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May 30, 2013 | Posted By Marleen Eijkholt, PhD

One week ago, the state of Vermont passed legislation allowing Physician Assisted Suicide (PAS) in its ‘Patient Choice at End of Life’ Bill. This Bill will protect physicians from criminal liability for prescribing a medication that will hasten a patient’s death, under certain conditions and given certain safeguards. The legislative regime is relatively clear, and its comprehensible provisions can be applauded. Still some ambiguity exists overall about the distinction between PAS and euthanasia, as evidenced by the following headline: ‘Vermont Assisted Suicide Bill: Vermont Gives Euthanasia the Green Light’. The legislation itself does not necessarily do a service to clarify these terms, in its reference to active euthanasia. In this blog post, I seek to clarify some of the legislative regime in Vermont and clarify some terminology around PAS and euthanasia. 

Vermont is the third State that has legally permitted PAS, and is the first one to do so by law directly. Oregon and Washington legalized PAS respectively in 1994 (confirmed in 2006) and 2008 after referenda. Montana allowed PAS by a court judgment in 2009, but no Bill has been enacted yet. Vermont’s Bill was crafted with the Oregon legislation in mind. Its current safeguards revolve around record keeping by the physician, its requirements that a patient needs to suffer a terminal illness and have less than six months to live, as well its requirements for a the written statement of a patient (next to two oral ones), and a concurring opinion from a second physician. These safeguards were a compromise to facilitate and speed up the process of the Bill. In 2016 these safeguards will be replaced, and PAS will be governed by professional practice standards, like in other areas of medicine (Provision 5292).    

PAS needs to be distinguished from euthanasia, which is prohibited in the USA. In PAS, the physician provides the means to commit suicide or the information about how one can commit effective suicide, while the patient is the main actor. The patient self-administers the lethal doses of a drug that hastens death. In cases of euthanasia, on the contrary, the physician is the main actor, i.e. the physician who administers the euthanicum (a drug that induces/hastens the death of an individual).   

The term Euthanasia has a clear definition in my world. My legal education in the Netherlands has left me no doubt about when euthanasia is at stake, at least according to the Dutch definition.  Euthanasia is always based on the request of the patient, and only in cases where a physician actively administers a euthanicum, we speak of euthanasia. Controversially, euthanasia can be permitted in the Netherlands, provided that certain criteria are fulfilled.  I will not go into the details of the Dutch legislation; you can find a substantial amount of information about this online.  I direct you particularly to the criteria around suffering (unbearable suffering without prospect of recovery), the explicit need for a request of the individual (Without the patient’s request, we would not speak of euthanasia) and the safeguards (2 physician requirement, reporting requirements). I will not either address the discussions whether euthanasia is right or wrong. 

Ambiguity exists around the term euthanasia, especially beyond the Dutch legislation, in instances where the term is qualified. For example, references that distinguish between active and passive euthanasia,  such as in the Vermont Bill, cloud the debate. Whereas active euthanasia is the administration of a lethal dose of medicine to the patient on his/her request, passive euthanasia has traditionally been connected to practices, such as the withholding of ventilation support for a patient based on the patient’s request. The distinction between active and passive euthanasia rests on a distinction between acts and omissions.  Yet, this distinction is unclear. It is equivocal, for example, what constitutes an act: Is the withdrawal of ventilation an act that induces the death of a person (a person needs to physically switch off the ventilator), or is the withdrawal just an omission: not doing anything and letting nature take its course? Further ambiguity exists around the meaning of hastening death; does the withdrawal of ventilation hasten death or are we just allowing the natural process of death to occur? 

Critics challenge the usefulness of references to active versus passive euthanasia,  and it has been claimed that these challenges have led to credibility of arguments around PAS.  Passive euthanasia should be rephrased along the terminology of ‘foregoing medical treatment’.  Under this term, it is clearer that the withdrawal or withholding of ventilator support can be considered along the lines of individuals’ right to refuse treatment, provided certain conditions are fulfilled. Every individual has a legal right and an ethical entitlement to refuse treatment, based on his/her autonomous wishes, and this includes the refusal of life support. Equating a patient’s request to withhold or withdraw care to a form of euthanasia, i.e. passive euthanasia, would be undesirable and seems to be confusing. While euthanasia is not permitted in the USA, the American Medical Association and the House of Delegates of ’74 explicitly permits the cessation of care based on the desires of an individual. “The intentional termination of the life of one human being by another -mercy killing - is contrary to that for which the medical profession stands and is contrary to the policy of the American Medical Association. The cessation of the employment of extraordinary means to prolong the life of the body when there is irrefutable evidence that biological death is imminent is the decision of the patient and/or his immediate family. The advice and judgment of the physician should be freely available to the patient and/or his immediate family.

Clarity in legislative regimes is laudable, regardless of their permissive or restrictive nature. Only clarity allows practitioners and individuals know what can and what cannot be done. The Vermont legislation is a step in the right direction, setting comprehensible provisions about physician assisted suicide. Its reference to active euthanasia, however, clouds the discussion. It risks creating confusion and leaving leeway for unclear terms and distinctions. 

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

2 comments | Topics: Physician Assisted Suicide, Bioethics and the Law, End of Life Care

Comments

sheila otto

sheila otto wrote on 05/30/13 5:50 PM

thanks for this clear and enlightening commentary. The press so often gets it wrong and misconceptions need to be set right.
Don Johnson

Don Johnson wrote on 06/05/13 6:05 AM

I agree that Dr. Eijkholt's comments help clarify the legal distinctions between active euthanasia ("mercy killing"), PAS, and withholding/withdrawing life sustaining treatment.

I wonder however, if the press and the public don't sometimes conflate those terms and issues precisely because there is no universal agreement about the moral distinctions between them. (See James Rachels’ famous essay “Active and Passive Euthanasia.”)

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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.
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