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By Burke J. Balch,
J.D., and Randall K. O'Bannon, M.A.
Under the banners of compassion and autonomy, some are
calling for legal recognition of a "right to
suicide" and societal acceptance of
"physician-assisted suicide." Suicide proponents
evoke the image of someone facing unendurable suffering
who calmly and rationally decides death is better than
life in such a state. They argue that society should
respect and defer to the freedom of choice such people
exercise in asking to be killed.
But what would be the consequences of accepting this
perspective? Let us examine the facts.
Accepting a "right to suicide" would create a
legal presumption of sanity, preventing appropriate mental
health treatment.
If suicide and physician-assisted suicide become legal
rights, the presumption that people attempting suicide are
deranged and in need of psychological help, borne out by
many studies and years of experience, would be reversed.
Those seeking suicide would be legally entitled to be left
alone to do something irremediable, based on a distorted
assessment of their circumstances, without genuine help.
An attempt at suicide, some psychologists say, is often
a challenge to see if anyone out there really cares.
Indeed, seeking physician assistance in a suicide, rather
than just acting to kill oneself, may well be a
manifestation, however subconscious, of precisely that
challenge. If society creates a "right to
suicide" and legalizes "physician-assisted
suicide," the message perceived by a suicide
attempter is not likely to be, "We respect your
wishes," but rather, "we don't care if you live
or die."
Almost all who commit suicide have mental health
problems.
Few people, if any, simply sit down and make a cool,
rational decision to commit suicide. In fact, studies have
indicated that 93-94% of those committing suicide suffer
from some identifiable mental disorder. In one such study,
conducted by Dr. Eli Robbins of suicides occurring in St.
Louis, Missouri, 47% of those committing suicide were
diagnosed as suffering from either schizophrenic panic
disorders or from affective disorders such as depressive
disorders, dysthymic disorders, or bipolar disorder. An
additional 25% suffered from alcoholism while another 15%
had some recognizable but undiagnosed psychiatric
disorder. 4% were found to have organic brain syndrome, 2%
were schizophrenic, and 1% were drug addicts. The total of
those with diagnosable mental disorders was 94%. An
independent British study came up with a remarkably
similar total figure, finding that 93% of those who commit
suicide suffer from a diagnosable mental disorder.
Persons with mental disorders make distorted judgments.
Suicide is often a desperate step taken by individuals
who consider their problems so intractable as to make
their situations hopeless. But experts in psychology
recognize the evaluations these individuals make of their
personal situations are flawed.
The suicidal person suffering from depression typically
undergoes severe emotional and physical strain. This
physical and emotional exhaustion impairs basic cognition,
creates unwarranted self-blame, and generally lowers
overall self esteem, all of which easily lead to distorted
judgements. These effects also contribute to the sense of
hopelessness that is the primary trigger of most suicidal
behavior.
Studies have shown that during the period of their
obsession with the idea of killing themselves, suicidal
individuals tend to think in a very rigid, dichotomous
way, seeing everything in "all or nothing"
terms; they are unable to see any range of genuine
alternatives. Many seem to be locked into automatic
thoughts and responses, rather than accurately to
understand and respond to their environment. Suicide
attempters also tend to maximize their problems, minimize
their achievements, and generally to ignore the larger
context of their situations. They sometimes have
inordinately unrealistic expectations of themselves.
During the period of their disorders, these individuals
usually see life as much more traumatic than it actually
is and view temporary minor setbacks as major permanent
ones.
Most of those attempting suicide are ambivalent; often,
the attempt is a cry for help.
Studies and descriptions of suicide attempters who were
prevented from committing suicide by outside intervention
(or in some cases, because the means used in the attempt
did not take complete effect) demonstrate that most
suicidal individuals have neither an unequivocal nor an
irreversible determination to die. For example, one study
conducted by two psychiatrists in Seattle, Washington
found 75% of the 96 suicide attempters they studied were
actually quite ambivalent about their intentions to die.
It is not actually a desire to die, but rather the desire
to accomplish something by the attempt that drives the
attempter to consider such a drastic option. Suicide is
the means, not the end.
