The Last Right

by Marianne Thamm

  Euthanasia comes from the classical Greek words “eu” (good) and “thanatos” (death) and thus literally means “a good death”, “a gentle death”, or “dying well”. More technically, “euthanasia” means intentionally causing the death of a person, for that person’s own sake, where a positive act of another person, and not the natural process of dying (as with withholding or withdrawal of potentially life-sustaining treatment), is the proximate cause of death.

  From the perspective of the person who causes another’s death, “euthanasia” has two meanings:

  Passive euthanasia is a term used for contributing to the death of a person by intentional withholding or withdrawal of potentially life-sustaining treatment from a competent or incompetent patient so that a natural death can set in, where death is reasonably believed to be in that person’s interest, or continued life is reasonably believed to be no longer worthwhile. An inaction or omission (“not doing” something), like an act or commission (“doing” something), is a subclass of action, both involving responsibility for choices and decisions. Apart from terminological clarification, this Position Paper, however, does not use the term “passive euthanasia”, but instead uses the terms “withholding” or “withdrawal” of potentially life-sustaining treatment.

  Active euthanasia means intentionally causing the death of a competent or incompetent person by means of an act or commission (“doing” something) that is the proximate cause of death, where death is reasonably believed to be in that person’s interest, or continued life is believed to be no longer worthwhile. Again, an act, like an omission, is a species of action involving responsibility for choice, for example administering a lethal injection. Again, apart from terminological clarification, this Position Paper does not use the term “active euthanasia”, but prefers the terms “assisted dying” or “assistance with dying”.

  From the perspective of the person who dies, “euthanasia” has three meanings:

  Voluntary euthanasia (in the sense of “voluntary active euthanasia”, also called “mercy killing”) means that a competent person freely (without duress) requests a medical practitioner or other person for assistance with dying on account of suffering from a terminal disease, or unbearable and intractable suffering, whereupon the medical practitioner or other person obliges with an intentional act that is the proximate cause of death.

  Non-voluntary euthanasia refers to cases where a competent patient’s wishes cannot be known – either because they are no longer competent (for example, a person in a PVS (persistent vegetative state) without an advance directive), or have never been competent (for example, a defective newly born infant) – and their death is brought about by the intentional act of a medical practitioner or other person, where death is reasonably believed to be in that person’s interest, or continued life is reasonably believed to be no longer worthwhile.

  Involuntary euthanasia refers to cases where a competent person is intentionally killed for their own good, but against their wishes. For example, a bystander kills a driver trapped in his burning truck for compassionate reasons, or for his own good, but against the wishes of the driver, because there is no prospect of rescuing him from a certain, cruel death.

  Ethical Considerations

  Crucially, both the ethics and law of assisted dying (assisted suicide and voluntary euthanasia) deal with free or voluntary choices by competent persons to end their lives. No one is forced, coerced or unduly influenced to make that decision.

  From the point of view of the dying person, at issue here is only voluntary assisted dying (where persons freely request it). Still, ethics and the law would need to address non-voluntary assisted dying too (where persons irreversibly lack, or have never had, the capacity to decide for themselves), for example severely defective newly born infants.

  Although this Paper does make some observations about non-voluntary euthanasia, it does not deal with it systematically, since substitute decision makers would decide on behalf of such patients.

  Involuntary euthanasia is rejected in a medical setting, and only referred to in a discussion of the Nazi “euthanasia” projects.

  In short, any talk of unilaterally “deciding for (competent) others” that they should die is totally out of place in this discussion.

  Assisted dying is a highly controversial and emotive topic. Ethical beliefs about these practices are steeped in religion, and thus interpretations or understandings of the doctrine of the sanctity (special moral value) of human life.

  The mere fact that views are personal and strongly held, whether inspired by religion or not, does not justify the suppression of responsible public debate about those views. On the contrary, we have a compelling ethical obligation to address assisted dying in the democratic process, as we did with respect to capital punishment and termination of pregnancy (abortion).

  Our public policy should not be driven by partisan religious beliefs – often resting on mistaken assumptions and projections that religion forbids these practices – but rather by our Constitution.

  The Bill of Rights in the Constitution is an ethical document that sketches the basic values upon which our democracy is to be built and proposes human rights that we should realise progressively.

  So, a key question regarding legalising assisted dying would be its constitutionality. In short, do we have an ethical obligation to decriminalise assisted dying given our constitutional rights?

  But would this not put the cart (the law) before the horses (ethics)? Might we not end up legalising a practice that is regarded as fundamentally unethical, similar to legalising abortion which the majority of the population regards as unethical?

