Two Models of Assisted Dying
The turn of the century brought a dramatic change to the assisted dying landscape. In the twentieth century, few places in the world allowed assisted dying. Uruguay has permitted it since 1933, Switzerland since 1942, Colombia since 1997, and, that same year, assisted suicide became legal in Oregon following a lengthy legal dispute.
Then, with the new millennium came a rush of assisted dying legislation. Belgium, the Netherlands, Canada, the Australian state of Victoria, Luxembourg, South Korea, and the U.S. states of Colorado, Hawaii, Washington, Vermont, Maine, New Jersey, California, Montana, the District of Columbia, and one county in New Mexico have all decriminalized or legalized some form of assisted dying since 2000. Additional countries and regions are currently considering legalization.
Around the world, there is a growing belief that continued life is sometimes not in a patient’s best interests. ‘Assisted dying’ is a general term that captures two different approaches. The first is the Oregon Model. In Oregon, to qualify for assisted dying, one must be a state resident, be at least 18 years old, have decision-making capacity, and have a terminal illness (i.e., have less than six months to live). A physician can prescribe medication that the patient can take to end his or her own life, but the physician is not allowed to directly administer the drug. This approach is sometimes called ‘assisted suicide’, though there is opposition to that term.
U.S. Assisted Dying Access (% of pop.)
Where assisted dying is legal in the U.S., all states but Hawaii have legislation almost identical to Oregon’s. (Montana lacks legislation, but the qualification criteria are the same as Oregon’s.) Hawaii has a longer waiting period and requires a mental health screening to qualify, whether or not the consulting physicians have concerns about the individual’s decision-making capacity.
The other approach is sometimes called the Netherlands Model. In the Netherlands, one must be 12 or older to qualify, and the requesting patient must experience unbearable suffering with no prospect of improvement. But, unlike the Oregon Model, in the Netherlands, there is no terminal illness condition. As long as a patient deems her suffering to be unbearable, it does not matter whether she will die from her disease or not. Additionally, the doctor is permitted to administer the drug that kills the patient, rather than requiring the patient to self-administer.
In countries where patients are given the choice between self- or physician administration, such as Canada, fewer than one percent choose to take the drug themselves. Most European countries where assisted dying is legal follow the Netherlands model, except for Switzerland (and there is other variation). New Zealand held a referendum in October 2020 on an approach that is a mix: physicians will be allowed to administer, but there is also a terminal illness condition.
The reason for the variation between the models is as much due to pragmatic concerns as ethical justification. This is especially true in the United States, where other states appear to follow the Oregon model because it has survived legal challenges. However, there are problems with it as an approach. Two issues deserve specific mention.
Self-Administration
There are benefits to requiring that patients take the medication themselves. One is that it is a better guarantee that the patient really wants to die. Another is that the physician is providing the patient with the means to die, but isn’t actually doing the killing. While many physicians are comfortable removing life-sustaining treatment (e.g., artificial ventilation) that will directly cause the patient’s death, for many, injecting a drug with the purpose of killing the patient feels ethically different. Despite this common belief, it has not survived legal scrutiny. The lack of material difference between these withdrawing life-sustaining treatment and prescribing lethal drugs was the basis for the Montana Supreme Court decision that struck down the prohibition on assisted death there.
The biggest downside of requiring self-administration is that it discriminates against those with disabilities that prevent them from self-administering. The most common such disabilities are difficulty swallowing and using one’s hands. Requiring that patients self-administer means that they are prevented from accessing a procedure that is available to able-bodied people, which is unjustly discriminatory.
Terminal Illness
Many people find a terminal illness condition attractive. The idea is that, since the patient will die soon, there is less danger of them making a serious mistake by ending their own life. Further, on this view, people who are already near death are the most deserving of an assisted death. It simply accelerates an outcome that is already on the horizon.
The problem with this approach is that it is also discriminatory. Consider a person who is suffering intolerably but will likely live for at least another year. Compared to another person who will die in less than six months, the longer-to-live person will suffer more. Since a central point of assisted dying is to relieve suffering, requiring a terminal illness works against this primary aim.
This sort of condition is open to legal challenge. For example, the original assisted dying legislation in Canada had a clause requiring that death be ‘reasonably foreseeable’ without specifying what that means, which led to interpretative problems and physician concerns that they would unknowingly run afoul of the law. That section of the law was challenged on discrimination grounds, and a Quebec court ruled in unconstitutional. The proposed changes no longer specify a timeline for death.
Effective Policy
The challenge for any assisted dying policy is to balance access with appropriate safeguards. As the number of safeguards increases, efficiently accessing an assisted death gets more difficult. And, as we have seen, well-meaning safeguards can make access more difficult for certain people, which raises concerns about unfair access.