Often, suicide attempters are apparently seeking to
establish some means of communication with significant
persons in their lives or to test those persons' care and
affection. Psychologists have concluded that other motives
for attempting suicide include retaliatory abandonment
(responding to a perceived abandonment by others with a
revengeful "abandonment" of them through death),
aggression turned inward, a search for control,
manipulative guilt, punishment, escapism, frustration, or
an attempt to influence someone else. Communication of
these feelings -- rather than death -- is the true aim of
the suicide attempter. This explains why, paradoxically
but truthfully, many say after an obvious suicide attempt
that they really didn't want to kill themselves.
Psychiatrists have long advanced the opinion that
underlying a suicidal person's ostensible wish to die is
actually a wish to be rescued, so that a suicide attempt
may quite accurately be described, not as a wish to
"leave it all behind," but as a "cry for
help." To allow or assist in a suicide, therefore, is
not truly fully respecting a person's "autonomy"
or honoring an individual's real wishes.
The disorders leading many to attempt suicide are
treatable.
Depression can be treated. Alcoholism can be overcome.
The difficult situations and circumstances of life which,
at the moment, seem permanent and pervasive, often
dissolve or resolve in time. The emotional and cognitive
patterns of thought and emotion which cloud the suicide
attempter's judgement and lead to feelings of utter
despair and hopelessness, with proper psychiatric care,
can be rechanneled in more rational, positive ways.
Crucial to such turnarounds is intervening to stop the
suicide attempt and getting the attempter professional
psychological assistance. Encouraging or validating the
disturbed individual's feelings or misperceptions in fact
makes it less likely the individual will get the help he
or she needs and subconsciously probably wants.
Few of those rescued from suicide attempts try again.
Proof that most individuals attempting suicide are
ambivalent, temporarily depressed, and suffering from
treatable disorders is the fact that so few, once rescued
and treated, ever actually go on to commit suicide. In one
American study, less than 4% of 886 suicide attempters
actually went on to kill themselves in the 5 years
following their initial attempt. A Swedish study published
in 1977 of individuals who attempted suicide at some time
between 1933 and 1942 found that only 10.9% of those
eventually killed themselves in the subsequent 35 years.
This suggests that intervention to keep an individual
alive, is actually the course most likely to honor that
individuals true wishes or to respect the person's
"autonomy."
Burke J. Balch is the Director of the Department of
Medical Ethics for the National Right to Life Committee.
Randall K. O'Bannon is a Research Associate for the
Department of Medical Ethics. |
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by
Burke J. Balch, J.D., and David Waters
Proponents of euthanasia argue that
"mercy-killing" is necessary because patients,
particularly those with terminal illness, experience
uncontrollable pain. They argue that the only way to
alleviate the pain is to eliminate the patient. But is
there a better way?
The better response to patients in pain is not to kill
them, but to make sure that the medicine and technology
currently available to control pain is used more widely
and completely. According to a 1992 manual produced by the
Washing ton Medical Association, Pain Management and
Care of the Terminal Patient, "adequate
interventions exist to control pain in 90 to 99% of
patients." The problem is that uninformed medical
personnel using outdated or inadequate methods often fail
in practice to bring patients relief from pain that
today's advanced techniques make possible.
Doctor Kathleen Foley, Chief of Pain Services at the
Memorial Sloan-Kettering Cancer Center in New York,
explained in the July 1991 Journal of Pain and Symptom
Management how proper pain management has mitigated
patient wishes for assisted suicide:
We frequently see patients referred to our Pain Clinic
who request physician-assisted suicide because of
uncontrolled pain. We commonly see such ideation and
requests dissolve with adequate control of pain and
other symptoms, using combinations of pharmacologic,
neurosurgical, anesthetic, or psychological approaches.
Approaches to Effective Pain Management
Treating "Total Pain"
The social and mental pain suffered by terminally ill
patients may exacerbate the physical pain they experience.
Dr. Matthew Conolly points out, "[F]ailure to
remember this complexity is one of the most common reasons
why patients fail to achieve adequate symptomatic
relief." Effective pain control therefore requires a
team effort of doctors, nurses, psychiatrists, and
counselors to address the "total pain" a patient
is suffering.
