemmas.  The 

 introduction of new medical procedures such as life-sustaining treatment, 

 in vitro fertilization, and organ transplantation has forced us to examine 

 our most basic values and relationships.  Often the issues are presented 

 in stark human terms by highly publicized cases.  They are frequently 

 unavoidable; society must either abandon use of the technology or find its 

 way to some solution. 


     The current debate about assisted suicide and euthanasia is different 

 in this regard.  Dr.  Jack Kevorkian's machine was not a technological 

 breakthrough.  Morphine, barbiturates, and other drugs prescribed to 

 assist a suicide were developed long ago and have long been employed in 

 medical practice for other purposes.  Indeed, suicide is a practice with 

 ancient roots, although often achieved with messier and more painful, 

 nonmedical means. 


     Suicide, then, is not a new phenomenon, arising in the wake of medical 

 advances.  What is new about the current debate in the United States is 

 the serious consideration of placing suicide and direct killing under the 

 stewardship of medicine in accord with policies devised and sanctioned by 

 the state. 


     The issue arises today in part because the advent of life-sustaining 

 treatment and other aggressive treatments to prolong life has generated 

 the need to make choices about the timing and manner of death.  Medical 

 advances have also spurred public fear about losing control over the dying 

 process.  Undoubtedly, many Americans have now cared for loved ones whose 

 dying was protracted by unwanted medical interventions.  At the same time, 

 public policies about medical treatments to sustain life have promoted 

 patient autonomy and choice.  Starting in 1976 with the landmark case of 

 Karen Ann Quinlan, respect for autonomy has been a critical guidepost for 

 court decisions and legislation about life-sustaining measures.  The 

 personal nature of 







 treatment choices and the emphasis on individual rights in other 

 spheres of public life have contributed to this trend. 


     In its recommendations for public policy on decisions about 

 life-sustaining treatment, the Task Force on Life and the Law has 

 consistently promoted autonomy as a fundamental principle in choices about 

 medical treatment.  Prized in its own right for its connection to human 

 freedom and identity, autonomy has also been advocated by the Task Force 

 as a means to understand and attain the patient's best interests.  In the 

 absence of an identified consensus about what is best for patients in 

 diverse medical circumstances, the patient's own values offer important 

 guidance.  The Task Force also regards respect for the personal, moral, 

 and religious beliefs of each person as crucial in a pluralist, diverse 

 society such as ours. 


     Based on recommendations by the Task Force, many of New York's laws on 

 treatment decisions reflect this judgment.  The health care proxy and 

 do-not-resuscitate laws seek to further the patient's wishes and best 

 interests, looking to guidance from the patient whenever possible.(1) 

 Pending legislation on treatment decisions for incapacitated patients also 

 relies on the patient's own wishes as the preferred benchmark for 

 treatment decisions.(2) 


     Although cherished, autonomy has never been the only value embraced by 

 the Task Force.  Nor has it always been paramount.  In devising 

 recommendations on organ transplantation, the Task Force considered 

 whether patients in need of a transplant should be allowed to place 

 themselves on a waiting list at more than one transplant center, thereby 

 giving themselves an advantage over others waiting for a scarce donated 

 organ.  The Task Force concluded that fairness should override autonomy in 

 the distribution of organs, and proposed a ban on the practice of multiple 

 listing.(3)  That ban became law in 1991, along with other policies to 

 promote equity of access to transplantation.(4) 


     Similarly, the issue of surrogate parenting called for judgments about 

 the scope of individual liberty when weighed against other social 

 concerns.  Proponents of surrogacy urged that both women who wished 



 (1) N.Y. Public Health Law, Article 29-C  (McKinney  1993). 

    N.Y. Public Health Law, Article 29-B  (McKinney 1993). 


 (2) New York State Assembly Bill No. 7166. 


 (3) New York State Task Force on Life and the Law, Transplantation in New York 

     State: The Procurement and Distribution of Organs and Tissues, 2d ed. 

     (New York: New York State Task Force on Life and the Law), 1989. 


 (4) N.Y. Public Health Law,' 4363 (McKinney 1993). 






 to serve as surrogates and intended parents should be granted the 

 right to engage freely in the arrangements as an extension of the right to 

 reproduce.  The Task Force disagreed, concluding that other values the 

 best interests of children, the prohibition against the sale of human 

 beings, the commercialization of reproduction, and the dignity of women - 

 should not be sacrificed.(5) It proposed that surrogacy contracts should be 

 declared void and that fees to surrogate brokers and to surrogates should 

 be banned.  These policies now provide the basis for New York law on 

 surrogate parenting.(6) 


     Suicide is not prohibited by law in New York or in any other state in 

 the nation.  However, assistance to commit suicide is legally barred by 

 New York's criminal law, while direct measures to end the patient's life, 

 such as a lethal injection, would constitute second-degree murder.(7) 

 Although some doctors, protected by a promise of confidentiality, report 

 that they and an uncertain number of their colleagues now provide these 

 alternatives to patients, their actions are not legally sanctioned. 


     Legalization of assisted suicide and/or euthanasia would be a profound 

 shift in public policy and professional standards.  Nonetheless, public 

 support for legalizing the practices appears to be significant.  This 

 support rests on an appeal to the two basic prongs of the argument 

 favoring legalization - the rights of individuals and compassion or mercy 

 for those who are suffering.  For many individuals, the issue is best 

 captured by a single question:  are these options they might want for 

 themselves at some future time?  If so, many people assume that government 

 should support, or at least not hamper, access to medical assistance to 

 achieve death. 


			The Question of Legal Change 


     In the course of their deliberations, it became clear that the Task 

 Force members hold different views about the ethical acceptability of 

 assisted suicide and euthanasia.  These differences persisted throughout 

 the many months of their inquiry and discussion.  Some of the members 

 believe that it is always wrong for one human being to assist the suicide 

 of another or to take another person's life - 




 (5) New York State Task Force on Life and the Law, Surrogate Parenting: 

     Analysis and Recommendation. for Public Policy (New York: New York State 

     Task Force on Life and the Law, 1988). 


 (6) N.Y. Domestic Relations Law, Article 8 (McKinney 1993). 


 (7) For a discussion of New York law on assisted suicide and euthanasia, 

     see chapter 4. 







 they regard both actions as a violation of principles fundamental to our 

 social fabric and to the medical profession.(8)  Other members believe that 

 assisted suicide is ethically acceptable in certain cases, although they 

 consider the circumstances that would justify the practice as rare.  A few 

 members believe that euthanasia might also be ethically acceptable in 

 even more exceptional circumstances.  Despite these differences about the 

 underlying ethical questions, the Task Force members unanimously recommend 

 that existing law should not be changed to permit assisted suicide or 

 euthanasia.  Legalizing assisted suicide and euthanasia would pose profound 

 risks to many individuals who are ill and vulnerable.  The Task Force members 

 concluded that the potential dangers of this dramatic change in public policy 

 would outweigh any benefit that might be achieved. 


     The risk of harm is greatest for the many individuals in our society 

 whose autonomy and well-being are already compromised by poverty, lack of 

 access to good medical care, advanced age, or membership in a stigmatized 

 social group.  The risks of legalizing assisted suicide and euthanasia for 

 these individuals, in a health care system and society that cannot 

 effectively protect against the impact of inadequate resources and 

 ingrained social disadvantages, would be extraordinary. 


     For purposes of public debate, one can posit "ideal" cases in which 

 all the recommended safeguards would be satisfied:  patients would be 

 screened for depression and offered treatment, effective pain medication 

 would be available, and all patients would have a supportive, committed 

 family and doctor.  Yet the reality of existing medical practice in 

 doctors' offices and hospitals across the state generally cannot match 

 these expectations, however any guidelines or safeguards might be framed. 

 These realities render legislation to legalize assisted suicide and 

 euthanasia vulnerable to error and abuse for all members of society, not 

 only for those who are disadvantaged.  The argument for mercy or 

 compassion then is complex.  Constructing an ideal or "good" case is not 

 sufficient for public policy, if it bears little relation to prevalent 

 medical practice. 


     The appeal to autonomy is also far more complex in practice.  From the 

 perspective of good health, many individuals may believe that they would 

 opt for suicide or euthanasia rather than endure a vastly diminished 

 quality of life.  Yet, once patients are confronted by illness, continued 

 life often becomes more precious; it is not so readily discarded.  Given 

 access to appropriate relief from pain and other 



 (8) These members would, however, recognize the legitimacy of killing in 

     certain well-identified exceptions such as self-defense or as a 

     participant in a just war. 








 debilitating symptoms, many of those who consider suicide during the 

 course of a terminal illness abandon their desire for a quicker death in 

 favor of a longer life made more tolerable with effective treatment. 


     Undoubtedly, the desire for "control" at life's end is widely shared 

 and deeply felt.  Yet, as a society, we have better ways to give people 

 greater control and relief from suffering than by making it easier for 

 patients to commit suicide or to obtain a lethal injection.  In 

 particular, we must help patients and their families realize the 

 opportunity to refuse life-sustaining measures in accord with policies 

 that are humane and thoughtful.  We must also make good pain relief and 

 palliative care standard, not exceptional, treatment for all patients.  In 

 Chapter Eight the Task Force presents specific recommendations to achieve 

 these goals. 


