The Philosophical, Legal and Ethical Basis for Aid in Dying

This article originally appeared on the author’s Substack here. 

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A society can develop many different cultures and codes, whether moral, ethical or legal, based upon the needs and experiences of that society. This is especially so for the way societies have evolved and changed attitudes toward death and dying, and especially so in evolving and changing attitudes on whether to aid a person in the dying process.

Early conceptual attitudes

Societies consist of people and the people, and the cultures they form, and the decisions they make, are the results that make up these societies. A society can develop many different cultures and codes, whether moral, ethical or legal, based upon the needs and experiences of that society. However, societies are not static as they are subject to changing forces and changing circumstances, not only taking place in their own societies but by those imposed on them by the world around them. Such changes can lead to shifts in moral, ethical and legal standards based on the needs of a society as it evolves.

Changing needs in our modern society is causing significant changes in society’s attitudes to death and dying. One significant change in attitude is the issue of not only providing the means for a person to end their own lives but of allowing another person to aid in the dying process.

Many shifts in attitude toward death and dying have over time become law. These laws were initially opposed by many individuals and groups, and many still are by individuals and especially by religious groups. In the western world, the Catholic Church has been – and continues to be – opposed to what the church considers to be a grave sin against the sixth commandment that forbids direct and intentional killing. Their interpretation of this admonition is, “thou shalt not kill”. This interpretation is not, however, the only one: under the Philonic division of the Commandments followed by Hellenistic Jews, by Greek orthodox believers and by protestants (except Lutherans) as well as by the Talmudic division according to the third century Jewish Talmudic, the proscription is one of “thou shalt not murder”.

The evolution of physician control

A great amount of power over life and dying evolved during a long process from folk healers to Shamans to Barber surgeons and eventually to the physician we recognize today. Such power evolved by elected legislative bodies recognizing them, licensing them, and granting them control over the dispensing of medications, particularly those able to cause death.

Physicians are trained to present wonderful healing gifts to us. However, in the process they also evolved a mindset that all diseases must be treated as much and as long as possible to keep the patient alive. For many centuries the rise of this mindset persisted to the extent that the physician was culturally imbued with a sense of power. All too often this sense of power evolved to authoritarianism. This segued into a code of behaviors such as that treatment must go on irrespective of the wishes of the patient and family members. It took years of litigation to wrest this power away and return it to the patient and family.

Patient autonomy

A key concept in the evolution of a patient taking control of their own bodies and treatment is the philosophical idea of autonomy. Autonomy can be defined as the capacity and ability of the person to make an informed, uncoerced decision, and the right of the person to make his or her own decisions. This faith in autonomy is the central premise of the concept of informed consent and shared decision making.  After much conflict and litigation, autonomy, but only some autonomy, was given back to the individual, the patient.

The legal basis of physician control

In a constitutional provision based in law, there is what is known as the “police power of the state “. Under the constitution of the United States, powers granted to the federal government are limited and defined; all other powers, the so-called residual powers, fall to the states. This is where the police power of the states resides. The state then has the authority and power to grant rights and privileges to authorized bodies which are given the right to grant a license. For physicians, there is a State Board of Registration for Medicine. This Board, nominally consisting of physician who have themselves graduated from a state recognized medical school, grant any individual physician the right to practice medicine; however, within the confines of the law.

In many countries, at least in the western world, after many fierce battles, and in some jurisdictions, the power was given to the physician to provide only the means, the necessary medications, for the individual to end their own life. At this point in most jurisdictions, this medication is limited to be used solely by the individual, with assistance by another person deemed illegal.

The decision to withhold treatment, end, or even not start treatment was taken away from the physician and some degree of autonomy returned to the patient individual. However, as noted, the degree of autonomy was limited for the patient, or any individual, to having the right to end life itself.

The struggle for control

Part of the struggle for control resides within physicians themselves, especially those in positions of power in their organized professional societies such as the America Medical Association and similar organizations within each state.

Most older physicians, especially those in positions of power in their medical societies, are still resistant to the concept of granting anyone the authority to end life. This mindset is changing among younger physicians so we will have to wait and see how this plays out. Look at how this political power played out to different effects in two different jurisdictions.

The State of California

For many years there were many attempts in the state of California to pass Death with Dignity (DwD) legislation; however, it was always defeated due to the California Medical Society which took a position of opposition to the bill. Ultimately, the legislation finally passed when the California Medical Society voted no position. Also, pressure on the legislature mounted from the citizens of California as individuals and numerous polls showed increasing and overwhelming support for DwD by the people of California. However, always lurking in the background was the unrelenting opposition of the Catholic Church which was likewise surmounted.

The United Kingdom

For another jurisdiction, look at the evolution process  in the United Kingdom (UK). Currently, all forms of assisted dying are illegal in the UK. In situations where a doctor would administer lethal drugs at the request of a patient, that physician  could be prosecuted for murder or manslaughter (culpable homicide in Scotland). In situations where a doctor would supply lethal drugs for a patient to self-administer, that act is covered by the specific offence of ‘assisting or encouraging’ suicide in England, Wales and Northern Ireland and by the common law in Scotland.

