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Response to the article “depression, self-love, time, and the ‘right’ to suicide” by Bursztajn et al.
Response to the Article “Depression, Self-Love, Time, and the ‘Right’ to Suicide” by Bursztajn et al.* Alan A. Stone, M.D. Harvard Law School, Cambridge, Massachusetts
The paper by Bursztajn et al. is an ambitious contribution to medical, moral, and legal thinking. At the same time, its publication in this journal poses an interesting ethical question. The Principles of Medical Ethics, With Annotations Especially Applicable to Psychiatry contain a paragraph (Section 7, paragraph 3) addressed to psychiatrists who offer professional opinions about persons in the spotlight of public attention. It is considered unethical to publish such opinions “unless he/she has conducted an examination and has been granted proper authorization for such a statement.” This rule applies specifically when the psychiatrist has had no access to confidential information and everything known is a matter of public record, as is the case here. The manuscript nowhere indicates that the authors are aware of this ethical principle or that it could be invoked against the publication of their professional opinions about Elizabeth Bouvia’s purported mental incompetence in this journal. It so happens that, as an A.P.A. officer, I argued and voted against the inclusion of Section 7, paragraph 3. I continue to oppose its inclusion in our Principles of Ethics. I therefore welcome Bursztajn et al. and this journal to the ranks of those practicing ethical “civil disobedience.” However, it would have been even more encouraging to me had these authors and the editor of the journal intimated in some small way that they were familiar with the Principles of Ethics and knew what they were doing. Imagine how someone given to the kind of
‘Seepp. 91-95, this issue. General Hospital Psychiatry 8, 97-99, 1986 0 1986 Elsevier Science Publishing Co., Inc. 52 Vanderbilt Avenue, New York, NY 10017
psychologic attributions the authors demonstrate in their article might analyze what I have just described. Such a person might suggest that the authors, writing about ethics, failed to consult or consider their own profession’s ethical principles because they were in a condition of “state dependent impulsivity” or “state dependent tunnel vision” induced by the academic stress of “publish or perish.” It is possible that the authors will find this “plausible” psychologic description of their particular state of mind insulting or irrelevant. It is equally possible, however, that Elizabeth Bouvia will have similar reactions to the psychologic attributions in the article. I wish I could say that Section 7, paragraph 3 was adopted because the A.P.A. was concerned that unwanted professional opinions, such as those of the authors and my “hypothetical” opinions about the authors are unethical because whether or not they are correct, they can be offensive and intrusive to the persons involved. Rather, the A.P.A.s concern was that such professional opinions had at times proved embarrassing to the profession. I oppose Section 7, paragraph 3 as a restraint on psychiatrists’ freedom of speech in just those instances that have drawn “the light of public attention” and where, in my opinion, psychiatrists should be free to choose to participate in the public dialogue. I take this position even in this case regardless of my belief that to analyze Elizabeth Bouvia’s state of mind across a continent and from sparse newspaper accounts is methodologically dubious and perhaps an offensive practice. As it turns out, this dubious methodology is not 97 1SSN 0163-8343LW53.50
A. A. Stone
essential to an analysis of the Bouvia case. Bursztajn et al. suggest that the Bouvia case poses two questions: (1) When is a person to be judged incompetent to decide his or her own fate? (2) When is there a medical duty to prevent suicide? Bouvia and the American Civil Liberties Union sought to make the hospital and its medical staff at least passively complicit in her suicide. They demanded in the name of the person’s right of self-determination that the hospital neither treat her nor discharge her. The court, correctly in my opinion, rejected this demand, refusing to permit Bouvia’s right of selfdetermination to outweigh other considerations including medical ethics. As I see the lesson of the Bouvia case, it mattered not whether she really wanted to die, whether she was competent or incompetent, or even whether the hospital has a duty to prevent suicide. The lesson of Bouvia is that hospitals and doctors need not passively abet the suicide of a patient who is not terminally ill. This is not a new lesson; passively abetting the suicide of a competent or incompetent patient who is not terminally ill would raise the specter of criminal prosecution in most jurisdictions. If I am correct, the authors’ methodologically dubious analysis of Bouvia’s state of mind is irrelevant to the actual case. They apparently believe that the court should have found her incompetent and denied her the right to commit suicide on that basis. The court’s finding that she was competent did not, however, change the actual result. A central concern of the authors is evaluating the competence of suicidal patients; that is why they speculate about Bouvia’s mental state. They make a strong case for the presumption that all persons who want to commit suicide are incompetent. Their view is most powerfully captured in the sweeping statement, “Suicidality in this population [those who suffer from severe physical illness] should be seen in the same light as suicidality in others.” The case example they give of the young man with malignant melanoma and a prognosis of 1 year, who is treated with E.C.T. and dies grateful for the involuntary treatment, regardless of the great physical pain and the inevitable death that follows, illustrates their conviction about the clinical presumption of incompetence in all suicidal patients. The clinical approach they describe for dealing with suicidal patients is convincing and is consistent with much of the extensive clinical literature on this subject. Nevertheless, some clinicians may feel as I do that their psychologic presumptions go 98
Response to Bursztajn et al.
