A peripheral attraction amid the thrills of this year's election was Maine voters' rejection of a bill legalizing physician-assisted suicide. Oregon remains the only state where this is sanctioned. Proposals for "physician assistance in dying" will surely come before other legislatures over the next few years, however.
Up to now, these have tended to follow a common format: Doctors are given the right to prescribe fatal prescriptions to patients, under a regulatory process intended to ensure that this service will be provided only to appropriate candidates. Few commentators are neutral.
I would like to offer an alternate model that would dramatically refocus a critical aspect of the ethical controversy. I would ask advocates of assisted suicide, "Why must this involve physicians? Why not have judges do it?"
Among the arguments surrounding "assisted death" is the particularly persuasive claim that participating in active euthanasia, despite a patient's voluntary consent, is contrary to the goals of medicine and harmful to the profession.
Regardless of the legality of assisted suicide, many physicians have had occasion to face a private decision about whether to participate. The legality of the act may not be the principal factor in the choice. There are plenty of anecdotes about physicians' participation in active euthanasia outside of Oregon (and before 1997, when Oregon's law was finally implemented).
Regardless of physicians' values, there will always be patients — both ill and well — passionately determined to control the hour and manner of their own death rather than passively accept it in the course of disease. Many in this group also feel that the legality of their wish is a secondary factor.
Therefore, the legalization of assisted suicide, and the participation of physicians in assisted suicide, are two different questions.
Granted, some persons face the prospect of a life that, in their own terms, would be worse than death. Among these are rational, competent adults who would deliberately end their lives, but would like (or require) assistance to do so. Granted, physicians have access to drugs that might be used to provide controlled and gentle deaths. These facts, however, do not make the case that physicians are necessary or appropriate to meet this demand.
There is a body of well-argued ethical literature on both sides. As with abortion, it is hard to find grounds of compromise between two diametrically opposed positions. Political polarization sends proponents campaigning to facilitate it, and opponents working just as vigorously to contain it.
I suggest extricating physicians from the situation entirely — as the American Medical Association's code of ethics does with capital punishment. This may help us climb out of the current two-dimensional trench, even though it does not resolve the larger moral question.
Much of the pressure to license physicians to end life arises from the incorrect assumption that only doctors can. The public views doctors as better qualified to dispense a deadly draught than the average bartender. In fact, most doctors wouldn't have a clue how to concoct a fatal potion that would work reliably and humanely. Even many who routinely care for people dying in hospitals are ill versed in the clinical pragmatics of ministry at the end of life.
It's argued that doctors are already involved in the care of most terminally ill patients. Why introduce a new player into an intensely private matter? Large segments of the public would find it an intolerable violation of their expectations and sensibilities, however, if they had to wonder: "Today is my doctor thinking about putting me to sleep?" This potential confusion of motives makes it ill advised to involve medical professionals in the direct provision of deadly care.
We have a crisis of public trust today, like that which Hippocrates may have faced. We could solve it by establishing different "schools" of medicine: some that poison patients and some that don't. In the pre-Flexner days, Mark Twain advocated doing away with medical licensure altogether and letting patients simply choose practitioners whose style matched their own inclinations. His view was based on despairing of any way to trust one therapeutic philosophy over another.
Today, however, public trust in doctors hinges less on therapeutic uncertainty than on ethical uncertainty. As patients, our concern now, whether therapy succeeds or fails, is that the person taking care of us is incorruptible.
Incorruptibility means never giving people cause to wonder if you are for or against them. Today we need to stabilize and preserve medicine's ethical credibility in the community. A good step would be to let the poison cup pass us by. If there is an irresistible demand for hemlock, it should be catered by the sole profession that can write prescriptions for death: judges.
The judicial process for establishing guardianship provides a workable model for legally facilitating a voluntary death. If my patient wants to take some hemlock, he or she can bring a plea before the court. My role should be limited to questioning, supporting, counseling, educating, and grieving with him or her, without becoming a party to the fatal act. I can testify, but I should not have the authority to deprive my patient of civil rights, liberty, property, or life — even with his or her cooperation. The court is the place to settle this.
Judges routinely hear matters of ultimate importance. They rule on psychiatric commitment and criminal convictions. They appoint custodians, guardians, and conservators. They join and separate families. They grant and remove rights and possessions, order confinements or medical treatment, and pass sentences of death. The legal processes that govern these weighty acts by judges are imperfect, but the best our society has to offer. Also, they are subject to public accountability in ways that would be inappropriate and burdensome for medical practice.
Some of the strongest utilitarian objections to assisted suicide arise from misgivings about how to protect people from being assassinated by well-meaning or malicious caretakers. A formal judicial hearing potentially trades some privacy for the much greater benefit of protection from error.
A judicial hearing on a plea for assisted suicide would provide the best available venue for discovering the facts, ensuring that conflicts of interest are noted, allowing all legitimate parties to be heard and all contested opinions to be aired.
As with capital punishment, there is no reason for a doctor to take part in the prescription, dispensing, or administration of a fatal treatment. This solution also sidesteps many of the questions about malpractice.
Should persons, under any conditions, be assisted in ending their lives? Hard question. If this process is going to occur in our society, however, there is much to be gained from the medical professions keeping at a distance from it.