Whether to die, or when to die? The distinction between assisted suicide and ‘aid in dying’

Assisted suicide is illegal in the state of Connecticut. But two doctors have sought to circumvent the law by requesting that the administration of lethal agents to terminally ill patients be classed as “aid in dying” rather than assisted suicide. The doctors’ lawyers reportedly drew the distinction as follows:

"Suicide is a choice of whether to die or not. Aid in dying involves not whether a person will die, but when, and how much pain and suffering the patient must endure first."

The judge, Julia Aurigemma, rejected the request, arguing that the cases in question are precisely the sort of case to which the assisted suicide prohibition was intended to apply. But the question remains whether there is a meaningful distinction between assisted suicide and aid in dying, and if so, whether it is morally significant.

The distinction, as formulated by the lawyers, does seem clearly bogus. No-one yet faces choices about whether to die. All actions that might plausibly be classed as suicide are really decisions about the timing of death. But there does seem to be a genuine distinction lurking here somewhere.

Consider the following hypothetical cases:

Smith, a 40 year old man, has a permanent condition which causes constant, unremitting pain, but which does not affect his life expectancy. In the absence of intervention, he can be expected to live another 35 years. Smith does not want to live out those remaining years, so his doctor provides him with a lethal drug, which Smith self-administers.

Jones, a 40 year old man, presents to the Emergency Department with an advanced form of meningococcal meningitis. The condition has progressed too far for life-saving treatment: he will certainly die within 24 hours. Around a minute before death is imminent, he will enter a state of excruciating pain. Jones does not want to live through this last minute. He requests a lethal drug which his doctor provides and he will administer when the pain begins.

There seems to be an important difference between these cases. Perhaps we could capture this by saying that Smith’s case is one of assisted suicide, while Jones’ case is one of ‘aid in dying’. But how can we draw this distinction?

One option would be to say that helping to bring about the death of another counts as aid in dying when that person already has a terminal condition, and assisted suicide otherwise. However, it is not clear that this approach will work. Arguably, we are all suffering from a terminal condition: ageing.

An alternative approach would be to classify an action as assisted suicide when it substantially brings forward the time of death, and ‘aid in dying’ when it brings forward the time of death, but not substantially. Of course, what counts as ‘substantial’ would have to specified. (Is bringing forward death by an hour, a day, a month a substantial effect? Does this depend on how long the person has already lived? Does it depend on how far into the future that earlier death will occur?) And it may be that no sharp distinction can be drawn: perhaps there is spectrum of possible actions with some counting as substantially bringing forward the time of death, others not, and others falling in a grey area in between (much as there may be bald men, non-bald men, and others falling in the grey area in between). But nevertheless, the distinction may be a meaningful one.

This last approach strikes me as the most promising way of drawing the distinction. However, if we draw it this way, it’s difficult to see why the distinction should have moral significance. Admittedly there’s nothing to prevent the distinction between substantially bringing forward death and non-substantially bringing forward death from being morally significant; it’s just not clear what reason we have for regarding it as significant. At least it’s not clear to me. Perhaps others have suggestions.  

NEWS STORIES:

Jared Yee, 'Connecticut judge dismisses assisted suicide case', Bioedge, 11 June 2010.

Arielle Levin Becker, 'Superior Court Judge Dismisses Doctors' Request To Prescribe Lethal Medication To Terminally Ill', The Hartford Courant, 8 June 2010.

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7 Responses to Whether to die, or when to die? The distinction between assisted suicide and ‘aid in dying’

  • Dennis Tuchler says:

    Clever (but fog-thin) classification is just the way to avoid important issues. How much aid may someone give another to help the other die? Assume that the other cannot commit suicide for some physical reason. If the other is in great pain, we can administer a heavy dose of morphine which will probably kill the other, but we have the doctrine of double effect to hide behind, even though both agreed that the deadly effect would be a good thing. If we give the other the means by which to commit suicide (Dr. Kevorkian’s dodge), if only by pushing a button, we can say that we helped suicide but did not do anything to further death. Giving the other a loaded gun knowing that the other will pull the trigger is similar and equally (un)culpable. Both are now illegal in Michigan (because of Dr. Kevorkian). I suppose selling the suicide a gun is different.

    Flatly and crudely (and neither philosopher-like or lawyer-like) speaking, aiding killing and killing are not really different. Why should aiding death and killing be any more different? The real issue, obscured by this pettifoggery is one already dealt with on this forum, I think: Under what conditions is it OK to help another die, given the unexpected consequences arising from any set of regulations permitting such conduct? Is it possible for people in a democratic country to discuss this matter and make a reasonable decision about it? There must be more to it than saying either “NO” or “Leave it to physician’s discretion as a medical matter”.

  • Dominic Wilkinson says:

    Here is Jack Kevorkian interviewed on CNN

    “They just don’t get it in Oregon, ” he said. “Or in Washington state or Montana, the other states,” where assisted suicide has been legalized. In those states, a person has to be considered terminal in order to qualify for assisted suicide.

    “What difference does it make if someone is terminal?” he said. “We are all terminal.””

    http://edition.cnn.com/2010/HEALTH/06/14/kevorkian.gupta/index.html

    Kevorkian’s justification for assisted suicide is based on an autonomy principle, and the right of individuals to make decisions about their own lives free from interference.

    However, the justification for ‘aid in dying’ may have a dual basis – both in the autonomous requests of some patients, and in beneficence – the idea that they are benefited by not experiencing the anticipated last part of their illness. It is for individuals who will inevitably die within a short period that we can be most confident that continued life will bring them little benefit. Even then, it is possible that we, and they, are mistaken. But the chance of a mistake, and the consequences of a mistake are far less if we are talking about individuals who will not live long in any case.