too far, “A person (who suffers excruciating pain) who cannot see that the meaning and experience of his or her suffering can change with time is in no position to choose realisticalIy whether it is best to live or die.” They suggest that this presumptive reasoning can “form the basis of a standard to be applied by the courts in determining a patient’s competence to make life and death choices.” I strongly agree with the authors’ view that “the autonomous patient is a “myth,” but the omniscient and omnipotent psychiatrist is also a “myth.” When the authors suggest that courts follow their presumptive reasoning about the changing “meaning and experience of suffering,” implying that “iucid” cancer patients, for example, who are unwilling to see the possibility of such changes are making life and death decisions on the basis of “state-dependent, time-limited impulsivity,” they are invoking the myth of the omniscient psychiatrist who has answers to all questions. When they suggest, as in their case history of the melanoma patient, that psychiatrists can distinguish between the anguish of suicidal depression and the anguish of death from cancer and can treat the former while helping to change the meaning of the latter, they are invoking the myth of the omnipotent psychiatrist. The authors, in my view, have resurrected psychiatry’s myth of omniscience and onmipotence to lay to rest the libertarian myth of the autonomous patient. This was not necessary to discuss the lesson of the Bouvia case. The authors found in the Bouvia case, however, a law and psychiatry problem of great concern to every practicing psychiatrist. How should law and psychiatry deal with a patient like EIizabeth Bouvia who wants to die but is far from being psychotic? Should the law, relying on the presumptive reasoning of the authors, assume that, even in the absence of psychosis or other significant mental disorder, a “lucid” person who chooses death without a 6-month delay is incompetent? Or should the law out of respect for individual freedom no matter what the individual chooses, assume competency and place the burden on psychiatrists to prove some substantial impediment to competent choice such as a mental disorder approaching psychosis? The authors would opt for the former; I would opt for the latter. I do not share the authors’ confidence in the reliability and validity of such terms of psychiatric art as “state-dependent, time-limited impulsivity,” or “state-dependent pessimism.” I do not believe judges or psychi-
A. A. Stone
atrists should be trusted to ignore a person’s apparent lucidity in the name of such subtle and, at the same time, sweeping generalizations about other persons’ states of mind. Their psychiatric conclusions are generalized interpretations held together by a web of presumptive reasoning about how people make decisions. Such a web cannot bear the heavy weight of a rule of law. The Bouvia case, when all is said and done, was decided correctly. Elizabeth Bouvia had no right to force the medical profession to participate, even passively, in her suicide. In the absence of severe
Response to Bursztajn et al.
mental disorder such as psychosis, the nonsecular state should have no right to force Elizabeth Bouvia to undergo 6 months of involuntary treatment. Nothing in such traditional rules of law would prevent psychiatrists from urging nonpsychotic patients to delay the irrevocable decision of suicide and accept treatment. The rule of law demonstrated by the Bouvia court genuflected neither to the myth of the autonomous patient advanced by the American Civil Liberties Union, nor to the myth of the omniscient and omnipotent psychiatrist advanced by Bursztajn et al.
