Physician Aid in Dying (PAD)

Terminology surrounding various means of ending life is confusing. Terms that describe very different acts and practices are often used as if they were interchangeable. It is important to use commonly accepted terminology when discussing issues concerning the ending of life, as the different acts have vastly different moral, ethical and legal implications.

The table below describes some of the different practices.¹

Term	Definition
Physician Aid in Dying (a/k/a Physician Assisted Death or Physician Assisted Suicide, "PAD")	Physician prescribes drug(s) to a competent terminally ill patient, upon the patient's request, with the understanding that the patient intends to use them to end his or her own life.
Voluntary Active Euthanasia	Intentional, direct administration of drugs or other interventions to cause the death of a competent adult patient when the patient has explicitly requested and consented to it.
Involuntary Active Euthanasia	Intentional, direct administration of drugs or other interventions to cause a patient's death over the patient's objection.
Non-Voluntary Active Euthanasia	Intentional, direct administration of drugs or other interventions to cause a patient's death when the patient is incompetent and incapable of explicitly requesting or consenting to it (e.g., patient is in a coma).

Involuntary and Non-Voluntary euthanasia are considered murder and are illegal everywhere in the U.S. Involuntary euthanasia is regarded as morally wrong because it violates a patient's right not to be killed. Non-voluntary euthanasia is considered morally wrong because it might be applied selectively to the disadvantaged and the vulnerable.²

Voluntary active euthanasia is also illegal everywhere in the U.S. The key difference between physician aid in dying and voluntary active euthanasia as defined above is in who acts to end the patient's life. In physician aid in dying, the physician prescribes the lethal drug, but the patient decides when and whether to self-administer it. In voluntary active euthanasia, a third party directly administers the drug or other intervention that ends the patient's life.

Some other practices that should be distinguished from physician aid-in-dying include:

Withholding/Withdrawing Life-Sustaining Treatments

Every competent adult has the right to refuse unwanted life-sustaining treatment (respirators, feeding tubes, etc). There is consensus in state law, in health care ethics and in the medical profession that the patient's decision should be respected.

Pain Medication that May Hasten Death

Sometimes a terminally ill, suffering patient may require dosages of pain medication that have side effects (e.g., suppressing respiration) that could hasten death. This is generally considered to be justifiable under the ethical concept of double effect since the primary goal and intention of administering these medications is to relieve suffering. The secondary outcome of potentially hastening death is accepted by the patient (or proxy) as a proportionally acceptable side-effect. It should be noted that used appropriately, pain medication is very unlikely to hasten death.³

Palliative Sedation

This refers to the practice of sedating a terminally ill patient, sometimes to the point of unconsciousness, in order to treat pain and suffering that has been refractory (resistant) to traditional medical management. Most position statements require that such patients be imminently dying, usually hours or days from death, before palliative sedation is used. In the rare instances when pain and suffering is refractory to treatment even with expert clinical management, palliative sedation may legally be employed.

¹Adapted from Emanuel, Ezekiel, "Euthanasia: Historical, Ethical, and Empiric Perspectives," Arch Intern Med (9/12/94): 154, quoted in Report of the Vermont Legislative Council's Office, Oregon's Death with Dignity Law and Euthanasia in the Netherlands: Factual Disputes (2004) http://www.leg.state.vt.us/reports/05death/death_with_dignity_report.htm
²Lo B. Resolving Ethical Dilemmas: A Guide for Clinicians. 4th ed. Philadelphia, PA: Lippincott Williams & Wilkins; 2008
³NP Sykes, "Morphine kills the pain, not the patient," Lancet 369 (2007): 1325-6

Common Arguments in Support of Physician Aid in Dying (PAD):¹

Respect for autonomy: Decisions about time and circumstances of death are personal. Competent adults should have right to choose the timing and manner of death.

Justice: Justice requires us to "treat like cases alike." Competent, terminally ill patients have the legal right to accept or refuse treatment that will prolong their deaths. For patients who are terminally ill but who are not dependent on life support, refusing treatment will not bring death quickly. To treat these patients equitably, we should allow physician assisted death as it is their only option to hasten death.²

Compassion: Suffering means more than pain. There are other physical, spiritual, existential, social and psychological burdens such as the loss of independence, loss of sense of purpose and meaning, and functional capacities that some patients feel jeopardize their dignity. It is not always possible to relieve suffering. Thus PAD may be a compassionate response to unremitting suffering.

Individual liberty vs. state interest: Though society has strong interest in preserving life, that interest lessens when a person is terminally ill and has strong desire to end life. A complete prohibition against PAD excessively limits personal liberty. Therefore PAD should be allowed in certain cases.

Honesty and transparency: Some acknowledge that assisted death already occurs, albeit in secret. The fact that PAD is illegal in most states prevents open discussion, in which patients and physicians could engage. Legalization of PAD would promote open discussion and may promote better end-of-life care as patients and physicians could more directly address concerns and options.