Before 2021, the British Medical Society (BMS) was opposed to to supplying lethal drugs to end a patient’s life. However, in 2021 the policy-making body (the representative body) of the BMS voted in favor of a motion changing the BMA’s policy from opposition to a change in the law on assisted dying, to a position of neutrality. Overall, medical students were generally more supportive, and GPs generally more opposed, than most other branches of practice. These specialties tended to be generally more supportive: anesthetics, emergency medicine, intensive care and obstetrics and gynecology. These specialties tended to be generally more opposed: clinical oncology, general practice, geriatric medicine and palliative care.

However, UK citizens show overwhelming support. A 2023 survey by the BMS revealed that

2 in 3 Britons think it should be legal for a doctor to assist a patient aged 18 or older in ending their life by prescribing life-ending medication. The Catholic Church was in opposition. It noted that the most, but not all, religious bodies are in opposition but not with the same source of funds.

Where should the power to dispense lie?

The question must be asked as to whether it is justified for only physicians to have this power, and the authority, to dispense the necessary medications?  Should others, other than physicians, be qualified to have the authority to dispense the necessary medications?

The ultimate power appears to be the people and their will. How to carry out that will involve the points of contention.

What is/are the solution(s)?

DwD, MAID as a societal issue, a public health issue

DwD, or Medical Aid in Dying (MAID) are societal issues and, as such, is more a public health issue. If a public health issue, a logical solution would be to have properly trained specialists in public health empowered to dispense the necessary medications? It was the police power of the state that over the centuries took that power and then, under state control, licensed that authority to the physicians.

Under the same police powers of the state, the state has the power to license properly trained public health specialists, albeit perhaps to those with MD or equivalent degrees, to have the authority to dispense.

The residual dispensing issues

This still does not resolve the problem of allowing others to assist those that are incapable of taking the medications themselves, or of even helping others like infants in great distress and pain. These are issues that will ultimately have to be addressed.

Consider the infant or child dying of an incurable disease and suffering debilitating pain. The dilemma here is to aid the end of that child’s life by providing and administering the necessary medications or, to simply stand by and watch a possibly lengthy and painful death.

The argument is made that pain, even in an infant or child, can be mediated by narcotics. However, basically, is that what you have is a small human being narcotized to the extent of not being cognizant of its loved ones or surroundings. Indeed, a dilemma! At the least, should not the parents, other loved ones, or a guardian be granted the right to make this decision? Who should have this right, the state or a parent or alternate, again exercising autonomy but, a surrogate autonomy for the child?

Consider next a person, a fellow human, who has been determined by others to be “mentally incompetent”, and thus denied their autonomy, the ability to make decisions about their own lives. Consider this person, who in their own mind has concluded for whatever reason(s) the desire to end their lives. Consider the person making the decision that, because this person is mentally incompetent, denies such autonomy whereas they could do so for themselves.

Other jurisdictions have made these determinations on behalf of the child and/or purportedly incompetent individual. The question is asked, at what point does a person’s autonomy end? Who, or what impersonal entity, has the right to make those determinations?

The tide of public opinion and reasons for change

As many polls over the years indicate, at least in the western world, the tide of public opinion in favor of DwD and MAID has been steadily rising. Little has been said for the reasons for this rising tide of public opinion. The following reasons are herein presented as my opinion.

1. The slow disappearance of not only nuclear families but inter-related families living in close knit communities. In such families and communities, people at the end of life could be looked after and cared for during the dying process by their own family living together in a household or compound or with the help of nearby relatives. In more contemporary families when a child marries, that couple is more likely to live together, often, far from the nuclear environment. More than likely the living progression is from an apartment to a house with limited living spaces.

2. Next are the brutal realities of the costs and financial consequences likely to burden a couple, each with a set of ageing parents. The brute reality of having to provide the financial resources to prolong the lives of potentially four parents in lieu of paying the monthly mortgage, making payments on one or two cars, paying possible education bills for their children, foregoing vacations and needed respites from work can present overwhelming stresses and obstacles on couples

3. These same couples are also looking ahead to their own possible life extension requirements and realizing their possible burden to their own children. They could be understood for choosing not to be such a burden to their own children.

Faced with such realities, the reason for increasing support for DwD and MAID can readily be understood.

The outlook for DwD and MAID

The support for Dwd and MAID increases as people either become educated about it or seek information when confronted with the issue in their own families.

For families confronted with the issue, the realization of an impending financial burden on them causes them to re-evaluate their support for continuing a life at terminal risk, from supporting that life at any cost to a sober realization of how it impacts them. It appears that as families and people become educated about the issues, they become able to re-evaluate their previous beliefs. With education comes acceptance.

It also appears that an understanding of all the philosophical, historical, legal, social, cultural and financial aspects of DwD, MAID provide the tools and knowledge for making informed decisions.

Once an informed decision is made, hopefully advocacy becomes a next step as it is increased advocacy that will determine a general acceptance by an informed public of Dwd, MAID.