Norman L. Cantor

On Kamisar, Killing, and the Future of Physician-Assisted Death

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support. If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active euthanasia and assisted suicide would diminish. These modes secure a relatively tranquil death after a maximum period of approximately 10 days lingering in an insentient state. At the same time, I contend, these lawful modes of hastening death are so akin to suicide and euthanasia as to render anomalous the present ostensible prohibitions of physician-assisted death. Perhaps it is time to acknowledge that not all forms of assisted suicide and active euthanasia are criminal and unethical. And what about Yale Kamisars projections of abuse and distasteful extensions of voluntary medical decisionmaking? The 46 years of safe utilization of the above modes of hastening death belie the projection that PAD would ineluctably be abused. At the same time, current surrogate decisionmaking about end-of-life issues affecting now-incompetent patients tends to confirm Kamisars predictions about extensions of PAD to the chronically afflicted (as opposed to the terminally ill) and to incompetent patients. The thesis of this paper, though, is that these extensions, rather than being alarming, are a salutary part of making death with dignity a genuine possibility for fatally stricken persons.

The Straight Route to Withholding Hand-Feeding and Hydration

The target article (Cochrane 2009) provides a contorted rationale for upholding a surrogate’s decision to withhold all nutrition and hydration (NH) from a now-incompetent, debilitated patient who is no longer dependent on medical machinery. In that article, a surrogate’s legal right to withhold NH (including hand feeding) is grounded on two asserted principles: 1) that a competent person at all times has a constitutional right to decline bodily intrusions, and 2) that an incompetent patient (represented by a surrogate decision-maker) has “the same right” to decline such intrusions. Further, the target article sees a prerogative of a surrogate to withhold hand feeding as necessary to avoid premature pressure on prior medical decisions when the patient was temporarily dependent on life-sustaining medical treatment (LSMT). I agree with the bottom line—that a surrogate can decide, in limited circumstances, to withdraw NH (including hand-feeding) from a fatally afflicted patient even though the patient is not machine dependent. But I arrive at that conclusion by an entirely different route of analysis. I do not think that prior, temporary machine dependence has anything to do with the surrogate’s prerogative. Moreover, I doubt that every competent person (as opposed to a fatally stricken person) has a constitutional right to reject all bodily invasions. And I do not think that an incompetent patient has the ’same right’ as her previously competent persona.

My Annotated Living Will

Both courts and legislatures have gone a long way toward recognizing individual autonomy to shape the extent of medical intervention in the face of a naturally occurring dying process. This autonomy extends beyond the patient’s period of capacity to make decisions on his or her own behalf. That is, a person, while still competent, can express treatment preferences, and those preferences will generally be honored after competence to make medical determinations has been lost. This is the message flowing from judicial emphasis on “substituted judgment” as an important guide in the medical handling of incompetent patients,’ and from the multitude of “natural death” or “living will” statutes adopted over the last 12 years.* These statutes prescribe a format for a person to issue instructions about medical treatment or non-treatment to be followed if the person becomes incompetent. Such prior instructions designed to guide future medical decisions can be somewhat problematical. If the instructions are not issued proximately to the moment of their utilization, there may be concern that the issuer’s preferences have changed over time. Or the instructions may not have been issued with the serious perspective that close contemplation of death would generate. Or the instructions may be too vague or general to be useful. The drafter may not have anticipated the particular type of condition which later developed. Nonetheless, preparation of prior instructions regarding future medical handling may have considerable utility. At the least, the issuer clarifies his or her general attitude about life-prolonging medical intervention in the event of mental incompetence and terminal illness. And to the extent that the issuer addresses a range of potential medical situations, he or she may succeed in providing valuable guidance in post-competence decision-making. Beyond the plane of the issuer’s own medical fate, the accumulated knowledge gleaned from living wills should provide useful information in decision-making on behalf of dying patients who have not left explicit instructions regarding their medical handling. One object in such instances is to secure humane medical care. This means provision of terminal care which strives to prolong life so long as the dying patient is extracting some benefit therefrom. But humane medical care might not include prolongation of a natural dying process to the point where a previously vital and vigorous individual is lingering in a totally helpless, dependent, deteriorated, and demeaning state. The boundaries of humane medical treatment will be drawn in large part from each society’s moral consensus. That consensus will be derived from numerous sources, including legislation, judicial decisions, professional practices, and citizens’ conceptions of how they wish to be treated should they become incompetent. Living wills reflect this last element, the popular will. The living wills drawn by competent patients shaping their own dying processes can provide an index of American society’s concept of humane medical handling for an incompetent dying patient. Until now, clearcut societal consensus as to the medical handling of incompetent patients has been confined to limited issues. There is widespread agreement that a patient’s permanent unconsciousness insensate biological existence without hope of recovering human awareness-can warrant the termination of medical intervention. In such a situation, removing artificial obstacles to the dying process, i.e., permitting pathological conditions to follow their natural course, is widely regarded as humane treatment.4 In addition, there is consensus that the best interests of an incompetent but conscious dying patient can sometimes dictate cessation of life-preserving medical intervention. For example, relief from intractable pain offers a commonly accepted g r ~ u n d . ~ The consensus regarding the best interests of the conscious (though incompetent) dying patient appears to end with intractable physical pain. While it would be natural to consider a patient’s emotional suffering, along with physical pain, open questions exist regarding the means of assessment of emotional pain accompanying an incompetent adult’s dying process. Still more controversial is the position that even without the decision-maker being able to assess the incompetent patient’s emotional suffering, the helplessness and degradation of a previously