can you do it with in 24 hrs?

INDEPENDENT

"Underground Euthanasia'' and the Harm Minimization Debate Roger S. Magnusson

I have a hairstylist whose lover was very sick. I'd been seeing this stylist for ten years and we're goodfriends. [His lover was] becoming an invalid, not able to get out of bed. He said "I hate to ask you this but would you mind writing a prescription to help us out?"[SoJ I wrote a prescription to a patient who I had never seen, and I sent it to him in the mail and I heard the next time I went in to get my hair cut that it was the most beautiful experi- ence that my stylist had ever had. It was Valentine's Day and they had a lovely meal with champagne. And they held each other and then, you know, his partner took his pills and was released.

(Joseph, physician)

J oseph (a pseudonym) is an eminent HIV/AIDS physician, one of many doctors and nurses in America today who have assisted a patient to die. In terms of frequency, Joseph's career is middling.

He claimed to have written "five to ten" lethal prescriptions during our interview, but that was years ago and he has doubtless been involved since then. Others I interviewed had been involved dozens of times. "I'm not here to cure everybody," Joseph says. "Death is a natural part of the cycle of life, and as a physician I have an opportunity to grant people peace and comfort in their death, and it's something that I'm not unwilling or afraid to do."

The "euthanasia underground" is the underbelly of medicine and nursing. At the empirical level, its presence is not seriously open to challenge. Surveys consistently demonstrate that a significant per- centage of doctors comply with patient requests by taking active steps to intentionally hasten the patient's death, whether by prescribing lethal quantities of drugs for self-administration by the patient (physi- cian-assisted suicide, or PAS), or by the direct administration of lethal injections or infusions at the patient's request (active voluntary eu- thanasia, or AVE).

A national survey of 1902 American physicians found that 3.3 percent had written at least one "lethal prescription," while 4.7 per- cent had provided at least one lethal injection.̂ A survey of American oncologists found that 3.7 percent had performed euthanasia, while 10.8 percent had assisted suicide.^ In a random sample of American physicians, 44.5 percent favored the legahzation of physician-assisted suicide (PAS) (33.9 percent were opposed).^

Similar themes are evident in other countries where PAS/AVE re- mains illegal, including Australia. In a recent survey of Australian general surgeons, 5.3 percent reported administering a bolus lethal injection, while 36.2 percent reported giving an overdose of drugs with the intention of hastening death (more than half, or 20.4 per-

cent of respondents, did so without a clear patient request).'* Kuhse, Singer and colleagues have estimated that 1.7 percent of Australian deaths in 1995/96 were the result of voluntary euthanasia, with an ad- ditional 3.5 percent of deaths involving the administration of drugs with the explicit intention of ending the patient's life, but without an explicit request.^

Despite the growing body of survey evidence, remarkably little is known about the circumstances in which doctors participate in PAS/AVE, whether their assistance results in what is perceived to be a good death for the patient, and the long-term impact of involvement on health care providers themselves. Part 1 of this paper draws briefly on my research into assisted death among health care providers working with HIV/AIDS patients in Australia and California to il- lustrate the unregulated and idiosyncratic nature of underground PAS/AVE. Part 2 of the paper then re-asses a number of key argu- ments against legalization in the light of our growing understanding of what PAS/AVE is really like. It offers a cautious, initial assessment that, although legalization may not make euthanasia perfectly "safe," legalization may nevertheless be safer and therefore a preferable pol- icy alternative to prohibition.

Parti: The Nature of Covert Euthanasia Methodology In Angels of Death: Exploring the Euthanasia Underground,^ I re- ported on a series of forty-nine detailed interviews with community and hospital-based physicians, nurses, and therapists (and one fu- neral director) who specialized in HIV/AIDS care in Sydney, Mel- bourne, and San Erancisco. Half of the interviewees volunteered to be interviewed by identifying themselves to me following seminars I gave to doctor groups, during the course of which I mentioned the study and gave a generalized invitation to participate. The remain- ing twenty-five interviewees were referred by previous interviewees, or other contacts. Several interviewees played a pivotal role in refer- ring me to key players within the informal "euthanasia networks" which, I discovered, had grown up within the specialty of HIV med- icine, and within the gay community, in the cities I visited. Of the forty-nine interviewees, thirty-seven reported participating in specific episodes of PAS/AVE.

Roger S. Magnusson, Ph.D., is an Associate Professor at the Uni- versity of Sydney Law School, Australia. He is the author of the Angels of Death: Exploring the Euthanasia Underground, 2002, published by Yale University Press.

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Prior to interview, each person chose a pseudonym and no "master list" of the identi- ties of interviewees was retained. Each inter- view was taped and later transcribed. Detailed of each respondent's "PAS/AVE credentials" emerged during interview and were confirmed through specific accounts of involvement, through discussion of the various interven- tions respondents had taken (from a spectrum of practices facilitating the organization and delivery of PAS/AVE), and through estimates of the number of times each interviewee had intentionally assisted a patient to die.^ Post interview, interviewees completed a substan- tial questionnaire that sought demographic data and also served to verify the claims and estimates of PAS/AVE involvement made dur- ing interview. The interview group was marked by diversity in terms of age, years of professional experience, and religious affiliation. With the exception of one African-American, all interviewees where white. Many were prominent within gay, and HIV/AIDS medical networks, within their city. Some had national reputations and media profiles. The study was approved and monitored by the human research ethics committee of the University of Melbourne, and later by an equivalent body at the University of Sydney.

The "Euthanasia Underground" while it does not provide a basis for broad empirical claims, the tes- timony of interviewees provides a window into the variety of ways that health professionals assist patients to die, the semi-organized nature of covert PAS/AVE and the factors motivating involvement. For many I spoke to, the interview provided a safe place from which to challenge the complacency and silence of the medical and nursing professions. Some saw themselves at the vanguard of a new ethic of caring: one that encompassed assisted death as part of their professional role. Others were clearly stressed, fatigued, and did not even try to make sense of it anymore.

Despite their mostly good intentions, the picture that emerged from the interviews is a disturbing one. Take Stanley, a therapist and former priest, who presided over the death of a patient who swallowed fifteen Seconal tablets (a barbiturate), but who failed to take an anti- nausea drug to prevent vomiting. The patient died, but only after re- ingesting his own vomit.

In many cases, doctors and nurses miscalculated the dosages re- quired to achieve death and resorted in panic to suffocation, stran- gulation, and injections of air in their desperate eiForts to finish the job. Of the eighty-eight detailed narratives that interviewees gave as illustrations of their PAS/AVE credentials, nearly twenty percent in- volved "botched attempts." "It was horrible," said one doctor. "It took four or five hours. It was like Rasputin, we just couldn't finish him off." "I tried insulin, I tried just about everything else that I [had] around and it just took forever.... [It was] very hard for his lover. So I um sort of shooed the lover out of the room at one stage and put a pillow over his head, that seemed to work in the end [laughs, nervously]....That was one of the worst [clearing throat] one of the most horrible things I've ever done." Suffocations following failed PAS/AVE attempts were referred to euphemistically as "pillow jobs" by several interviewees.

There is little data available on the success rates of covert assisted death. Emanuel and colleagues reported that in three out of twenty episodes of attempted PAS identified in their study of American on- cologists, the patient failed to die.* Nor were these "problems" con- fined to covert procedures, despite the fact that one might expect fewer botched attempts under a statutory regime that permitted ac- cess to effective euthanatic drugs. In their analysis of data from two

Some saw themselves at the vanguard of a new

ethic of caring: one that encompassed assisted death as part of their professional

role. Others were clearly stressed, fatigued, and did not even try to make sense

of it an5Tnore.

studies of PAS/AVE in the Netherlands, Groe- newoud and colleagues found that technical problems (such as difficulty inserting an in- travenous line) occurred in five percent of cases, complications (such as spasm, nausea, and vomiting) occurred in four percent of cases, while problems with completion (failure to induce coma, the patient awakening, a longer-than-expected time to death) occurred in seven percent of cases.^ These concerns do not (yet) appear to have arisen in Oregon. De- spite a $5 million campaign aimed at repealing Oregon's Death with Dignity Act, on the basis of concerns that patients would die a lingering

death, during the first year of the Act's operation (1998), "the aver- age time to unconsciousness was five minutes (range three to twenty minutes), and the average time to death was twenty-six minutes (range five minutes to eleven and one-half hours)."'"

