PHYSICIAN AID IN DYING: The Pros, Cons, and Protections for Patients and Physicians

Kristen Brooks, MD

I knew what she was going to ask me even before the words came out. Though young, she had been struggling for months with pain and debility on top of years of fighting to live. She was tired of struggling and terrified of dying on any terms but her own. “What if I want to choose when I die?” she asked. “How would it work with that new law? Who do I even talk to about this?” And so began our discussion of her options, including the option to end her own life.

The End of Life Option Act is a new law—signed by Governor Jerry Brown in October 2015 and taking effect June 9, 2016—that allows physicians to provide a competent and terminally ill patient a lethal dose of a medication for the purpose of ending his or her own life.¹

Physician aid in dying, formerly called physician-assisted suicide, does not equate to euthanasia, to withdrawal of life-sustaining treatment or to palliative sedation (none of which, I hasten to add, are comparable to each other). Neither does physician aid in dying refer to the “double effect” of hastening death by adequately controlling pain or discomfort at the end of life. The law is very clear that this is not suicide, but patients and physicians are sometimes not entirely comfortable with this distinction, and certainly there are complex ethical issues on both sides of this law.

There are strong ethical arguments in favor of this legislation. Patient autonomy is a proud hallmark of the American medical system. We value a patient’s right to choose, given the capacity to do so, the nature and course of their treatment as guided by their own personal values and morals. As Governor Brown said in his remarks on signing the bill,

I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn’t deny that right to others.

For the purpose of relieving unnecessary anguish, we allow patients to refuse or withdraw life-sustaining treatments knowing that this will result in death. Is it so different to allow patients to end their suffering actively rather than passively? Compassion dictates that we alleviate distress for our patients, and we have all seen the suffering that comes as some patients near the end of life. Pain, indignities, confusion, agitation and fear are all unfortunate realities for many patients in their final days.

Having open and honest conversations with our patients about death and their choices promotes honesty and transparency in the physician-patient relationship. The reality is that for decades, and really centuries, patients have planned ways to end their life if suffering becomes too great. Instead of these choices being pushed into the shadows, California patients can now have open and honest discussions about ways to take control of their own death and know that if they choose to end their life, they can do so in as controlled a way as possible.

Compelling as these arguments are, there are strong and reasonable ethical arguments against physician aid in dying. On a very fundamental level we can all acknowledge that there is a sanctity to life. Lives are of value and purpose, and many people believe that it is not in our purview to determine when that purpose has ended. The act of deliberately ending one’s own life is often seen as different from refusing life-sustaining treatment and letting nature take its course—a more passive action.

Critics argue that it is not our role as physicians to facilitate death but rather that the integrity of our profession is rooted in the fight against disease and the easing of suffering as disease eventually wins. Several groups representing those with physical and cognitive disabilities, the elderly and the dependent express concern that these vulnerable groups might be taken advantage of and that decisions about the end of life might be made for them rather than by them.

The law is very clear in this regard. The decision must be by patients themselves—and without undue influence. But how do we ensure this? Further, we must acknowledge that our profession is fallible and we sometimes get things wrong. Patients get well that we never thought would recover, and prognostications for how long a patient will live can be woefully incorrect.² These inaccuracies and uncertainties are part of the job, but when one is involved, however indirectly, in a life-or-death decision, the stakes grow much higher.

Among the new law’s many challenges for physicians is the change in how we talk with our patients. We are accustomed to having complex discussions about medical diagnoses, treatments and difficult decisions. This law creates a situation in which we talk with patients not just about our objective knowledge and experience but about ethical issues and perhaps even our personal moral beliefs. These may be difficult, and perhaps uncomfortable, conversations to have, especially when patients’ stances on this law and these issues differ from our own.

The law protects the personal values of both physicians and patients in two ways. To protect patients, physicians are prohibited from presenting this, on their own initiative, as an option to patients. The law is very clear that any discussion about this option must be initiated by the patient him- or herself without any undue influence by family, physicians or care providers.

To protect physicians, there is no obligation to participate in any activity (e.g., prescribing medications) that would follow from a patient’s decision to end his or her life.  If doctors choose not to participate, they are obligated only to refer patients to someone who will. While these protections are important, this also means that physicians and patients who may have been working together for decades will have to part ways in this, a patient’s most difficult and vulnerable hour. Furthermore, this creates a new way in which our personal values affect how we work together with colleagues, as patients move between providers who participate and those who do not.

There are several additional protections for patients and physicians inherent in this law. A sunset clause is built in whereby this law ceases to be operative in 10 years, forcing legislative re-evaluation and action—extending or amending it, or allowing it to die—depending on how it is seen to have served its intended purpose. The goal is to protect against abuses and avoid the “slippery slope.” The reality is that despite the fear, that slippery slope has not been a problem in Oregon, a state that now has 15 years of experience and on whose laws the California legislation was based. Patients rarely ask for assistance in dying—less than 0.05% of deaths follow from physician aid. Demographically, those who make this choice are similar to those who do not in terms of sex, race, health insurance coverage and hospice enrollment. Notably, those who opt for physician aid in dying tend to have higher levels of education.³

Ultimately, decisions at the end of life are deeply personal and should be made in partnership with a trusted physician. As physicians, we strive to provide our patients the best possible quality of life while respecting their individual choices and values. This law provides one more option in that process, and we hope it will offer comfort to those facing their final days.

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Dr. Brooks is a psychiatrist focusing on consultation-liaison psychiatry, in particular delirium. She is co-chair of the Kaiser San Rafael Medical Center Ethics Committee.
Email: kristen.b.brooks@kp.org

References
1. Orentlicher D, et al, “The changing legal climate for physician aid in dying,” JAMA. 2014; 311(19):1961-1962.
2. Christakis N, et al, “Extent and determinants of error in physicians’ prognoses in terminally ill patients,” West J Med, 172(5): 310-313 (2000).
3. Hall M, et al, Health Care Law and Ethics, Wolters Kluwer (2013).