Introduction

In the first of this two-part series on economic motivations for physician-assisted suicide, I discussed whether it was morally acceptable for patients to choose physician-assisted suicide for economic motivations. I concluded that, so long as the patient could be said to be acting voluntarily, her choice was not ethically objectionable. In this conference, I want to address the remaining question of how we should respond when the patient's choice stems from economically-inspired pressure from others.

There are two ways in which patients' choice might not be voluntary. First, patients might be forced for economic reasons into physician-assisted suicide when they didn't really want to die. This might take the form of physical coercion -- in the case of physician-assisted suicide, a little too much "assistance," so to speak - or it could comprise psychological coercion, such as badgering or threatening patients until they assented.

A second way in which patients' choice of physician-assisted suicide might not be said to be voluntary would be if, for economic reasons, they made their decision based on faulty information. Patients might lack access to the correct information because the information was too expensive for the patient to obtain or because no one went to the expense of making the information available in a manner that the patient could understand. Alternatively, for economic reasons, the information might be deliberately withheld from patients or the information that was given them might intentionally be erroneous. All of these cases arguably would comprise economic pressure that tended to negate the voluntary nature of the patient's decision, leading us to want to protect these patients by refusing to sanction physician-assisted suicide in their cases.

The problem is that, if we nevertheless want to preserve patient access to physician-assisted suicide when the choice - even though based in whole or in part on economic factors - was voluntary, we need some way of distinguishing voluntary from involuntary choices. But at the same time, we must recognize the fact that these patients do not exist in a vacuum but in an environment that necessarily involves contact with the very entities - providers, plans and family - that are the potential sources of the pressures we are concerned about.

How to Resolve the Ethical Dilemma

This dilemma is recognized implicitly by most commentators on the topic of physician-assisted suicide but they rarely describe how it can be resolved. For example, the Supreme Court refuses to recognize a constitutional right to physician-assisted suicide, in part, because of the danger of, in Justice Rehnquist's words, "subtle coercion and undue influence." Nancy Osgood declares that "[t]he stress on the family, regardless of its palpability and magnitude, can never be a morally or legally acceptable justification for unduly influencing a vulnerable older person to agree to premature active death hastening." But neither Rehnquist nor Osgood explains what they mean by "unduly." Donald Spencer similarly warns that "a health care professional expressing personal values or trying to meet a perceived provider goal may improperly influence a patient's decision-making" but never tells us when influence becomes "improper." The American Geriatrics Society states: "[P]ressure or encouragement from family, friends, and caregivers may cloud or overwhelm the patient's independent judgment and thus amount to inappropriate coercion." (One assumes the Society does not envision an "appropriate" form of coercion.)

Could the patient's family and physicians be forbidden from exerting pressure on the patient for economic reasons? Not without prohibiting any discussion with the patient whatsoever about physician-assisted suicide, which, in itself, would be unenforceable since it is not feasible to have someone monitor all interactions with the patient. Even if constant surveillance were possible, it would be impossible to determine whether economic considerations were being brought up for the patient's benefit or for someone else's own self-interest. If we simply forbade any overt discussion of economic matters in the patient's presence, there would be no way of determining whether economic considerations were the tacit reason behind the ostensibly non-economic discussion of physician-assisted suicide. In any event, if we agree that patients ought to be allowed voluntarily to choose physician-assisted suicide for economic reasons, we would not want to prohibit all discussion of economic considerations between patient, physician and family, since the physician and the family are likely to be important legitimate sources of the economic information that patients need in order to make informed, voluntary choices. Indeed, we might want to mandate that family members and professional caregivers engage in economic discussions with the patient, for example, to provide patients with accurate information about the economic consequences of their options or to disclose to the patient that the person in question had an economic conflict of interest with the patient.

Yet, there undoubtedly is a point at which interaction becomes pressure and pressure becomes coercion. Moreover, this point may be reached sooner in the case of more vulnerable patients. So how can we distinguish between permissible and impermissible conduct on the part of persons in contact with the patient who may have an economic conflict-of-interest?

