The constitutional case against permitting physician-assisted suicide for competent adults with "terminal conditions."

• Author: Bopp, James, Jr.

The story of Tim illustrates poignantly an underlying social issue at stake in the legal debate over physician-assisted suicide for terminally ill patients. Aside from the constitutional issues, a question of great social import must be asked: Is helping people to kill themselves an appropriate response to the life conditions that cause them to ask for such "help" Tim was a patient of Dr. Herbert Hendin, a leading expert on the subject of suicide.(1) Dr. Hendin is professor of psychiatry at the New York Medical College and executive director of the American Suicide Foundation in New York City. A professional in his early thirties, Tim was referred to Dr. Hendin for psychiatric consultation after being diagnosed as having acute myelocytic leukemia. With treatment Tim would have a twenty-five percent chance of survival; without treatment he would certainly die within a few months.

Tim's immediate response to this life crisis was a desperate desire for suicide. He also wanted help in carrying it out. He was preoccupied with concerns about being dependent and unwilling to tolerate the symptoms of his disease or the side effects of the treatment. Due to these preoccupations, Tim could not even consider how he felt about death and its meaning to him. However, with counseling, Tim was able to talk about the possibility or likelihood of his death. He was able to express what it meant to him in terms of separation and bodily disintegration. As a result, his desperate avoidance subsided.

Tim decided to undergo medical treatment and complained little about its unpleasant side effects. He spent the remaining months of his life connecting with his wife and parents in ways that were moving and meaningful to him. Two days before he died, he talked about what he would have missed without the time and opportunity for a loving parting.

Dr. Hendin observed that Tim's expectation of painful circumstances surrounding his dying was not irrational. However, all his anxieties about death and dying were displaced onto amplifying them. Many patients and physicians displace anxieties about death onto the circumstances of dying--e.g., anxieties about pain, dependence, loss of dignity, as well as the unpleasant side effects resulting from medical treatment or, for the physician, frustration at not being able to offer a sure cure.

Dr. Hendin noted that, under Oregon's new law, the Death with Dignity Act or Measure 16, Tim would probably have requested assisted suicide. Since he was mentally competent and not clinically depressed, he would surely have qualified and been accepted for such assistance. Consequently, he likely would have committed suicide in an unrecognized state of terror without the chance to die in the dignified way he did.

In presenting the legal case against statutorily permitting physician-assisted suicide for competent adults with terminal conditions, the primary focus of this article will be the constitutional and statutory issues. Yet the backdrop to the constitutional debate is made up of real people in real crises, such as Tim. What does society say to Tim if it grants and facilitates his desire to kill himself because he is terminally ill? Is helping Tim kill himself an appropriate way for society to deal with his crisis situation?

The New York State Task Force on Life and the Law (hereinafter "New York Task Force" considered these questions in an exhaustive study entitled When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context,(2) and concluded that

[w]en a patient requests assisted suicide or euthanasia, a health care

professional should explore the significance of the request, recognize

the patient's suffering, and seek to discover the factors leading to the request.

These factors may include insufficient symptom control, clinical

depression, inadequate social support, concern about burdening family

or others, a sense of hopelessness, spiritual despair, loss of self-esteem,

or fear of abandonment. These issues should be addressed in a process

that involves both family members and health care professionals.

Any response to a request for assisted suicide or euthanasia is morally

weighty. A ready agreement to the request could confirm a patient's

sense of despair and worthlessness.(3)

Dr. Richard Fenigsen(4) echoes this concern about the message sent to vulnerable members of society by the approval of euthanasia, a concern that logically extends to assisted suicide:

Instead of the message a humane society sends to its members--'Everybody

has the right to be around, we want to keep you with us, everyone

of you'--the society that embraces euthanasia, even the mildest'

and most `voluntary' forms of it, tells people: `We wouldn't mind getting

rid of you.' This message reaches not only the elderly and the sick, but

all the weak and dependent.

