A fundamental purpose of the law is to provide individuals with the tools and means to achieve the highest possible standard of life and to empower those least able to enforce their rights. Individuals make numerous permanent and life-changing decisions everyday without interference and indeed, many of us gauge our notion of freedom on our ability to make choices and navigate avenues of self-determination without the interference of government. One avenue where this balance between self-determination and government intervention is particularly called into question is the discussion around end of life choices, particularly physician assisted death (PAD).
PAD broadly encompasses two terms, physician assisted suicide (PAS), where a doctor gives a patient a prescription for life-ending medications that they can take in their own time, and euthanasia, where the doctor directly administers the life ending medication at the patient’s request. Whatever your views on PAD, the issue has domestic and global momentum with recent polls showing that the majority of U.S. doctors and general public are in favor of PAD along with the majority of the general population in Western Europe and physicians in the U.K. Following two Supreme Court decisions in the 90’s, PAD is at the discretion of the States and a recent wave of legislation is following this cultural shift with California becoming the 5th state to explicitly allow PAS in 2015 and bills and/or legal cases being discussed in 25 legislatures and the District of Colombia in the 2015 legislative session. Starting in 2016 almost 1 in 10 American’s will live in a state where they can choose assisted death. Internationally, parliamentary discussions are slated to occur around PAD in Brittan, South Africa, Germany and Scotland in 2015/16.
Domestic legislation, most of which is modeled on Oregon’s Death with Dignity Act, require that an individual who applies for PAD have a diagnosis of terminal illness (defined as 6 months or less to live) provided by two independent physicians. The legislation also seeks to provide a series of protections to those that can apply for PAD including; opt-out clauses for physicians who do not wish to participate, mental capacity assessments for the applicant and mandatory counseling in the event that there is any question around capacity, multiple witness requirements including specifics around who can and cannot witness requests and cooling off periods partnered with a requirement to present a request multiple times both orally and in writing. These legislative inclusions provide security to the community that best-practices will be followed, however a review of international practices and law questions whether our domestic provisions go far enough to meet the needs of those who would seek to end their life on their own terms.
Currently only terminally ill adults can access PAS in the United States. Limiting access to PAD to adults means that the only option available to families with terminally ill children is to refuse treatment altogether, a course that was recently brought to national attention by Julianna Snow, a terminally ill 5-year-old whose parent’s publicly supported her decision to refuse further hospital intervention at the next significant junction of her illness. Another limitation to the current domestic system is that only PAS, and not euthanasia, is available in contrast to several other countries, which offer both. Critics of euthanasia question whether physician administered medications can ever have sufficient safeguards to show that it is the patient’s true intent, but some patients who have applied for euthanasia have stated that having euthanasia as an option allowed them to live longer without the fear that they would need to make sure and take the medication while they are still physically able to do so independently. Finally, in some countries, PAD is available for non-terminal illnesses including unbearable mental suffering and some argue that psychological suffering is equal to physical suffering and that the presence of such a condition does not necessarily preclude someone from having the capacity to make a decision such as a request for PAD.
With so many bills being discussed by legislatures across the country, each state will need to gage their own views on what is right and appropriate to make sure that the laws are structured in such a way as to provide the most vulnerable individuals with sufficient protections, but also sufficient choices to ensure that their final days are lived at the highest standard possible.
Signup for our mailing list and stay up to date on the latest happenings at The O’Neill Institute
Or sign up for our RSS Feed
The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.