Evaluating the Risks 


     Pressure and Persuasion 


     Physicians who provide suicide assistance or euthanasia despite 

 existing legal prohibitions report that they do so in response to repeated 

 requests for help from patients.  The request, and the ensuing dialogue 

 with the physician, are patient-initiated.  This will change if assisted 

 suicide and euthanasia are legalized.  Both practices would become options 

 in the panoply of alternatives that physicians offer their patients.  As 

 with other "treatments," judgments about when and for whom assisted 

 suicide and euthanasia are provided would be managed principally by 

 physicians, not their patients.  While we advocate patient autonomy and 

 accept something far short of this ideal for other treatments, the 

 consequences of doing so for assisted suicide and euthanasia are too severe. 


     Illness is a quintessential state of vulnerability; it entails a loss 

 of confidence in one's body and one's future.  Serious illness also brings 

 with it a loss of physical freedom and the ability to engage in the 

 activities by which we define ourselves.  Patients bring this 

 vulnerability to their relationship with physicians.  Physicians in turn 

 hold the knowledge and expertise patients may desperately need, adding to 

 the profound dependence that characterizes the doctor patient relationship. 


     This dependence is manifested in many aspects of the doctor patient 

 relationship.  Patients turn to their doctors for information about their 

 diagnosis and prognosis, the likely symptoms of illness, and treatment 

 alternatives.  Through their tone, the encouragement they 






 provide or withhold, and the way they present the information available, 

 physicians can often determine the patient's choice.  A 25 percent chance 

 of survival, with good supportive care, sounds quite different from a 75 

 percent chance of failure, with significant disability and pain. 


     For all medical treatments, ranging from simple procedures such as 

 blood tests to surgical procedures and treatments such as chemotherapy, 

 physicians also decide which patients are candidates for the treatment. 

 If assisted suicide and euthanasia were accepted as "therapy," physicians 

 would make a medical judgment about which patients are "good" candidates 

 for the practices.  Physicians would also do what is routinely called for 

 in good medical practice - they would make a recommendation.  Even 

 assuming that all physicians would act in good faith, never attempting to 

 pressure their patients to commit suicide or to accept euthanasia, 

 physicians' recommendations would be a powerful factor in their 

 patients' choices.  Indeed, patients generally do what their doctors 



     Once the physician suggests assisted suicide or euthanasia, some 

 patients will feel that they have few, if any, alternatives but to accept 

 the recommendation.  Most patients are unaware of the options to relieve 

 pain and minimize symptoms.  Even those who are more sophisticated about 

 the options for continued care may fear that if they embrace the decision 

 to live, they will do so without the medical support and care needed to 

 make that decision tolerable.  In an outpatient setting, patients can 

 change physicians, although not all feel empowered to do so.  For hospital 

 patients, this option is harder to attain and more remote. 


     It is also significant that "neutrality" about the course of treatment 

 is neither encouraged nor prevalent in medical practice.  Physicians 

 generally seek to persuade patients to accept treatment they have 

 recommended."  Physicians do so out of a sense of benevolence and 



 (9) This dependence gives rise to some of the same concerns for decisions 

     about life-sustaining treatment.  However, as discussed below, 

     decisions to forgo treatment are an integral part of medical practice. 

     The risks and benefits of these decisions lead to a different 

     assessment for public policy. 


 (10) As described in the conclusion of a major study of informed consent, 

     "In addition to making a recommendation, the doctor's self-perceived 

     role is to get the patient to go along with this recommendation if 

     there is any hesitancy on the patient's part.  This is done by some 

     explanation about the need for the recommended treatment and the 

     consequences of not heeding the recommendation.  But in the doctor's 

     view there is no decision for the patient to make, except whether or 

     not to get proper medical care." C. W. Lida and A. Meisel, "Informed 

     Consent and the Structure of Medical Care," in President's Commission 

     for the Study of Ethical Problems in Medicine and Biomedical and 

     Behavioral Research, Making Health Care Decisions (Washington D. C.: 

     U.S. Government Printing Office, 1982), vol. 2, p. 400. 






 confidence in their own judgments; they often believe that they know what 

 is best for their patients.  Yet, physicians' judgments about the value of 

 continued life for the patient will be shaped by the physician's own 

 attitudes about illness, physical dependence, pain, and disability.  The 

 patient's social and personal circumstances will also influence how some 

 physicians respond to the patient and to the value of continued life for 

 the patient.(11)  Moreover, in some cases, offering assisted suicide and 

 euthanasia may reflect physicians' own frustration in situations when 

 medicine can provide only care but not cure. 


     Physicians are also increasingly aware of and subject to pressures 

 generated by the need to control costs.  Limits on hospital reimbursement 

 based on length of stay and diagnostic group, falling hospital revenues, 

 and the social need to allocate health dollars may all influence 

 physicians' decisions at the bedside.  In many respects, physicians serve 

 as gatekeepers in medical practice.  Risk managers, administrators, and 

 third-party payers also now have a less visible, but still significant 

 role in treatment decisions.  The growing concern about health care costs 

 will not be diminished by health care reform.  Under any new system of 

 health care delivery, as at present, it will be far less costly to give a 

 lethal injection than to care for a patient throughout the dying 

 process. (12) 


     The current debate about medical futility reflects, in part, the 

 extent to which the cost of treatment is viewed as relevant to decisions 

 at the bedside.  Some physicians have argued that they should determine 

 when the benefits of treatment are too low to justify the cost in order to 

 allocate health care resources.  To date, the futility debate has focused 

 on certain aggressive treatments, such as cardiopulmonary resuscitation, 

 or on continued treatment for certain patients, such as those who are 

 permanently unconscious.  But once a decision is made not to pursue cure 

 or treatment, and assisted suicide and euthanasia are available, the 

 economic logic will be inescapable.  The care provided to dying or very 

 ill patients, not just their treatment, is 




 (11) Several studies have demonstrated that factors independent of clinical 

      considerations, including race, economic status, and age, affect 

      physicians'judgments about the course of treatment.  See p.125, n. 14. 


 (12) 6.6% of Medicare beneficiaries who died in 1990 accounted for 

      21.5% of all medicare expenditures.  Health Care Financing Review, 

      1992 Annual Supplement (Baltimore: U.S. Department of Health and Human 

      Services, Health Care Financing Administration, office of Research 

      and Demonstrations, 1993), 34. 






 expensive and demanding for health care professionals.  The extra weeks or 

 months of caring for patients who do not opt for assisted suicide or 

 euthanasia will seem all the more "futile" and costly. 


     Nor will the commitment to care or treat remain unaffected by the 

 existence of a neat, fast solution to medicine's hardest or least 

 satisfying cases.  Physicians who determine that a patient is a suitable 

 candidate for assisted suicide or euthanasia may be far less inclined to 

 present treatment alternatives, especially if the treatment requires 

 intensive efforts by health care professionals.  Nurses, social workers, 

 and other health care professionals, crucial to the emotional support and 

 day-to-day care of patients, may also be more likely to experience the 

 survival of some patients - and their refusal to die more quickly - as a 

 heavier burden. 


     Care and support for terminally and chronically ill patients also 

 impose serious burdens on family members and other caregivers.  The 

 burdens are both financial and emotional.  Family members may be drained 

 by these demands or may conclude, based on their own perspective, that the 

 patient's life is no longer worth living.  Out of this benevolence, or 

 from sheer frustration or exhaustion, family members may suggest or 

 encourage the patient to accept assisted suicide or euthanasia.  Motivated 

 by a sense of guilt or abandonment, many patients will feel that they have 

 no choice once the option is presented.  Indeed, if assisted suicide and 

 euthanasia are widely available, patients may feel obligated to consider 

 these options to alleviate the burden their illness and continued life 

 imposes on those closest to them. 


     These subtle but potentially pervasive changes will have the most 

 significant impact on certain groups of patients - patients most likely to 

 be considered "hopeless," such as those with acquired immunodeficiency 

 syndrome (AIDS); patients who pose a risk to health care providers and 

 family members, including those with multidrugresistant tuberculosis; or 

 patients who are least compliant, such as those who are mentally ill or 

 drug addicted.  Some health care professionals already regard caring for 

 these patients as a special burden.  Given the overall life circumstances 

 of some of these patients, both health care professionals and family 

 members may find it easy to rationalize that euthanasia or assisted 

 suicide would be in these 





 patients' best interests.(13)  Establishing a quick, painless death as a 

 state-sanctioned option may also mean that society becomes less committed 

 to creating ways for patients, especially those who are socially 

 disadvantaged, to live longer and better. 


     Finally, it must be recognized that assisted suicide and euthanasia 

 will be practiced through the prism of social inequality and prejudice 

 that characterizes the delivery of services in all segments of society, 

 including health care.  Those who will be most vulnerable to abuse, error, 

 or indifference are the poor, minorities, and those who are least 

 educated and least empowered.  This risk does not reflect a judgment that 

 physicians are more prejudiced or influenced by race and class than the 

 rest of society - only that they are not exempt from the prejudices 

 manifest in other areas of our collective life.(14) 


     While our society aspires to eradicate discrimination and the most 

 punishing effects of poverty in employment practices, housing, education, 

 and law enforcement, we consistently fall short of our goals.  The costs 

 of this failure with assisted suicide and euthanasia would be extreme. 

