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Personhood, preemptive suicide, and legislation
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DOSSIER ‘‘PERSONHOOD: INTIMITY AND OTHERNESS’’ /Studies
Personhood, preemptive suicide, and legislation Identité individuelle, suicide préventif et législation C.G. Prado (Proffessor Emeritus of Philosophy) Department of Philosophy, John Watson Hall, Queen’s University, 49 Bader Lane, Kingston, Ontario K7L 3N6, Canada Received 15 July 2016; accepted 27 September 2016
KEYWORDS Suicide; Preemptive; Assistance; Legislation; Decriminalization
Summary Recent legislation decriminalizing assisted suicide is welcome, but it suffers from a serious flaw. As formulated and presently interpreted, the legislation depersonifies some individuals. It does so by discriminating against them in denying them assistance in suicide while providing it for others. This depersonification occurs when consideration of some persons’ need and request for assistance in suicide is assessed exclusively in terms of the condition of their bodies while their self-assessments, wishes, fears, and decisions are effectively ignored. Furthermore, as the legislation requires, consideration of requests for assistance in suicide focuses on particular terminal illnesses from which appellants suffer, discounting other reasons appellants have for wanting to die. In particular, anticipated and incipient afflictions are not allowed to figure in the assessments. Better formulation of decriminalizing legislation and especially more flexible interpretation of stated conditions is called for. Interpretation of the legislation must recognize the personal complexities and threats of terminal afflictions, both present and developing, as well as the straightforward physical consequences of present ones. In pursuing this matter, I concentrate on legislation very recently passed in Canada. However, the problem I identify and discuss, and the main point I make about it, are both readily generalizable to apply to other nations that either have already decriminalized assistance in suicide or are in the process of planning legislation to do so. As will emerge, it is not my objective to have the new Canadian legislation repealed or even significantly altered. Nor is it my intention to try to offer a tidy solution to the problem I identify in legislation pertaining to assistance in suicide.
E-mail address: [email protected] http://dx.doi.org/10.1016/j.jemep.2016.10.010 2352-5525/© 2016 Elsevier Masson SAS. All rights reserved.
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010
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C.G. Prado Rather, my objective is, first, to review the particular problem of how the legislation and its present interpretation depersonifies individuals through discrimination, focusing on one particular condition. Second, I then attempt to clarify just how the legislation as presently interpreted most seriously fails. Third, I suggest how judicious reinterpretation of the condition at issue may come about and thereby resolve the problem that it presently poses. © 2016 Elsevier Masson SAS. All rights reserved.
MOTS CLÉS Suicide ; Préventif ; Assistance ; Législation ; Décriminalisation
Résumé Bien que la récente loi décriminalisant le suicide assisté soit une mesure qui mérite d’être saluée, elle pose un sérieux problème. Cette loi, telle qu’elle est actuellement formulée et présentée, dépersonnifie certains individus. Elle les discrimine en leur refusant une aide à mourir qu’elle procure à d’autres. Cette dépersonnification se produit lorsque, pour certaines personnes, la considération de leur besoin et leur recours à cette aide à mourir est évaluée exclusivement en fonction de l’état de leur corps et que leur auto-évaluation, leurs désirs, peurs et décisions sont ainsi ignorés. Par ailleurs, comme la loi l’exige, la considération des demandes pour le suicide assisté se concentre sur des maladies terminales particulières dont les requérants souffrent, écartant les autres raisons que ceux-ci auraient de vouloir mourir. Notamment, les afflictions anticipées et naissantes ne figurent pas parmi ces évaluations. Une meilleure formulation de cette loi décriminalisante qui adopterait une interprétation flexible des conditions énoncées est de mise. Cette interprétation de la loi doit reconnaître la complexité des cas et les menaces que posent les souffrances terminales, tant actuelles qu’émergentes, ainsi que les conséquences physiques directes qu’elles comportent. En approfondissant cette question, je me concentre sur la loi récemment adoptée au Canada. Or, la problématique que j’identifie et dont je discute, ainsi que les points saillants que je soulève, peuvent aisément s’appliquer à d’autres nations ayant déjà décriminalisé le suicide assisté ou ayant entamé la planification d’un processus législatif pour le faire. Mon objectif n’est pas que la loi canadienne soit abrogée, ou même significativement modifiée. Mon intention n’est pas non plus d’offrir une solution sans équivoque au problème de la législation relative au suicide assisté. Mon but est plutôt, dans un ¸on dont la loi et son interprépremier temps, d’examiner le problème qui se pose dans la fac tation actuelles dépersonnifient les individus par la discrimination, en se concentrant sur une condition en particulier. En second lieu, je tenterai de clarifier comment la loi telle qu’elle est interprétée présentement échoue gravement. Enfin, je propose des possibilités quant à l’émergence d’une réinterprétation de la condition en question, afin de résoudre le problème qu’elle pose actuellement. © 2016 Elsevier Masson SAS. Tous droits r´ eserv´ es.
