Should people suffering from psychiatric conditions, such as severe, prolonged depression, that have not responded to treatment, be eligible for physician-assisted death? Most jurisdictions that allow PAD do not permit it for psychiatric conditions. However, though rare, it is allowed in Belgium and the Netherlands. Some regard the expansion to psychiatric conditions as evidence of an inevitable slippery slope and a reason why PAD should not be legalized at all. Others think that while PAD should be limited to terminal, physical illness, a slippery slope to other conditions is not inevitable. And still others think that there is a case for inclusion of some psychiatric conditions.
I will argue that the case for absolute exclusion of psychiatric conditions has not been made. It may be justified, in some cases and under certain conditions. Assisted death should always be a last resort, whether the condition prompting the request is physical illness or psychiatric condition.
One reason that has been given for why PAD should not be available to psychiatric patients is that this conflicts with role of psychiatrists. However, the same could be said about PAD for physical illness. Some opponents of PAD argue that physicians should be healers, not killers. Therefore, it seems that reflection on the role of psychiatrists cannot be used specifically to rule out PAD for psychiatric conditions.
It should also be noted that not all physicians agree that assistance in dying is inconsistent with the physician’s role. Some maintain that if a patient is dying, and nothing can be done to reverse the dying process, then healing is no longer possible. The physician’s job shifts from trying to cure to relieving physical suffering and also to providing the kind of death that fits with the patient’s own values. However, this points to a salient difference between PAD for physical illness and PAD for psychiatric conditions, namely, that psychiatric conditions are not instances of terminal illness. But this would be a reason for excluding PAD for psychiatric conditions only on the assumption that terminal illness should be a prerequisite for PAD, an assumption that requires further investigation.
Terminal illness, defined as having a prognosis of death within six months, is a requirement for aid-in-dying in the United States. However, it is not required in other countries, such as the Netherlands and Canada. In the Netherlands, the focus is on unbearable suffering without prospect of improvement; in Canada, it is on grievous and irremediable medical conditions. Should terminal illness be a prerequisite for PAD?
The rationale for the terminal illness requirement is that such patients are already dying and beyond medical treatment that can cure them or significantly prolong their lives. When they request PAD, they are asking their physicians for a “good death”: a death without undue suffering and on their own terms. Physical suffering may be adequately addressed with palliative care, but for some patients, that is not all that they want. For them, the physical impairments and deficits that will inevitably come are just as bad as, or worse than, physical pain.
The suffering that leads people to prefer death to continued life is not restricted to the terminally ill. What is the rationale for excluding those who have “incurable, but not imminently terminal, progressive illnesses,” such as amyotrophic lateral sclerosis (ALS) and the most severe cases of multiple sclerosis or Parkinson’s disease? Indeed, if suffering is the basis for PAS, it is even stronger in the case of those who are not going to die within a few months, as their suffering will last longer and therefore will be greater.
The data from Oregon show that physical suffering is not a primary reason why people request aid-in-dying. Loss of autonomy, loss of dignity, and loss of things that make life pleasurable and meaningful are more often cited as reasons. These too can cause intense suffering, although it is not the kind of suffering that can be addressed by morphine or other pain-relieving drugs. Moreover, concerns like these are not limited to those who are terminally ill. The morally relevant features that justify restricting physician-assisted death are, I submit, incurable conditions and severe, unrelenting suffering, not terminal illness.
Are there cases of psychiatric conditions that cannot be successfully treated? If so, then the argument for offering PAD in such cases is analogous to the argument for offering it for incurable physical illness that causes severe, unrelenting suffering. Some psychiatrists claim that depression is always treatable, but this claim seems too strong. A weaker claim is more plausible: even if treatment is, in some cases, futile, it is impossible to know in advance which ones these are, and therefore, from a clinical perspective, giving PAD is never justifiable. What supports this claim?
In the case of an individual patient, it remains extremely difficult to predict whether therapy will produce an early response, a delayed response or no response. It is impossible to predict which patients will undergo spontaneous remission and when this will happen. These uncertainties are far more pronounced in psychiatric practice than in medical practice, to the extent that it is essentially impossible to describe any psychiatric illness as incurable, with the exception of advanced brain damage as occurs in progressive neurodegenerative disorders such as Alzheimer’s disease and Huntington’s disease.