 Nor is there any reason to believe that the practices, whatever safeguards 

 are erected, will be unaffected by the broader social and medical context 

 in which they will be operating.  This assumption is naive and 



     Even our system for administering the death penalty, which includes 

 the stringent safeguards of due process and years of judicial scrutiny, 

 has not been freed of error or prejudice.  For example, blacks who kill 

 whites are sentenced to death at nearly 22 times the rate of blacks who 

 kill blacks and more than seven times the rate of whites who kill 



 (13) As Leon Kass has argued, the option of suicide or euthanasia 

      NAII influence physicians profoundly.  "How easily will they be 

      able to care for patients when it is always possible to think of 

      killing them as a 'therapeutic' option? ... Physicians get tired 

      of treating patients who are on their way down - 'gorks,' 'gomers,' 

      and 'vegetables' -  are only some of the less than affectionate 

      names they receive from house officers. Leon Kass, "Why Doctors 

      Must Not Kill," Commonweal 118, no. 14, suppl. (1991): 473. 


(14) Studies have found that some physicians make treatment decisions 

     based on criteria that are independent of the patient's medical 

     needs, including age, race, and mental disability.  Other studies 

     have found broad patterns of inequality in access to treatment 

     See, e.g., N. J. Farber et al., "Cardiopulmonary Resuscitation 

     (CPR) Patient Factors and Decision Making," Archives of Internal 

     Medicine 144 (1984):  2229-32; R. M. Wachter et al., "Decisions 

     About Resuscitation: Inequities Among Patients with Different 

     Diseases but Similar Prognoses," Annals of Internal Medicine 111 

     (1989):  525-32; American Medical Association, Council on Ethical 

     and Judicial Affairs, "Black-white Disparitics in Health Care," 

     Journal of the American Medical Association 263 (1990):  2344-46. 






 blacks.(15) Euthanasia is not a death sentence - it is not imposed on 

 an individual by the state but administered with consent.  The process for 

 obtaining consent, however, will be blanketed in the privacy of the 

 doctor-patient relationship.  In that relationship, blatant prejudice may 

 not be prevalent, but the more subtle biases that operate in our health 

 care system will shape the consent process and the decisions made by 



The Fallibility of Medical Practice 


     Diagnosing and Treating Depression.  All proposals for assisted 

 suicide and euthanasia implicitly assume or explicitly require the 

 patient's primary physician to determine whether the patient has capacity 

 to make an informed decision.  For other medical decisions, this 

 requirement has been interpreted to mean that the patient is capable of 

 understanding and appreciating the risks and benefits of the proposed 

 treatment, assessing the alternatives, and reaching an informed judgment. 

 The notion of competence to make treatment decisions, or the capacity to 

 make a particular decision, also presumes that the patient is not 

 clinically depressed.  Depression can impair a patient's ability to 

 understand information, to weigh alternatives, and to make a judgment that 

 is stable over time and consistent with the patient's values. 


     Depression accompanied by feelings of hopelessness is the strongest 

 predictor of suicide for both individuals who are terminally ill and those 

 who are not.  Studies that have examined the psychological profile of 

 individuals who commit suicide indicate that more than 95 percent had a 

 major psychiatric illness at the time of death.  Significantly, the 

 majority of individuals who kill themselves suffer from depression that is 

 treatable with appropriate clinical care.(17)	 Among terminally and 

 incurably ill patients, uncontrolled pain is also an important risk factor 

 for suicide because it contributes to hopelessness and depression. 




 (15) McKlesky v. Kemp, 481 U.S. 279, 327 (1987) (Brennan, J., 

      dissenting).  As Justice Blackmun recently observed, "It should 

      not be surprising that the biases and prejudices that infect 

      society generally would influence the determination of who is 

      sentenced to death, even within the narrower pool of death-eligible 

      defendants selected according to objective standards." Collins v. 

      Collins, 62 U.S.L.W. 3546, 3549 (1994) (Blackmun, J., dissenting 

      from denial of certiorari). 


 (16) See discussion of racial disparities in health care delivery, 

      p.125, n. 14. 


 (17) See discussion of suicide and depression in chapter 1. 






     Theoretically, contact with a physician or other health care 

 professional provides the opportunity to screen patients for depression 

 and offer appropriate treatment.  In practice, however, this kind of 

 screening and the subsequent offer of effective treatment are not standard 

 care.  Most doctors are not adequately trained to diagnose depression, 

 especially in complex cases such as patients who are terminally ill.  When 

 an assessment is performed, the medical illness may obscure indicia of 

 depression, rendering the diagnosis difficult.  Even if diagnosed, 

 undertreatment for depression is pervasive.  In elderly patients as well 

 as the terminally and chronically ill - those groups who would be the 

 likeliest candidates for assisted suicide and euthanasia depression is 

 grossly underdiagnosed and undertreated. 


     If assisted suicide and euthanasia are legalized, internists, family 

 physicians, geriatricians, and specialists in certain fields such as 

 oncology would be most likely to receive requests by patients or to 

 initiate discussion about assisted suicide and euthanasia.  They would be 

 responsible for screening patients for eligibility, including an 

 assessment of decision-making capacity.  Physicians in these areas of 

 practice rarely have extensive training in treating or diagnosing 



     Too often, clinicians fail to detect treatable depression or other 

 psychiatric illness, assuming that the depression is expected or beyond 

 treatment.(18)  Frequently in the elderly, the symptoms of depression, such 

 as loss of appetite and disrupted sleeping patterns, are mistaken for signs 

 of old age, dementia, or a response to life in a nursing home.  One study 

 found that depression was diagnosed in only 15 percent of the depressed 

 elderly, and was treated in only 25 percent of those cases.  Another found 

 that 75 percent of elderly patients who committed suicide had seen a 

 primary care physician during the month before dying, but their 

 psychiatric disturbances had been largely undetected.(19) 


     Even psychologists and psychiatrists who routinely treat and diagnose 

 depression may have limited experience doing so for patients who 



 (18)  As two geriatric psychiatrists recently noted in the New England 

       Journal of Medicine, "Furthermore, research and our clinical 

       work have made it clear to us that many doctors on the front 

       lines, who would be responsible for implementing any policy that 

       allowed assisted suicide, are ill equipped to assess the presence 

       and effect of depressive illness in older patients.  In the 

       absence of that sophisticated understanding, the determination 

       of a suicidal person's 'rationality' can be no more than 

       speculation, subject to the influence of personal biases about 

       aging, old age, and the psychological effects of chronic 

       disease." 'Y.  Conwell and E. D. Caine, "Rational Suicide and 

       the Right to Die,"New England Journal of Medicine 325 (1991): 1101. 


 (19)  See discussion in Chapter 1. 






 are terminally or chronically ill.  For these patients, clinicians 

 must be able to distinguish the realistic sadness and sense of loss that 

 accompanies such illness from severe clinical depression or the 

 psychiatric disorders that impair decision-making capacity.  These 

 disorders are prevalent in those patients who ultimately choose to commit 

 or attempt suicide. 


     The presence of unrelieved pain also increases susceptibility to 

 suicide.  The experience of pain is closely linked to physical disability, 

 depression, and feelings of hopelessness.  Depression and anxiety in turn 

 often augment the patient's experience of  pain.(20) The widespread 

 undertreatment of pain in current clinical practice therefore has 

 farreaching implications for the depression experienced by terminally and 

 incurably ill patients, as well as for the choices they make about 

 assisted suicide and euthanasia.  As shown by studies of cancer and AIDS 

 patients, the interplay of physical pain, depression, and suicide is 

 complex.  Undeniably, however, the failure to relieve physical pain 

 creates vulnerability to depression and despair, both of which predispose 

 patients to consider or to commit suicide. (21) 


     This problem is well-illustrated by a recent reported case involving a 

 70-year-old woman suffering from rheumatoid arthritis.  On a video she 

 sent to Jack Kevorkian seeking his help to end her life, she stated, "I'm 

 in total despair because the pain cannot be controlled.  I would like an 

 out."  As reported by Kevorkian's lawyer, her doctor offered her a 

 morphine patch only after Kevorkian made clear that he might help her to 

 die.  Kevorkian in turn did not offer her pain relief, but assistance to 

 commit suicide. (22) 


     Exploring the Meaning of Suicide.  Many patients who are terminally or 

 severely ill have suicidal ideation.  When patients express suicidal 

 thoughts to their physician, it may be a plea for help, a statement of 

 their despair, or a search for guidance.  The discussion itself can often 

 be therapeutic, helping the patient feel less isolated or frightened.  A 

 physician's response, including the offer of pain relief, referral for 

 psychiatric care, social work counseling to address family tension, 




 (20) Ibid. 


 (21) The failure to relieve pain may influence health care 

      professionals' judgment as well as the patient's.  A recent study 

      showed that lack of of knowledge about pain relief correlated with 

      the willingness to endorse assisted suicide.  R. K. Portenoy et al., 

      "Determirants of the Willingness study, 1994. 



 (22) G. Golightly, "Pain Specialist Offers to Aid Kevorkian Client," 

      Houston Chronicle, March 31,1994, A16. 






 reassurance that the patient is not an undue burden on others, or 

 palliative care to alleviate other symptoms, including depression, often 

 diminishes or removes the desire for suicide.  Each of these steps can 

 lessen a patient's sense of helplessness, a critical factor of both 

 depression and suicidal ideation.(23) 


     Few patients who express suicidal ideation actually commit suicide. 