Ethics is all about persons, their conduct, and their interaction with one another. Legislation should be about persons, their conduct, and their interaction with one another, but the formulation of laws and rules often has a regrettable depersonifying effect. The reason is understandable: the need to be objective and precise and to ensure appropriate applicability. But though necessary and admirable, striving for and achieving objectivity, precision, and appropriate applicability in formulating legislation far too commonly results in the subjects of rules and laws having their personhood abstracted away by how they and their situations are described. What happens basically is that persons become so many bodies by being described solely in terms of pertinent attributes. Nowhere is this truer than in legislation having to do with assisted suicide. Canada decriminalized assistance in suicide in June of 2016. That decriminalization, though, came with one important complication. The Supreme Court of Canada decriminalized assisted suicide, but it was left to the
Canadian Senate and House of Commons to formulate what was designated and passed into law as Bill C-14. The formulation in question included a clause stipulating that for provision of assistance in suicide not to be criminal, it has to be the case that the ‘‘natural death’’ of those requesting assistance ‘‘has become reasonably foreseeable’’ [1]. In what follows, I will refer to this stipulation as the ‘‘foreseeable-death condition.’’ The precise language of the relevant parts of Bill C-14 includes these clauses: 241.2 (1) A person may receive medical assistance in dying only if. . . (c) they have a grievous and irremediable medical condition. . . [and]. . . 241.2 (2) (d) their natural death has become reasonably foreseeable. . . [1]. Admittedly, the wording of 241.2 (2) (d) is fairly broad, specifying that death must be ‘‘reasonably foreseeable’’ rather than requiring it be imminent, but then if death were
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010
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Suicide and the law imminent, requests for assistance in suicide would be rather pointless. The problem that arises from the foreseeable-death condition does not have to do with situations where death is medically foreseeable, which I understand as being deemed to be a matter of days or weeks. Rather, the problem has to do with how the foreseeable-death condition precludes assistance in what I have described as preemptive, or anticipatory, suicide: choosing to die to escape months or years of personal diminishment, physical suffering, and total dependency [2—6]. Preemptive suicide is a final and admittedly extreme measure to salvage oneself as the person one is, to die compos mentis rather than to have one’s mental lucidity slowly erased and lose one’s very being in the process. The foreseeable-death condition poses a problem in that some persons opting for preemptive suicide are not able to take their own lives without assistance due to disabling, mainly paralytic, afflictions. The trouble is that these persons’ reasons for committing preemptive suicide may have little or nothing to do with their present afflictions and all to do with anticipated afflictions. Below I consider one actual case in point and sketch a hypothetical case to illustrate how the foreseeable-death condition is discriminatory. To proceed, a little has to be said about the wording of the foreseeable-death condition. What is of some importance is how the addition of ‘‘reasonably,’’ which initially appears to make the foreseeable condition fairly broad, does not in fact do so. The reasons have to do with the context of the clause. That context is provided by how 241.2 (1) and 241.2 (2) address medical practitioners, nurse practitioners, and pharmacists as those providing assistance in suicide. Therefore, the first reason is that the phrase ‘‘reasonably foreseeable’’ is about medically foreseeable death; it requires medical diagnostic assessment of the condition of anyone requesting assistance in suicide as most likely to suffer natural death within a short time. The second reason is that the foreseeable-death condition relates to the terminal illness referred to in 241.2 (1) (c). This means that assistance in suicide, to be non-criminal and not some form of homicide, has to be assistance in escaping from the same terminal disease the presence of which satisfies condition 241.2 (1) (c) in particular and requests for assistance in suicide in general. We have, then, two consequences of how the legislation decriminalizing assistance in suicide is articulated. One is that a person requesting assistance in suicide must have a terminal illness; the other is that, in effect, the person’s foreseeable natural death must be a function of that particular illness. Why this is of major importance emerges when we consider that some persons may have a particular terminal illness but desire to end their lives in anticipation of a different affliction. In other words, a person’s terminal illness may not portend his or her death for some time, a period going beyond that in which death is ‘‘reasonably foreseeable,’’ but she or he may want to die to avoid some condition that looms as being worse than what is already wrong. To clarify, as persons we enjoy—–and sometimes only endure—–a complex life in which our physical and mental sides or aspects are of a piece in consciousness. When one aspect or side is afflicted we are reduced as subjects. In my work on suicide and assisted suicide, I have been most
3 concerned with supporting preemptively choosing to die to avoid critical lessening of oneself as a person due to mental affliction. Physical affliction may also lessen us as persons, but it allows for courageous responses and with real effort can be borne without personal diminishment. Some mental afflictions, mostly of a psychological nature, allow for courageous responses, but usually more narrowly. My concern, though, is with mental afflictions that cannot be borne and compensated for because they are destructive in an irreparable way. Dementia, generally, and Alzheimer’s in particular, are the paradigms here. Alzheimer’s and other forms of dementia destroy us as persons. Preemptive suicide is choosing to die in anticipation of personal destruction; it is opting for death over total diminishment of oneself as oneself. I have argued for acceptance of choices to die on the basis of diagnoses of conditions such as impending but not yet or only marginally present dementia. The core of my position is that it is better and wiser to choose to die as the person one is than to survive as a lessened version of oneself, and one tortured and utterly dependent to boot. As has been pointed out to me, I give intellectual well-being priority over whatever measure of contentment may still be available to individuals with dementia and similar mentally deteriorative afflictions.1 While this is true, I am hardly unique in thinking this way. Some individuals do value their existence as the intellectual persons they are over survival as mentally diminished versions of themselves, and I believe this to be a judicious and intelligent value judgment. However, I am not arguing that persons should choose to die in circumstances where mental diminishment and lessening of themselves threatens. I am arguing that for some it is better to choose to die before afflictions reduce them intellectually as well as punishing them physically. As indicated, the problem I am addressing in this paper is that it may happen that persons choosing to die preemptively cannot end their own lives without assistance because of physical impairments, and the foreseeable-death condition precludes provision of the necessary assistance. The first case I want to consider is that of Sue Rodriguez, who suffered from ALS and in the early 1990s sought assistance in suicide, desperately wanting to escape her hopeless situation and to avoid its impending worsening [7,8]. Rodriguez was physically unable to take her own life, so required assistance, but the provision of such assistance was illegal at the time, whether or not death was reasonably foreseeable. Rodriguez pressed her request for assistance in suicide and it eventually went to the Supreme Court of Canada. On September 30th, 1993, the Court denied her request, but in the process of working its way through to the courts, Rodriguez’s case drew a good deal of media attention. This attention had two results: an immediate practical one, and a longer-term socio-political one. The former was that the attention the Rodriguez case received led to an anonymous physician risking his or her status and reputation, and possibly liberty, by assisting Rodriguez’s suicide. The latter result was that the Rodriguez case prompted much reflection on and discussion of assisted suicide and thereby
1
My thanks to Kim McAuley for her suggestions.