Severe Pain
Proper administration of an opioid, particularly
morphine, has been proven to provide effective pain
management in the majority of patients with severe pain. A
February 1993 article in Anesthesiology notes:
In the setting of widespread cancer, although more than
half of patients will experience pain, their pain is
manageable by oral administration of opioids alone in
70-80% of cases.
And many methods other than opioids are available. Some
patients may benefit from radiation therapy, nerve blocks
(including even spino-thalamic tractotomy in selected
cases), non-steroidal anti-inflammatory drugs, and
non-pharmacological methods, which include distraction and
relaxation. Transcutaneous electrical nerve stimulation
and direct spinal cord (dorsal column) stimulation may be
valuable.
Technological Advances
Technological advances have greatly increased the
available options in administering opioids. One of these,
Patient Controlled Analgesia (PCA) (a pump which can
deliver a continuous infusion of a drug such as morphine,
as well as allow patient-activated doses for breakthrough
pain), eliminates the delay in receiving pain relief
caused by having to wait for a nurse to administer the
necessary medicine. Studies have shown that PCA may
actually lower the amount of medicine administered to
patients, while providing them with a safe and effective
way to have more control over their treatment.
Another technological advance is the availability of a
72 hour patch made by Alza Corporation which releases
controlled amounts of the opioid fentanyl through the
skin. This patch allows patients to sleep through the
night, avoiding the need to to wake up to take more
medicine. The development of time released morphine
provides this same benefit. There is increasing interest
in infusing opiates directly into the spinal column,
sometimes using an implanted pump. This allows effective
pain relief with a much lower total dose so that fewer
systemic side effects are encountered.
Barriers to Effective Pain Control
Despite our ability to control pain through medicine
and technology, there are some patients who are needlessly
suffering due to beliefs and practices which disrupt
proper pain management. Poor pain assessment by
physicians, patient reluctance to report pain, and patient
hesitance to take and physician reluctance to prescribe
appropriate medication, are some barriers that prevent
proper pain management.
These practices are based on several myths, related to
addiction, tolerance, and side effects. Some doctors do
not prescribe adequate opioid medication because they fear
their patients will become addicted. Research shows,
however, that only 0.04% of patients treated with morphine
become addicted. Side effects associated with opioids,
such as constipation, nausea, and vomiting, can be
effectively managed by other medication and careful opiate
titration. While a patient may develop a degree of
tolerance to morphine over time, this is never total, and
therefore increased doses of the opioid continue to
provide relief.
Efforts to Educate Doctors and the Public
In an effort to counter beliefs and practices which
disrupt proper pain management, health care professionals
in 27 states are promoting cancer pain initiatives. These
initiatives provide education for doctors, patients, and
the general public about effective pain management,
especially in terminal patients. The U.S. Department of
Health and Human Services has produced a series of Clinical
Practice Guidelines for Acute Pain Management and is
now working on additional guidelines specifically for
cancer pain.
We have the technology and the medicine effectively to
control pain. While there do exist some barriers to the
implementation of that medicine and technology, efforts
are being made to remove those barriers. Instead of trying
to legalize the killing of patients in pain, the public
should be making sure that doctors are taught, and use,
effective pain management. |
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By Burke J. Balch,
J.D., and Randall K. O'Bannon, M.A
Proponents of physician-assisted suicide frequently
begin by advocating its legalization for those who are
terminally ill, although they have moved far beyond that
category. But, as this article will demonstrate, 1)
treatable depression, rather than the terminal illness
itself, usually accounts for such a patient's expression
of a wish to die; 2) after a diagnosis of terminal
illness, a person normally goes through a series of stages
of coming to terms with impending death and resolving
unfinished business in his or her life, a valuable process
that is cut short by acceding to a depression-induced
request for assistance in suicide; and 3) given growing
pressures to contain medical costs and prevailing social
attitudes, if assisting suicide is legalized, many
terminally ill patients will be led to feel they are
burdens and have a duty to die.