 Indeed, patients often prove remarkably resilient.  Although some 

 individuals speak about suicide when they first learn of their diagnosis, 

 they adjust to their situation, even as their medical condition 

 deteriorates.  This phenomenon is often observed with AIDS patients and 

 others suffering from terminal illness.  Given time, many patients, even 

 the most severely ill, adapt to their circumstances if they have 

 sufficient support and care. 


     Just as a physician's response can forestall or prevent suicide, a 

 physician's ready acceptance of the patient's decision to accept suicide 

 or euthanasia can encourage that outcome.  If the physician quickly 

 accepts the patient's choice, the patient may feel abandoned.  The 

 physician's acceptance may also contribute to a sense of hopelessness or 

 to feelings of guilt about burdening family and care givers.  For this 

 reason, those who advocate allowing assisted suicide or euthanasia 

 recognize the importance of the patient-physician relationship and 

 dialogue.  They urge that physicians must carefully consider all other 

 alternatives, and offer available palliative care and social support. 

 They call for a dialogue in which the physician seeks to understand the 

 meaning of the request for each patient and responds with care and 

 concern, ultimately accepting but not encouraging the patient's decision 

 to opt for suicide or euthanasia. 


     This dialogue requires commitment and compassion.  The physician must 

 listen attentively to the patient, engaging in an intensely personal 

 exploration of the patient's feelings, of his or her relationship with 

 others, and of the reasons why the patient has made this choice.  It is a 

 demanding and time-consuming process.  In short, the qualities needed for 

 this sensitive discussion are an ideal for medical practice and the 

 physician-patient relationship.  This ideal, if ever the norm, is less and 




 (23) As Edwin Shneidman observed, "What we fear is something worse than 

      what we have.  Oftentimes, persons literally on the ledge of 

      committing suicide would be willing to live if things, life, were 

      only just a little bit better, a just noticeable difference more 

      tolerable.  The common fear is that the Inferno is bottomless and 

      that the line on internal suffering must be drawn somewhere.  Every 

      suicide makes this statement:  This far and no further - even though 

      he would have been willing to live on the brink."  E. S. Shneidman, 

      "Some Essentials of Suicide and Some Implications for Response," 

      (Baltimore:  Williams and Wilkins, 1986), 4. 






 less common in an age of high-tech medicine.  In fact, the dearth of 

 such qualities in medical practice - the willingness to listen, the 

 openness to exploring the patient's wishes and feelings about treatment, 

 and the ability to talk sensitively about dying - has contributed 

 substantially to problems in making decisions about life-sustaining 



     Timothy Quill's article in the New England Journal of Medicine about 

 how he assisted his patient to die caused such a stir in part because many 

 believed that he presented all the "right" ingredients a sensitive doctor 

 with a long-standing relationship with his patient, efforts to persuade 

 her to accept treatment, familiarity with her past struggles and her 

 present reality, the ability to listen, and a firm belief in its 

 importance as part of his duty to his patient.(24)  One "good" case, however, 

 is not a sufficient basis for public policy.  Any law permitting assisted 

 suicide and euthanasia will authorize doctors like Kevorkian as well as 

 those like Quill to assist or cause their patients' deaths.  While 




 the shortcomings of Kevorkian's methods are glaring, the problems 

 generated by the practice in the hands of other doctors will be less 

 obvious and more pervasive - doctors who are caring but harried, those who 

 are uncomfortable talking about dying, those unable to distinguish their 

 views from the values and needs of their patients, and those who are not 

 ill-intentioned but perhaps indifferent to the fate of some patients with 

 whom they have had little contact and for whom they hold no hope for 



     Like the availability of pain relief or the skills needed to diagnose 

 depression, the kind of doctor- patient relationship envisioned by those 

 who advocate legalizing suicide will simply be unavailable to many 




 (24) T. E. Quill, "Death and Dignity:  A Case of Individualized Decision 

      Making,"  New England Journal of Medicine 324 (1991)-. 691-94.  Even in 

      this case, many have challenged the ethical and clinical acceptability 

      of Dr. Quill's actions.  See e.g., P. Wesley, "Dying Safely," Issues 

      in Law and Medicine 8 (1993): 467-85; E. D. Pellegrino, "Compassion 

      Needs Reason Too," Journal of the American Medical Association 

      270 (1993): 874-75. 



 (25) Kevorkian appears to have had little, if any, prior relationship 

      with the 20 individuals whose deaths he assisted.  Nor does it 

      appear from public accounts that he counseled them about treatment 

      alternatives, conducted an in-depth psychological evaluation, or 

      offered palliative care. Indeed, as a retired pathologist, it is 

      unlikely that he has any experience in treating patients who are 

      depressed or chronically or terminally ill. 



 (26) In this regard, it is notable that a recent study found that 

      "burn-out" among health care professionals correlated strongly 

      with the willingness to endorse assisted suicide. Portenoy et al. 




	      CHAPTER 6 - CRAFTING PUBLIC POLICY		       131 


 patients.(27)  Public policy cannot be predicated on an ideal when the 

 reality will often be quite different, with serious, irreversible 

 consequences for patients. 


     Prognosticating at Life's End.  One cornerstone of good medical 

 practice is an accurate diagnosis and prognosis for the patient.  In many 

 cases, prognostication at the end of life is highly uncertain, even in the 

 hands of the best clinicians.  Some diagnoses are clear cut.  Many others 

 are not.  Once the diagnosis is made, estimating the patient's life 

 expectancy is typically more art than science.  It is neither precise nor 

 entirely predictable. 


     The patient's diagnosis, his or her life expectancy, and the outcome 

 of treatment will be critical to all patients as they consider the option 

 of an immediate death.  Euthanasia and assisted suicide leave no 

 opportunity to recognize or correct a diagnosis that is negligently 

 provided, or provided competently, but proves incorrect over time.  In 

 contrast, when life-sustaining treatment is withdrawn or withheld, certain 

 death does not follow if the underlying diagnosis is mistaken.  Moreover, 

 assisted suicide and euthanasia could be used for patients without an 

 immediate life- threatening condition, including those who may have many 

 more years of life ahead. 


     Overall, the risk of misdiagnosis of the patient's medical or 

 psychiatric condition, the undertreatment of pain, and the risks of abuse 

 must be weighed in relation to their consequences.  With assisted suicide 

 and euthanasia, the result will be the patient's death.  How many 

 instances of error or abuse render the risk unjustifiable in light of 

 these consequences?  The number of such errors or cases of abuse cannot be 

 quantified.  But given the state of the art of diagnosing and treating 

 depression, as well as the inherent fallibility of medicine, such cases 

 will not be rare.  Taken together, the risk and the consequences yield a 

 remarkably high price in human life for policies allowing assisted suicide 

 and euthanasia. 


     An Option Without Limits 


     The prohibition against assisted suicide and euthanasia carries 

 intense symbolic and practical significance.  While suicide is no longer 

 prohibited or penalized, the ban against assisted suicide and euthanasia 

 shores up the notion of limits in human relationships.  It reflects the 

 gravity with which we view the decision to take one's own 



 (27) For further discussion of the practical problems of proposed guidelines 

      or safeguards, see pp. 142-45. 






 life or the life of another, and our reluctance to encourage or 

 promote these decisions. 


     If assisted suicide and euthanasia are legalized, it will reflect 

 changed attitudes about the practices.  Just as significant, it will 

 prompt further change.  Social attitudes will evolve in part because our 

 laws convey acceptance and sanction.  More far reaching will be the shift 

 in attitude as assisted suicide or direct killing become more frequent and 

 more widely practiced.  If the practices become a standard part of the 

 arsenal of medical treatments, it would profoundly affect our response to 

 those cases that are sanctioned and to those that are not.  The momentous 

 nature of the actions, and the sense of caution or gravity with which they 

 are pursued, would naturally lessen for both health care professionals and 

 for the public.  By legalizing the practices, we will blunt our moral 

 sensibilities and perceptions. 


     Once assisted suicide and euthanasia are integrated into medical 

 practice, the criteria now proposed as safeguards will prove elastic and 

 unstable.  One important criterion now rests on compassion for those who 

 are suffering.  But pain, and to a greater extent suffering, are 

 inherently subjective.  The experience of physical pain and the degree of 

 suffering it causes depend on psychological and other personal factors. 

 If policies on assisted suicide or euthanasia do not make the practices 

 universally available at the request of any competent adult, the policies 

 must define the class of eligible individuals. 


     Most proposals to legalize assisted suicide have rejected terminal 

 illness as the dividing line because it would not respond to many 

 circumstances that can cause the same degree or pain and suffering.  Yet 

 as long as the policies hinge on notions of pain or suffering they are 

 uncontainable; neither pain nor suffering can be gauged objectively or 

 subjected to the kind of judgments needed to fashion coherent public 

 policy.  Moreover, even if the more narrow category of terminal illness is 

 chosen at the outset, the line is unlikely to hold for the very reason 

 that it has not been selected by advocates of assisted suicide - the logic 

 of suicide as a compassionate choice for patients who are in pain or 

 suffering suggests no such limit.(28) 




 (28) While euthanasia and assisted suicide were originally proposed in 

      the Netherlands as options for patients suffering from an incurable 

      disease, a recent court decision approved the use of these practices 

      for a suicidal patient suffering from depression but not any 

      underlying physical illness, In that case, a psychiatrist assisted 

      in the suicide of a physically healthy 50-year-old woman who was 

      depressed following the loss of her two sons and recent divorce. 