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010
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unquestionably contributed to how attitudes toward assisted suicide shifted and in turn to how now, more than two decades after its Rodriguez decision, the Supreme Court has reversed itself and decriminalized assisted suicide. The problem that I see is just this: given that the formulation of the Supreme Court’s decriminalization of assisted suicide, which was passed into law, includes the foreseeable-death condition, if Rodriguez’s request for assistance in suicide were made today, it would fare no better than it did when originally made. The reason is that Rodriguez’s death was not reasonably foreseeable. In fact, it was precisely that she might have to live with ALS for many more months, perhaps years, that prompted Rodriguez’s to request assistance in suicide. She did not want to continue living as she was living nor have to bear a worsening of her condition. But though afflicted with ALS, Rodriguez’s overall physical state was such that her death from ALS was not imminent. The point here, then, is that regardless of the Supreme Court’s reversal, Rodriguez would not now receive assistance in the suicide she could not commit without help because providing that help would be as criminal now as it was at the time. Consider now the hypothetical case. An individual suffers from advanced ALS but is able to think lucidly and abstractly and still able to contribute significantly to his or her earlier profession.2 What is worthwhile and rewarding in this individual’s life, what make her or his life worth living, is the exercise and products of focused, disciplinary thought. Beyond that there is total dependency on others and perhaps contact with friends and family. Imagine now that the person in our hypothetical case comes to have good reason to believe that he or she will soon develop dementia or Alzheimer’s and be deprived of mental lucidity and productivity. Even the satisfaction provided by contact with family and friends will dissipate and eventually cease to be meaningful, at best prompting an occasional confused memory. Unquestionably the person in this hypothetical case would consider and very likely opt for preemptive suicide. But in this hypothetical case, preemptive suicide cannot be achieved without assistance, and assistance is not forthcoming because it would be criminal. This is because the foreseeable-death condition applies in that as we are hypothesizing, natural death from ALS is not foreseeable in the requisite way. Like Sue Rodriguez, the person in our hypothetical case may be in good enough physical condition, despite the ALS, to survive for a year or two or perhaps longer. It must be acknowledged here that persons suffering from ALS and similar disabling conditions always have the option of ending their lives without assistance by ceasing to drink water, ceasing to eat, or in some cases demanding that intravenous feeding be stopped. But these are hard ways to die and starvation is prolonged. Moreover, note that provision and administration of medication to ease the suffering involved in lethal dehydration and/or starvation is itself legally dubious, since despite being indirect, it essentially
2 I am reluctant to refer to living persons, but with all due respect must say that who I first thought of when setting up this hypothetical case was Stephen Hawking.
would be assisting suicide to the extent that it is amelioration of the suffering entailed by dehydration and starvation. The hypothetical case and envisioning the Rodriguez case occurring now bring out the main point I am making in this paper, which is just this: given that suicide is not criminal, the foreseeable-death condition of the new assisted suicide legislation is actually discriminatory. It discriminates against the disabled who choose to die but need assistance in doing so. It discriminates both by imposing a time limit on their option in requiring that their deaths be medically predictable within an estimable period before assistance in suicide can be legally provided, and by requiring that foreseeable-death be a consequence of the malady that precludes their taking their own lives. In both the Rodriguez case and the hypothetical case, foreseeable death would have to be the consequence of ALS. Against this, those able to take their own lives without assistance are free to do so when they choose to do so and for a reason that may be unrelated to their disabling malady. What complicates matters, and to a degree blunts the charge of discrimination, is that the foreseeabledeath condition is without doubt an understandable and valid expression of concern about sanctioning assistance in suicide. This concern is usually articulated as the ‘‘slippery-slope’’ argument, an argument to the effect that decriminalization and social tolerance of assistance in suicide—–preemptive or otherwise—–eventually will have counterproductive consequences by inducing increasingly negative attitudes toward the elderly and the seriously disabled. This concern has been the main basis for criticism of my positive treatment of preemptive suicide, criticism that focuses on the fact that my arguments for preemptive suicide are arguments largely about the situations and choices of older people. My arguments focus on those who, given human nature, are most likely to face seriously mentally and physically deteriorative and punishing afflictions. What the slippery-slope concern is all about is a different sort of depersonification: a rendering of the old and disabled as less worthy, as not meriting the level of social and familial support most of them need. A representative statement of the slippery-slope concern, one particularly applicable to preemptive suicide, is Stephen Post’s contention, regarding my The Last Choice, that ‘‘In a society that many think is fundamentally ageist. . . it is easy to imagine the choice of preemptive suicide becoming the expected one’’ [9, p. 67; see also 10]. Post fears that support for assisted suicide, and especially preemptive suicide, will seriously endanger ‘‘continuing social commitment to institutions that enhance the quality of life for those who grow aged’’ [11, p. 121; additionally, see 12 and 13, p. 54, 57; but see 14]. Post does have a point, one that Arthur Caplan stated more generally but effectively. Caplan observed that social acceptance of assisted suicide, preemptive or otherwise, will have a worrying social result, namely, ‘‘the notion will come that the older and disabled who are expensive should do the responsible thing’’ [15; see also 16,17]. The slippery-slope problem is real and undeniable. We know all too well how well-intentioned policies are abused and often turn out to achieve virtually the opposite of what they were designed to achieve. Decriminalizing assistance in suicide does threaten abuse. There are, however, two points that need to be made regarding the slippery-slope
