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The Supremes decide on assisted suicide: What should a doctor do?
James V. Lavery, MSc; Peter A. Singer, MD, MPH
In the July 15 issue, lawyer Karen Capen reviewed the cases concerning euthanasia and physician-assisted suicide that had been sent to the US Supreme Court (Can Med Assoc J 1997;157:169-71). In this article, James Lavery and Peter Singer look at the courts ruling and its implications for Canadian physicians.

Editorial ditorial

Mr. Lavery is a PhD candidate at the University of Toronto Joint Centre for Bioethics, University of Toronto, and Coordinator of the HIV Ontario Observational Database, Sunnybrook Health Science Centre, Toronto, Ont. Dr. Singer is Sun Life Chair in Bioethics and Director of the University of Toronto Joint Centre for Bioethics, Associate Professor of Medicine at the University of Toronto and a staff physician at The Toronto Hospital, Toronto, Ont.
This article has been peer reviewed.
Can Med Assoc J 1997;157:405-6
n June 26, 1997, the US Supreme Court ruled in 2 unanimous decisions that there is no constitutionally protected right to assisted suicide.1,2 Overturning Federal Appeals Court rulings that had struck down Washington and New York state laws prohibiting assisted suicide, the Supreme Court rejected 2 key arguments. First, the Supreme Court rejected the argument that the right to liberty guaranteed by the US Constitution includes the right to seek the assistance of a physician to commit suicide. The court has previously assumed that the right to liberty includes decisions to forgo life-sustaining treatment. However, it drew a clear distinction between forgoing life-sustaining treatment, which was consistent with the common-law rule that forced medication was a battery and the long legal tradition protecting the decision to refuse unwanted medical treatment, and assisted suicide, which may be just as personal and profound as the decision to refuse unwanted medical treatment. [but] has never enjoyed similar legal protection.1 The court found that [t]he distinction between letting a patient die and making that patient die is important, logical, rational, and well established and is widely recognized and endorsed in the medical profession, the state courts, and the overwhelming majority of state legislatures.2 Second, the Supreme Court rejected the argument that laws prohibiting assisted suicide violate the right to equal protection of the laws guaranteed by the US Constitution that states must treat like cases alike. In the rejected argument, decisions to forgo treatment (which are legally permissible) were said to be the same thing as assisted suicide and so should be legally permissible, too. However, the court opined that permitting decisions to forgo treatment (but prohibiting assisted suicide) does not [treat] anyone differently from anyone else, or [draw] distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted life-saving medical treatment; no one is permitted to assist a suicide.2 The Supreme Courts decisions do not resolve the ethical or legal debate about euthanasia and assisted suicide. Instead, the court has returned these issues to the state legislatures, reflecting the reluctance of the Supreme Court Justices to substitute their views for the democratic will of the people. The court said simply that 2 state laws prohibiting assisted suicide withstood constitutional challenge, not that assisted suicide itself is or should be illegal. Therefore, these Supreme Court decisions would not necessarily prevent a state legislature from legalizing euthanasia or assisted suicide. In November 1997, residents of Oregon will vote for a second time on that states controversial Death With Dignity Act, which was passed by a 51%-to-49% margin in a 1994 referendum but never implemented because of legal challenges.3 (In Canada the criminal law is a federal responsibility.) In 1993 the Supreme Court of Canada also upheld the Criminal Code prohibition against assisted suicide, although by a narrow 5-to-4 margin, in the Sue Rodriguez case.4 Like the US Supreme Court, the Supreme Court of Canada held that the Canadian Charter of Rights and Freedoms guarantee of security of
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Lavery and Singer