Permissible v. Impermissible Conduct

One option, of course, is to admit that we can't and stop worrying about it. We simply could accept that fact that, in an era of managed care and scarce family resources, some patients are bound to choose physician-assisted suicide because of pressure from family or health professionals and that this is the price we have to pay so that other patients voluntarily may obtain access to a desired way of dying. But we should hesitate to reach this conclusion if there is any practical way to avoid it, not only so that we can protect patients as much as possible but because, as noted at the outset, concern over the role of economic factors in physician-assisted suicide is a major reason why only one state has legalized the practice and why the Supreme Court has refused to recognize a constitutional right to it. Faced with the prospect of patient deaths caused by economic pressures, especially active pressures exerted by those with an economic conflict-of-interest with the patient, the public is, likely, not to accept a certain number of economically-motivated deaths as inevitable but to ban the practice altogether.

Are There Practical Ways to Protect Patients from Being Pressured by Others?

Economic conflicts-of-interest are not foreign to the law. In fact, an entire doctrine has been formulated to deal with them in contexts similar to this one, the doctrine of fiduciary relationships.

One of the protections embodied in fiduciary law seems particularly ill suited to our patient's predicament: the approach in which a court undoes the consequences of the improper behavior of the fiduciary and restores the patient to the condition she would have been in had the fiduciary not betrayed the patient's trust. If the patient has died, it is too late to benefit the patient and, even if the pressure were detected before the assisted suicide had taken place and an attempt was made to offset the impact of the pressure in the patient's mind, it would seem hard, at that point, to restore the patient to a state of true mental equilibrium.

Elements of this remedy might be imposed as a deterrent in future cases but even these efforts would be of questionable value. For example, the family could be denied the inheritance or fined the equivalent of what it would have cost to keep the patient alive and the physician or managed care plan could be stripped of their profit from this patient. But since it is unlikely that a court would plunge a family into penury to prove a point, only wealthy families would feel the bite of the first penalty and the loss of profits from a single patient would be relatively trivial to a health professional or plan.

Other fiduciary protections may be worth more consideration, however. A classic one is to require the party with a conflict-of-interest to disclose it to the other. For example, the director of a corporation must inform the other directors of a financial interest that might make his advice detrimental to the corporation. In the case of familial pressure, it ought to be obvious to the patient that the family stands to gain economically from the patient's early demise, although perhaps it might be necessary for someone to point this out to a patient who was particularly naïve. On the other hand, many patients may be unaware of the financial incentives that their physicians may face to push for assisted suicide. Certainly, a law legalizing physician-assisted suicide might require disclosure of this conflict-of-interest, either by the physician herself or by some third party - if necessary, the government.

A third approach is to reduce the risk created by the conflict of interest by limiting it to certain situations. For instance, the Oregon Death With Dignity Act extends physician-assisted suicide only to adult patients suffering from a terminal disease, defined as "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months." Many proponents of physician-assisted suicide would limit its availability to patients who were competent at the time they requested it as well as when it was carried out. Still others would prohibit the use of methods that did not require the patient's physical collaboration, such as lethal injection, and only permit the physician to prescribe a fatal dose of drugs that the patient consumed herself. While these restrictions can be objected to on the ground that they deny physician-assisted suicide to patients suffering from unbearable but nonterminal conditions and to patients with disabilities that have left them unable to place pills in their mouths or to swallow, they find support in the desire to reduce the risk of involuntary death.

Another approach taken by fiduciary doctrine is to rely on external monitoring and sanctioning. The idea is that the weaker party can repose trust in the fiduciary in part because someone else is making sure that the trust is well-deserved. Some version of this protection is built into virtually all proposals for physician-assisted suicide. For example, the Oregon law requires that the patient's request be in writing and be witnessed by two persons, one of whom is not a family member or associated with the health care facility or entitled to any portion of the patient's estate. Richard Posner specifically argues that the danger of economically-inspired abuse "can be minimized by relatively simple regulations, such as a requirement that the patient's consent to euthanasia be witnessed or in writing, that the physician performing euthanasia report any case in which he performs it to a hospital committee and that, before performing it, he consult with a duly certified specialist in the ethics of dealing with dying patients."