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010
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Suicide and the law argument. The first point has to do with provision of assistance in suicide generally, and is that reviewing relevant events in the past two or three decades establishes that barring widespread—–and increasingly unlikely—–religious and/or socio-political reversals, we are well along the road to socially acceptable, decriminalized assistance in suicide. The second point has to do with preemptive suicide in particular, and is that given medicine’s increasing ability to diagnose incipient afflictions and to anticipate progression of existing afflictions, more and more people will be facing situations where continued life will destroy them as persons. Acknowledging this reality makes it very difficult to in good conscience hold that those able to take their own lives are free to do so to avoid annihilation of themselves as the persons they are, but that others who are already so stricken that they cannot end their lives without help must endure annihilation of themselves as the persons they are until their other disorder kills their bodies. To reiterate, I think it clear that persons with good reason for and wanting preemptive death are in effect discriminated against by the foreseeable-death condition in present Canadian legislation and similar hedge clauses in other instances of assisted suicide legislation. The foreseeabledeath condition and others like it are reasonable attempts to guard against abuse, but they are discriminatory because they deny assistance in preemptive suicide to those who require help to end their lives while those physically able to take their own lives remain free to do so when they choose to do so. However, I am not arguing for abandonment of the foreseeable-death condition or others similar to it. As noted, there are good grounds for including them in legislation to curb possible abuse. What, then, is the answer here? Given the need to guard against abuse, what can be done in fairness to those wanting to commit preemptive suicide but unable to do so without assistance? I believe that to try to properly articulate in legislation what needs to be done is most likely a hopeless task. As it stands, the foreseeabledeath condition is, in fact, well put. The problem arises only because there will inevitably be some people who want to die to preempt personal diminishment and destruction, but who will need help in attaining their wishes and whose reason for opting to die is not a result of the eventually terminal affliction that prevents them from taking their own lives without assistance. In my view, the only realistic answer to what looks like an unsolvable problem is for a latter-day Sue Rodriguez to take her case to the courts and for her attorney to make the above point about the discriminatory nature of the foreseeabledeath condition. Part of the objective must be to separate assistance in suicide in cases where reasonably foreseeable natural death is a consequence of a person’s existing terminal disease and cases where the person’s choice to die is not primarily due to an existing terminal disease but to an anticipated affliction. Next, there is need for an enlightened judge to acknowledge and rule that dementia, Alzheimer’s, and similar afflictions are not only eventually terminal diseases of the body, but are much, much sooner terminal diseases of the person. Given such a ruling, the foreseeable-death
5 condition can be more sagaciously interpreted as satisfied by the early stages of the onset of dementia or Alzheimer’s—– stages where there is still enough lucidity to properly choose to die. Admittedly, this all sounds like a tall order, but it must be kept in mind that it all concerns only cases where persons threatened with mental destruction suffer from totally disabling afflictions like ALS and require assistance in ending their further plagued lives.
Disclosure of interest The author declares that he has no competing interest.
References [1] Statutes of Canada 2016. First Session, Forty-second Parliament, 64—65 Elizabeth II, 2015—2016, Chapter 3, Assented to June 17, 2016. [Available from: http://www.parl.gc.ca/ HousePublications/Publication.aspx?Language=E&Mode=1& DocId=8384014]. [2] Prado CG. Ageism and elective death. Ethics Med Public Health 2015;1(4):442—9. [3] Prado CG. Moral individualism and elective death. Int J Law Psychiatry 2013;36(5—6):471—6. [4] Prado CG. Coping with choices to die. New York: Cambridge University Press; 2011. [5] Prado CG. Choosing to die: elective death and multiculturalism. New York: Cambridge University Press; 2008. [6] Prado CG. The last choice: preemptive suicide in advanced age. 2nd ed. Westport, CT: Praeger Press; 1998. [7] Wikipedia [internet]. Rodriguez v British Columbia (AG). [updated 2016 Jun 4; cited 2016 1 Sep; Available from: https:// en.wikipedia.org/wiki/Rodriguez v British Columbia (AG)]. [8] Birnie LH. Uncommon will: the death and life of Sue Rodriguez. Toronto: CDG Books Canada; 1994. [9] Post SG. Ethics and dementia. Alzheimer Dis Assoc Disord 1993;7(2):65—8. [10] Heinrich RL, Morgan MT, Rottman SJ. Advance directives, preemptive suicide and emergency medicine decision making. Narrat Inq Bioeth 2011;1(3):189—97. [11] Post SG. The moral challenge of Alzheimer’s disease: ethical issues from diagnosis to dying. 2nd ed. Baltimore: John Hopkins University Press; 2000. [12] Lerner BH. Knowing when to say goodbye: final exit and suicide in the elderly. Suicide Life Threat Behav 1995;25(4):508—12. [13] Gullette MM. Agewise: fighting the new ageism in America. Chicago: University of Chicago Press; 2011. [14] Bandman EL, Bandman B. Nursing ethics through the lifespan. 4th ed. Upper Saddle River, NJ: Pearson Education Publishing; 2004. [15] Caplan A [Cited from transcript obtained from PBS.] [Interview included in televised program.] The Kevorkian verdict. Frontline. PBS. Episode aired on WGBH, Boston; 1996. [16] Bennett M. Do we have a duty to die? In: Humber JM, Almeder RF, editors. Biomedical ethics reviews. New York: Humana Press; 2000. p. 41—5. [17] Narveson J. Is there a duty to die? In: Humber JM, Almeder RF, editors. Biomedical ethics reviews. New York: Humana Press; 2000. p. 23—40.