The most striking feature of covert PAS/AVE is the complete ab- sence of guidelines or stable criteria for deciding when it is appro- priate to proceed. One doctor injected a young man on the first oc- casion they met, despite concerns from close friends that the patient was depressed. In the example given at the beginning of this article, an experienced HIV/AIDS physician wrote a lethal prescription for his hairdresser's partner, whom he had never met, admitting that "there was no assessment involved whatsoever." Other interviewees told of administering lethal injections secretly in the bedroom while parents and other family members (and even the odd priest) waited in the living room, oblivious to what WEIS occurring." In one case, a patient brought his death forward by a week so as not to interfere with the doctor's holiday plans. The doctor supplied a palatable mixture of barbiturates prepared by a pharmacist, but absented herself dur- ing the death itself. Absent doctors were a feature of several detailed accounts, attending briefly to inject the patient, before fleeing the scene for personal and legal reasons. During the interview, this doc- tor complained bitterly that after the man's death, his friends failed to lay him out straight before rigor mortis set in, and then left the organization of the funeral to her. On another occasion, a doctor in- jected the entire contents of his doctor's bag into a comatose patient after a failed suicide attempt, reflecting that "I realised he [was] not going to survive this....I might as well speed it along. I think also be- cause it was four o'clock in the morning, I had a cold and I felt dread- ful and I just wanted to get out of there."

Covert PAS/AVE has spawned a culture of deception. Deceit is all- pervasive. It encompasses the methods used to procure euthanasia drugs, the planning of the death itself, and the disposal of the body and associated paperwork. Prior to death, doctors admitted to fabri- cating symptoms in order to create a plausible clinical basis for the prescription or administration of escalating dosages of drugs. In other cases, drugs were simply stolen, or hoarded and redistributed by health carers, patients, and even care organizations. Lying on death certificates, and on cremation certificates, was universal. The one fiineral director interviewed in the study revealed that PAS/AVE accounted for ten percent of his business: some fifteen to twenty deaths a year. On one occasion, this man assisted a friend to give a lethal injection, and then spirited the body away in his capacity as a funeral director. As this example shows, PAS/AVE is not limited to doctors: nurses are heavily involved, both in inpatient and commu- nity settings, together with, and independently of, doctors. Therapists are also involved: in one example, a psychologist who had just ad- ministered a lethal injection of potassium chloride was forced to identify himself as the deceased's doctor when police made a house call and saw the body.

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As suggested by survey studies,'^ non- consensual euthanasia was not un- known. In one detailed episode, a nurse told how a hospital physician instructed her to send the mother of a dementing patient home for a shower, and to ad- minister a death infusion to the patient in her absence. The physician's words to the nurse were: "get it up and get him [the patient] out of here by sundown." The patient died nine hours later. Emanuel and colleagues found that in over fifteen percent of cases of PAS/AVE reported during interviews with thirty- eight American oncologists, the patient was not involved in the decision to die, even in cases where they were conscious and could have participated.'^

These actions amount to far more than the random misdeeds of doctors and nurses acting in isolation. In HIV/AIDS at least, assisted death is facilitated through a network of overlapping friendships and professional connections that have grown up around involvement in the gay community and in HIV medicine. Collaborative euthanasia takes may forms: referring a patient to an activist doctor for "assessment," writing a lethal prescription, charting a lethal infusion, accessing the patient's vein, administering a lethal injection or infusion, directing the procedure in a non-specific capacity, as well as being on call should anything go wrong, signing the death certificate and counter-signing cremation forms. While euthanasia is easier to perform in community settings, I documented many examples of hospital and hospice eu- thanasia. A variety of strategies and social processes made hospital euthanasia possible. These ranged from cooperative overdoses ad- ministered by one or two health professionals acting at considerable personal risk (e.g. a hospital physician and senior nurse acting in con- cert according to rarely articulated, but shared, understandings), to whole hospital units that were staffed by people of like mind and that fostered, to a greater or lesser degree, a culture of euthanasia. Not sur- prisingly, cremation is favored over burial. "You sit in sweat waiting for cremation to occur," said Peter, a community nurse. "All the people you speak to, if they're being honest, will say the same thing: we're all wait- ing for the smoke to go up in the crematorium."

Part 2: Covert Euthanasia, Public Policy, and Harm Minimization My study focused specifically on HIV/AIDS-related euthanasia in urban areas. Nevertheless, evidence of the idiosyncratic way in which health professionals assist patients to die gives a sharp new edge to survey evidence of extra-legal PAS/AVE. It is ironic that while debate continues over whether law could ever make the practice of eu- thanasia safe,'* professional medical bodies continue to ignore the illicit practice of PAS/AVE by their members. Similarly, while entire careers are devoted to dissecting the Dutch data, euthanasia oppo- nents rarely acknowledge what is going on in their own back yard. There is a tendency among opponents to discount the social harm caused by illicit euthanasia, when compared to the anticipated harm that would be caused if euthanasia were legalized. The assumption is that while legalizing euthanasia introduces the risks of a "slippery slope" towards non-consensual killing, illicit euthanasia merely in- volves the deaths of those who would die anyway under a legalized regime. It follows that illicit euthanasia causes less harm than legal- ized euthanasia, "unless one regards as a harm not being killed when one wants to be killed."'̂ This ignores the fact that what is absent in the euthanasia underground is any sort of quality assurance mecha-

"I tried insulin, I tried just about everything else that I [had] around and it just took forever.... [It was]

very hard for his lover. So I um sort of shooed the lover out of the room at one stage and put a pillow over his head, that seemed to work in

the end [laughs, nervously]....That was one of the worst [clearing

throat] one of the most horrible things I've ever done."

nism. Although interviewees appreciated the complex meanings of suicide talk, their accounts of first-hand involvement demonstrate that patients died without having received assessment for depres- sion or dementia, without adequate counseling or palliative care, and without specialist assessments as to prognosis and treatment alternatives. Advocates and opponents of euthanasia share com- mon ground in wanting to prevent deaths under these circumstances.

The approach to euthanasia policy that I advocate in this paper distin- guishes between persona] morality (one's personal views about the morality of euthanasia) and social policy. Since the

rightness or wrongness of assisted dying in all its forms, and in dif- ferent circumstances, remains a matter of fundamental dispute, so- cial policy ought to be about more than trying to impose one's own view of what is right upon everyone else. As far as euthanasia policy is concerned, therefore, I will assume in this paper that it is worth- while to try to assess the consequences of various policy options in order to choose the one that minimizes harm overall. Below, I con- sider three options for responding to the current situation in which PAS/AVE is prohibited but nonetheless practiced in a clandestine manner: firstly, a policy of prohibition and prosecution; secondly, a policy of legalization; and thirdly, a policy of engagement and edu- cation. This paper will focus in particular on the implications of un- derground euthanasia for the debate about the legalization of PAS/AVE, since legalization is the most contentious alternative to the current policy of prohibition.

Reducing Harm by Seeking to Eliminate Underground PAS/AVE For those shocked by underground practices, it may be tempting to try to minimize the unfortunate consequences of a policy of prohibi- tion by prosecuting "offenders." Surely the botched attempts and other shortcomings of covert euthanasia illustrate the true horror of delivering the power of life and death into the hands of doctors? The covert practice of PAS/AVE certainly creates emotional costs and legal risks for those involved and these, in turn, create their own dis- incentives to extra-legal involvement. Nevertheless, survey evidence confirms that illicit PAS/AVE is far from rare. Interview evidence of the collaborative aspects of euthanasia also illustrates how euthana- sia networks in Australia and San Francisco remain well hidden.'^ Kevorkian-style admissions aside, there is little chance of purging the health professions of those who participate in assisted death. The pri- vate nature of the clinical encounter camoufiages both legal and extra-legal euthanasia and suggests that the effectiveness of eu- thanasia policy depends to some extent on voluntary compliance.'^

A policy of closer surveillance and investigation of doctors could well split the alliance between the churches and conservative med- ical groups, who in political terms remain an important impediment to legalization. The medical profession is wary of the legalization of PAS/AVE partly because a statutory regime would involve increased supervision of end of life clinical practices: a loss of control from the private, medical realm, to the State.'^ Criminal trials would be deeply offensive to the medical profession for similar reasons: there are few more potent symbols of loss of professional autonomy than a doctor being charged for practices that were motivated by the desire to ease suffering.

