Abstract
``What Does a Right to Physician-Assisted Suicide (PAS) Legallyentail?''Much of the bioethics literature focuses on the morality ofPAS but ignores the legal implications of the conclusions thereby wrought. Specifically, what does a legal right toPAS entail both on the part of the physician and the patient? Iargue that we must begin by distinguishing a right to PAS qua``external'' to a particular physician-patient relationship from a right to PAS qua ``internal'' to a particular physician-patientrelationship. The former constitutes a negative claim right inrem that prohibits outside interference with the exercise of aright to PAS while the latter can provide the patient witha positive claim right in personam to obligatory assistancefrom his physician. Importantly, I argue that the creation of sucha patient right, however, originates with the physician who may exercise an unqualified right of first refusal prior to promisingto help her patient commit suicide. In doing so, I hope to establishthat explicit physician promises of assistance in dying shouldbecome legally binding. As such, current PAS law in both theNetherlands and Oregon is in need of substantive modification.
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NOTES AND REFERENCES
As one might imagine, voluminous literature exists on this topic. For two recent treatments covering a variety of perspectives see “Special Section: Physician – Assisted Death: The Escalating Debate,” Cambridge Quarterly of Health Care Ethics 5(1) (Winter 1996): 7–130 and “Symposium on Physician-Assisted Suicide,” Ethics 109(3) (1999): 497–642. For an in depth analysis concerning the moral justification of PAS, and the ethical obligations of physicians towards their patients who request PAS, see Margaret P. Battin, “Is a Physician Ever Obligated to Help a Patient Die?” in Linda Emanuel (ed.), Regulating How We Die (Cambridge, MA: Harvard University Press, 1998), 21–47.
In Oregon, of course, physicians may only write out a prescription for a lethal does of narcotics, i.e., “physician assisted death” while in the Netherlands physicians may actually deliver the lethal dose themselves, i.e., “physician administered death.” In what follows, I will collapse this distinction as the important point is under what circumstances, if any, a physician may be legally obligated to engage in either type of assisted dying. For further clarification of this distinction see Harold Y. Vanderpool, “Doctors and the Dying of Patients in American History,” in Robert F. Weir (ed.), Physician-Assisted Suicide (Bloomington, IN: Indiana University Press, 1997), 38.
Martin Gunderson and David Mayo, “Restricting Physician-Assisted Suicide to the Terminally Ill?” Hastings Center Report 30(6) (2000): 22.
Battin, 25.
The classic discussion of the nature of legal rights is found in Wesley Hohfeld, Fundamental Legal Conceptions (NewHaven: Yale University Press, 1978; originally published 1919). For recent treatments see Peter Jones, Rights (New York: St. Martin's Press, 1994), 12–25, and Samuel Stoljar, An Analysis of Rights (New York: St. Martin's Press, 1984), 36–62.
H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), 171. Hart's discussion, of course, is not directed at PAS in particular but rather the use of claim rights to provide the legally protected space within which to exercise one's basic liberties.
John Locke, The Second Treatise on Civil Government (Amherst, NY: Prometheus Books, 1986; originally published 1690), 15.
Furthermore, as a legal corollary, the competent patient retains at all times a negative claim right in rem to refuse any and all treatment alternatives. For a full discussion see Ruth Faden and Tom Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York: Oxford University Press, 1986).
For further discussion see Mark Garwin, “End-of-Life Decision-Making,” Journal of Legal Medicine 19(1) (March 1998): 121–125 and Edward P. Richards, Law and the Physician (Toronto: Little, Brown & Co., 1993), 113–127.
Talcott Parsons, The Social System (Glencoe, NY: The Free Press, 1951), 435.
Garwin, 124.
Tania Salem, “Physician-Assisted Suicide: Promoting Autonomy or Medicalizing Suicide?” Hastings Center Report 29(3) (1999): 32.
Battin, 21. Battin proceeds to argue that, while such clauses may be legal, they ought not be used by physicians to shirk their moral obligations towards their patients.
Mark R. Wicclair, “Conscientious Objection inMedicine,” Bioethics 14(3) (2000): 206.
See Melinda A. Lee et al., “Legalizing Assisted Suicide – Views of Physicians in Oregon,” New England Journal of Medicine 334 (1996): 310–315. See also Anthony Black et al., “Physician – Assisted Suicide and Euthanasia in Washington State,” JAMA 275 (1996): 919–925, Robert J. Blendon et al., “Should Physicians Aid Their Patients in Dying?” JAMA 267 (1992): 2658–2662 and Diane Gianelli, “Survey Yields Admissions of Doctor-Assisted Suicide, ” American Medical News (10/10/94): 6.
Paul J. Van Der Maas et al., “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995,” The New England Journal of Medicine 335(22) (November 1996): 1701.
Christine Koorsgaard, The Sources of Normativity (Cambridge, UK: CUP, 1996), 102. Koorsgaard here is addressing the issue of integrity in general but it fits neatly into the present discussion.
Again, however, Battin argues that such physician refusals must be done in the 'right' way if they are to be ethically acceptable. See Battin, 35–43.
For a brief discussion of relatively recent PAS public policy issues see William J. Winsdale, “Physician-Assisted Suicide: Evolving Public Policies,” Physician-Assisted Suicide: 224–239.
Van Der Maas et al., 1700–1701.
Battin, 41.
See Battin, 38, citing Kevin W. Wildes, S. J., “Conscience, Referral and Physician-Assisted Suicide,” Journal of Medicine and Philosophy 18(3) (1993): 323–328.
For detailed discussion of this thorny issue see Ernle W.D. Young, “Physician-Assisted Suicide: Where to Draw the Line?” Cambridge Quarterly of Health Care Ethics 9(3) (Summer 2000): 407–412.
Linda Emanuel, “Facing Requests for Physician-Assisted Suicide: Toward a Practical and Principled Clinical Skill Set,” JAMA 280 (1998): 643–647.
Linda Emanuel, “In Reply,” JAMA 281 (1999).
Wicclair, 215–217.
Ibid.
Battin, 25.
New York Times, Tuesday June 20, 2000, A1.
Annette Baier, Moral Prejudices (Cambridge, MA: Harvard University Press, 1994), 117.
D.O. Thomas, “The Duty to Trust,” Aristotelian Society Proceedings 1978–1979 (Tisbury, Wilts, UK: The Compton Press, 1979), 90–92.
Baier, 118.
InMillian terms, an “imperfect obligation” uncorrelated with any rights has been transformed into a “perfect obligation” that is strictly so correlated. See J.S. Mill, Utilitarianism, Roger Crisp (ed.) (Oxford: Oxford University Press, 1998; originally published 1861), 94–95.
Extensive treatments of the doctrine of unconscionability in contracts are provided by John D. Calamari and Joseph M. Perillo, Law of Contracts (St. Paul, MN: West Group, 1998), 365–376 and E. Allan Farnsworth Contracts, 2nd edn. (Boston: Little, Brown & Company, 1990), 323–339.
Calamari and Perillo, 366.
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Harvey, M. What does a `Right' to Physician-Assisted Suicide (PAS) Legally Entail?. Theor Med Bioeth 23, 271–286 (2002). https://doi.org/10.1023/A:1021257622496
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DOI: https://doi.org/10.1023/A:1021257622496