Most terminal patients seek suicide not because they
are ill, but because they are depressed.
A study of terminally ill patients published in The
American Journal of Psychiatry in 1986 concluded:
The striking feature of [our] results is that all of the
patients who had either desired premature death or
contemplated suicide were judged to be suffering from
clinical depressive illness; that is, none of those
patients who did not have clinical depression had
thoughts of suicide or wished that death would come
early.
USA Today has reported that among older people
suffering from terminal illnesses who attempt suicide, the
number suffering from depression reaches almost 90%.
This fact is not really in dispute. Even Jack Kevorkian,
the notorious "suicide doctor," said at a court
appearance that he considers anyone with a disabling
disease who is not depressed "abnormal." But
what Kevorkian and others who argue in favor of
physician-assisted suicide ignore is that even though the
disease itself may be untreatable, the depression is
treatable, and it is the depression, not the disease,
which makes such persons suicidal.
Suicidologist Dr. David C.
Clark notes that depressive episodes in the seriously ill
"are not less responsive to medication"[5] than
depression in others. And psychologist Joseph Richman,
former President of the American Association of
Suicidology, says, "[E]ffective psychotherapeutic
treatment is possible with the terminally ill, and only
irrational prejudices prevent the greater resort to such
measures." Indeed, the suicide rate in persons with
terminal illness is only between 2% and 4%. Competent and
compassionate counseling, together with appropriate
medical and psychological care, are the caring and
appropriate response to people with terminal illness who
express a wish to die.
Especially for those who are terminally ill, it is not
good to circumvent the dying process.
In 1969. psychiatrist Elisabeth Kubler-Ross outlined
the 5 stages of the dying process -- denial, anger,
bargaining, depression, and acceptance. Since that time,
Dr. Kubler-Ross has worked with thousands of dying
patients and their families to help them deal with the
dying process. In a recent interview, she indicated that
her experience over the past 20 years tells her that
suicide is wrong for patients with terminal illness.
Lots of my dying patients say they grow in bounds and
leaps, and finish all the unfinished business. [But
assisting a suicide is] cheating them of these lessons,
like taking a student out of school before final exams.
That's not love, it's projecting your own unfinished
business.
This "unfinished business" of considering the
ultimate meaning of one's life, of resolving old disputes
and mending relationships, of coming to a final
recognition and appreciation of all the good things that
have been a part of one's life, are all short-circuited by
those who, overcome by depression , give up too soon in
the process and kill themselves. And despite their
compassionate motives, those healthy bystanders who
encourage or even assist in these suicides are in fact
helping to steal the last precious moments of these
patients' lives.
Many consider suicide primarily because they are
pressured into seeing themselves as burdens on their
families or society.
The principal reason people in a 1991 Boston Globe
survey said they would consider some option to end their
lives if they had "an incurable illness with a great
deal of physical pain" was not the pain, not the
"restricted lifestyle," and not the fear of
being "dependent of machines," but rather that
they "don't want to be a burden" to their
families. Family members who support the suicide of a
terminally ill patient often unwittingly reinforce the
notion that the ill family member's life has lost all
meaning and value and is nothing but a "burden."
In an era of concern over escalating medical costs,
"unproductive" consumers of medical services are
increasingly made to see themselves as drains on society
and the economy. When suicide is promoted as a socially
acceptable "option," the pressure to avail
oneself of it is immense.
Thus, if assisting suicide for those with terminal
illness is legalized, the so-called "right to
die" is very likely in practice to become a
"duty to die." |
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by Burke J. Balch,
J.D. and David N. O'Steen, Ph.D.
On May 2, 1994, a Michigan jury acquitted Jack
Kevorkian of charges related to his publicly proclaimed
assistance in the suicide of Thomas Hyde. The verdict
points up the way in which the pathos of individual cases
often leads criminal case juries to react emotionally,
failing to give considerate attention to the general
effects on older people and people with disabilities of
signaling societal acceptance of death as the solution to
human problems.
As this article will show, there are strong reasons why
more states should follow the lead of Minnesota,
Tennessee, and North Dakota, all of which have recently
enacted "civil remedy" statutes that, entirely
apart from criminal remedies, allow private parties to
obtain injunctions against those who assist suicides.