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010
ARTICLE IN PRESS
JEMEP-170; No. of Pages 5
Ethics, Medicine and Public Health (2016) xxx, xxx—xxx
Available online at
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DOSSIER ‘‘PERSONHOOD: INTIMITY AND OTHERNESS’’ /Studies
Personhood, preemptive suicide, and legislation Identité individuelle, suicide préventif et législation C.G. Prado (Proffessor Emeritus of Philosophy) Department of Philosophy, John Watson Hall, Queen’s University, 49 Bader Lane, Kingston, Ontario K7L 3N6, Canada Received 15 July 2016; accepted 27 September 2016
KEYWORDS Suicide; Preemptive; Assistance; Legislation; Decriminalization
Summary Recent legislation decriminalizing assisted suicide is welcome, but it suffers from a serious flaw. As formulated and presently interpreted, the legislation depersonifies some individuals. It does so by discriminating against them in denying them assistance in suicide while providing it for others. This depersonification occurs when consideration of some persons’ need and request for assistance in suicide is assessed exclusively in terms of the condition of their bodies while their self-assessments, wishes, fears, and decisions are effectively ignored. Furthermore, as the legislation requires, consideration of requests for assistance in suicide focuses on particular terminal illnesses from which appellants suffer, discounting other reasons appellants have for wanting to die. In particular, anticipated and incipient afflictions are not allowed to figure in the assessments. Better formulation of decriminalizing legislation and especially more flexible interpretation of stated conditions is called for. Interpretation of the legislation must recognize the personal complexities and threats of terminal afflictions, both present and developing, as well as the straightforward physical consequences of present ones. In pursuing this matter, I concentrate on legislation very recently passed in Canada. However, the problem I identify and discuss, and the main point I make about it, are both readily generalizable to apply to other nations that either have already decriminalized assistance in suicide or are in the process of planning legislation to do so. As will emerge, it is not my objective to have the new Canadian legislation repealed or even significantly altered. Nor is it my intention to try to offer a tidy solution to the problem I identify in legislation pertaining to assistance in suicide.
E-mail address: [email protected] http://dx.doi.org/10.1016/j.jemep.2016.10.010 2352-5525/© 2016 Elsevier Masson SAS. All rights reserved.
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010
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C.G. Prado Rather, my objective is, first, to review the particular problem of how the legislation and its present interpretation depersonifies individuals through discrimination, focusing on one particular condition. Second, I then attempt to clarify just how the legislation as presently interpreted most seriously fails. Third, I suggest how judicious reinterpretation of the condition at issue may come about and thereby resolve the problem that it presently poses. © 2016 Elsevier Masson SAS. All rights reserved.
MOTS CLÉS Suicide ; Préventif ; Assistance ; Législation ; Décriminalisation
Résumé Bien que la récente loi décriminalisant le suicide assisté soit une mesure qui mérite d’être saluée, elle pose un sérieux problème. Cette loi, telle qu’elle est actuellement formulée et présentée, dépersonnifie certains individus. Elle les discrimine en leur refusant une aide à mourir qu’elle procure à d’autres. Cette dépersonnification se produit lorsque, pour certaines personnes, la considération de leur besoin et leur recours à cette aide à mourir est évaluée exclusivement en fonction de l’état de leur corps et que leur auto-évaluation, leurs désirs, peurs et décisions sont ainsi ignorés. Par ailleurs, comme la loi l’exige, la considération des demandes pour le suicide assisté se concentre sur des maladies terminales particulières dont les requérants souffrent, écartant les autres raisons que ceux-ci auraient de vouloir mourir. Notamment, les afflictions anticipées et naissantes ne figurent pas parmi ces évaluations. Une meilleure formulation de cette loi décriminalisante qui adopterait une interprétation flexible des conditions énoncées est de mise. Cette interprétation de la loi doit reconnaître la complexité des cas et les menaces que posent les souffrances terminales, tant actuelles qu’émergentes, ainsi que les conséquences physiques directes qu’elles comportent. En approfondissant cette question, je me concentre sur la loi récemment adoptée au Canada. Or, la problématique que j’identifie et dont je discute, ainsi que les points saillants que je soulève, peuvent aisément s’appliquer à d’autres nations ayant déjà décriminalisé le suicide assisté ou ayant entamé la planification d’un processus législatif pour le faire. Mon objectif n’est pas que la loi canadienne soit abrogée, ou même significativement modifiée. Mon intention n’est pas non plus d’offrir une solution sans équivoque au problème de la législation relative au suicide assisté. Mon but est plutôt, dans un ¸on dont la loi et son interprépremier temps, d’examiner le problème qui se pose dans la fac tation actuelles dépersonnifient les individus par la discrimination, en se concentrant sur une condition en particulier. En second lieu, je tenterai de clarifier comment la loi telle qu’elle est interprétée présentement échoue gravement. Enfin, je propose des possibilités quant à l’émergence d’une réinterprétation de la condition en question, afin de résoudre le problème qu’elle pose actuellement. © 2016 Elsevier Masson SAS. Tous droits r´ eserv´ es.