An equally damaging response to the reality of covert PAS/AVE would be to increase levels of surveillance over the way in which doc- tors prescribe and supply drugs. The most common euthanasia

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recipes consist of overdoses of relatively accessible, therapeutic drugs,'^ A more aggressive policing of analgesics, sedatives and anti-depres- sants could have a disastrous impact upon pain relief and symptom management. While the dividing line between palliative care, and as- sistance in dying, may sometimes be difficult to draw,̂ " there is a deep and genuine public interest in doing nothing to impede the provision of medication to those who are dying, or chronically ill.

Reducing Harm by Legalizing and Seeking to "Re-regulate" PAS/AVE If a punitive response to the covert practice of PAS/AVE is likely to fail, then one is forced to confront the detriments of the current policy of prohibition, and to compare these against the detriments of alternative policies. The assumption behind legalization as a policy is that a statutory regime provides the opportunity for law to re-reg- ulate euthanasia and to protect patients through the safeguards that would be pre-conditions to lawful assistance. The policy equation requires one to weigh the potential for the abuse of sick and vulner- able patients, together with the possible corrosion of worthy com- munity values, in an environment where the law permits assistance- in-dying, against the harm that illicit practices themselves represent, as well as the suffering of those who are currently unable to obtain ad- equate relief or to mobilize covert assistance. The suffering felt by those who desired, but were unable to access, PAS/AVE would include pain, distress and perceptions of loss of dignity and of autonomy. The harms of illicit practices would include botched attempts, inade- quate assessment of patients, the erosion of medical professionalism and the rule of law, as well as the emotional costs of illicit involvement for all concerned.

Quantifying the detriments of legalization, versus the detriments of prohibition, is a formidable exercise, despite assumptions to the contrary by some euthanasia opponents. Below, I will re-assess four major arguments against legalization, as a harm reduction strategy, in the light of evidence of underground PAS/AVE,

"No safeguards would ever be safe" Opponents of euthanasia often try to advance their case by shooting holes in the safeguards that advocates of legalization would like to see included in any statutory protocol or decision-making process,^' The New York State Task Force on Life and the Law argued that although "one can posit 'ideal' cases in which all the recommended safeguards would be satisfied,,, ,the reality of existing medical practice in doctors' offices and hospitals across the state generally cannot match these expectations, however any guidelines or safeguards might be fram.ed."^'^ "Constructing an ideal or 'good' case is not sufficient for public policy," the Task Force continued, "if it bears little relation to prevalent medical practice,"^^ Opponents argue that safeguards would fail in their purpose because they are inherently malleable, vague or open to abuse. Accordingly, as Pollard argues, advocates of legalization bear the onus of demonstrating "effective solutions to the discovered difficulties in making safe law,"̂ *

The "no safeguards would ever be safe" argument derives much of its impact from the fact that the clinical assessments that would in- evitably be part of any PAS/AVE protocol are value-laden and sub- jective in character. While the assessment of what quahfies as "un- bearable suffering," for example, may call on the doctor's clinical experience, it must ultimately rest upon the patient's experience of suffering, and whether they believe their suffering is so awful as to obliterate the purpose and meaning of their life. The problem, argues Callahan, is that suffering is subjective, "externally unverifiable," and ultimately tied to the patient's OWTI values, so that "the doctor will in effect be treating the patient's values,"^^

If this is true when determining what qualifies as unbearable suf- fering, it is equally true when a doctor treats a patient's broken leg. The stakes are certainly higher with PAS/AVE, but in all situations

where a doctor tries to relieve suffering, the patient's perceptions are the key. The whole point of the clinical encounter is to treat the pa- tient's suffering, not the doctor's.

At a broader level, however, Callahan argues that any framework for "independent and impartial oversight" would be ideologically based, since it would presumably exclude those opposed to assisted death, or those who "believe that pain and suffering can be relieved in all but the rarest cases,"̂ ® While deep opposition to assisted death is surely no less ideological than support for a structured regime, the point is that everyone whose decision is required as a procedural safeguard must use their judgment. There may be value conflicts: the physician may have seen how a lingering death can nevertheless be a rich and rewarding period of life, vAth opportunities for the ex- pression of love and reconciliation,^^ The patient, for her or his part, may just prefer to get things over and done with. There may be hard cases: difficulties in predicting the future course of an illness, and in diagnosing depression, delirium and dementia in patients debili- tated by illness and affected by medieation. The point is that judg- ments are called for, and judgments cannot be abstracted from val- ues. The aim of the statutory protocol would be to direct attention to matters that will contribute to a more careful judgment.

In the Oregon context, Foley and Hendin have argued that the cur- rently-worded requirement for evaluation of the patient by a second physician under Oregon's PAS statute may lead to "rubber stamping" by "PAS-friendly" colleagues who are less than independent,^^ Cur- rent law does not eliminate the possibility of "doctor shopping" by patients, nor provide any forum for resolving disputes between physi- cians,^^ They argue that there is no requirement for psychiatric as- sessment (unless the treating physician believes depression may be an issue), and that inadequate data have been collected to permit independent evaluation of whether other safeguards are working,"*" On the other hand, as Caplan and colleagues recognize, the architects of statutory safeguards or guidelines can give no guarantees against abuse. Medicine is shot through with clinical scenarios that require the exercise of a discretion: PAS/AVE is hardly novel. The decision to vdthdraw life-support when further treatment is futile (a lawful practice) is not value free,"̂ ^ and nor are the decisions that would be steps and safeguards in any PAS/AVE protocol. However, the fact that concepts like unbearable suffering, terminal illness, depression or competency have fuzzy edges does not mean that they provide no con- straints on behaviour,^^

Winning the argument that no statutory framework is foolproof, however, is not the end of the matter. The "safest" statutory frame- works containing the most stringent safeguards would also be the ones that would screen out most applicants for euthanasia. In many cases, this might well be appropriate. From a harm minimization per- spective, however, if the purpose of legalization is to encourage those who perform covert euthanasia to channel their activities back within lawful boundaries, thereby reducing the harm caused by underground practices, then an unduly bureaucratic regime may be counter-pro- ductive. Fundamentally, a statutory protocol should aim to help doc- tors - and patients - to exercise their discretion well. But exercise it they must. The relentless pursuit of failsafe mechanisms will be futile unless the overall decision-making model is attractive to those who currently perform covert euthanasia, A statutory procedure that lacks substantive safeguards will not protect patients from abuse, but neither will an overly bureaucratic regime that doctors ignore in practice. The right balance will always be controversial and appro- priately so: the stakes are high,

"Doetors will ignore safeguards anyway" A second argument against the efficacy of safeguards for the proposed practice of lawfiil PAS/AVE is that doctors would not follow them any- way, because they are a nuisance, too cumbersome, potentially in- criminating, or intrude unduly into the privacy of the doctor/patient

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relationship. "[I]f the practice of physician- assisted suicide is already widespread but currently carried out with legal impunity, why should we expect doctors who now freely break the law to pay attention to new regulations any more than they do to the present one?" asks Callahan. "If they feel they can violate a long-standing moral pro- hibition in medicine to assist a suicide, why should we expect a sudden new respect for medical morality in the future?"''''