99
The paper by Bursztajn et al. is an ambitious contribution to medical, moral, and legal thinking. At the same time, its publication in this journal poses an interesting ethical question. The Principles of Medical Ethics, With Annotations Especially Applicable to Psychiatry contain a paragraph (Section 7, paragraph 3) addressed to psychiatrists who offer professional opinions about persons in the spotlight of public attention. It is considered unethical to publish such opinions “unless he/she has conducted an examination and has been granted proper authorization for such a statement.” This rule applies specifically when the psychiatrist has had no access to confidential information and everything known is a matter of public record, as is the case here. The manuscript nowhere indicates that the authors are aware of this ethical principle or that it could be invoked against the publication of their professional opinions about Elizabeth Bouvia’s purported mental incompetence in this journal. It so happens that, as an A.P.A. officer, I argued and voted against the inclusion of Section 7, paragraph 3. I continue to oppose its inclusion in our Principles of Ethics. I therefore welcome Bursztajn et al. and this journal to the ranks of those practicing ethical “civil disobedience.” However, it would have been even more encouraging to me had these authors and the editor of the journal intimated in some small way that they were familiar with the Principles of Ethics and knew what they were doing. Imagine how someone given to the kind of
‘Seepp. 91-95, this issue. General Hospital Psychiatry 8, 97-99, 1986 0 1986 Elsevier Science Publishing Co., Inc. 52 Vanderbilt Avenue, New York, NY 10017
psychologic attributions the authors demonstrate in their article might analyze what I have just described. Such a person might suggest that the authors, writing about ethics, failed to consult or consider their own profession’s ethical principles because they were in a condition of “state dependent impulsivity” or “state dependent tunnel vision” induced by the academic stress of “publish or perish.” It is possible that the authors will find this “plausible” psychologic description of their particular state of mind insulting or irrelevant. It is equally possible, however, that Elizabeth Bouvia will have similar reactions to the psychologic attributions in the article. I wish I could say that Section 7, paragraph 3 was adopted because the A.P.A. was concerned that unwanted professional opinions, such as those of the authors and my “hypothetical” opinions about the authors are unethical because whether or not they are correct, they can be offensive and intrusive to the persons involved. Rather, the A.P.A.s concern was that such professional opinions had at times proved embarrassing to the profession. I oppose Section 7, paragraph 3 as a restraint on psychiatrists’ freedom of speech in just those instances that have drawn “the light of public attention” and where, in my opinion, psychiatrists should be free to choose to participate in the public dialogue. I take this position even in this case regardless of my belief that to analyze Elizabeth Bouvia’s state of mind across a continent and from sparse newspaper accounts is methodologically dubious and perhaps an offensive practice. As it turns out, this dubious methodology is not 97 1SSN 0163-8343LW53.50
A. A. Stone
essential to an analysis of the Bouvia case. Bursztajn et al. suggest that the Bouvia case poses two questions: (1) When is a person to be judged incompetent to decide his or her own fate? (2) When is there a medical duty to prevent suicide? Bouvia and the American Civil Liberties Union sought to make the hospital and its medical staff at least passively complicit in her suicide. They demanded in the name of the person’s right of self-determination that the hospital neither treat her nor discharge her. The court, correctly in my opinion, rejected this demand, refusing to permit Bouvia’s right of selfdetermination to outweigh other considerations including medical ethics. As I see the lesson of the Bouvia case, it mattered not whether she really wanted to die, whether she was competent or incompetent, or even whether the hospital has a duty to prevent suicide. The lesson of Bouvia is that hospitals and doctors need not passively abet the suicide of a patient who is not terminally ill. This is not a new lesson; passively abetting the suicide of a competent or incompetent patient who is not terminally ill would raise the specter of criminal prosecution in most jurisdictions. If I am correct, the authors’ methodologically dubious analysis of Bouvia’s state of mind is irrelevant to the actual case. They apparently believe that the court should have found her incompetent and denied her the right to commit suicide on that basis. The court’s finding that she was competent did not, however, change the actual result. A central concern of the authors is evaluating the competence of suicidal patients; that is why they speculate about Bouvia’s mental state. They make a strong case for the presumption that all persons who want to commit suicide are incompetent. Their view is most powerfully captured in the sweeping statement, “Suicidality in this population [those who suffer from severe physical illness] should be seen in the same light as suicidality in others.” The case example they give of the young man with malignant melanoma and a prognosis of 1 year, who is treated with E.C.T. and dies grateful for the involuntary treatment, regardless of the great physical pain and the inevitable death that follows, illustrates their conviction about the clinical presumption of incompetence in all suicidal patients. The clinical approach they describe for dealing with suicidal patients is convincing and is consistent with much of the extensive clinical literature on this subject. Nevertheless, some clinicians may feel as I do that their psychologic presumptions go 98
Response to Bursztajn et al.