Ethics is all about persons, their conduct, and their interaction with one another. Legislation should be about persons, their conduct, and their interaction with one another, but the formulation of laws and rules often has a regrettable depersonifying effect. The reason is understandable: the need to be objective and precise and to ensure appropriate applicability. But though necessary and admirable, striving for and achieving objectivity, precision, and appropriate applicability in formulating legislation far too commonly results in the subjects of rules and laws having their personhood abstracted away by how they and their situations are described. What happens basically is that persons become so many bodies by being described solely in terms of pertinent attributes. Nowhere is this truer than in legislation having to do with assisted suicide. Canada decriminalized assistance in suicide in June of 2016. That decriminalization, though, came with one important complication. The Supreme Court of Canada decriminalized assisted suicide, but it was left to the
Canadian Senate and House of Commons to formulate what was designated and passed into law as Bill C-14. The formulation in question included a clause stipulating that for provision of assistance in suicide not to be criminal, it has to be the case that the ‘‘natural death’’ of those requesting assistance ‘‘has become reasonably foreseeable’’ [1]. In what follows, I will refer to this stipulation as the ‘‘foreseeable-death condition.’’ The precise language of the relevant parts of Bill C-14 includes these clauses: 241.2 (1) A person may receive medical assistance in dying only if. . . (c) they have a grievous and irremediable medical condition. . . [and]. . . 241.2 (2) (d) their natural death has become reasonably foreseeable. . . [1]. Admittedly, the wording of 241.2 (2) (d) is fairly broad, specifying that death must be ‘‘reasonably foreseeable’’ rather than requiring it be imminent, but then if death were
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Suicide and the law imminent, requests for assistance in suicide would be rather pointless. The problem that arises from the foreseeable-death condition does not have to do with situations where death is medically foreseeable, which I understand as being deemed to be a matter of days or weeks. Rather, the problem has to do with how the foreseeable-death condition precludes assistance in what I have described as preemptive, or anticipatory, suicide: choosing to die to escape months or years of personal diminishment, physical suffering, and total dependency [2—6]. Preemptive suicide is a final and admittedly extreme measure to salvage oneself as the person one is, to die compos mentis rather than to have one’s mental lucidity slowly erased and lose one’s very being in the process. The foreseeable-death condition poses a problem in that some persons opting for preemptive suicide are not able to take their own lives without assistance due to disabling, mainly paralytic, afflictions. The trouble is that these persons’ reasons for committing preemptive suicide may have little or nothing to do with their present afflictions and all to do with anticipated afflictions. Below I consider one actual case in point and sketch a hypothetical case to illustrate how the foreseeable-death condition is discriminatory. To proceed, a little has to be said about the wording of the foreseeable-death condition. What is of some importance is how the addition of ‘‘reasonably,’’ which initially appears to make the foreseeable condition fairly broad, does not in fact do so. The reasons have to do with the context of the clause. That context is provided by how 241.2 (1) and 241.2 (2) address medical practitioners, nurse practitioners, and pharmacists as those providing assistance in suicide. Therefore, the first reason is that the phrase ‘‘reasonably foreseeable’’ is about medically foreseeable death; it requires medical diagnostic assessment of the condition of anyone requesting assistance in suicide as most likely to suffer natural death within a short time. The second reason is that the foreseeable-death condition relates to the terminal illness referred to in 241.2 (1) (c). This means that assistance in suicide, to be non-criminal and not some form of homicide, has to be assistance in escaping from the same terminal disease the presence of which satisfies condition 241.2 (1) (c) in particular and requests for assistance in suicide in general. We have, then, two consequences of how the legislation decriminalizing assistance in suicide is articulated. One is that a person requesting assistance in suicide must have a terminal illness; the other is that, in effect, the person’s foreseeable natural death must be a function of that particular illness. Why this is of major importance emerges when we consider that some persons may have a particular terminal illness but desire to end their lives in anticipation of a different affliction. In other words, a person’s terminal illness may not portend his or her death for some time, a period going beyond that in which death is ‘‘reasonably foreseeable,’’ but she or he may want to die to avoid some condition that looms as being worse than what is already wrong. To clarify, as persons we enjoy—–and sometimes only endure—–a complex life in which our physical and mental sides or aspects are of a piece in consciousness. When one aspect or side is afflicted we are reduced as subjects. In my work on suicide and assisted suicide, I have been most
3 concerned with supporting preemptively choosing to die to avoid critical lessening of oneself as a person due to mental affliction. Physical affliction may also lessen us as persons, but it allows for courageous responses and with real effort can be borne without personal diminishment. Some mental afflictions, mostly of a psychological nature, allow for courageous responses, but usually more narrowly. My concern, though, is with mental afflictions that cannot be borne and compensated for because they are destructive in an irreparable way. Dementia, generally, and Alzheimer’s in particular, are the paradigms here. Alzheimer’s and other forms of dementia destroy us as persons. Preemptive suicide is choosing to die in anticipation of personal destruction; it is opting for death over total diminishment of oneself as oneself. I have argued for acceptance of choices to die on the basis of diagnoses of conditions such as impending but not yet or only marginally present dementia. The core of my position is that it is better and wiser to choose to die as the person one is than to survive as a lessened version of oneself, and one tortured and utterly dependent to boot. As has been pointed out to me, I give intellectual well-being priority over whatever measure of contentment may still be available to individuals with dementia and similar mentally deteriorative afflictions.1 While this is true, I am hardly unique in thinking this way. Some individuals do value their existence as the intellectual persons they are over survival as mentally diminished versions of themselves, and I believe this to be a judicious and intelligent value judgment. However, I am not arguing that persons should choose to die in circumstances where mental diminishment and lessening of themselves threatens. I am arguing that for some it is better to choose to die before afflictions reduce them intellectually as well as punishing them physically. As indicated, the problem I am addressing in this paper is that it may happen that persons choosing to die preemptively cannot end their own lives without assistance because of physical impairments, and the foreseeable-death condition precludes provision of the necessary assistance. The first case I want to consider is that of Sue Rodriguez, who suffered from ALS and in the early 1990s sought assistance in suicide, desperately wanting to escape her hopeless situation and to avoid its impending worsening [7,8]. Rodriguez was physically unable to take her own life, so required assistance, but the provision of such assistance was illegal at the time, whether or not death was reasonably foreseeable. Rodriguez pressed her request for assistance in suicide and it eventually went to the Supreme Court of Canada. On September 30th, 1993, the Court denied her request, but in the process of working its way through to the courts, Rodriguez’s case drew a good deal of media attention. This attention had two results: an immediate practical one, and a longer-term socio-political one. The former was that the attention the Rodriguez case received led to an anonymous physician risking his or her status and reputation, and possibly liberty, by assisting Rodriguez’s suicide. The latter result was that the Rodriguez case prompted much reflection on and discussion of assisted suicide and thereby
1
My thanks to Kim McAuley for her suggestions.
