Voluntary Active Euthanasia: The Next Frontier: Impact on the Indigent

By Risley, Robert L. | Issues in Law & Medicine, Winter 1992 | Go to article overview
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Voluntary Active Euthanasia: The Next Frontier: Impact on the Indigent

Risley, Robert L., Issues in Law & Medicine

Legal change permitting competent, terminally ill adults the right to request and receive the aid of a physician to end their lives is indeed the next frontier. Aiding, abetting, and assisting a suicide is now a crime in nearly every state of the Union. The law applies to physicians and provides no excuse that a dying person is suffering and asking a physician for help in dying. The wisdom of changing the law is an issue that cuts across every discipline from law and medicine to philosophy and religion. It will affect both the poor and the rich. But how will a change in the law to permit active voluntary euthanasia administered by physicians affect the indigent?

Today, a few privileged persons in our society surreptitiously receive, from their friendly physicians, medical assistance in dying at life's end. In spite of statutes making it a felony to aid, abet, and assist a suicide, it is beyond doubt that some physicians do help advance their terminally ill patients' deaths to end the agony of the final dying process. Typically analgesics, anesthetics, and sedatives used to control pain are employed, but when the safe dosage is exceeded, respiration and cardiac functions are suppressed and the life ends. Those of my persuasion are thankful when this occurs. Those who believe that another man should not intervene to end human suffering probably disapprove of my thankfulness.

A physician's help should be available to all terminally ill persons if they wish. But this is not the case because the law forbids it. Persons who are indigent with few privileges and few connections are even less likely to have a choice at life's end, as few physicians are inclined to risk criminal prosecution for those whom they do not know personally.

Passive Euthanasia Is the Accepted Norm

Voluntary passive euthanasia for a competent, terminally iII adult is now the accepted norm. Forty-one states and the District of Columbia have enacted living will statutes. Forty-six states have either durable power of attorney for health care statutes or similar proxy appointment statutes. Both types of law sanction a patient's instructions to remove life support systems, allowing a patient to die when further treatment would be futile. Prior to the Missouri Supreme Court decision in the Nancy Cruzan case, almost all state court opinions covering a wide variety of fact situations had determined that the terminal patient's right of self-determination was paramount over the state's interests in preserving life, preventing suicide, and preserving the integrity of the medical profession. The opinions were nearly unanimous in holding that individual liberty included the right to be free of unwanted medical treatment even if it led to a patient's death. Many of the cases decided that family members in consultation with their physicians could decide the question for incompetent relatives and patients.

The Cruzan decision by the Missouri Supreme Court provided the sole exception to this long trend of common-law development on the right to die in this country. It determined that clear and convincing evidence was required before family members or even a trial judge could order removal of life support systems from an incompetent patient. The Missouri court stated that "policy dictates that we err on the side of preserving life."

On appeal, the U.S. Supreme Court held that Missouri had a right to develop its own law and to require clear and convincing evidence. No constitutional right of Nancy Cruzan was violated by Missouri's higher evidentiary standard. However, the U.S. high court 'stated that competent terminal patients have a liberty interest to be free of unwanted medical treatment even if the result is death. Thus, there is a constitutional "right to die" for competent adults through passive euthanasia.

In addition, several medical societies have established ethical norms regarding removal of artificial nutrition and hydration.

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