the person does not extend to assisted suicide. However, unlike the US Supreme Court, 4 of the 9 judges dissented, finding that Rodriguez was discriminated against on grounds of disability, in violation of the charter, because the option of attempting suicide, legally available to anyone, was not available to her because she was physically unable to commit suicide. The majority (of 5 judges) felt that even if she was discriminated against, the discrimination was deemed to be within the reasonable limits that could be imposed in a free and democratic society. What should Canadian physicians make of these US and Canadian constitutional wranglings? The goal for physicians (and for hospitals and the health care system) should be to improve the quality of end-of-life care in Canada. There are 3 practices along the spectrum of end-of-life care: palliative care, decisions to forgo treatment, and euthanasia and assisted suicide. The first 2 are ethically uncontroversial, legally permissible and part of quality medical care.57 The third is ethically controversial and clearly illegal.8 Canadian physicians should fully implement the legal means at their disposal by providing excellent palliative care and by facilitating patients and families choices to forgo treatment under appropriate circumstances. Are we performing exemplary palliative care and effectively engaging patients and families in decisions about life-sustaining treatment? We do not think so. Go onto a ward of your local hospital and unfortunately you should have no trouble finding a dying patient who is in pain, or one who has not been effectively engaged in discussions about life-sustaining treatment decisions. End-of-life care is disappointingly low on the Canadian health policy agenda. For instance, it was not identified as an important issue in the recent report of the National Forum on Health. Fortunately, real improvements in end-of-life care in Canada will come from practising physicians and nurses providing exemplary care to their individual patients. The solutions are local. Although we recognize that perhaps every second reader of this article probably supports legalization of euthanasia and assisted suicide in selected circumstances, we strongly advise physicians not to perform these acts. Euthanasia and assisted suicide are illegal in Canada, and physicians are not above the law. Moreover, unlike most legal issues in medicine, these acts fall under the Criminal Code. By performing them, a physician is risking a charge of first-degree murder, which carries a mandatory sentence of life imprisonment, with no general eligibility for parole for 25 years. First-degree murder is precisely the charge brought against Dr. Nancy Morrison of Halifax, who is alleged to have given a lethal injection on compassionate grounds to end the suffering of a dying patient. In these cases, the

406 CAN MED ASSOC J 15 AOT 1997; 157 (4)
real issue is not the crime but the punishment. Dr. Morrison is charged with the same crime and if convicted would receive the same punishment as a person who shoots and kills a grocery store clerk during a robbery. Most Canadians would feel that this similarity is unjust. The prosecution in Dr. Morrisons case should consider substituting a charge, such as manslaughter, without a mandatory prison term. In 1995 a special Senate committee appointed to address euthanasia and assisted suicide recommended that the Criminal Code be amended to include a new charge of compassionate homicide, which would carry a less severe penalty.9 One pragmatic issue is how to distinguish between palliative care and euthanasia. According to guidelines developed by the Chief Coroner of Ontario, an act is considered palliative care, and not euthanasia, if (a) it is intended solely to relieve the persons suffering, (b) it is administered in response to symptoms or signs of the patients suffering and is commensurate with that suffering, and (c) it is not the deliberate infliction of death (Dr. James Young, Chief Coroner of Ontario: personal communication, 1997). Ultimately, the way to address deeply controversial public issues such as euthanasia and assisted suicide in a democracy is through elected legislatures. This was the most fundamental message of the US Supreme Courts recent decisions. Democracy does not come from the needle of a syringe.
We thank Professor Bernard Dickens, Faculty of Law, University of Toronto, and the anonymous CMAJ reviewer for their helpful comments from a legal perspective. Dr. Singers work is supported by the National Health Research and Development Program through a National Health Research Scholar Award. The views expressed in this article are the authors and not necessarily those of their supporting groups or employers.