This is an important argument that can only be resolved in em- pirical terms. Building a clear picture of net benefit will be difficult, however, since it involves comparing rates of compliance with statu- tory safeguards under a legalized regime, against the kinds of safe- guards that are ignored when PAS/AVE is practiced covertly. Whether legalization encourages more doctors to perform euthanasia, but without complying with statutory safeguards, is another factor. As a harm minimization strategy, legalization depends on the assumption that legalizing assisted death vnll prompt doctors to channel their ac- tivities back within statutory boundaries. But even partial compliance will be a benefit - the more influence a statutory protocol has on un- derground practices, the safer patients will be.

Data on the first three years of operation of Oregon's Death With Dignity Act (1998-2000) reveal that 96 prescriptions for lethal doses of medication were written, with one physician being reported to the Oregon Board of Medical Examiners for submitting an incomplete written consent form.^* Nevertheless, these data do not reveal whether some doctors chose not to report at all. In the Dutch context, Jochemsen, Hendin, Keown and others have pointed to worrying levels of non-compliance by doctors with the criteria required to make out the defense of "necessity" following PAS/AVE under Dutch criminal law."*̂ Tbese criteria include that the patient's request must be voluntary, well-considered and persistent, that the patient's suf- fering be unbearable without prospect of improvement, that the treating physician consult with a colleague and that the death be re- ported to the Coroner as an assisted one.

van der Wai and colleagues point out that between 1990 and 1995, the reporting of PAS/AVE rose from 18 percent to 41 percent of cases. In 1995, formal consultation with a colleague - a requirement for PAS/AVE in the Netherlands - occurred in ninety-four percent of re- ported cases, but only eleven percent of unreported ones.^^ In twelve percent of cases where consultation did take place, however, the con- sultant never saw the patient.^^ Hendin has argued that consultants in the Dutch context "seemed to be facilitators of the process rather than independent evaluators of the patient's situation....One physi- cian described his role as easing the doubts of physicians who were uncertain whether to go forward with euthanasia."''̂ In his interview- based study with Dutch experts, Cohen-Almagor pointed to wide variability in terms of how safeguards were understood and put into practice, and expressed alarm at "telephone consultations." He pointed to what he saw as a culture of acceptance and "unanimity of opinion" around euthanasia that inhibits robust critique and impe- tus for improvement. He concludes:

[T]he fact that many physicians do not wish to be bothered with the Guidelines is alarming. It shows that [Dutch physicians] have not internalized the idea that euthanasia is an exceptional medical procedure and, as such, requires social control.^^

On April 10,2001, the Dutch Senate voted to amend the Penal Code to create an explicit defense to criminal liability for assisted death where certain "due care" requirements are satisfied. These require- ments, which substantially mirror pre-existing guidelines, are set out in the Termination of Life on Request and Assisted Suicide (Remew Pro-

At the same time, opposition to assisted death becomes more troubling in the absence of the political wall to actually

fund the strategies needed to improve levels of care.

eedures)Act. Jochemsen is pessimistic, how- ever, that this will make any difference, ar- guing that "physicians will hesitate to report precisely those cases in which the require- ments were not fiilly observed." He argues that while less legal scrutiny may improve re- porting rates, this "might well increase the permissiveness towards euthanasia among physicians and society at large and fi.irther an increase in the number of cases."*"

In terms of the requirement that death be voluntary, much has been made of the Dutch estimates that in 1990 0.8 percent of all deaths (1000 deaths), falling to 0.7 percent of deaths in 1995, were the result of non-consensual procedures intended to terminate life.*^ While these estimates may illustrate the failure to comply with safe- guards, they have been inappropriately used as evidence of a "slippery slope." There is no evidence that non-consensual euthanasia is re- stricted to countries where euthanasia has been conditionally legal- ized, nor is there (yet) any evidence that the Dutch policy on eu- thanasia has resulted in higher rates of assisted death (consensual or otherwise) than in prohibitionist countries or States. If anything, the evidence points the other way. In 1997, Kuhse and colleagues pub- lished survey results comparing end of life decision-making in Aus- tralia with the well-known Dutch study published by van der Maas et al. in 1991. As noted above, they found that in 1995/96,1.7 percent of Australian deaths were the result of active voluntary euthanasia (compared to 2.1 percent of Dutch deaths in 1991). They estimated that a further 3.5 percent of Australian deaths involved termination of life without the patient's explicit request (compared to 0.8 percent of Dutch deaths in 1991).'*̂

The Netherlands is an easy target for those concerned about the ef- ficacy of safeguards, since its policy of legalization has brought a level of transparency that is absent in countries where PAS/AVE remains illegal. As Griffiths points out, for all the criticism of non-compliance with safeguards under the Dutch PAS/AVE regime, the reporting rate for euthanasia in other countries, is zero.*-' Curiously, euthana- sia opponents seem more concerned about statistics in the Nether- lands, than with the implications of underground euthanasia in their home countries. Keown, for example, devotes five chapters of a recent book to a detailed critique of Dutch euthanasia practice, but just four paragraphs to the implications of surveys into the illicit practice of PAS/AVE. He notes with respect to a well-known British survey** that "while 9% is not an insignificant proportion, it is a long way from a majority."*^ After pointing out that it is impossible to clarify doctors' understanding of survey questions, and in particular, to confirm that they did not confuse drug overdoses given with the intention of pre- cipitating death, with the provision of (perfectly legal) palliative care, Keown concludes: "In short, then, there appears to be little hard ev- idence that health professionals commonly take steps intentionally to end, or help end, patients' lives.'"*^

While intention is indeed a slippery thing, the growing body of sur- vey evidence suggests that it is no longer reasonable to argue that doc- tors never break the law. No one denies that only a statistical minority of doctors are involved in PAS/AVE in the United States, Britain, and other prohibitionist countries: the same could be said of the Nether- lands. Many doctors would have very little contact with dying patients; the fact that so many doctors are, nevertheless, breaking the law, points to a substantial underground. What are 4.7 percent of American physi- cians, and 5.3 percent of Australian surgeons, doing giving lethal in- jections?*'' What are four percent of Scottish health care workers doing assisting suicide?*^ If these practices really do amount to the murder of vulnerable patients, why aren't euthanasia opponents screaming at the top of their lungs? Only a small minority of patients in the Nether- lands die through PAS/AVE, and yet a whole industry has grown up in response to concerns about their welfare. To recognize the reality of

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illicit PAS/AVE, however, requires opponents to recognize that the Dutch did not invent euthanasia, and to temper their criticism of Dutch efforts to control these very risky practices. Whatever the short- comings of Dutch policy, it is likely to be very difficult to introduce safe- guards so long as assisted suicide remains illegal.

'Assisted death will never be safe in the absence of optimal care"

A third argument against the legalization of euthanasia is that no statutory protocol could ever be safe if it operates against a backdrop of inadequate health care or symptom relief. Research among elderly, terminally ill cancer patients suggests that the will to live is highly un- stable and is influenced by factors including anxiety, depression and shortness of breath.49 "Even though good palliative care cannot al- ways relieve all distressing symptoms," argues Pollard, "it would surely be wrong to propose euthanasia for a terminally ill patient who had not received adequate medical and nursing care. Because virtually every survey of palliative care has revealed serious shortfalls in train- ing and practice, it could never be assumed that care had always been adequate."50 No patient, it seems, could safely be exposed to a euthanasia protocol in the absence of clear evidence that they were receiving world's best care.

It would be gratifying if evidence of inadequate care and symptom relief, as reflected in requests for assistance to die, resulted in well- funded strategies to improve palliative care services and clinical ed- ucation. If palliative care services and doctors' clinical skills were improved, patients would certainly be better served, there might be less illicit PAS/AVE, and less impetus for legalization. There is an im- portant need for research that explores the relationship between spe- cific strategies to improve levels of care, and rates of requests for as- sistance to die.

At the same time, opposition to assisted death becomes more trou- bling in the absence of the political will to actually fund the strategies needed to improve levels of care. What, exactly, is rational or com- passionate about opposing the legalization of assisted death because it will ease the passing of those unable to access adequate care? Why should patients suffer, waiting for an "ideal" standard of care that - given spending priorities - may never arrive? In Australia, in early 1997, while debate raged over the Euthanasia Laws Act (the federal statute that overturned the Northern Territory's short-lived eu- thanasia legislation). Prime Minister John Howard planned to cut funding to palliative care services for the second year running (hav- ing already slashed it by 10 percent the preceding year).^' Especially in western democracies, where personal autonomy is a prized value, inadequate levels of care for the terminally ill will continue to gener- ate demand for covert assistance to die.