      W. Drozdiak, "Dutch Seek Freer Mercy Killing:  Court Case Could 

      East Limits on Assisted Suicide, Euthanasia," Washington Post, 

      October 29, 1993, A 29. 






     Nor does the emphasis on autonomy in current debates provide an 

 enduring or effective restraint, although to date the proposals to 

 legalize euthanasia would allow euthanasia based solely on the consent of 

 a competent adult.  For many physicians, as well as for the public, 

 patients incapable of consenting will, in certain respects, seem the 

 "best" candidates for the practice - patients who are permanently 

 unconscious, severely demented, or otherwise incapacitated.  Once 

 euthanasia becomes an accepted "therapy," the expansion to include those 

 who are incapable of consenting would be a logical, if not inevitable, 



     Even if the law is never changed to sanction involuntary euthanasia, 

 the potential for abuse would be profound.  This risk does not presume 

 that physicians will act malevolently.  On the contrary, this risk is 

 substantial precisely because physicians will act with benevolent motives. 

 Once euthanasia is established as a "therapeutic" alternative, the line 

 between patients competent to consent and those who are not will seem 

 arbitrary to some doctors.  To others, it will seem outright 

 discriminatory or unjust to deny a therapy because of the patient's 

 incapacity to consent.(29)  As with other medical decisions, some doctors 

 will feel that they can and should make a decision in their patient's best 

 interests, for patients clearly incapable of consenting and for those with 

 marginal or uncertain capacity to consent.(30) 


     Experience in the Netherlands suggests that this type of abuse or 

 expansion, resulting in nonvoluntary euthanasia, would be significant. 

 Since 1984, guidelines have tacitly allowed euthanasia in response to a 

 repeated and voluntary request from a suffering, competent patient. 

 Although nonvoluntary euthanasia performed without the patient's request 

 is prohibited, nonvoluntary euthanasia has been conducted in a substantial 

 number of cases.  The most extensive study of euthanasia 





 (29) As described by one Dutch physician who consented to euthanasia for 

      his severely impaired newborn son, "I concur that autonomy ought 

      to be the point of departure in euthanasia decisions, but it should 

      not be the only principle considered.  Because newborns cannot 

      exercise autonomy does not mean that they should be denied 

      beneficence.  There are many less important decisions we make in 

      their behalf, why should they be denied perhaps the most 

      caring choice of all?" C. Spreeuwenberg, "The Story of Laurens," 

      Cambridge Quarterly 2 (1993): A261-63. 



 (30) The much publicized article "It's Over, Debbie" that appeared 

      anonymously in the Journal of the American Medical Association 

      illustrates this point well.  In that case, the physician had no 

      prior relationship with the patient and no knowledge of her 

      capacity to consent to euthanasia.  He decided that she was 

      suffering and responded to her mumbled words "Let's get this 

      over with," by returning to her room several minutes later and 

      giving her a lethal dose of morphine.  "It's Over, Debbie," 

      Journal of the American Medical Association 259 (1988): 272. 






 in the Netherlands reported that in 1990 approximately 1.8 percent of 

 all deaths resulted from voluntary euthanasia.  An additional 0.8 percent 

 of all deaths represented euthanasia performed without a contemporaneous 

 request from the patient.(31) If euthanasia were practiced in a comparable 

 percentage of cases in the United States, voluntary euthanasia would 

 account for about 36,000 deaths each year, and euthanasia without the 

 patient's consent would occur in an additional 16,000 deaths. 


     The Task Force members regard this risk as unacceptable.  They also 

 believe that the risk of such abuse is neither speculative nor distant, 

 but an inevitable byproduct of the transition from policy to practice in 

 the diverse circumstances in which the practices would be employed. 


The Alternatives for Public Policy 


     Support for legalizing assisted suicide and euthanasia rests in part 

 on the belief that individuals should have the right to assistance to end 

 their lives at a time and in a manner they choose.  None of the Task Force 

 members believes that respect for autonomy dictates the legalization of 

 assisted suicide and euthanasia.  The moral claim to autonomy is weakened 

 by both the overall risks of the practice and the extraordinary nature of 

 the remedy sought.  Moreover, if assisted suicide and euthanasia are 

 legalized, the autonomy of some patients would be extended while the 

 autonomy of others would be compromised by the pressures to exercise these 

 new options. 


     The legalization of assisted suicide and euthanasia is also urged on 

 grounds of mercy and the alleviation of suffering.  Some of the Task Force 

 members believe that the practices offer clear benefits to certain 

 patients who are dying or otherwise suffering greatly.  They recognize 

 that providing a quick, less prolonged death for some patients can be a 

 compassionate act.  These members, however, regard the number of cases 

 when assisted suicide or euthanasia are medically and ethically 

 appropriate as extremely rare.  They do not believe that the benefits 

 incurred for this small number of 



 (31) An alternative measure used in the study suggests that nonvoluntary 

      euthanasia occurred in 1.6% of all deaths.  P. J. Van der Maas 

      et al., "Euthanasia and Other Medical Decisions Concerning 

      the End of Life," Lancet 338 (1991): 669-74.  A more recent study 

      asked the physicians who performed nonvoluntary euthanasia for 

      further information.  Only 56% of nonvoluntary euthanasia cases 

      involved patients who lacked decision-making capacity at the time 

      of death; in the remaining 44% of cases, euthanasia was performed 

      on competent (36%) or possibly competent (8%) patients without 

      an explicit request.  L. Pijnenborg et al., "Life-Terminating 

      Acts Without Explicit Request," Lancet 341 (1993): 1196-99. 






 patients can justify a major shift in public policy or the serious 

 risks that legalizing the practice would entail. 


     Public support for legalizing assisted suicide and euthanasia can be 

 attributed in part to fear of the dying process - fear of losing control 

 in the face of modern medical technologies and fear of dying in pain. 

 Both fears arise from the failure of clinical practice to use modern 

 medical advances well.  In the one case, medical technologies to sustain 

 life have been overused, subjecting patients to unwanted and burdensome 

 treatment.  In the other, medical techniques to relieve pain are 

 remarkably underutilized. 


     Many patients now experience a more protracted and more painful death 

 than could be provided if existing medical alternatives were applied well. 

 In particular, modern pain relief and palliative care, appropriately used, 

 can relieve pain in all but very rare cases.  These techniques, such as a 

 self- administered opioid drip, can give patients direct control over 

 their treatment.  With effective pain relief, the disability and suffering 

 associated with severe pain can also be ameliorated for the vast majority 

 of patients.  In fact, although many patients express suicidal ideation at 

 some time in the course of their illness, few commit or attempt suicide 

 when offered appropriate support. 


     The Task Force urges steps to enhance pain relief and improve the 

 psychological treatment available to terminally and severely ill patients. 

 The members recognize that such remedies, even when implemented well, will 

 not relieve the pain of all patients.  They feel 

 deep compassion for patients in those rare cases when pain cannot be 

 alleviated even with the most aggressive palliative care.  They believe, 

 however, that legalizing assisted suicide or euthanasia to make the 

 practices readily available to these patients would create widespread and 

 unjustified risks for many others. 


     Enhanced pain relief, no matter how well or widely administered, will 

 not offer a panacea for the broader problem of human suffering. 

 Inherently subjective, the experience of suffering covers a wide range of 

 human situations - individuals who are disabled or fear the onset of 

 disability; those who are terminally or chronically ill but free of severe 

 pain; and individuals who are isolated and alone, as well as those who 

 face the despair imposed by poverty and deprivation.  In some cases, such 

 as quadriplegia,'the disability and associated dependence may be almost 

 total.  In others, it is not physical pain or impairment that causes 

 despair, but anticipated physical decline and loss of control.  For some 

 individuals, suffering arises from mental illness that is either 






 long-standing and somatic such as schizophrenia or from severe symptoms of 



     Caring health care professionals can sometimes relieve the patient's 

 suffering:  a disabled person may benefit from physical therapy or 

 equipment to increase functioning; clinical depression is often treatable, 

 even in the presence of chronic or terminal illness; and social work 

 support or psychological counseling can improve personal relationships and 

 help to minimize social isolation.  But suffering also often stems from 

 causes that lie totally outside the realm of physical symptoms and medical 

 cures.  Indeed, suicides by terminally ill persons are a small fraction of 

 the suicide attempts and suicides committed each year in the United 



     The Task Force members believe that medically assisted dying and 

 direct medical killing are unacceptable societal responses to the problem 

 of human suffering.  Compared to the resources, caring, and compassion 

 needed to respond to suffering individuals, a lethal prescription or 

 injection would offer a simple solution for profoundly human and complex 

 dilemmas.  It would also extend medicine from the realm of care or cure to 

 dispensing death for problems endemic to the human condition. 


     Apart from the number of patients who would actually seek assisted 

 death or euthanasia, those who advocate legalizing the practices maintain 

 that many individuals would benefit from knowing that these options are 

 available, even if they never use them.  Clearly, whatever other meanings 

 they may carry, the practices have become a potent symbol of control.  For 

 some segment of the public, assisted suicide and euthanasia represent a 

 sense of empowerment and a certain means of escape from a painful, 

 intolerable death.  Given the data showing how few terminally ill patients 

 actually commit suicide if adequate pain relief and support are provided, 

 this desire for an assisted death appears to appeal most to those who are 

 healthy, not to those who are ill. 