Injunctions are granted by judges, without juries, and a
judge can punish violators with sanctions for contempt of
court.
Regrettably, the Kevorkian acquittal is not an isolated
case of jury nullification of laws protecting suicide
victims. Recent history demonstrates that no physicians,
and few non-physicians, have been successfully prosecuted
for assisting suicide. The emotional tug of individual
cases makes prosecutors reluctant to seek punishment and
juries reluctant to impose it.
An article in the November 5, 1992 issue of the New
England Journal of Medicine co-authored by Dr. Timothy
Quill (who himself escaped penalty when a grand jury
refused to indict him for his openly announced
participation in assisting a suicide) notes, "In
every situation in which a physician has compassionately
helped a terminally ill person to commit suicide, criminal
charges have been dismissed or a verdict of not guilty has
been brought." Other studies confirm this conclusion,
which in fact is not limited to circumstances of
"terminal illness" or "compassion."
While there have been a few successful criminal
prosecutions of non-doctors, they have been extremely
rare. A 1986 article in the Columbia Law Review concluded:
[A]ll indications are that assistance statutes are
rarely, if ever, used. ... [D]espite the thousands of
suicides each year, only about fifty news reports
regarding some form of prosecution in the past decade
for some type of assistance to suicide have been
located. ... No post-1930 decision appears to exist in
any state reporter of an appeal from a prosecution for
the specific offense of assisting or causing a suicide.
Surely, many more cases of suicide assistance are
occurring than are prosecuted.
.... Police and prosecutors appear to be reluctant to
bring charges for suicide assistance. A British study
found only one-sixth of all reported cases of suicide
assistance were prosecuted. ... It seems plain that
police and prosecutors are exercising their discretion
to turn a blind eye to acts of assistance to suicide,
which means that legislative enactments are not being
enforced.
What happens when criminal prosecutions are actually
brought? Leonard Glantz accumulated reports on 20
prosecutions from 1939 through 1983. Only in three of them
is there a record of jail sentences for the accused, and
in each of those three cases there were unusual factors
that cast doubt on how "merciful" were the
defendants' motives.
A few of the others resulted in suspended sentences,
but the great majority resulted either in grand jury
refusals to indict or acquittals. Glantz concluded,
"[A]s a practical matter, the laws of homicide may
not offer much protection to very sick, elderly
patients."
Why Are Criminal Penalties So Frequently Evaded?
Most of those involved in assisting suicide seem more
sympathetic characters to a jury than the typical street
criminal. They are often doctors or family members and
friends of the suicide victim. Even when prosecutors or
juries are convinced that what these people have done or
are doing is objectively wrong, it is hard for them
to regard such people--who often subjectively have
convinced themselves they are doing the right thing--as
hardened criminals worthy of punishment. Indeed, this is
an area in which almost all--including those of us pushing
most strongly for laws to protect potential suicide
victims from "assistance"--are more interested
in preventing the act than in seeking retribution against
the actor.
Thus, one law review article quotes a local prosecutor
as saying "the District Attorney's office [does] not
seek out such cases and would prosecute only those in
which one of the people involved complained" and
another as saying "that the law-enforcement
authorities should stay out of them as much as
possible." It must be remembered that in our
system there is absolute "prosecutorial
discretion" and there is no legal duty on the part of
any prosecutor to investigate or to take to court someone
who even admittedly has violated the law.
If a prosecution does in fact come to trial, and
against the odds a conviction is secured, a dilemma
occurs. If a stiff jail sentence is given, the defendant
may well come to be seen as a martyr; if a lenient one,
the deterrent value of the law will be greatly undermined.
In either case, respect for the law is diminished, and
pressure for its repeal--as either "draconian"
or "ineffective"--is likely to grow.