Another factor to bear in mind is the possibility that removing bans on PAS/AVE may do more to mobilize the availability of palliative care services than the status quo. It may even lead to an improved qual- ity of care for those whose level of suffering motivates suicide requests, provided the statutory protocol for PAS/AVE mandated that "all pal- liative measures be exhausted as a condition precedent to assisted sui- cide."̂ ^ The finding by Ganzini and colleagues that forty-six percent of patients requesting lethal prescriptions from Oregon physicians subsequently changed their minds about assisted suicide after the physician implemented at least one substantive palliative interven- tion (while fifteen percent did not) underscores the central role that palliative care must continue to play, especially in PAS statutes. At the same time, it suggests that palliative care may have its limitations, at least as far as some patients are concerned.^^ Elsewhere, Ganzini and colleagues report that thirty percent of respondents to a survey of Ore- gon physicians reported that they had increased the number of re- ferrals to hospice since the Death With Dignity Act was passed, while seventy-six percent reported efforts to improve their knowledge of palliative care.^* Would this have happened without PAS legislation?

The possibility that a PAS statute might improve the penetration of palliative care among terminally ill patients may strike some as odd, but this, like all else, is a matter of evidence.

In Oregon, there seems to be little evidence (so far) that assisted suicide requests are precipitated by less than adequate standards of care: seventy-eight percent of the ninety-one persons who suicided with physician assistance in Oregon between 1998 and 2001 in Ore- gon were enrolled in hospice programs.^^ According to a survey of Oregon physicians in 1999, twenty percent had symptoms of de- pression.^^ Appropriately, those patients were denied assistance and their very request became a trigger for intervention. In a more recent study, hospice nurses and social workers rated depression as one of the least important of reasons motivating requests for assistance by patients who subsequently received lethal prescriptions.^^ It is sig- nificant, however, that in countries where PAS/AVE has been legal- ized, certain diseases have figured disproportionately among patients who died with assistance, including AIDS and Amyotrophic Lateral Sclerosis (ALS).̂ ^ Together vfith cancer, these diseases are frequently characterized by what Margaret Battin calls an "extended deteriora- tive decline."^3 While it may be prudent to give more attention to the provision of services for these diseases, the desire for control in the face of the inevitable downward trajectory of these diseases may work against reducing rates of suicide.

Interview evidence suggests that a "euthanasia escape route" can give comfort to patients who are suffering, including those who will never use it. As one family practitioner whom I interviewed said: "Very few have used it.. .very few have felt obligated, but they've been at peace, knowing that it was an option, it was a treatment plan or modality that was out there." Assuming that only a small minority of patients who initially explore the possibility of assistance will actu- ally die in this way, those wider benefits should be taken into account. On the other hand, if an even larger group of patients would live in fear because of the availability of a statutory protocol regulating as- sisted dying, then evidence to this effect should be demonstrated, rather than simply asserted. It may be just as rational to fear the nature and scale of covert, illicit euthanasia as the prospect of lawful euthanasia under a statutory protocol. In their pioneering survey of the attitudes of 988 terminally ill patients towards PAS, Emanuel and colleagues found that over sixty percent supported PAS/AVE in an abstract situation, although less than four percent had explored these options with their physician or hoarded drugs. Of those patients who were followed up and later re-interviewed, 3.5 percent (22/624) were afraid that they might be involuntarily killed.^"

If PAS were legalized, it is indisputable that individual doctors, as well as some health care organizations, would retain the right, based on their own values, to refuse to participate. By exercising their choice, patients could shield themselves from environments where they might fear (however unreasonably) that subtle pressures might be brought to bear.

In summary, in an ideal world everyone would receive optimal care. While governments should certainly aim to ensure that high levels of care and symptom relief remain available and affordable, a point may be reached where care is generally good and further improve- ments will make little difference to requests for assistance to die. At this point, one cannot automatically interpret requests for assistance as evidence of sub-standard care; instead, it may reflect limits to what palliative medicine itself can achieve, or the particular values of the patient. Should we focus solely on the political goal of improving the funding and availability of terminal care and abandon those who seek illicit assistance to their own fate? Or should we also recognize the shortcomings of underground PAS/AVE and move towards a more structured framework for negotiating these decisions? If harm reduction is our aim, it may be rational to take the latter option, es- pecially if a PAS/AVE statute makes palliative care assessment rou- tine for patients seeking assistance.

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"Legalizing assisted death will lead us down a slippery slope"

Perhaps the most pervasive challenge to legalization as a harm re- duction strategy is the argument that a euthanasia law will expose to risk a class of people who are not currently at risk while euthanasia remains illegal. This concern is typically expressed in the language of the "slippery slope." Slippery slope arguments highlight the antici- pated negative consequences of legalization (such as the failure of safeguards), or go further and argue that legalization is a distinct link in a causal chain leading to a dark future. In its influential report, the New York State Task Force on Life and the Law concluded that:

No matter how carefully any guidehnes are framed, assisted sui- cide and euthanasia will be practiced through the prism of social inequality and hias that characterizes the delivery of services in all segments of our society, including health care. The practices will pose the greatest risks to those who are poor, elderly, members of a minority group, or without access to good medical care.^'

The social mechanism leading to this result is described in differ- ent ways. One version argues that legalization will have subtle effects on patients themselves, creating a "slippery slope to unconscious coercion"^^ by prompting exhausted, dying patients to confront eu- thanasia as one of their treatment options. Opponents fear that "al- truistic" suicides will become more frequent, and that those dying may disproportionately be women, poorer patients, and those with low self-esteem. Writing within the context of euthanasia and disability, Fitzgerald argues that "Lack of resources and supports, along with the isolation and exclusion many people with disability experience com- pound the intensity of their experience of disability, so much so that euthanasia becomes the most attractive option available. All these things override the intrinsic will of a person with disability to live. "̂ ''

Another version of the slippery slope argument asserts that legal- ization will have a subtle effect on treating doctors, prompting them to favor PAS when presenting treatment alternatives, or to lower their standard of care to "hopeless cases." Miles fears that legalization may "empower not only physicians with good relationships, but also those with transient, inadequate, or troubled relationships with chronically ill patients" and that "a patient's suicidal decision can at least partly arise in response to a physician's need for release from a painful clin- ical relationship, rather than as an independent patient's choice."̂ "*

Still other versions of the argument focus less on discrimination and victimization of patients, and more on the damage legalization would cause to the moral fabric of society.̂ ^ Callahan argues that "the greatest danger of [PAS] is the social legitimation of suicide as a way of dealing with the suffering and sorrows of life."̂ ^ Palliative experts fear that euthanasia will rob families of the perceived benefits of the dying experience,^' or create disincentives to the financing and ad- vancement of palliative care.^^

Factoring in the merits of slippery slope arguments into a policy assessment is difficult, since these arguments are often best under- stood as "expressions of allegiance to the moral superiority of the sta- tus quo position,"® rather than careful assessments of likely conse- quences. Two points should be borne in mind. Firstly, as den Hartogh notes, "the status quo has its moral costs as well."̂ ° Slippery slope the- orists overwhelmingly emphasize the anticipated social costs of legalization, while ignoring the social costs of prohibition. Under- ground euthanasia undermines a key assumption of slippery slope theories: that if PAS/AVE is legalized, bad things will start to happen. The fact is, harmful, unsafe things are already happening. Covert PAS/AVE is thus an unwelcome challenge to slippery slope theorists.