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unquestionably contributed to how attitudes toward assisted suicide shifted and in turn to how now, more than two decades after its Rodriguez decision, the Supreme Court has reversed itself and decriminalized assisted suicide. The problem that I see is just this: given that the formulation of the Supreme Court’s decriminalization of assisted suicide, which was passed into law, includes the foreseeable-death condition, if Rodriguez’s request for assistance in suicide were made today, it would fare no better than it did when originally made. The reason is that Rodriguez’s death was not reasonably foreseeable. In fact, it was precisely that she might have to live with ALS for many more months, perhaps years, that prompted Rodriguez’s to request assistance in suicide. She did not want to continue living as she was living nor have to bear a worsening of her condition. But though afflicted with ALS, Rodriguez’s overall physical state was such that her death from ALS was not imminent. The point here, then, is that regardless of the Supreme Court’s reversal, Rodriguez would not now receive assistance in the suicide she could not commit without help because providing that help would be as criminal now as it was at the time. Consider now the hypothetical case. An individual suffers from advanced ALS but is able to think lucidly and abstractly and still able to contribute significantly to his or her earlier profession.2 What is worthwhile and rewarding in this individual’s life, what make her or his life worth living, is the exercise and products of focused, disciplinary thought. Beyond that there is total dependency on others and perhaps contact with friends and family. Imagine now that the person in our hypothetical case comes to have good reason to believe that he or she will soon develop dementia or Alzheimer’s and be deprived of mental lucidity and productivity. Even the satisfaction provided by contact with family and friends will dissipate and eventually cease to be meaningful, at best prompting an occasional confused memory. Unquestionably the person in this hypothetical case would consider and very likely opt for preemptive suicide. But in this hypothetical case, preemptive suicide cannot be achieved without assistance, and assistance is not forthcoming because it would be criminal. This is because the foreseeable-death condition applies in that as we are hypothesizing, natural death from ALS is not foreseeable in the requisite way. Like Sue Rodriguez, the person in our hypothetical case may be in good enough physical condition, despite the ALS, to survive for a year or two or perhaps longer. It must be acknowledged here that persons suffering from ALS and similar disabling conditions always have the option of ending their lives without assistance by ceasing to drink water, ceasing to eat, or in some cases demanding that intravenous feeding be stopped. But these are hard ways to die and starvation is prolonged. Moreover, note that provision and administration of medication to ease the suffering involved in lethal dehydration and/or starvation is itself legally dubious, since despite being indirect, it essentially
2 I am reluctant to refer to living persons, but with all due respect must say that who I first thought of when setting up this hypothetical case was Stephen Hawking.
would be assisting suicide to the extent that it is amelioration of the suffering entailed by dehydration and starvation. The hypothetical case and envisioning the Rodriguez case occurring now bring out the main point I am making in this paper, which is just this: given that suicide is not criminal, the foreseeable-death condition of the new assisted suicide legislation is actually discriminatory. It discriminates against the disabled who choose to die but need assistance in doing so. It discriminates both by imposing a time limit on their option in requiring that their deaths be medically predictable within an estimable period before assistance in suicide can be legally provided, and by requiring that foreseeable-death be a consequence of the malady that precludes their taking their own lives. In both the Rodriguez case and the hypothetical case, foreseeable death would have to be the consequence of ALS. Against this, those able to take their own lives without assistance are free to do so when they choose to do so and for a reason that may be unrelated to their disabling malady. What complicates matters, and to a degree blunts the charge of discrimination, is that the foreseeabledeath condition is without doubt an understandable and valid expression of concern about sanctioning assistance in suicide. This concern is usually articulated as the ‘‘slippery-slope’’ argument, an argument to the effect that decriminalization and social tolerance of assistance in suicide—–preemptive or otherwise—–eventually will have counterproductive consequences by inducing increasingly negative attitudes toward the elderly and the seriously disabled. This concern has been the main basis for criticism of my positive treatment of preemptive suicide, criticism that focuses on the fact that my arguments for preemptive suicide are arguments largely about the situations and choices of older people. My arguments focus on those who, given human nature, are most likely to face seriously mentally and physically deteriorative and punishing afflictions. What the slippery-slope concern is all about is a different sort of depersonification: a rendering of the old and disabled as less worthy, as not meriting the level of social and familial support most of them need. A representative statement of the slippery-slope concern, one particularly applicable to preemptive suicide, is Stephen Post’s contention, regarding my The Last Choice, that ‘‘In a society that many think is fundamentally ageist. . . it is easy to imagine the choice of preemptive suicide becoming the expected one’’ [9, p. 67; see also 10]. Post fears that support for assisted suicide, and especially preemptive suicide, will seriously endanger ‘‘continuing social commitment to institutions that enhance the quality of life for those who grow aged’’ [11, p. 121; additionally, see 12 and 13, p. 54, 57; but see 14]. Post does have a point, one that Arthur Caplan stated more generally but effectively. Caplan observed that social acceptance of assisted suicide, preemptive or otherwise, will have a worrying social result, namely, ‘‘the notion will come that the older and disabled who are expensive should do the responsible thing’’ [15; see also 16,17]. The slippery-slope problem is real and undeniable. We know all too well how well-intentioned policies are abused and often turn out to achieve virtually the opposite of what they were designed to achieve. Decriminalizing assistance in suicide does threaten abuse. There are, however, two points that need to be made regarding the slippery-slope