     The Task Force members believe that it is important for individuals to 

 have a sense of control over their medical destiny at life's end.  Instead 

 of assistance to commit suicide or laws that would make a lethal injection 

 available upon request, they advocate enhanced pain relief and palliative 

 care and improvement in our laws and practices for decisions about 

 life-sustaining treatment.  Effective implementation of existing laws on 

 treatment decisions would enable patients and those close to them to 

 refuse life-sustaining treatment that prolonged the, patient's suffering. 

 Experience with many of these laws, such as the 






 health care proxy law in New York State, is still relatively limited. 

 However, an estimated 10 to 15 percent of the population has already 

 signed a health care proxy.  Available studies also show that most people 

 are convinced of the importance of advance planning.  These data point to 

 the potential success of further outreach as public habits evolve.  In 

 addition, laws that allow family members and others to decide about 

 treatment in the absence of an advance directive are newly enacted in many 

 states.  Some states like New York are considering, but have not passed, 

 this kind of legislation.(32) These laws also promise significant change, 

 and a greater sense of control for patients and those closest to them. 

 Finally, it appears that professional practices and attitudes are 

 changing, reflecting more willingness by physicians to talk with patients 

 about treatment options. 


     All in all, it is too early to declare policies on decisions for 

 life-sustaining treatment a failure and move on to more drastic remedies. 

 Instead, health care professionals and other segments of society must be 

 committed to translating existing legal alternatives into effective and 

 compassionate practice at the bedside. 


     The debate on assisted suicide and euthanasia has also highlighted the 

 severe shortcomings of current pain relief practices and palliative 

 care.(33) Although some health care professionals and others had commented 

 on this problem previously and sought to promote change, awareness of the 

 problem was not widespread.  Nor has the medical community made the 

 commitment needed to give pain relief and palliative care a higher 

 priority in medical training and practice.  Extensive measures to educate 

 the public about pain relief have also not been undertaken.  In short, the 

 lack of effective pain relief and palliative care is a problem that 

 society has just started to tackle. 


     These steps will not eliminate all support for legalizing assisted 

 suicide and euthanasia.  Nor will they respond to all cases or reasons why 

 patients might seek relief through these practices.  Yet, they might 

 address the public concern that seems to underlie support for assisted 

 suicide and euthanasia.  Press coverage of end-of-life choices has long 

 obscured the distinction between refusing treatment and euthanasia both 

 practices have been labeled with the "right-to-die" rubric.  Public 

 opinion polls are imprecise and unclear, providing no sense of whether 



 (32) Assembly Bill No. 7166.  The surrogate decisions legislation was 

      proposed by the Task Force and is part of Governor Cuomo's 

      legislative program for 1994.  Many professional and civic 

      organizations testified in support of the bill at public hearings. 



 (33) For specific recommendations by the Task Force to change 

      existing law, regulations, and clinical practice to enhance 

      pain relief, see chapter 8. 




 the public understands the distinctions between stopping treatment, 

 assisted suicide, and euthanasia.  The polls have also yielded little 

 insight about the public's real concerns about the dying process. 


     If the refusal of treatment and effective pain relief became available 

 alternatives, the public might assess the need for assisted suicide and 

 euthanasia quite differently.  The plea for autonomy would still retain an 

 intuitive appeal, but the felt need for the options might diminish 

 significantly if we used our existing clinical and legal resources more 

 wisely and effectively. 


Inherent Ethical Objections 


     Our laws prohibiting assisted suicide and euthanasia are 

 long-standing.  Historically, they have rested on both an assessment of 

 consequences and a judgment that it is intrinsically wrong for one person 

 to assist another to commit suicide or to take another person's life, even 

 with the best or most benevolent of motives.  Our society has long 

 regarded this proscription against killing or aiding a suicide, except in 

 defense of self or others, as fundamental to our social fabric and to the 

 boundaries established in our relationships with one another. 


     Some of the Task Force members believe that assisted suicide and 

 euthanasia are inherently wrong.  The practices presume an absolute 

 dominion over human life, by both the person who commits suicide or 

 consents to be killed and the person who acts to make that possible.  Fear 

 of death, the discomfort of disability, anxiety about aging, or despair at 

 personal failures, among other reasons, may have rendered this control 

 appealing throughout human history.  But American society has never 

 obliged; it has never affirmatively sanctioned suicide or set forth rules 

 for those who assist or kill another.  Embedded in that judgment has been 

 a sense of the limits of human power and control.  These Task Force 

 members believe that this limit should not be abandoned. 


     These Task Force members are also deeply concerned that assisted 

 suicide and euthanasia will foster disrespect for human life.  Both 

 practices render human life dispensable; death becomes another problem to 

 be mastered or managed, rather than a distinct and inviolable part of our 

 humanness.  The dignity of human life itself precludes policies that would 

 allow it to be disposed of so easily.  Respect for human life also makes 

 an agreement that aims at death ethically unacceptable as a basis for 

 human relationships. 


     Some Task Force members are most troubled by the prospect of 

 medicalizing the practices - they believe that physician should 






 neither assist their patients to commit suicide nor kill them, even 

 with benevolent motives.  Many of the physicians, as well as others on the 

 Task Force, embrace this view.  They regard both assisted suicide and 

 euthanasia as inherently and irreconcilably incompatible with medical 



     These Task Force members, like the Task Force as a whole, believe that 

 physicians have an ethical duty to alleviate pain.  They strongly endorse 

 public and professional programs that would enhance effective pain relief 

 and give pain relief a higher priority in medical education, training, and 

 practice.  But they do not believe that the professional obligation to 

 alleviate suffering can justify allowing physicians to kill their patients 

 or to assist suicide.  In their view, physicians cannot assist their 

 patients' suicide or perform euthanasia without violating values that are 

 intrinsic to the practice of medicine and to the patient-physician 



     Physicians wield enormous power in their relationship with patients. 

 This power itself demands clear boundaries.  Policies and laws allowing 

 physicians to withhold or withdraw life-sustaining treatment, in 

 consultation with patients or others close to the patient, recognize the 

 limits of what medicine can achieve.  This sense of limits should not 

 suggest, nor should it support, the medicalization of assisted suicide or 

 direct killing. 


     Finally, these members believe that granting physicians authority to 

 assist suicide and perform euthanasia would have deeply troubling 

 consequences for the patient-physician relationship.  It would erode the 

 commitment of physicians and other health care professionals to care for 

 dying and incurably ill patients.  Patients in turn might be fearful that 

 they would become candidates for these "treatments," ' or might worry 

 about the consequences of refusing these options once they are presented 

 by their physician.  Most significant, those members believe that once 

 physicians are licensed to kill as a therapeutic alternative, the public 

 image of the medical profession and the medical art will be 




 (34) This conflation of healing and killing was in fact central to the 

      medicalization of euthanasia in the Nazi regime.  In sharp 

      contrast to the current euthanasia movement, which espouses the 

      practice for the good of patients, the Nazi medical vision 

      focused on the health and good of the nation, or Volk, not the 

      patient's own wishes to die.  Nonetheless, as Robert Jay Lifton 

      describes in the introduction to his powerful, meticulously 

      documented book, The Nazi Doctors, "My argument in this 

      study is that the medicalization of killing - the imagery of 

      killing in the name  of healing - was crucial to that terrible 

      step.  At the heart of the Nazi enterprise, then, is the 

      destruction of the boundary between healing and killing." 

      R. J. Lifton, The Nazi Doctors.- Medical Killing and the 

      Psychology of Genocide (New York: Basic Books, 1986), 14. 






 damaged irrevocably.  For all these reasons, some of the Task Force 

 members have concluded not only that the nature and goals of medicine 

 offer no special reason that doctors should be exempted from the general 

 prohibition against killing, but that it would be especially inappropriate 

 and harmful to make doctors the repository of legally sanctioned killing 

 or suicide assistance. 


Private Acts and Public Policy 


     Other Task Force members do not share the conclusion that assisted 

 suicide is inherently unethical or incompatible with medical practice.  On 

 the contrary, some members believe that it is not intrinsically wrong for 

 doctors or others to assist suicide in some cases.  In fact, they believe 

 that in appropriate circumstances, this assistance would manifest a 

 physician's commitment and duty to his or her patient.  Nonetheless, these 

 members believe that legalizing assisted suicide would be unwise and 

 dangerous public policy for the reasons discussed above.  Essentially, 

 they concluded that ethical, compassionate actions by thoughtful 

 individuals in some cases cannot be translated into good public policy. 


     These members can envision rare cases when assisted suicide offers 

 patients relief from pain and a prolonged dying that cannot be ameliorated 

 by currently available medical practice.  They believe that in such cases 

 suicide can be an ethically acceptable choice for both the patient and for 

 the physician or others who assist the patient.  They think that this 

 option can be a rational response to an intolerable situation.  They 

 would, however, oppose any change in existing law to make such assistance 



     Several facts played a critical role in the judgment reached by these 

 members.  They recognize that in extreme cases when assistance to commit 

 suicide is most compelling, patients may now find a physician willing to 

 provide medication and information.  It is highly unlikely that physicians 

 who are thoughtful and responsible in providing this assistance will face 

 criminal sanctions; given the sympathies of juries and the difficulties of 

 proving intention in the private interaction between doctor and patient, 

 prosecutors have not been eager to bring these cases. 