One of the few opponents of euthanasia to acknowledge the prac- tice of illicit PAS/AVE, is Somerville:

Modern western societies usually react strongly against hidden decision-making and actions, but should they always do so?... [W]e must ask whether trying to eliminate all hidden decision- making in connection with euthanasia would do more harm than good. In particular, we must ask whether legalizing eu- thanasia, to avoid hidden decision-making, would do more harm than good even if we were to achieve our goal.^'

Somerville argues that the symbolism of law's prohibition has great value at the macro or societal level, even if in rare instances doctors are not prosecuted or are dealt with leniently. She also believes that the fear of prosecution is an enormous safeguard for patients.'^ To some extent this may be true. But fear of prosecution also contributes to "botched attempts," it inhibits discussion, "second opinions" and other safeguards, leads to the fudging of medical charts and creates an cill-permeating culture of deception.'^ These costs also need to be weighed in the balance.

A second point to bear in mind when assessing slippery slope ar- guments is the importance of distinguishing between the concern that legalization might result in state-sanctioned killing, and the concern that the wrong people might be killed. The fact that relatively few peo- ple have used the Oregon Act might be thought to be inconsistent with the slippery slope argument. From a harm reduction perspec- tive, however, what is not known is how significantly the Act has im- pacted upon covert practices. Has it prompted doctors to consider their role in assisting suicide within the framework of the Act, rather than outside it? Furthermore, if many hundreds of people had rushed to use the Act, would this necessarily demonstrate a failure of policy? High use of the Act might be evidence that covert practices were mov- ing "above ground." Provided that statutory safeguards functioned effectively, higher use of the Act might be evidence that more people died "better" deaths: peacefully, without pain, with fewer 'Tjotched attempts" and so on. For those who are morally opposed to PAS, however, the temptation is to regard any use of a PAS statute as evi- dence of social and moral deterioration. For such people, the ideal PAS statute will always be the one that is never used. It is important, however, that moral opposition to euthanasia should not interfere with an impartial assessment of empirical questions including levels of compliance with statutory safeguards, and whether legalization prompts health professionals to re-direct their assistance within law- ful boundaries.

Reducing Harm by Seeking to Influence Underground PAS/AVE This paper will not review the history of efforts to introduce PAS/AVE laws.'* It is sufficient to say that for the foreseeable future, PAS/AVE is likely to remain illegal in many countries or jurisdictions. The en- trenchment of a policy of prohibition should not, however, rule out strategies to guide, influence and educate those who nevertheless con- tinue to participate in illicit PAS/AVE. When euthanasia is practiced outside of a professional framework, it is particularly important that health carers have the opportunity to calibrate their actions against some minimum set of criteria that would serve as a quality assurance mechanism. A de facto euthanasia protocol is better than none at all.

The issues for consideration by those involved in illegal proce- dures would surely he similar to those that one would want to see in- cluded in any statutory protocol for PAS/AVE decision-making. Health professionals need to be alert to the complex nature of suicide talk and the mis-expression of pain and distress in terms of suicide, to the risks of organic and reactive depression and other neurologi- cal complications, the importance of continuity in the desire for as- sistance, the benefits of second opinions as to prognosis and mental state, options for palliative and pastoral care, the importance of reaching closure with loved ones and family members, and no doubt many other issues. Of necessity, health carers would need to com-

492 THE JOURNAL OF LAW, MEDICINE & ETHICS

Roger S. Magnusson

municate on a deep level vdth their pa- tients and to genuinely explore the meaning and motivations for suicide

Some may argue that any attempt to smooth out the highly idiosyncratic nature of illegal PAS/AVE through "in- formal standards" is tantamount to promoting euthanasia through the back door. This would be an odd posi- tion for social and moral conservatives to take, however, in view of their often- expressed concern for vulnerable pa- tients. The challenge is most acute for professional medical organizations, who are in the best position to access their members with information, deci- sion-making pathways, guidelines or other resources. Medical opinion towards PAS/AVE is so fragmented that there are few political rewards in tackling the issue head-on. This only increases the sense of isolation felt by those health care providers who do feel driven to relieve their patients' suffering by hastening their death.

One example of collaboration between both advocates and oppo- nents of PAS to improve the quality of end of life decisions arose in Oregon, foUovnng the passage of the Death with Dignity Act in 1994. Hillyard and Dombrink describe how the Oregon Health Division formed a Task Force to develop administrative rules to make the Act work. Although, given court challenges, the Act did not become ef- fective until October 1997, the Task Force continued under the aus- pices of the Center for Ethics in Health Care at the Oregon Health Sci- ences University, producing a detailed guidebook to assist health carers in considering their roles beneath the legislation, implement- ing assessment procedures, cmd clarifying their own ethical principles (there is no legal requirement on health providers to participate).^^ The Task Force included representatives from over twenty-five or- ganizations, many of whom shared differing views on assisted suicide. While the process was not without its critics,^^ the convener of the Task Force noted that the resulting guidebook (The Oregon Death with Dignity Act: A Guidebook for Health Care Providers) not only as- sisted doctors to deal with patients who expressed a wish to use the Act, but it revealed gaps in existing end of life care and galvanized stakeholders to improve levels of care for the dying.''* There are also examples in the literature of multi-disciplinary collaborations be- tween both advocates and opponents of assisted death to consider what safeguards should be included in a PAS law, assuming such a law

In areas where there is fundamental disagreement about whether or not

something is inherently wrong, it is prudent for policy makers to

distinguish between their personal moral beliefs, and broader questions of public benefit. The challenge for

policy makers is to carefully assess the consequences of prohibition against

the risks, benefits and detriments of alternative approaches.

Conclusion I began this paper by pointing to the growing body of survey evidence that demonstrates the illicit practice of PAS/AVE by anything between four to more than ten percent of doctors. Nurses are also heavily in- volved.'" While some may argue that the wrong questions were asked, that respondents misunderstood the questions or didn't really mean what they said, the overall thrust of these surveys is incontestable. If all underground deaths were well considered and went smoothly, one might better justify the decision to ignore illicit PAS/AVE as just another example of a "victimless crime." The true nature of these un- derground practices, however, adds a worrying new dimension to the statistics. We need a new debate: one that takes account of under- ground PAS/AVE, and is honest about the risks that prohibition, as well as legalization, pose for patients.

Opponents of legalization are quick to point out that just because illicit euthanasia occurs, or just because a dying person "consents" to being killed, does not provide a good reason for legalizing it. There

may well be, according to opponents, an underground in pedophilia; the laws against rape are regularly broken, and a person may consent to bestiality and to sniffing cocaine. But since none of these things should be legalized, there is no good reason for considering the legalization of euthanasia either.^'

This argument is only persuasive if one cannot draw any moral distinction between anything that is illegal, whether it be sexual relations with children, assisting the death of a dying person, drinking alcohol (at times when this was illegal) or smoking cannabis. There have been many "undergrounds"

in history, including abortion, untaxed tobacco leaf, and prostitution. By

adopting a harm minimization approach to debating whether the legalization of PAS/AVE is a wise policy, I am not committed to argu- ing that nothing is ever inherently wrong, nor that social policy must always depend upon a consequentialist analysis. There vdll always be those who believe that euthanasia should never be legalized because it amounts to intentional killing. For others, however, assisting the death of a terminally ill person is contingently, rather than inherently, viTong. Advocates argue that what can make it morally permissible is the compassionate motivation of the health care worker in bringing relief to an exhausted, tormented patient, and the importance of personal autonomy, which gives weight to a person's own perceptions of dignity. Of course, if killing in these circumstances is still wrong, and the aim of social policy is to force others to do what is right, then it is very difficult to have a debate at all.

In areas where there is fundamental disagreement about whether or not something is inherently wrong, it is prudent for policy makers to distinguish between their personal moral beliefs, and broader questions of public benefit. The challenge for policy makers is to carefully assess the consequences of prohibition against the risks, benefits and detriments of alternative approaches. Sensible debate about harm minimization can as easily be hijacked by those who cannot see the harmful consequences of prohibiting PAS/AVE, as by those who cannot admit the possibility that laws legalizing PAS/AVE may have a lasting impact on social attitudes toward dying.

