California Case Exposes “Physician Assisted Suicide”

Rebekah Millard

What is the cost to a state that chooses to decriminalize an entire category of homicide, recasting it as “aid-in dying”? Can the cost be measured in the harm inflicted on the victims? Does calling them “patients” somehow lower the cost? Can the cost be measured in harm to the perpetrators, physicians whose profession includes the traditional oath to “do no harm”?

These questions and many more are being addressed through a case currently before the California Superior Court in Riverside County. Filed in June of 2016, the lawsuit Ahn v. Hestrin argues that California’s dangerous “End of Life Option Act” (“EOLA”) deprives many California patients of their basic human rights—rights protected by the California Constitution’s guarantee of due process and equal protection. The plaintiffs are a group of courageous medical doctors whose patients are vulnerable to suicide. As the case proceeds, both sides have been actively conducting discovery, including written discovery requests, public records requests, depositions, and subpoenas to relevant third-parties. The answers uncovered through the discovery process have been profound: this law does immense damage and presents formidable danger to individual patients and to society at large.

Approximately 200 patients were prescribed lethal drugs in the first six months the EOLA was in effect. The damage to these patients comes in several forms. Under the EOLA, patients are arbitrarily categorized by disease—those who have a terminal illness (meaning a diagnosis of less than six months to live) are singled out. They are automatically deprived of the protection of laws that apply to everyone else—for example, a serious indication of a desire to commit suicide results in psychiatric evaluation and treatment, and other forms of social support for an otherwise healthy person. Similarly, a suspicious death (such as evidence of a person assisting in a victim’s demise) results in a homicide investigation and, if appropriate, prosecution. For those deemed terminally ill, however, these protections evaporate: there is no requirement that the patient receive psychiatric evaluation, nor is there a serious effort to ensure the patient’s request is voluntary and free of undue pressure. Even if the patient requests lethal drugs voluntarily, there are no protections in place to guarantee that the patient is acting voluntarily when he or she takes the lethal dose, weeks or even months later.

Further, the law itself is based on the faulty premise that physicians can accurately determine when a patient has less than six months to live, a task that many physicians admit can be difficult if not impossible. The law does not require that the physician making the diagnosis be a specialist in the disease underlying the patient’s condition. For example, a primary care doctor whose practice does not involve keeping abreast of emerging cancer treatments could legally prescribe a lethal dose to a patient he predicts has less than six months to live.

Patients faced with the usual fears and stresses of a serious disease need competent professional care, including pain management, palliative care and hospice care as well as strong emotional and social support. When a quick “way out” is presented, there is a very real danger that instead of doing the hard work of caring for the gravely ill, some physicians and other caregivers may choose to essentially abandon their patients.

More than 100 patients died from taking legal, lethal drugs in the six months after the EOLA took effect in June 2016. For them, the damage is irrevocable: they are dead. As of this writing, no data has been released on the EOLA deaths in 2017, but experience in other states as well as unofficial reports indicate that the rate at which people end their lives through assisted suicide will grow exponentially.

The EOLA purports to create safeguards for patients by having two physicians agree on an individual’s terminal diagnosis and prognosis, but such physicians’ professional opinions mean nothing in reality both because of the uncertainty of diagnosis and because patients can go to as many physicians as necessary to find one willing to prescribe the lethal dose. Indeed, first-person reports and anecdotal evidence reveal that some physicians are writing lethal prescriptions for a significant number of patients with whom they had no pre-existing doctor-patient relationship, repeating the pattern seen in other states that allow physician assisted suicide.

From the perspective of the physician-plaintiffs in Ahn v. Hestrin, the EOLA interferes with the role of the physician, and alters the profession itself. Consistent with the ethical principles that have guided the profession for thousands of years, physicians should do no harm. Physician assisted suicide undermines the very physician-patient relationship and trust in the profession that is essential to the practice of medicine. The profession’s response to suffering should be to stay beside each patient, no matter how long or difficult the journey, and to promote efforts to improve palliative and hospice care. In this way, physicians can fulfill their mission and give dying patients and their families the care, compassion, and comfort they need and deserve.

Once a society accepts the premise that some people are better off dead, there is no logical reason for limiting “aid-in-dying” to situations covered by the EOLA. Limiting the “right” to assisted suicide to those who are conscious, have mental capacity, and are able to make verbal and written requests and to take medication orally quickly becomes labeled unfair or even discriminatory. After all, many who are incapacitated mentally or physically suffer far more, and yet cannot avail themselves of this “way out.” Opening a door to assisted suicide for one group necessarily pushes the issue for others.

This is not mere speculation: the logical progression is clear in every jurisdiction where assisted suicide has been legalized (most notably in Belgium and the Netherlands where involuntary euthanasia is a regular practice). In California, the government has already put into place procedures to ensure that individuals committed to state mental institutions can “participate in the Act” and receive lethal drugs.

The mainstream media, heavily influenced by Compassion & Choices (formerly the Hemlock Society), broadcasts soothing stories about patients availing themselves of the “options” presented by the EOLA. There is a siren song appeal in the assurance of “ending my life in a humane and dignified manner,” as the law’s paperwork promises. Stories tell of the safety and peacefulness of physician-assisted suicide, but as the lawsuit has uncovered, there are many untold stories. Stories of the lethal dose of drugs causing severe symptoms and suffering. Stories of the tragedy and heartbreak that suicide brings for those left behind. Stories of the covert and overt pressure brought to bear on vulnerable patients by those who should take the greatest care of them: their families, their physicians, their friends.

The cost of rebranding suicide is indeed high. Unless forestalled, the cost—especially the cost measured in human lives lost—will continue to mount.

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