This may overstate the difference between medical and psychiatric practice. Cancer patients who have been given a terminal diagnosis also sometimes go into spontaneous remission. Moreover, while doctors are pretty good at predicting death within a few days, it is much more difficult to predict that someone will be dead within six months. Indeed, this aspect of medical uncertainty is part of the reason why some advocates of physician-assisted death reject the terminal illness requirement. Uncertainty pervades most areas of medicine, not just psychiatry, and this is not viewed as a reason to deprive individuals of making their own decisions.
However, if decision-making is impaired, then the voluntariness of requests for PAD is suspect. We need to consider whether, and to what extent, decision-making capacity is impaired by the very condition that prompts the request for PAD.
Does Severe Psychiatric Illness Impair Decision-Making Capacity?
Respect for patient autonomy, understood as the right of patients to make their own value-laden decisions about medical treatment, has been a foundation of medical ethics since the 1960s. At the same time, it is recognized that certain conditions, such as youth, intoxication, cognitive deficits or psychiatric illness, can impair decision-making and prevent patients from making truly voluntary choices. The challenge for clinicians is to assess decision-making capacity in patients whose capacity may be impaired without depriving them of their fundamental right to participate in medical decision-making.
To be a competent decision-maker, one needs to have the ability to understand the information one is given about one’s condition and the possible treatments, to appreciate the significance of this information for one’s own situation, and to reason about the information in order to weigh options. Someone who is impaired in one aspect may not be impaired in another, making the question of clinical assessment of competence complicated.
Depression may not affect the ability to understand and reason, but it may have a profound effect on attitude. In depression, things look bleak, even hopeless, and the prospect that things could change for the better seems remote or impossible. Simply informing the person of the possibility of new treatments or spontaneous remission may not be adequate because a severely depressed person may not be able to appreciate the information.
While this would be of great clinical significance in assessing a request for PAD, it does not justify an absolute ban on PAD for psychiatric conditions, any more than it would justify depriving severely depressed patients of all say in their medical treatment. Certainly PAD should not be offered lightly. However, if a patient has undergone all available therapy for years, to no avail, and as a result has such severe and unrelenting suffering that he or she wants to die, it is hard to see why this isn’t a legitimate reason for requesting PAD and why a compassionate physician has to refuse such a request.
The Slippery Slope Argument
In general, slippery slope arguments maintain that a law or policy that seems initially acceptable is likely to have extremely unacceptable results. In the case of PAD, the initial restrictions, such as terminal illness, unbearable suffering, and voluntariness, might be jettisoned as social attitudes changed.
Concerns about PAD being used in lieu of other interventions are not unique to psychiatric conditions. Many, though not all, advocates of palliative care make the same arguments against PAD generally. It would be tragic if PAD were to replace, or lessen the provision of, palliative and hospice care. Fortunately, this has not been the experience in Oregon, where palliative care may have been improved by the passage of the Death With Dignity law. Excellent palliative care should be available to all who need it, and it should address psychosocial causes of suffering, such as loneliness, as well as physical pain.
The dangers of a slippery slope should not be minimized or ignored. The words of Yale Kamisar in his classic article opposing the legalization of euthanasia remain relevant today:
“Is this the kind of choice that we want to offer a gravely ill person? Will we not sweep up, in the process, some who are not really tired of life, but think others are tired of them; some who do not really want to die, but who feel they should not live on because to do so when there looms the legal alternative of euthanasia is to do a selfish or a cowardly act?”
The solution to the slippery slope is not to impose arbitrary restrictions based on the source of suffering, but to limit PAD to those with severe and unrelenting suffering that cannot be alleviated any other way.
Bonnie Steinbock, a Hastings Center Fellow, is professor emeritus of philosophy at the University at Albany, State University of New York, and a professor of bioethics at Union Graduate College’s Center for Bioethics and Clinical Leadership. She is also a Distinguished Visiting Professor at the Chinese University of Hong Kong’s Centre for Bioethics. A longer version of this commentary first appeared on What’s Wrong the blog of Colorado University, Boulder’s Center for Values and Social Policy.