The problem, of course, is that these procedural steps can be circumvented by anyone determined to pressure the patient. Posner's witnesses can be interested family members. Even under the Oregon scheme, one of the two required witnesses can have an economic stake in the patient's decision. Posner's hospital committee can bow to the same financial incentives as the physician. The same is true of the "ethics specialist," particularly if he or she is employed by the hospital.

It is also clear that far more elaborate procedural protections are possible. Completely disinterested witnesses could be required. Their number could be increased. The patient could be required to make multiple requests over an extended period, as the Oregon Death with Dignity Act requires. The hospital ethics committee could be made to conduct an evaluation before the physician is allowed to assist the patient. Ultimately, a court order could be required.

Costs vs. Benefits?

The question is whether the benefits from these additional protections would exceed their costs. These costs include intrusion into the privacy of the patient and into her relationship with her family and her physician; delay, which could cause the patient additional suffering; the possibility that a patient's genuine wish for assisted suicide would be denied because economic pressure was detected; and the financial and administrative costs of oversight and reviews.

Yet some commentators would not be content with even the most elaborate patient protections. They would point to the most extreme approach that the law sometimes takes in response to economic conflicts of interest: banning the transaction in question altogether. An example in the realm of health care would be the rules under Medicare and Medicaid that forbid physicians from referring patients to facilities in which the physicians have an economic interest. In the context of physician-assisted suicide, the practice could be made, or kept, illegal on the basis that the risk of economic coercion simply is too great.

This approach too has its cost, however. It would prevent patients who were not pressured from obtaining a service that, in their opinion, would ease their suffering. So the question ultimately becomes: Does the risk that some patients will die because of economic coercion exceed the benefit of providing physician-assisted suicide to those patients who were not being coerced?

But posing the question in this dichotomous fashion ignores the potential role of different patient protections. A more appropriate way of asking the question would be: Do the costs of requiring additional patient protections -- including both the costs of implementing the protections (such as their intrusiveness and the probability that they will end up thwarting some patients who are not in fact being coerced by family and physician) and the likelihood that even the most elaborate protections will fail to protect some patients -- outweigh the benefit from making physician-assisted suicide, accompanied by these protections, legally available?

Again, some might say that even one involuntary patient death is too great a price to pay. But this conclusion certainly is not self-evident. Before we reached it, we might want to consider experimenting with some additional patient protections.

Possible Patient Protections

Three patient protections seem to be key:

First, patients in a position to request physician-assisted suicide should be given comprehensible information about their alternatives, including the economic consequences of these alternatives, and should be warned about the potential conflicts-of-interest between them, their health care providers and, in some case, their families. This information should be provided both orally and in writing. The concern is that this will encourage patients to distrust their families and caregivers precisely when the patient most needs their support. But this may be the price that must be paid in order to legalize physician-assisted suicide in an era of managed care in a nation that lacks comprehensive, national health insurance.

Second, patients should be given access to a medical advocate whose services are not paid for by the family, the provider or the patient's health plan. (One approach would be to have the medical advocate program be a service of the probate court, paid for by a taxpayer-funded supplement to the court's budget.) This individual, who could be a health care professional, a social worker, a member of the clergy, a bioethicist, an attorney and so on, would be available to discuss the patient's request with the patient and would attempt to ensure that the patient was not making the request as the result of economic coercion. Additionally, the medical advocate could be responsible for furnishing the patient in a caring manner with the information described above.

Finally, legislation should require that any health care plan that funded physician-assisted suicide also provide adequate financing of patient alternatives, such as palliative and hospice care. Numerous criticisms have been directed at third-party payers for failing to provide adequate coverage of the costs of pain medication. Recently, for example, the Oregon Medicaid Plan was accused of moving physician-assisted suicide up in its ranking of health services so that the practice would be fully covered while at the same time restricting payment for high doses of pain medication for non-cancer patients.

Some advocates of physician-assisted suicide will object that the first two recommendations would introduce an overly-intrusive bureaucracy into the patient's private affairs and that health plans would respond to the third suggestion by funding neither physician-assisted suicide nor adequate palliative care. Yet others will object that these protections are not enough. Being caught between these extremes may mean that I have failed to satisfy anybody. On the other hand, I may have found the appropriate middle ground.