Common Arguments Against Physician Aid in Dying (PAD):³

Protection of life: Religious and secular traditions upholding the sanctity of human life would be diminished by PAD. In addition, government has a strong interest in the preservation of human life.⁴ This interest is particularly strong in regard to preventing suicide. Depression is a significant issue for many terminally ill patients, and often very difficult to diagnose. Requests for PAD may be withdrawn if pain and depression are adequately treated.

Passive vs. active distinction: There is an important difference between passively "allowing to die" and actively "killing." It is a patient's right to refuse any medical treatments (including food and hydration) at any time. A valid refusal of treatment that allows a person to die (passive) is justifiable, whereas PAD is equates to killing (active) and is not morally justifiable.⁵

Protection of vulnerable groups: Vulnerable populations, lacking access to quality care and support, may be pushed into assisted death. Furthermore, assisted death may become a cost-containment strategy. Burdened family members may encourage loved ones to opt for assisted death and the protections in legislation can never catch all instances of such coercion or exploitation. To protect against these abuses, PAD should remain illegal.

Protection of the ethical integrity of the medical profession: Historical ethical traditions in medicine are strongly opposed to taking life. Some major professional groups (American Medical Association, American Geriatrics Society) oppose physician assisted death. The overall concern is that linking PAD to the practice of medicine could harm both the integrity and the public's image of the profession.

Palliative care and Hospice: Effective and available palliative care can diminish the reasons often cited for requesting PAD, such as physical, emotion, and spiritual pain. Home and inpatient hospice care can further reduce the need for PAD.

For additional discussion of positions for and against PAD, VEN recommends Top 10 Pros and Cons at ProCon.org

¹Adapted from Bioethics Topics, Physician Aid in Dying, University of Washington School of Medicine http://depts.washington.edu/bioethx/topics/pad.html
²The U.S. Supreme Court rejected this argument in Vacco v. Quill, 522 U.S. 793 ( 1997)
³ Adapted from Bioethics Topics, Physician Aid in Dying, University of Washington School of Medicine http://depts.washington.edu/bioethx/topics/pad.html
⁴See Cruzan v. Director, Mo Dep't of Health, 497 U.S. 261, 287 (1990).
⁵See Vacco v Quill, 521 U.S. at 808-09.

The question whether a severely ill patient should be able to obtain a physician's assistance in ending his or her life is almost as old as the practice of medicine itself. The prevailing opinion in Western medicine, as expressed in the Hippocratic Oath, has rejected this practice: "I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan."

The law is in accord. While suicide is not a crime in Vermont or any other state, assisted suicide is generally understood to be a crime under common law.

In recent decades, patients have become more active in medical decision-making. No longer are medical decisions left exclusively in the hands of medical professionals. Courts have become involved in determining the appropriate balance between patients and medical-care providers in decision-making, and have established a limited "right to die." The right to die is a negative right, meaning that competent individuals have a constitutional right to refuse unwanted medical treatment, even when doing so will result in death. At stake in the debate over physician aid in dying is whether in some circumstances there might also be a positive right to die (i.e., a right to assistance in hastening death). The U.S. Supreme Court has twice ruled that the U.S. Constitution does not establish a positive right to physician assistance in dying.¹ However, those two cases left open the possibility that the right might exist in very narrow circumstances not present in those cases, or that state law might confer such a right. The Court explicitly suggested that the "laboratory of the states" is a better forum to work out the many moral, philosophical and practical issues PAD brings up. Justice Sandra Day O'Connor stated:

Every one of us at some point may be affected by our own or a family member's terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure.²

To date, most states prohibit PAD and no court has found a state constitutional right to PAD. Two states, Oregon and Washington, have statutes that authorize PAD under strictly controlled circumstances described below. Both statutes were passed by voter referendum. The Oregon law has withstood several court challenges and PAD has now been practiced there for over 13 years. In addition, Montana legalized PAD through a court decision in 2009; however, the Court in that case sidestepped the question of whether PAD is a state constitutional right and merely upheld the state law prohibiting prosecution of physicians for helping terminally ill patient die.³ Two state supreme courts have upheld state laws banning PAD. In Vermont, past legislative efforts to legalize PAD failed.

For a more detailed discussion of the constitutional legal issues involved in PAD, see Legal Analysis below.

¹Vacco v Quill, supra; Washington v. Glucksberg, 521 U.S. 702 (1997)
²Washington v. Glucksberg, 521 US at 737 (1997) (O'Connor, J., concurring). See also, Cruzan v. Director Mo. Dep't of Health, 497 U.S. 261, 292 (O'Connor, J. concurring) (1990).
³Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (Mont. 2009).

According to the Bioethics Briefing Book of the Hastings Center, a non-partisan bioethics resource center, the public remains deeply divided on the question of whether to permit physician-assisted death. In most surveys, approximately two-thirds of the population of the United States approve of it as an option for terminally ill patients with intractable suffering. But when the question of legalization comes to a vote, it is usually closer to 50/50. This split probably reflects the inherent tensions in the debate. On the one hand, most people know of cases of severe suffering, even with excellent palliative care, where the need for some predictable escape is very compelling. On the other hand, there are real fears that physician-assisted death could be used as a detour that avoids effective palliative care or as a way to eliminate the suffering of vulnerable patients by eliminating the sufferer.¹

¹Physician Assisted Death, The Hastings Center http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2202

Oregon was the first state to authorize PAD. The Oregon Death With Dignity Act was approved by referendum in Oregon in1994 and implemented in 1997.¹ It has survived several court challenges. The Oregon law strictly limits the circumstances in which PAD may be used and the law contains a number of procedural safeguards to prevent abuses. Health care providers are not required to participate in implementing the law.