     Although the law barring assisted suicide and euthanasia is rarely 

 enforced, these Task Force members believe that this legal prohibition 

 serves important purposes.  In addition to regulating and restraining 

 behavior, our laws also serve a highly symbolic function.  These members 

 regard the consequences of quietly tolerating assisted suicide as a 

 private act of agreement between two individuals in extreme cases as 






 profoundly different from the consequences of legalizing the practice. 

 The legal prohibition, while not uniformly honored, preserves the gravity 

 of conduct to assist suicide and prevents abuse.  It demands caution and 

 reflection.  It maintains the decision by both patient and physician as a 

 solemn, private act and prevents abuse.  It also requires a deep 

 commitment by health care professionals who must violate the law to offer 

 this assistance to patients. 


     These Task Force members acknowledge the inherent tension and 

 discomfort of a position that prohibits actions they believe are ethically 

 justifiable.  They recognize the problems of a policy that renders relief 

 for patients, albeit in rare cases, contingent on the moral courage of 

 health care professionals and on their willingness to violate the law. 

 Significant too is the fact that some physicians now provide suicide 

 assistance without the benefit of guidelines that would be established if 

 the state and the medical profession sanctioned and regulated the 

 practice.(35)  Finally, they recognize the shortcomings of a policy that 

 leaves physicians who act responsibly and with the best of motives subject 

 to possible criminal or professional sanctions for conduct that is legally 

 proscribed but caring and appropriate. 


     On balance, even considering these reasons to legalize assisted 

 suicide, these members unanimously concluded that the prohibition against 

 assisted suicide should not be changed.  While not a tidy or perfect 

 resolution, it serves the interests of patients far better than legalizing 

 the practice.  By curtailing the autonomy of patients in a very small 

 number of cases when assisted suicide is a compelling and justifiable 

 response, it preserves the autonomy and well-being of many others.  It 

 also prevents the widespread abuses that would be likely to occur if 

 assisted suicide were legalized. 


Some Further Thoughts About Euthanasia 


     With a few exceptions, the Task Force members believe that euthanasia 

 is ethically unacceptable under any circumstances.  They regard euthanasia 

 as morally more objectionable and socially more dangerous than assisted 

 suicide.  The ethical distinction arises because the moral agency of the 

 person who performs euthanasia, whether it is a physician, family member, 

 or other person, is more 




 (35) The number of physicians willing to assist suicides without the 

      benefit of protection from liability is far smaller than the number 

      who would participate if the practice were legal.  The fact that 

      physicians must take some risk and act out of commitment to their 

      patients is itself a valuable safeguard. 






 direct.  Euthanasia is another form of killing, albeit with consent 

 and for benevolent motives. 


     With assisted suicide, the patient takes his or her own life, although 

 those who assist also bear moral responsibility for their actions.  This 

 difference in moral agency, and the fact that it is the patient, not 

 another person, who takes the final step, has significant implications for 

 the risks posed by the practices.  Most important, assisted suicide always 

 involves a patient who is competent, or who at least has the capacity to 

 take the medication provided or to perform any other last act required to 

 achieve death.  In contrast, as discussed above, euthanasia need not 

 distinguish between the competent and the incompetent.  Indeed, any such 

 distinction is unlikely to hold either in medical practice or public 

 policy.  The notion of medical killing of individuals without consent 

 under guidelines sanctioned or unsanctioned by the state, even for the 

 most benevolent of motives, is profoundly disquieting. 


     Euthanasia is more troubling even for patients who are competent to 

 consent to their deaths.  Many individuals may feel ambivalent and 

 uncertain when confronting their own imminent death.  The willingness of 

 their physician or family members to perform euthanasia may overcome that 

 ambivalence, or leave people feeling that the momentum toward their death 

 cannot be forestalled or reversed.  The potential to abuse the practice by 

 causing death without the patient's consent is also far stronger with 

 euthanasia than with assisted suicide.  Given the private nature of the 

 doctor patient relationship and medical decisions, this kind of abuse would 

 be difficult to prevent and to identify. 



		     Response to Proposed Guidelines to 

			 Legalize Assisted Suicide 


     The Task Force examined, and ultimately rejected, proposals to 

 legalize assisted suicide.  One of the most thoughtful of these proposals 

 was presented in a 1992 article entitled "Care of the Hopelessly Ill: 

 Proposed Criteria for Physician-Assisted Suicide," by three doctors.(36) The 

 authors recommend that physician-assisted suicide should be legalized. 

 They also propose criteria to guide physicians in determining when to 

 comply with a patient's request for suicide assistance:  the patient must 

 suffer from an incurable condition; the patient must 




(36) T.  E. Quill, C. K. Cassel, and D. E. Meier, "Care of the 

     Hopelessly III: Proposed Clinical Criteria for Physician-Assisted 

     Suicide," New England Journal of Medicine 327 (1992): 1380-84. 






 repeatedly request suicide assistance; his or her judgment must not be 

 distorted by reversible depression; the doctor-patient relationship must 

 be meaningful; the physician should insure that the patient receives good 

 palliative care; and the physician should consult with another doctor and 

 document the decision-making process.  The authors suggest that in 

 appropriate cases, physicians should prescribe a lethal dose of 

 medication, which "should ideally be taken in the physician's presence." 

 They argue that legalizing physician-assisted suicide would help suffering 

 patients who wish to end their lives, and would allow physicians and loved 

 ones to remain with them at the end of life without facing legal 



     The Task Force believes that such a policy poses severe risks to large 

 numbers of patients, especially those who are most disadvantaged.  Some of 

 the members also reject this policy because they believe that assisted 

 suicide is morally unacceptable even with the "best" of practices.  The 

 care of many patients currently fails to meet generally accepted standards 

 of high-quality clinical practice.  These failures are most egregious for 

 poor and socially disadvantaged individuals, and for patients in large, 

 overburdened facilities serving the urban and rural poor.  Many will not 

 have the benefit of skilled pain management and comfort care.  Indeed, a 

 recent study found that patients treated for cancer at centers that care 

 predominantly for minority individuals were three times more likely to 

 receive inadequate therapy to relieve pain.(38) Many patients will also lack 

 access to psychiatric services.  Furthermore, for most patients who are 

 terminally or severely ill, routine psychiatric consultation would be 

 inadequate to diagnose reliably whether the patient is suffering from 



     Many patients from all sectors of society cannot rely on a 

 physician patient relationship marked by good communication, personal 

 concern, and respect.  It is unlikely that patients who now face 

 difficulties in obtaining minimally acceptable treatment would receive the 

 excellent care and personal support essential to the proposal.(40) 




 (37) Ibid. 


 (38) C.  S. Clecland et al., "Pain and Its Treatment in Outpatients 

      with Metastatic Cancer," New England Journal of Medicine 

      320 (1994): 592-96. 


 (39) See the discussion in chapters 1 and 8 on the difficulty of 

      diagnosing depression in this group of patients. 


 (40) Two psychiatrists write: "The guidelines of Quill and colleagues 

      require effective, collaborative, and committed doctor-patient 

      relationships.  They rely on the abilities of physicians to 

      detect or determine when contemplation is rational and not 

      'distorted.' Such relationships between patients and skilled 

      physicians exist, no doubt, but how common are they in 1993? 

      Indeed, current social and economic pressures make these qualities 

      more precarious, not less.  Managed competition and cost control 

      encourage leisurely interactions or time to 'just talk."' 

      E. D. Caine and Y. C. Conwell, "Self-determined Death, the 

      Physician, and Medical  Priorities:  Is There Time to Talk?" 

      Journal of the American Medical Association 270 (1993):  875 -76. 






 Efforts to increase access and assure quality have had uneven results at best. 

 In short, it is improbable that the proposed clinical criteria will serve 

 as effective safeguards for vulnerable patients. 


     It is unclear to what extent the authors of the guidelines intend 

 their recommendations to provide legal safeguards that could be enforced 

 to prevent poor practices or abuse.  The proposal instead seems to suggest 

 guidance for physicians confronted with a request for assistance in 

 suicide.  The safeguards proposed depend on the conscientious and largely 

 subjective judgment of each physician.  For example, the criteria suggest 

 that the physician determine that the doctor-patient relationship is 

 "meaningful," and that he or she has been able to "get to know the patient 

 in order to understand fully the reasons for the request."(41) Physicians 

 will interpret this requirement in entirely different ways.  To date, both 

 Quill and Kevorkian have stated that they were able effectively to 

 evaluate patients' requests for assistance to commit suicide. 


     Other criteria proposed are necessarily subjective, but for that 

 reason would be an elastic and ineffective guidepost for public policy and 

 sanctioned private behavior.  For example, the patient need not be 

 terminally ill but must "have a condition that is incurable and associated 

 with severe, unrelenting suffering."  The physician's own judgments about 

 the reasonableness of the patient's request would be decisive, a judgment 

 that would depend almost entirely on the personal views of each physician 

 and the way he or she values the patient's life. 


     The impetus to expand these or other stipulated criteria is especially 

 strong under the proposed guidelines because the guidelines present 

 assisted suicide as a medical treatment.  Some advocates have portrayed 

 assisted suicide as an exceptional action when treatment fails.(42) 

 However, the authors present physician- assisted suicide as "part of the 

 continuum of options for comfort care,"(43) although one that should be 

 available only when alternatives fail.  Some physicians 




 (41) Quill, Cassel, and Meier, 1382. 