  Can assisted dying be ethically justified, or do arguments against assisted dying hold more force?

  This Paper is, in the first place, concerned with the ethics of legalising end-of-life decisions, including the ethics of legalising assisted dying.

  Still, because there are such strongly held and hotly contested ethical views about assisted dying, a persuasive ethical case for assisted dying would reinforce the ethical need for legalising assisted dying. Three key ethical arguments each support the respective cases for and against assisted dying.

  Ethical Argument for Assisted Dying

  The argument from autonomy and the argument from suffering make the most powerful ethical case for assisted dying. A third argument contends that assisted dying is ethically speaking the same as withholding and withdrawal of potentially life-sustaining treatment, both of which are widely accepted practices.

  Implicit in these three ethical arguments for assisted dying is the view that it is not always wrong intentionally to bring about someone’s death, whether by an act or omission. Correspondingly, someone’s right to life does not entail an obligation to live; or someone may have a right to die, given clearly defined circumstances.

  We already accept ethical justifications for other forms of causing death, for example, individual self-defence and in a defensive war.

  But the three arguments for assisted dying are different because, in the circumstances, the one whose life it is does not regard dying as wrong, nor death as bad, but rather as desirable in defined circumstances.

  This is so because suffering has broken the connection between life and good, so that death becomes a good, or in the patient’s best interest.

  Personal Autonomy

  The argument from personal autonomy or individual self-determination goes as follows: respect for autonomy is a basic ethical principle which asserts that competent persons have a moral right to make their own choices, including choices about their continued life in clearly defined circumstances, and to act upon those choices.

  We have an ethical obligation to respect that right. Consequently, medical practitioners, or specified other people, should have the choice to respect people’s autonomous wishes by assisting them with dying, their conscience permitting.

  One line of critique against the autonomy argument is that the sanctity (spec
ial moral value) of human life outweighs or trumps considerations of autonomy used to justify the taking of human life.

  But, surely, the sanctity of human life does not reside in biological human life, but in human life that comes up to a certain standard (quality). Also, human life characterised by uncontrollable pain due to terminal disease, for example, fails to meet that standard, judged by the person whose life it is.

  A second critique attacks the notion of autonomy, arguing that ethical debate about assisted dying “assumes an ethic of radical individualism” that is based on a “contractual model of care”.

  According to this view, any debate that contemplates the ethical justification of assisting an individual to die is of necessity anti-community, and as such dismissive of the fact of our interconnectedness and interdependence.

  This view is surely contradicted by overwhelming anecdotal evidence of cases where requests for assistance with dying are made in a caring, personal setting in which our relationships with, and interdependence on, others are fully recognised and actually constitute the very foundation of a moral obligation to assist with dying.

  Appeals to community need to define “community” since we are all at once members of several overlapping communities, from immediate family to the global community. If any one of these communities respects the right of an individual to request assistance with dying in defined circumstances, it does not for that reason cease to be a community.

  And even if someone’s request for assistance with dying were to spring from “radical individualism” that is embedded in a contractual rather than caring relationship, that would in no way invalidate the ethical case for respecting personal autonomy.

  Moreover, the argument that adequate terminal-pain management would remove the need for assisted dying fails to give due recognition to the personal autonomy of persons in a terminal phase of dying by prescribing to them how they should deal with their suffering induced by pain and distress.

  Suffering

  Suffering is an emotional response to significant pain or distress (anxiety). The argument from suffering is premised on the value of human well-being.

  Life, the good that makes all other goods possible, may become a burden or worthless on account of suffering pain, or suffering distress at the loss of control and dignity. Death may become the only deliverance.

  Judging another’s well-being, or whether life is worth living, or death desirable, is not merely a matter of considering objective facts, such as medical information about diagnosis and prognosis.

  It also requires considering the subjective values, projects, preferences and experiences of the person whose life and well-being is at issue.

  Consequently, if a competent person freely judges that death is the only escape from suffering, then assisting that person to die would not wrong or harm them but be in their interest. On the contrary, refusing to help would harm them by frustrating their projects and preferences, and would be crueller and less merciful than assisting them with a gentler, more dignified, death.

  The counter-argument usually maintains that the suffering caused by pain or distress is controllable by means of comfort care. Again to maintain that pain medication, coupled with a conventional dosage of sedative, would keep patients asleep until they die naturally ignores their legitimate preferences not to die in a state of palliative or terminal sedation. And it does not address suffering induced by distress at the loss of dignity.

  Another counter-argument contends, from a religious point of view, that God has a purpose with suffering and that we would frustrate his will when we remove suffering by hastening death. Not all religious believers would accept this interpretation of God’s will.