Assuming that PAS/AVE remains unlawful, the failure of profes- sional medical bodies to engage wAh the practice of covert assisted death should be seen for what it is: a scandal. In Australia, profes- sional bodies have been highly visible in public debate on issues im- pacting on AocXors'professional autonomy (e.g. what drugs should be federally-subsidized and placed on the Pharmaceutical Benefits List), or issues that impact on doctors' economic welfare (e.g. the level of the federally funded "Medicare" rebate payable to doctors under Aus- tralia's universal health insurance scheme). But they fall strangely silent when it comes to the involvement of their own members in covert euthanasia. This is unfortunate because debate must inevitably revolve around doctors' actions: whether assisted dying remains law- ful or unlawful, it is doctors who are doing the killing.

The challenge remains, therefore, for policy-makers and the health professions to consider how best to regulate assistance-in-dying to en- sure that patients are not victimized, and that where assistance is, nevertheless, given, that patients are carefully assessed. No option is risk free. While my own initial assessment leads me to favor the le- galization of PAS/AVE under a statutory protocol, it is clear that if we take the problem of underground euthanasia seriously, the harm minimization debate presents many more opportunities for con- structive engagement.

NATIONAL HEALTH REFORM AND AMERICA'S UNINSURED • FALL 2004 493

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(1994): 1786-88; B.J. Pollard, "Can Euthanasia Be Safely Legalized?," PaZ- liative Medicine, 15 (2001): 61-65; T. Quill, C.K. Cassel, and D.E. Meier, "Care of the Hopelessly 111: Proposed Clinical Criteria for Physician-Assisted Suicide," N. Engl. J. Med. 327 (1992): 1380-84; K. Amarasekara, "Eu- thanasia and the Quality of Legislative Safeguards," Mona«/> University Law Review 23 (1997): 1-42.

15. M. Somerville, Death Talk: The Case Against Euthanasia and Physician- Assisted Suicide (Montreal & Kingston: McGill-Queen's University Press, 2001): at 54. In fairness to Somerville, she adds that "I am assuming here that hidden euthanasia involves only those who want to be killed and who would be eligible for euthanasia if it were legalized." I would argue that the evidence does not bear out this assumption. See Magnusson, supra note 6, at 200-44.

16. Magnusson, supra note 6, at 174-99. 17. Cf. D. Callahan and M. White, "The Legalization of Physician-Assisted Sui-

cide: Creating a Regulatory Potemkin Village," University of Richmond Law Review 30 (1996): 1-83, at 8-9.

18. F. Lewins, "The Development of Bioethics and the Issue of Euthanasia: Reg- ulating, De-regulating or Re-regulating," Journal of Sociology 34, no. 2 (1998): 123-34, at 132.

19. Magnusson, supra note 6, at 145-47. 20. See J.A. Billings and S.D. Block, "Slow Euthanasia," Journal of Palliative

Care 12 (1996): 21-30; E.H. Loewy, "Terminal Sedation, Self-Starvation, and Orchestrating the End of Life," Archives of Internal Medicine I6l (2001): 329-32.

21. Examples include F. Cohn and J. Lynn, "Vulnerable People: Practical Re- joinders to Claims in Favor of Assisted Suicide," in K. Foley and H. Hendin, eds.. The Case Against Assisted Suicide (Baltimore: The Johns Hopkins University Press, 2002): 238-60, at 251-55; K. Amarasekara, "Euthana- sia and the Quality of Legislative Safeguards," Monash University Law Re- view 23 (1997): 1-42.

22. New York State Task Force on Life & the Law, When Death is Sought: As- sisted Suicide and Euthanasia in the Medical Context (New York: The New York State Task Force on Life & the Law, 1994): at 120 (emphasis added).

23. Id., at 120. 24. B. Pollard, "Can Euthanasia Be Safely Legalized?" Palliative Medicine 15

(2001): 61-65, at 62. 25. D. Callahan, "When Self-Determination Runs Amok,"/fostm^s Center i?e-

poH 22 (1992): 52-55, at 53. See also D. Callahan, "Reason, Self-Determi- nation and Physician-Assisted Suicide" in K. Foley and H. Hendin, eds.. The Case Against Assisted Suicide (Baltimore: The Johns Hopkins University Press, 2002): 52-68, at 60.

26. D. Callahan, "Regulating Physician-Assisted Death," JV. Engl. J. Med. 331 (1994): 1656.

27. Byock, for example, claims that "with the skillful application of psychoso- cial and spiritual support, dying often becomes an extremely important, valuable and, not rarely, a privileged time in life." I. Byock, "The Hospice Clinician's Response to Euthanasia/Physician Assisted Suicide," The Hos- pice Journal 9 (1994d: 1-8, at 6. See also R.S. Magnusson, "Challenges and Dilemmas in the 'Aging and Euthanasia' Policy Cocktail," in D. H. Weisstub, D. C. Thomasma, S. Gauthier, and G. Tomossy, eds.. Aging: Decisions at the

End of Life (Dordrecht: Kluwer Academic Publishers, 2001): at 113-14, 121-22.

28. K. Foley and H. Hendin, "The Oregon Experiment," in K. Foley and H. Hendin, eds.. The Case Against Assisted Suicide (Baltimore: The Johns Hopkins University Press, 2002): 144-74, at 150.

29. Id. at 148. 30. See id. at 151,160-61,164, respectively 31. See D.J. Cook, G. Guyatt, R. Jaeschke, J. Reeve, A. Spanier et al., "Deter-

minants in Canadian Health Care Workers of the Decision to Withdraw Life Support from the Critically 111," Journal of the American Medical Associa- tion 273 (1995): 703-08.

32. A. L. Caplan, L. Snyder, and K. Faber-Langendoen, for the University of Pennsylvania Center for Bioethics Assisted Suicide Consensus Panel, "The Role of Guidelines in the Practice of Physician-Assisted Suicide,".<4nnafe of Internal Medicine 132 (2000): 476-81, at 478-79.

33. Callahan, supra note 26, at 1656. 34. Hillyard and Dombrink note that all physician reports were in full com-

pliance with the law in 1998. See Hillyard and Dombrink, supra note 10, at 186. In 1999 Sullivan and colleagues reported full compliance "as best we could determine": A.D. Sullivan, K. Hedberg, and D.W. Fleming, "Legalized Physician-Assisted Suicide in Oregon - The Second Year,"iV. Engl. J. Med. 342 (2000): 598-604, at 603. One physician was reported in 2000. Id. at 605-07.

35. Jochemsen surveys evidence of non-compliance with the criteria required to be established for the purposes of the necessity defense, prior to the in- troduction of the Termination of Life on Request and Assisted Suicide (Re- view Procedures) Act: H. Jochemsen, "Why Euthanasia Should Not Be Le- galized," in D.H. Weisstub, D.C. Thomasma, S. Gauthier and G. Tomossy, eds.. Aging: Decisions at the End of Life (Dordrecht: Kluwer Academic Publishers, 2001): 67-90, at 71-78. Similarly, see H. Hendin, "The Dutch Experience," in K. Foley and H. Hendin, eds.. The Case Against AssistedSui- cide (Baltimore: The Johns Hopkins University Press, 2002): 97-121, at 103ff; J. Keown, Euthanasia, Ethics and Public Policy: An Argument Against Legalization (Cambridge: Cambridge University Press, 2002): at 103-24. Although initially acknowledged in case law, guidance as to the scope of the necessity defense was also found in the statutory notification procedure that applied to euthanasia deaths under burial legislation. That procedure included some fitty criteria which acted as guidelines for the pub- lic prosecutor when assessing doctors' reports. See, further, J. Griffiths, A. Bood, and H. Weyers, Euthanasia & the Law in the Netherlands (Amster- dam: Amsterdam University Press, 1998): 114-16.

36. G. van der Wai, P. J. van der Maas, J.M. Bosma, B.D. Onwuteaka-Philipsen, D.L. Willems et al., "Evaluation of the Notification Procedure for Physieian- Assisted Death in the Netherlands," JV. Engl. J. Med. 335 (1996): 1706-11.

37. B.D. Onwuteaka-Philipsen, G. van der Wai, P. J. Kostense, and P.J. van der Maas, "Consultants in Cases of Intended Euthanasia or Assisted Suicide in the Nethednnds" Medical Journal of Australia 170 (1999): 360-363 (con- firming that the consultant saw the patient in 88 percent of cases).