 (42) S. H. Wanzer et al., "The Physician's Responsibility Toward 

      Hopelessly Ill Patients: A Second Look," New England Journal 

      of Medicine 327 (1992):1384-88. 


 (43) Quill, Cassel and Meier, 1381. 






 will undoubtedly feel that requirements that they may find arbitrary 

 should not prevent them from offering a suffering patient a "treatment" to 

 end life. 


     Permitting physicians to assist the suicide of patients physically 

 capable of committing suicide, and characterizing this action as a 

 "treatment," would also lead to acceptance of voluntary euthanasia for 

 patients physically unable to perform the final act.  In individual cases, 

 the line between assisted suicide and euthanasia may be blurred.  This 

 risk is especially great because the proposal permits, and in fact 

 encourages, the physician's presence when the patient commits suicide.  As 

 others have argued, the physician's presence raises additional concerns 

 because patients who are ambivalent or hesitant may find it harder to 

 delay or change the decision to die. 


     The authors of the guidelines on assisted suicide reject legalizing 

 euthanasia because of the risks the practice would entail.  They also 

 acknowledge that continued prohibition of euthanasia carries a cost to 

 some incurably ill patients who wish to end their lives: 


	 Such persons ... must not be abandoned to their suffering; a 

	 combination of decisions to forgo life-sustaining treatment 

	 (including food and fluids) with aggressive comfort measures 

	 (such as analgesics and sedatives) could be offered, 

	 along with a commitment to search for creative alternatives. 

	 We acknowledge that this solution is less than ideal, but we 

	 also recognize that in the United States access to medical care 

	 is currently too inequitable, and many doctor-patient 

	 relationships too impersonal, for us to tolerate the risks of 

	 permitting active voluntary euthanasia.(44) 


     The Task Force agrees.  These same risks render assisted suicide 

 unacceptable.  While euthanasia is socially more dangerous, the same 

 systemic problems undermine the reliability of any proposed safeguards for 

 assisted suicide.  Moreover, assisted suicide and euthanasia are closely 

 linked; as experience in the Netherlands has shown, once assisted suicide 

 is embraced, euthanasia will seem only a neater and simpler option to 

 doctors and their patients.(45) 




 (44) Quill, Cassel, and Meier, 1381. 


 (45) In the Netherlands, assisted suicide and voluntary euthanasia are both 

      legally sanctioned.  A lethal injection is preferred by both doctors 

      and patients as a simpler option.  Only a small percentage of 

      cases are assisted suicides; a recent study reported that of all 

      voluntary euthanasia and assisted suicide deaths, 85% are attributed 

      to voluntary euthanasia and 15% to assisted Suicide. 

       Van Der Maas et al. 








			 Distinguishing Decisions to 

			Forgo Life-Sustaining Treatment 


     Promoting patient autonomy has been central to public policies on 

 life-sustaining treatment over the past two decades.  The Task Force has 

 proposed four laws that enhance autonomy and the well- being of patients 

 in decisions about life-sustaining treatment.  Three of those laws have 

 been enacted and one is pending.  A distinction between decisions to forgo 

 life-sustaining measures and assisted suicide and euthanasia is crucial to 

 the Task Force's position on both issues, and to the coherence of the 

 policies it has proposed for New York State. 


     Some of the Task Force members believe that intention provides a moral 

 dividing line between forgoing treatment and assisting suicide or 

 performing euthanasia.  With the former, the patient and physician accept 

 the patient's death as a consequence of stopping or withholding treatment 

 that is unwanted or unduly burdensome.  They do not, however, aim to 

 achieve the patient's death.  Other members do not distinguish the two 

 practices based on intention, but believe that the difference between 

 allowing the patient to die a natural death and intervening to cause death 

 directly is ethically significant.  All the Task Force members agree that 

 allowing decisions to forgo life- sustaining treatment and allowing 

 assisted suicide or euthanasia have radically different consequences and 

 meanings for public policy. 


     Existing law prohibits assisted suicide and euthanasia in all cases. 

 A similar ban for all decisions to stop or to withhold life-sustaining 

 treatment would be unthinkable.  It would lead to inhumane and abusive 

 medical treatment.  It would also be an extraordinary intrusion on 

 individual liberty. 


     If a patient is denied medically assisted suicide or euthanasia, he or 

 she is likely to die more slowly of natural causes.  When a competent 

 patient is denied the option of refusing treatment, he or she will not 

 only have life prolonged, but must be physically forced to undergo 

 unwanted treatment.  Whether the treatments are highly invasive such as 

 chemotherapy or a respirator, or are generally regarded as less intrusive 

 such as antibiotics, the patient's body is physically invaded without 

 consent.  Under the common law, this is called battery. 


     In many cases, the patient must also be physically restrained to 

 accept the treatment; for example, when resisting patients are force fed 

 because they are demented or unable to consent to the removal of 

 treatment, the patient's hands are sometimes tied to the bed to prevent 

 the patient from removing the feeding tube.  For patients who are 






 competent and physically mobile, the restraint on freedom would be 

 even harsher, since imposing treatment would require involuntary 

 detention.  While such-detention is now practiced in some cases to force 

 patients to undergo treatment for contagious diseases such as 

 multidrug-resistant tuberculosis, this extreme denial of individual 

 freedom is tolerated only because of the immediate danger of contagion and 

 life-threatening harm to others. 


     Even the firmest supporters of assisted suicide and euthanasia would 

 acknowledge that only a relatively small percentage of patients in 

 hospitals and nursing homes today would use the practices, if legal.  In 

 contrast, a significant percentage of those cared for in modern medical 

 facilities undergo life-sustaining treatment.  It is estimated that 

 approximately 70 percent of the deaths in hospitals today involve some 

 decision to withhold or to stop treatment.  In many cases, the decision to 

 initiate treatment is often acceptable to the patient and to health care 

 professionals because treatment can be withdrawn or withheld if the 

 patient's condition worsens or the treatment proves intolerable for the 



     Years of experience with life-sustaining treatment have yielded hard 

 lessons about the burden that such treatment can impose on dying and 

 severely ill patients.  A policy that uniformly prohibited decisions to 

 stop such treatments once they had begun would result in incalculable 

 harm.  In short, use of the treatments is inconceivable without policies 

 that allow their discontinuance in appropriate circumstances.  Those 

 policies entail some of the same risks posed by assisted suicide and 

 euthanasia - the possibility that physicians will not diagnose depression, 

 treat pain adequately, or explore other alternatives with the patient and 

 family.  However, the benefits of the treatments, and the corresponding 

 need to allow decisions to forgo them in many cases, far outweigh those 

 risks.  Indeed, it renders the willingness to undertake the risks a moral 

 and social imperative. 


     Under current policies, the appropriateness of stopping or withholding 

 treatment for competent patients has been tied to autonomy - to the 

 patient's own values and preferences.  This is not just sound public 

 policy, but the only acceptable alternative in a pluralist society. 

 Decisions to accept or to refuse treatment call for choices about the 

 value and nature of human life, tolerance for disability and dependence, 

 and our relationships to family members and to others.  As a society, we 

 share no single belief about these profoundly personal questions.  Even if 

 held by a majority, one response could not be imposed on those who 





 148			       WHEN DEATH IS SOUGHT 


     The decision to commit suicide or to consent to a lethal injection is 

 also tied to personal values and beliefs.  But embracing autonomy in the 

 sphere of decisions about life-sustaining treatment does not mandate 

 recognition of a right to assisted suicide and euthanasia.  Among 

 individual rights, only the right to believe is absolute.  All the others 

 are qualified; they are calibrated depending on the strength of the claim 

 to freedom and the consequences for society as a whole.  Our 

 constitutional law as well as our broader structure of civil laws and 

 policies are built on this foundation of social judgments.  In the arena 

 of medical choices, as in other spheres of our collective life, autonomy 

 is not all or nothing.  Even if the lines are hard to draw, the necessity 

 for doing so is no less compelling. 


     While the Task Force members are concerned about the movement to 

 legalize assisted suicide and euthanasia, they have consistently rejected 

 any arguments to deny the right to refuse life-sustaining treatment based 

 on notions of a slippery slope to assisted suicide and euthanasia. 

 Grounding policies for life-sustaining treatment on such fears would lead 

 to serious harm to patients.  It would also fuel the movement for assisted 

 suicide and euthanasia, a movement that draws considerable strength from 

 public fears of an intolerable death prolonged by medical advances.  Those 

 fears are not baseless; they are unfortunately now grounded in experience.

 Policies and laws that deny individuals and those close to them the option

 of refusing unwanted burdensome treatment will not dampen the public

 desire for control but will only heighten demands for more drastic and 

 absolute steps.(46) 




 (46) As Joseph Cardinal Bernadin argued in discussing policies about

      withdrawing and withholding artificial nutrition and hydration,

      "The challenge is to develop a nuanced public policy to protect

      against an attitude that could erode respect for the inviolable

      dignity of human life.  If we do not resolve this critical issue

      in a way that agrees with the common sense of people of good will,

      we may contribute to the sense of desperation that will lead 

      people to accept euthanasia as an alternative solution to the

      problem." Joseph Cardinal Bernardin, "Context for and Moral 

      Principles Guiding Catholic Conference of Illinois' Position on

      Senate Bill 2213," Meeting of Pro-Life Department, Catholic 

      Conference of Illinois, Sept.11, 1990, p8.