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Suicide and the law argument. The first point has to do with provision of assistance in suicide generally, and is that reviewing relevant events in the past two or three decades establishes that barring widespread—–and increasingly unlikely—–religious and/or socio-political reversals, we are well along the road to socially acceptable, decriminalized assistance in suicide. The second point has to do with preemptive suicide in particular, and is that given medicine’s increasing ability to diagnose incipient afflictions and to anticipate progression of existing afflictions, more and more people will be facing situations where continued life will destroy them as persons. Acknowledging this reality makes it very difficult to in good conscience hold that those able to take their own lives are free to do so to avoid annihilation of themselves as the persons they are, but that others who are already so stricken that they cannot end their lives without help must endure annihilation of themselves as the persons they are until their other disorder kills their bodies. To reiterate, I think it clear that persons with good reason for and wanting preemptive death are in effect discriminated against by the foreseeable-death condition in present Canadian legislation and similar hedge clauses in other instances of assisted suicide legislation. The foreseeabledeath condition and others like it are reasonable attempts to guard against abuse, but they are discriminatory because they deny assistance in preemptive suicide to those who require help to end their lives while those physically able to take their own lives remain free to do so when they choose to do so. However, I am not arguing for abandonment of the foreseeable-death condition or others similar to it. As noted, there are good grounds for including them in legislation to curb possible abuse. What, then, is the answer here? Given the need to guard against abuse, what can be done in fairness to those wanting to commit preemptive suicide but unable to do so without assistance? I believe that to try to properly articulate in legislation what needs to be done is most likely a hopeless task. As it stands, the foreseeabledeath condition is, in fact, well put. The problem arises only because there will inevitably be some people who want to die to preempt personal diminishment and destruction, but who will need help in attaining their wishes and whose reason for opting to die is not a result of the eventually terminal affliction that prevents them from taking their own lives without assistance. In my view, the only realistic answer to what looks like an unsolvable problem is for a latter-day Sue Rodriguez to take her case to the courts and for her attorney to make the above point about the discriminatory nature of the foreseeabledeath condition. Part of the objective must be to separate assistance in suicide in cases where reasonably foreseeable natural death is a consequence of a person’s existing terminal disease and cases where the person’s choice to die is not primarily due to an existing terminal disease but to an anticipated affliction. Next, there is need for an enlightened judge to acknowledge and rule that dementia, Alzheimer’s, and similar afflictions are not only eventually terminal diseases of the body, but are much, much sooner terminal diseases of the person. Given such a ruling, the foreseeable-death
5 condition can be more sagaciously interpreted as satisfied by the early stages of the onset of dementia or Alzheimer’s—– stages where there is still enough lucidity to properly choose to die. Admittedly, this all sounds like a tall order, but it must be kept in mind that it all concerns only cases where persons threatened with mental destruction suffer from totally disabling afflictions like ALS and require assistance in ending their further plagued lives.
Disclosure of interest The author declares that he has no competing interest.
References [1] Statutes of Canada 2016. First Session, Forty-second Parliament, 64—65 Elizabeth II, 2015—2016, Chapter 3, Assented to June 17, 2016. [Available from: http://www.parl.gc.ca/ HousePublications/Publication.aspx?Language=E&Mode=1& DocId=8384014]. [2] Prado CG. Ageism and elective death. Ethics Med Public Health 2015;1(4):442—9. [3] Prado CG. Moral individualism and elective death. Int J Law Psychiatry 2013;36(5—6):471—6. [4] Prado CG. Coping with choices to die. New York: Cambridge University Press; 2011. [5] Prado CG. Choosing to die: elective death and multiculturalism. New York: Cambridge University Press; 2008. [6] Prado CG. The last choice: preemptive suicide in advanced age. 2nd ed. Westport, CT: Praeger Press; 1998. [7] Wikipedia [internet]. Rodriguez v British Columbia (AG). [updated 2016 Jun 4; cited 2016 1 Sep; Available from: https:// en.wikipedia.org/wiki/Rodriguez v British Columbia (AG)]. [8] Birnie LH. Uncommon will: the death and life of Sue Rodriguez. Toronto: CDG Books Canada; 1994. [9] Post SG. Ethics and dementia. Alzheimer Dis Assoc Disord 1993;7(2):65—8. [10] Heinrich RL, Morgan MT, Rottman SJ. Advance directives, preemptive suicide and emergency medicine decision making. Narrat Inq Bioeth 2011;1(3):189—97. [11] Post SG. The moral challenge of Alzheimer’s disease: ethical issues from diagnosis to dying. 2nd ed. Baltimore: John Hopkins University Press; 2000. [12] Lerner BH. Knowing when to say goodbye: final exit and suicide in the elderly. Suicide Life Threat Behav 1995;25(4):508—12. [13] Gullette MM. Agewise: fighting the new ageism in America. Chicago: University of Chicago Press; 2011. [14] Bandman EL, Bandman B. Nursing ethics through the lifespan. 4th ed. Upper Saddle River, NJ: Pearson Education Publishing; 2004. [15] Caplan A [Cited from transcript obtained from PBS.] [Interview included in televised program.] The Kevorkian verdict. Frontline. PBS. Episode aired on WGBH, Boston; 1996. [16] Bennett M. Do we have a duty to die? In: Humber JM, Almeder RF, editors. Biomedical ethics reviews. New York: Humana Press; 2000. p. 41—5. [17] Narveson J. Is there a duty to die? In: Humber JM, Almeder RF, editors. Biomedical ethics reviews. New York: Humana Press; 2000. p. 23—40.
Please cite this article in press as: Prado CG. Personhood, preemptive suicide, and legislation. Ethics, Medicine and Public Health (2016), http://dx.doi.org/10.1016/j.jemep.2016.10.010