What can be done to make more effective the laws
already on the books against assisting suicide? After all,
the pro-life objective is actually to protect
potential suicide victims from those who would
"assist" their suicides, not just to have the
law symbolically condemn the act. There is reason to
believe that if those otherwise inclined to assist
suicides knew they could be sued for substantial sums by
family members or others given "standing" (the
legal right to sue), they might view that prospect as a
more realistic deterrent than the unlikely chance they
will be convicted under the criminal law. Even if the
person planning to aid the suicide first secured the
consent of family members (as Jack Kevorkian is apparently
careful to do), he or she could never be sure that one of
them might not later sue--either because of a change of
mind, or simply because there would be a financial
incentive. And if the law provided an easy way to get an
injunction against a serial assister like Kevorkian, then
the ability of the court to impose ever-increasing fines
for contempt of court if the injunction was violated would
be likely to deter all but the most resolute of euthanasia
advocates.
How and Why Civil Remedies Work
Under a civil remedies approach, private individuals
(such as family members of the suicide victim) are given
"standing"--the ability to sue the suicide
assister. This means that the prosecutorial discretion of
public officials can no longer completely thwart the
taking of steps against the assister. It also emphasizes
that assisting suicide is not a "victimless"
crime--that apart from the suicide victim himself or
herself, those close to the one who dies are harmed, a
point that may be important to juries.
There are two types of civil remedies: injunctions and
civil damages. An injunction has a number of advantages.
It allows action to prevent a death before it happens. It
permits a case to be brought promptly before a judge who
can directly order the would-be assister not to violate
the law. That person then knows that if he or she violates
the court order, the judge will order heavy fines for
contempt of court. For most doctors, in particular, this
is likely to be a far more realistic deterrent than the
unlikely prospect of serving time in jail.
As the doctors' fear of malpractice liability
demonstrates, sanctions that hit the pocketbook are
extremely effective. They can be enforced through the
garnishment of income and the seizure of assets.
Civil damages are monies awarded after the fact, as in
traditional malpractice cases. Insurers are likely to
exercise strong pressure on doctors to avoid actions that
could subject them to such suits.
Kevorkian, who apparently enjoys posing as an
iconoclastic martyr for the death crusade, might shrug off
bankruptcy. But individuals like him are few, and the
greatest danger is that more and more
"respectable" doctors will come out of the
woodwork to publicly assist suicides, if convinced the
odds of criminal conviction are low. It is these whom
civil remedies would be likely to deter.
If the legislation provides that relatives may bring
suit for civil damages even if they consented
to the killing, those who assist in a suicide will know
they cannot ensure a cover-up even by involving family
members in the conspiracy, since those who know will not
be prevented from suing and will have a strong financial
incentive to do so.
Civil remedies have another advantage from the
perspective of taxpayers. The criminal law is enforced by
prosecutors who are paid with tax dollars and by using
jails constructed and run with tax dollars. But civil
remedies are largely financed from the pockets of the
wrongdoers, not only through fines but also through the
awarding of reasonable attorney's fees to the lawyers for
the plaintiffs if their suit is successful.
But Won't Civil Remedies Lead to Groundless, Harassing
Suits?
If a suit is brought frivolously, or in bad faith, the
plaintiff may be penalized by the awarding of reasonable
attorney's fees to the defendant. This not only
recompenses someone who is recklessly and wrongly accused,
but also deters plaintiffs from filing suits unless they
have clear evidence to back up their allegations.
Is There Any Precedent for the Use of Civil Remedies?
Much of the enforcement of civil rights statutes has
come not through the criminal statutes but through the use
of injunctions, sometimes issued in suits brought by
government officials, but more frequently in those
initiated by private citizens represented by public
interest lawyers.
Suits for injunctions against discrimination in
schools, public accommodations and the like frequently
resulted in giving the plaintiffs the authority to monitor
the future activities of the defendants, to check to see
whether they were violating the injunctions.
It is these civil remedies that, even today, provide
the principal means of preventing racial discrimination. Now
is the time to work to add effective civil remedies to the
existing protections against assisting suicide. We must be
pro-active in the fight to protect vulnerable people from
those who, instead of offering them help and counseling,
will so very readily agree that they are better off dead.
Burke J. Balch is the Director of the NRLC
Department of Medical Ethics and David O'Steen is the
Executive Director of the National Right to Life Committee |
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