too far, “A person (who suffers excruciating pain) who cannot see that the meaning and experience of his or her suffering can change with time is in no position to choose realisticalIy whether it is best to live or die.” They suggest that this presumptive reasoning can “form the basis of a standard to be applied by the courts in determining a patient’s competence to make life and death choices.” I strongly agree with the authors’ view that “the autonomous patient is a “myth,” but the omniscient and omnipotent psychiatrist is also a “myth.” When the authors suggest that courts follow their presumptive reasoning about the changing “meaning and experience of suffering,” implying that “iucid” cancer patients, for example, who are unwilling to see the possibility of such changes are making life and death decisions on the basis of “state-dependent, time-limited impulsivity,” they are invoking the myth of the omniscient psychiatrist who has answers to all questions. When they suggest, as in their case history of the melanoma patient, that psychiatrists can distinguish between the anguish of suicidal depression and the anguish of death from cancer and can treat the former while helping to change the meaning of the latter, they are invoking the myth of the omnipotent psychiatrist. The authors, in my view, have resurrected psychiatry’s myth of omniscience and onmipotence to lay to rest the libertarian myth of the autonomous patient. This was not necessary to discuss the lesson of the Bouvia case. The authors found in the Bouvia case, however, a law and psychiatry problem of great concern to every practicing psychiatrist. How should law and psychiatry deal with a patient like EIizabeth Bouvia who wants to die but is far from being psychotic? Should the law, relying on the presumptive reasoning of the authors, assume that, even in the absence of psychosis or other significant mental disorder, a “lucid” person who chooses death without a 6-month delay is incompetent? Or should the law out of respect for individual freedom no matter what the individual chooses, assume competency and place the burden on psychiatrists to prove some substantial impediment to competent choice such as a mental disorder approaching psychosis? The authors would opt for the former; I would opt for the latter. I do not share the authors’ confidence in the reliability and validity of such terms of psychiatric art as “state-dependent, time-limited impulsivity,” or “state-dependent pessimism.” I do not believe judges or psychi-
A. A. Stone
atrists should be trusted to ignore a person’s apparent lucidity in the name of such subtle and, at the same time, sweeping generalizations about other persons’ states of mind. Their psychiatric conclusions are generalized interpretations held together by a web of presumptive reasoning about how people make decisions. Such a web cannot bear the heavy weight of a rule of law. The Bouvia case, when all is said and done, was decided correctly. Elizabeth Bouvia had no right to force the medical profession to participate, even passively, in her suicide. In the absence of severe
Response to Bursztajn et al.
mental disorder such as psychosis, the nonsecular state should have no right to force Elizabeth Bouvia to undergo 6 months of involuntary treatment. Nothing in such traditional rules of law would prevent psychiatrists from urging nonpsychotic patients to delay the irrevocable decision of suicide and accept treatment. The rule of law demonstrated by the Bouvia court genuflected neither to the myth of the autonomous patient advanced by the American Civil Liberties Union, nor to the myth of the omniscient and omnipotent psychiatrist advanced by Bursztajn et al.
99