References

1. 2. 3. 4. 5. 6. 7. 8. 9. Washington v. Glucksberg, 96-110 US (1997). Vacco v. Quill, 95-1858 US (1997). Emanuel EJ. Oregons physician-assisted suicide law: provisions and problems. Arch Intern Med 1996;156:825-9. Sue Rodriguez v. British Columbia (Attorney General) (1993) 3 SCR 519. Etchells E, Sharpe G, Walsh P, Williams JR, Singer PA. Bioethics for clinicians: 1. Consent. Can Med Assoc J 1996;155:177-80. Lazar NM, Greiner GG, Robertson G, Singer PA. Bioethics for clinicians: 5. Substitute decision-making. Can Med Assoc J 1996;155:1435-7. Singer PA, Robertson G, Roy DJ. Bioethics for clinicians: 6. Advance care planning. Can Med Assoc J 1996;155:1689-92. Lavery JV, Dickens BM, Boyle JM, Singer PA. Bioethics for clinicians: 11. Euthanasia and assisted suicide. Can Med Assoc J 1997;156:1405-8. Of life and death. Report of the Special Senate Committee on Euthanasia and Assisted Suicide. Ottawa: Supply and Services Canada; 1995. Cat no YC2-351/1-OIE.

Correspondence to: Dr. Peter A. Singer, University of Toronto Joint Centre for Bioethics, 88 College St., Toronto ON M5G 1L4; fax 416 978-1911; peter.singer@utoronto.ca

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Correspondance

all of the lesions had disappeared, and there was no evidence of scarring or inflammation. One item that is sadly lacking in our state-of-the-art hospital system is a user-friendly lid for sealed fluid, margarine, jam and food containers. Many of these sealed units defy dexterous patients and utterly defeat weak, uncoordinated or arthritic ones. We aim for patient independence and self-sufficiency, but the seal-tight lids force patients to either get help or go hungry. Surely we could design pulloff lids with large tabs with a hole for a finger. Not only would this improve patient care, but it would also decrease demands on staff.
William B. Houston, MD Penticton, BC

Where does our duty lie?

n his recent letter Foreign specialists need not apply (Can Med Assoc J 1997;157[7]:869-70), Dr. Shabbir Alibhai discusses the decision by the Royal College of Physicians and Surgeons of Canada to recognize only training taken in accredited residency programs in Canada and the US and raises some important questions about this decision. The colleges accreditation process is very different from that applied in most countries. Although it is unCanadian to consider anything from Canada the best in the world, in the case of accreditation of postgraduate training it happens to be true. Indeed, most countries do not accredit residency programs. Some, such as the United Kingdom and Saudi Arabia, are developing systems modelled to some degree on ours. As long as there is no generally accepted measure of competency to test physicians from around the world, no study to demonstrate differences between countries can be undertaken. However, the relative performance of
trainees of different origin on examinations has been studied. At one time the college allowed a broad spectrum of candidates to take its examinations. Failure rates in certain groups exceeded 90%, and we were criticized for exploiting candidates who went to great expense with little chance of success. The college then decided that examinations should be limited to those expecting to practise here and those who would likely succeed because of previous evaluations in accredited programs. This is another distinguishing characteristic of the Canadian system: success in examinations does not in itself confer certification. Evaluation during training plays an increasingly important role. For more than a decade, only candidates trained in Canada, the US, the UK, Ireland, South Africa, Australia and New Zealand have been allowed to take Royal College examinations. Our recent change has decreased the number of foreign exemptions to 1: the US. The college does hope to see increasing reciprocity in accreditation. A formal offer has been made to sister colleges in many of the countries noted above. As well, the Royal College sponsored an October symposium that brought together key players in an attempt to find a way to evaluate and recognize offshore specialists recruited to remote areas. But I have some questions of my own. Why do we, as Canadians, collectively throw up our hands and presume that we can never overcome the inadequate distribution of medical specialists? With all of our advantages, why should Canada not be a net exporter of highly trained specialists instead of an importer? And what of young Canadians and their desire to pursue a career in medicine? There is less than 1 first-year place in medical school available for every Canadians. The only other country with such a low number is Albania! In BC the ratio of first-year positions to population is 1:26 000. In
the UK, a commission has determined that the ratio there should be increased to 1:13 500. I fully agree that as citizens of the world we have moral obligations to specialists everywhere, but surely our first duty is to Canadians.
Hugh M. Scott, MD Executive Director Royal College of Physicians and Surgeons of Canada Ottawa, Ont.
Is it ethical to forgo treatment?
n their article The Supremes decide on assisted suicide: What should a doctor do? (Can Med Assoc J 1997;157[4]:405-6), James Lavery and Dr. Peter Singer write: There are 3 practices along the spectrum of end-of-life care: palliative care, decisions to forgo treatment, and euthanasia and assisted suicide. The first 2 are ethically uncontroversial, legally permissible and part of quality medical care. The second half of this statement is incorrect, for although palliative care is undeniably and always ethically uncontroversial, the same cannot be said about decisions to forgo treatment. The ethical character of these decisions depends largely on what is meant by treatment. Is it medical treatment or is it treatment that involves not only the administration of remedies by a physician but also the provision of minimal care such as nutrition? Furthermore, it makes a considerable difference whether the medical treatment being withheld or withdrawn is considered ordinary (proportionate) or extraordinary (disproportionate). A medical treatment is disproportionate if its complexity, cost or risk or the degree of suffering it entails is out of proportion with the potential benefits. Even committed pro-lifers recog-