In sum, requests for suicide are usually the result of a treatable condition. Agreeing with and assisting in a request for suicide is essentially an abandonment of a person desperately in need of help. Assistance in suicide is not an appropriate societal response to a request for suicide.

In addressing the constitutional issues surrounding physician-assisted suicide, two key legal issues arise: (1) does a constitutional right to suicide and assistance in suicide exist, and (2) may a state extend protections against self-harm and assistance in suicide to some of its citizens, yet deprive other citizens of those protections? These issues will be dealt with after an examination of the reasons why persons seek suicide and assisted suicide.

Important Reasons Exist for Protecting Individuals from Self-harm and Assistance in Suicide

Reasons People Seek Suicide and Assisted Suicide

Why do people seek suicide? The experts point to several treatable conditions that lead persons to seek suicide.

Depression. A major reason people seek suicide is because they are suffering from depressive illness or some other emotional or psychiatric problem that prevents them from making rational decisions. For the sake of brevity, these problems are generally referred to collectively in this article as "depression."

Suicides rarely occur in the absence of major psychopathology. According to the findings from the large community-based psychological autopsy studies, ninety-four percent or more of the subjects qualified for a psychiatric diagnosis at the time of their suicide (except for one study, which arrived at the figure of eighty-eight percent).(6) Major affective disorder and/or substance abuse disorders were implicated in fifty-seven percent to eighty-six percent of all suicides, with affective disorder the more common diagnosis.(7)

The same facts hold true for persons with a diagnosis of a terminal illness. "In one study of terminally ill patients, of those who expressed a wish to die, all met diagnostic criteria for major depression. Like other suicidal individuals, patients who desire suicide or an early death during a terminal illness are usually suffering from a treatable mental illness, most commonly depression."(8)

A statistical link between terminal illness and an increased risk of depression and suicide also exists. "Individuals with serious chronic and terminal illness face an increased risk of suicide--some studies suggest that the risk for cancer patients is about twice that of the general population."(9) A critical life stress can trigger emotional distress that may last for several weeks. In fact,

[m]ost crisis intervention models allow a minimum of five weeks for

resolution of the acute emotional disorder attending major personal

loss. Crisis counselors recognize that the judgment of a person who is

legally competent and grossly oriented to reality and logic may

nonetheless be emotionally distorted when reacting to overwhelming

loss. Clients in crisis therapy are, therefore, cautioned not to make any

major decisions within five weeks of a critical life stress.(10)

Because being diagnosed with a terminal illness is a critical life stress, the odds increase that anyone diagnosed with a terminal illness will suffer a period of such emotional incapacity. During this time, the individual is incapable of making rational life decisions, despite apparent competence.

The New York Task Force summed up the link between terminal illness and depression as follows:

Depression may coincide with other medical conditions for several

reasons. First, the medical condition may biologically cause depression.

Second, the condition may trigger depression in patients who are

genetically predisposed to depression. Third, the presence of illness or

disease can psychologically cause depression, as is often observed in

patients with cancer. Finally, especially for cancer patients, some

treatments or medications have side effects that cause depressive moods

or symptoms.(11)

On the other hand,

[i]t is a myth . . . that severe clinical depression is a normal and

expected component of terminal illness. Healthy individuals, including

health care professionals, often believe that it is normal for terminally ill

patients to experience major depression. They understand feelings of

hopelessness as expected and rational given the patient's condition and

prognosis.(12)

In sum, few terminally ill patients wish to commit suicide unless they have depressive illness as well.(13) in fact, only two to four percent of persons who commit suicide are terminally ill,(14) indicating that most terminally ill persons do not want to kill themselves absent some other problem. "Among older persons, for whom chronic painful illnesses are not uncommon, only 0.5 percent of male deaths and 0.2 percent of female deaths are attributable to suicide."(15) Consequently, physical illness is not the only basis for a suicide decision when people commit suicide following physical illness.(16) However, even though persons with a terminal disease are not normally prone to suicidal desires, such persons are at a...