  Moreover, for what sound ethical reason would we wish to relieve others’ suffering throughout their lives, but retreat if suffering occurs when death is imminent and relief of suffering may hasten death?

  Moral Equivalence

  There is a strong argument for assistance with dying premised on the moral equivalence of assistance with dying (assisted suicide and voluntary euthanasia), on one hand, and withholding and withdrawal of life-sustaining treatment, on the other.

  If the latter are ethically justified healthcare practices, so should be the former, since there are no relevant moral differences between the two.

  The mere fact that one action is an omission or “passive”, while the other is an act or “active”, does not in itself render the former morally acceptable and the latter morally objectionable.

  All these practices involve deliberation about the patient’s condition, intention, benevolent motive, and consequences – directly for the patient who dies, and indirectly for family, friends, healthcare workers, other interested parties, and state interest.

  The only difference is the means whereby death is caused: withholding or withdrawal of life-sustaining treatment involves an omission of treatment, whereas assisted dying requires an act. This, however, is not a morally relevant difference because we are (morally and legally) responsible for both acts and omissions.

  In short, there is no one set of distinctions or differences that attach only to either acts or omissions.

  Ethical Arguments against Assisted Dying

  There are three significant ethical arguments against assisted dying: it is wrong to “play God”; the responsibilities of healthcare workers should never include killing people; and “slippery slope” undesirable consequences, including abuse, will follow or are likely to follow.

  Playing God

  The doctrine of the sanctity – or special moral value – of human life means, among others, that only God should determine the time and manner of our death. It is therefore wrong to “play God” by shortening our lives, even if suffering is intractable and unbearable.

  Clearly, people have different views about the existence of God, and divergent interpretations of coming to know His will. For some, He is authoritarian and inscrutable, giving us orders and instructions, for example, in the form of a Bible text or some personal revelation. For others, He is merciful and understanding, and confers upon us autonomy and responsibility to do our best through rational and compassionate decisions in situations of great tragedy and ambivalence.

  But even if we accept an authoritarian conception of God, His orders or instructions still need to be interpreted. For example, if God prohibits us from usurping His authority by making decisions that alter (hasten) the time of our death, then surely we likewise “play God” when we shorten our lives with bad eating habits, or lengthen our lives with antibiotics or surgery. Which, then, is acceptable in the eyes of God, and which not?

  In essence: the “playing God” argument is weak since it is impossible to make a non-arbitrary distinction between practices of which God approves and those of which He disapproves. Something is not right because God says so; God says so because it is right. Irrespective of our religious convictions, we need to use our reason and compassion to come to know what course of action ethical values demand of us.

  Professional Responsibilities

  A second anti-assistance with dying argument contends that healthcare professionals have responsibilities that are incommensurable with killing or shortening life, namely, general moral obligations as human beings to prevent harm (non-maleficence) and do good (beneficence), and specific professional and institutional duties to care, heal, extend life, or preserve life.

  Assisted dying would undermine these responsibilities and commitments, thus eroding the trust patients have in healthcare professionals to act in their best interest. These practices are forms of killing, and killing is not what healthcare professionals do, or ought to do. And this professional prohibition against killing goes right back to the Hippocratic Oath.

  This argument fails to take adequate account of non-curative healthcare of terminally ill persons whose death is imminent. Life is finite, and all humans eventually die of natural causes unless some unnatural cause intervenes.

  Tragically,
a natural death, for some, may be infused with intractable or unbearable suffering, and death may be preferable to a life that is no longer worth living. It follows that the ethical responsibilities of healthcare professionals cannot, in all circumstances, be to save life, or to heal.

  Healthcare professionals, or others, who assist with dying would be morally blameworthy only if death is the enemy in all circumstances, and therefore always to be resisted at all cost. But this would be a denial of the fact that dying is an integral part of life.

  In short, there are tragic situations where healthcare professionals’ routine goals of restoring health or preserving life are unattainable, and indeed inappropriate, and times when assistance with dying may indeed constitute desirable and appropriate care.

  Certainly, those who assist with dying, should this practice be decriminalised, should have the right to opt out of participating in such practices if they clash with their conscience, as is the case with termination of pregnancy (abortion) in South Africa.

  Slippery Slope

  A significant argument against assistance with dying is that practising it would have ethically undesirable or unacceptable consequences, such that it would be better to refrain from it altogether.

  Proponents of this argument predict a variety of undesirable consequences. For example, it is claimed that some healthcare professionals would abuse their social standing and power to exert undue influence over vulnerable patients to end their lives, thus embarking upon a slippery slope towards non-voluntary or even involuntary euthanasia.