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nize that proportionate medical treatment can be withheld or withdrawn under certain circumstances, such as at an advanced stage of a terminal illness. In their view this does not constitute passive euthanasia but simply good medical practice. As for disproportionate treatment, it should never be imposed upon a patient, and it can be legally discontinued at any time. There can be disagreement, of course, as to whether a medical treatment is disproportionate. It is generally held that if treatment includes basic (or minimal) care and if such treatment is stopped at any time in a patients illness other than in the phase of imminent death, this constitutes passive euthanasia because the patient will die as a result of the treatment being withheld or withdrawn. If they are to make a meaningful and useful contribution to the euthanasia debate, physicians who talk or write about decisions to forgo treatment should be very clear about what they mean.
W. Andr Lafrance, MD Ottawa, Ont.
[One of the authors responds:]
r. Lafrance is correct that in a detailed discussion of consent to treatment (which was not the purpose of our Supremes article) treatment should be defined, as it is in consent legislation in some jurisdictions. In terms of nutrition and hydration, treatment includes feedings administered by a nurse through a tube, but not chicken soup lovingly administered by a family member. Although I acknowledge that there is a longstanding ethical and legal debate on nutrition and hydration, most courts and commentators have concluded that tube feeding constitutes medical treatment. Regarding the distinction between
terminally and nonterminally ill people, these terms can be arbitrary, prognostication is sometimes inaccurate, and even nonterminally ill people have the legal right to refuse medical treatment. The extraordinaryordinary distinction has deep religious roots that deserve respect but may not resonate sufficiently across cultures to serve as a basis for public policy in our multicultural society. Nevertheless, one of our greatest ethical challenges is to ensure that health care providers and institutions treat the cultural and religious values of patients, family and staff with the utmost care and respect. My colleagues and I have argued, for instance, that health care facility missions, including those based on religion, should be protected and respected.1 At the heart of our article was the notion that Canada still has too many patients dying in pain or connected to life-support machines they do not want. We must draw clear distinctions between palliative care and decisions to forgo treatment, which are ethical and legal under appropriate circumstances, and euthanasia and assisted suicide, which are ethically controversial but clearly illegal. Any muddying of these waters will lead to another patient dying in pain or hooked up to unwanted life-support equipment. With palliative care and decisions to forgo treatment, it is time to move beyond ethical and legal hair-splitting to focus on improving Canadians quality of life as they approach death.

Peter A. Singer, MD, MPH Sun Life Chair in Bioethics Director University of Toronto Joint Centre for Bioethics Toronto, Ont. Reference
1. Miles SH, Singer PA, Siegler M. Conflicts between patients requests to forgo treatment and the policies of health care facilities. N Engl J Med 1989;321:48-50.
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