  • Stephen Campbell says:

    A slightly different possibility than the two mentioned in the post: we might distinguish interventions that initiate the dying process (assisted suicide) from those that merely accelerate the dying process once it has already begun (aid in dying). Granted, this will only be a helpful distinction if we can say something more concrete about what the process of dying involves.

  • Tom Douglas says:

    Thanks for the comments.

    Dennis, I’m inclined to agree that fine distinctions between different means of helping another to die are not the biggest issue here. But I think it’s worth engaging with those who claim they are important (like the doctors and lawyers involved in this case) since, as you hint, these distinctions can be influential; the doctrine of double effect is a good example.

    I like your suggestion Stephen. It might be difficult to spell out ‘the process of dying’ such that we’re not all already in the process of dying. But even so, we might be able to distinguish between bringing forward death by accelerating processes already in-train (say, by giving a drug which accelerates normal ageing or an existing disease) and bringing forward death by starting new dying processes. I find it difficult to see why the distinction would have moral significance, but can at least see why some might think it would. Perhaps some would want to say that by accelerating an existing dying process one avoids being causally (and thus perhaps morally) responsible for the resulting death – causal responsibility could perhaps be ascribed to the process itself.

  • Stephen Campbell says:

    Hi Tom,
    Thanks for the response. That’s helpful. Perhaps the notion of dying that is relevant here, and of possible moral interest, is the one that doctors invoke when they tell a patient and family members that s/he is dying. Presumably, they don’t say this to patients who are merely aging–and not because it’s too obvious or impolite to say, but because it’s untrue. Merely aging patients can be healthy, and it seems impossible for one to be both healthy and dying (in the relevant sense) at the same time. If you are dying, then your health is impaired and deteriorating in a serious way, I would think.

    By the way, to clarify my meaning, I didn’t intend for “the dying process” to refer to the particular physical process that, barring some intervention, will lead to a person’s death. I was assuming that the dying process (i.e. dying) can be initiated by one physical process but then accelerated or supplanted by some other process. Perhaps it is less misleading to talk simply of “dying.” So, we might say: if a person is dying (via some physical process), then another person aids her in dying only if he helps to bring about her death more quickly (if not also in a less painful and/or more dignified manner), whether by accelerating that physical process or by initiating some other process. (This incorporates the two items that you distinguished in your last comment. I agree with you that there doesn’t seem to be a moral difference between them.)

  • Eric Folot says:

    For assisted suicide but against voluntary euthanasia !

    About the difference between euthanasia and assisted suicide, one must distinguish between the legal, ethical and religious arguments. One cannot just say without qualification that there is no difference between the two : in one case it is the patient himself who take his own life (assisted suicide), whereas in euthanasia it is the physician. One must first specify on what grounds (legal, ethical or religious) he draws is arguments. In the field of ethics, one can reasonably argue that there is no difference between the two. However, in the legal field, there is a difference between euthanasia (so-called first-degree murder with a minimum sentence of life imprisonment) and assisted suicide (which is not a murder or homicide and which the maximum sentence is 14 years of imprisonment). In the case of assisted suicide, the cause of death is the patient’s suicide and assisted suicide is somehow a form of complicity (infraction of complicity). But since the attempted suicide was decriminalized in Canada in 1972 (and in 1810 in France), this complicity (infraction of abetting suicide) makes no sense because this infraction should only exist if there is a main offence. But the suicide (or attempted suicide) is no longer a crime since 1972. So, logically, there cannot be any form of complicity in suicide. The offense of assisted suicide is a nonsense. Judge McLachlin said :

    « In summary, the law draws a distinction between suicide and assisted suicide. The latter is criminal, the former is not. The effect of the distinction is to prevent people like Sue Rodriguez from exercising the autonomy over their bodies available to other people. The distinction, to borrow the language of the Law Reform Commission of Canada, “is difficult to justify on grounds of logic alone”: Working Paper 28, Euthanasia, Aiding Suicide and Cessation of Treatment (1982), at p. 53. In short, it is arbitrary »

    In contrast, voluntary euthanasia is considered a first-degree murder. The doctor kills the patient (at his request) by compassion to relieve his pain and suffering. There’s a violation of one of the most fundamental ethical and legal principles : the prohibition to kill a human being. Our democratic societies are based on the principle that no one can remove a person’s life. The end of the social contract is “the preservation of the contractors” and the protection of life has always founded the social fabric. We’ve abolished the death penalty in 1976 (and in 1981 in France) in response to the « broader public concerns about the taking of life by the state » (see United States v. Burns, [2001] 1 S.C.R. 283) ! Even if voluntary euthanasia (at the request of the patient) may, under certain circumstances, be justified ethically, we cannot ipso facto concluded that euthanasia should be legalized or decriminalized. The legalization or decriminalization of such an act requires that we take into account the social consequences of the legalization or decriminalization. The undeniable potential of abuse (especially for the weak and vulnerable who are unable to express their will) and the risk of erosion of the social ethos by the recognition of this practice are factors that must be taken into account. The risk of slippery slope from voluntary euthanasia (at the request of the competent patient) to non-voluntary euthanasia (without the consent of the incompetent patient) or involuntary (without regard to or against the consent of the competent patient) are real as confirmed by the Law Reform Commission of Canada which states :

    “There is, first of all, a real danger that the procedure developed to allow the death of those who are a burden to themselves may be gradually diverted from its original purpose and eventually used as well to eliminate those who are a burden to others or to society. There is also the constant danger that the subject’s consent to euthanasia may not really be a perfectly free and voluntary act ».

    Eric Folot

  • Eric Folot says:

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