To be eligible for PAD in Oregon, a person must be 18 years old or older and must be suffering from a terminal disease in which death is expected to occur within 6 months. He or she must have decision-making capacity. Additional features of the Oregon law include:

A patient must make one written and two oral requests for medication to end his or her life, the written one "substantially in the form" provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the patient is "capable, acting voluntarily, and not being coerced to sign the request," and there are stringent qualifications as to who may act as a witness. The patient's decision must be an "informed" one, and the attending physician is thus obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the medication to be prescribed, and alternatives, "including but not limited to, comfort care, hospice care and pain control." Another physician must confirm the diagnosis, the patient's decision-making capacity, and voluntariness of the patient's decision. There are requirements for counseling if the patient is thought to be suffering from a mental disorder which may impair his or her judgment, for documentation in the patient's medical record, for a waiting period, for notification of the patient's next of kin, and for reporting to state authorities. The patient has the right to rescind the request for medication to end his or her life at any time.

Having met the above requirements, the patient is entitled to a prescription for medication to end life. The Act does not "authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia." That is, the Act authorizes physician assisted suicide by lethal prescription but explicitly rejects active euthanasia.²

Studies of the Oregon law to date indicate that PAD use is stable and relatively rare (460 deaths over the first 12 years).³ Pain management has improved, hospice use is among the highest in the country, and there is a state program to record Physician Orders for Life Sustaining Treatment (POLST).⁴ POLST forms (called COLST forms in Vermont) are medical orders signed by a physician that are intended to insure that a patient's wishes to limit treatment are respected.

Given that Vermont has 1/6 the population of Oregon – and assuming the use of PAD would be similar to that of Oregon – we can predict that 3 Vermonters would obtain a lethal prescription in the first year of legalized PAD (2 would use it), subsequently reaching a maximum of 15 prescriptions per year (up to 9 patients would use them).

¹3 Or. Rev. Stat. § 127.800 (1994).
²Report of the Vermont Legislative Council's Office, Oregon's Death with Dignity Law and Euthanasia in the Netherlands: Factual Disputes (2004) http://www.leg.state.vt.us/reports/05death/death_with_dignity_report.htm#Section2
³See Death With Dignity Act Annual Reports, Oregon Dept of Human Services http://www.oregon.gov/DHS/ph/pas/ar-index.shtm
⁴Physician Assisted Death, The Hastings Center http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2202

As medicine has advanced and to continues to advance, PAD has arrived at the intersection of constitutional privacy law and medical technology. Constitutional privacy law limits the government's ability to intrude in personal choices. As technology advances and life can be preserved even if the individual patient does not find a quality to his/her life, what are the government's legitimate interests? Government has a general interest in preserving life and prohibiting intentional killing and suicide. It may want to insulate terminally ill patients from undue influence from others who would want them to end their lives. It also has an interest in maintaining the integrity of the medical profession, in containing the cost of care, and in avoiding a slippery slope toward legal euthanasia. Courts examining PAD balance governmental interests against the individual's autonomy.

From a legal perspective, why is PAD considered different from either the right to refuse unwanted medical treatment or the right to adequate pain management? A review of relevant cases is helpful in answering this question.

As noted above, there have been two circumstances where the US Supreme Court has considered PAD, both on challenges by state stakeholders to the illegality of PAD under state law. See Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997). In both, the Court found no right to physician assistance in dying under the US Constitution, either as a matter of privacy or equal protection. Given the lack of a fundamental federal constitutional privacy or equal protection right to PAD, a state government may regulate PAD and make it illegal where its regulation is rationally related to a legitimate state interest. The Court found that the states' interests in preserving life, preventing suicide, protecting the vulnerable and maintaining the integrity of the medical profession were sufficient to support statutes forbidding PAD. However, the Court acknowledged that the States have the freedom to offer their citizens more liberties than the minimum required under the federal Constitution.

Attorney General Ashcroft did not agree that the issue of PAD is best left to the states. In 2002, he sought to enforce the federal Controlled Substances Act against Oregon practitioners who prescribed or filled prescriptions for controlled substances to be used in accordance with Oregon's statute. 21 C.F.R. part 1306 (2002). When Oregon sued to challenge the actions of the Attorney General, the Supreme Court found that the federal Controlled Substances Act could not be used to declare a medical standard of care and treatment authorized under state law to be illegitimate. Gonzales v. Oregon, 546 U.S. 423 (2006)

• Physician Aid-in-Dying Legislation in Vermont consists of House bill H.274: An Act Relating to Patient Choice and Control at End of Life, which was introduced in February 2011.
• http://euthanasia.procon.org