38. H. Hendin, "Euthanasia Consultants or Facilitators?," Medz'ca/JoM77ja/o/ Australia 170 (1999): 351-52.

39. R. Cohen-Almagor, "An Outsider's View of Dutch Euthanasia Policy and Practice," ftswe^ in Law ^ Medicine 17 (2001): 35-68, at 66.

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Kester, B.D. Onwuteaka-Philipsen et al., "Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995," N. Engl. J. Med. 335 (1996): 1699-1705; P.J. van der Maas, J.J.M. van Delden, L. Pijnenborg, "Euthanasia and Other Med- ical Decisions Concerning the End of Life," The Lancet 338 (1991): 669-74.

42. H. Kuhse, P. Singer, P. Baume et al, supra note 5. 43. J. Griffiths, "Human Rights and Euthanasia," MBPSL Newsletter, no. 5

(2001): at 2, available at <http://www.rug.nl/law/research/programmes/ mbpsl/researchprogram/newsletters/> (accessed July 22,2004).

44. B.J. Ward and P.A. Tate, "Attitudes Among NHS Doctors to Requests for 'Eu\hA-nas\a;' British Medical Joumal3OS (1994): 1332-34. Thirty-eight re- spondents (9 percent) responded affirmatively to the question: "Have you ever taken active steps to bring about the death of a patient who asked you to do so?"

45. J. Keown, Euthanasia, Ethics and Public Policy: AnArgument Against Le- galization (Cambridge: Cambridge University Press, 2002): at 61.

46. Id. at 62. 47. Meier, supra note 1; Douglas, supra note 4, respectively. 48. Keown, supra note 45, at 61. 49. H.J. Chochinov, D. Tataryn, J.J. Clinch, and D. Dudgeon, "Will to Live in

the Terminally 111," The Lancet 354 (1999): 816-19; see also E.J. Emanuel, D.L. Fairclough, L.L. Emanuel, "Attitudes and Desires Related to Eu- thanasia and Physician-Assisted Suicide Among Terminally 111 Patients and their Caregivers," JAM/l 284 (2000): 2460-68.

50. B.J. Pollard, "Can Euthanasia Be Safely Legalized?" Palliative Medicine 15 (2001): 61-65 at 63.

51. M. Downey, "Care for Dying 'Needs Millions More Dollars,'" Sydney Mom-

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ing Herald, March 26,1997, at 6. Later, following pressure from churches and the Australian Medical Association, a ftirther cut was avoided: J. Brough and G. Alcorn, "Howard Guarantees Palliative Care Funds," Sydney Mom- ing Herald, March 27,1997, at 6.

52. R. Dworkin, "Assisted Suicide: the Philosophers' Brief," The New York Re- view of Books, March 27,1997: 41-47.

53. L. Ganzini, H.D. Nelson, T.A. Schmidt, D.F. Kraemer, M.A. Delorit, and M.A. Lee, "Physicians' Experiences with the Oregon Death with Dignity Act,''N. Engl J. Med. 342 (2000): 557-63.

54. L. Ganzini, H.D. Nelson, M.A. Lee, D.F. Kraemer, T.A. Schmidt, and M.A. Delorit, "Oregon Physicians' Attitudes About and Experiences With End- of-Life Care Since Passage of the Oregon Death with Dignity Act," JAMA 285 (2001): 2363-69.

55. L. Ganzini, T.A. Harvath, A. Jackson, E.R. Goy, L.L. Miller, and M.A. De- lorit, "Experiences of Oregon Nurses and Social Workers with Hospice Pa- tients Who Requested Assistance with Suicide," N. Engl. J. Med. 347 (2002): 582-88.

56. Ganzini, supra note 53, at 562. 57. Ganzini, supra note 55. 58. XH. Veldink, J.H. J. Wokke, G. van der Wai, V. de Jong, L.H. van den Berg,

"Euthanasia and Physician-Assisted Suicide Among Patients with Amy- otrophic Lateral Sclerosis in the Netherlands," AT. Engl. J. Med, 346 (2002): 1638-44 (reporting on a Dutch study which found that, between 1994 and 1999, 20 percent of 203 patients with ALS died by euthanasia or assisted suicide); P.J.E. Bindels, A. Krol, E. van Ameijden, D.K.F. Mulder-Folkerts, J. A. R. van den Hoek et al., "Euthanasia and Physician-Assisted Suicide in Homosexual Men with AIDS," The Lancet 347 (1996): 499-505 (reporting on a Dutch study in which 22 percent of men with AIDS died through as- sisted suicide or euthanasia, 12 times the national euthanasia rate of 2.1 per- cent).

59. See M. Battin, Ethieal Issues in Suicide (New Jersey: Prentice Hall, 1995): at 201, 225.

60. Emanuel, supra note 49. 61. New York State Task Force on Life & the Law, supra note 22 (Executive

Summary). See also id. at 120ff. 62. T.O. Nielsen, "Guidelines for Legalized Euthanasia in Canada: A Proposal,"

in M. Somerville, ed.. Death Talk: The Case Against Euthanasia andPhysi- dan-Assisted Suicide (Montreal & Kingston: McGill-Queen's University Press, 2001): 144-53, at 145.

63. J. Fitzgerald, "Bioethics, Disability and Death: Uncovering Cultural Bias in the Euthanasia Debate," in J. Jones and L.A. Basser Marks, eds.. Disabil- ity, Divers-ability, and Legal Change (The Hague: Martinus Nijhoif, 1999): 267-81, at 272.

64. Miles, supra note 14, at 1787 and 1786, respectively. See also New York State Task Force on Life & the Law, supra note 22, at 121-24.

65. Somerville, supra note 15, at 24-85. 66. D. Callahan, "Good Strategies and Bad: Opposing Physician-Assisted Sui-

cide," Commonweal 126 (December 3,1999): 7. 67. Byock, supra note 27, at 2. Ian Maddocks, an Australian pioneer in pallia-

tive care, states that "What I do not want...is to see a brisk new expectation arise in our society that a quick death is a noble one, that for the sake of the family, the health budget or the stress upon carers, it will be best to elect eu- thanasia. This is because I feel that some of the excellent sharing and ex- changes of love that inspire and comfort the rest of us will be lost in ac- cepting that fatal attraction, and our society will he the poorer for it." 1. Maddocks, "Hope in Dying: Palliative Care and a Good Death," in J. Mor- gan, ed.. An Easeful Death? Perspeetives on Death, Dying and Euthanasia (Sydney: Federation Press, 1996): 57-70, at 70.

68. Pollard and Winton argue, for example, that "Killing the failures of med- ical or social care would be negative, in that it would not contribute to find- ing solutions to their problems": B. Pollard and R. Winton, "Why Doctors and Nurses Must Not Kill Patients," Medieal Journal of Australia 158 (1993): 426-29, at 428.

69. G. den Hartogh, "The Slippery Slope Argument," in H. Kuhse and P. Singer, eds.,j4 Companion to Bioethics (Oxford: Blackwell Publishers Inc, 1998): 280-290, at 289.

70. den Hartogh, supra note 69, at 287. 71. Somerville, supra note 15, at 54. 72. Somerville, supra note 15, at 56. 73. Magnusson, supra note 6, at 200-29. 74. See Hillyard and Dombrink, supra note 10. 75. See P.R. Muskin, "The Request to Die: Role for a Psychodynamic Perspec-

tive on Physician-Assisted Suicide,"7AA^ 279 (1998): 323-28. 76. Hillyard and Domhrink, supra note 10, at 167-74. 77. Hillyard and Dombrink quote Dr Greg Hamilton, a Portland psychiatrist,

who stated "I suppose in the death camps in various military movements there have been rules and guidelines about how to carry out the procedures at death camps, but that doesn't make it right": Hillyard and Dombrink, supra note 10, at 173. See, further, N.G. Hamilton, "Oregon's Culture of Si- lence," in K. Foley and H. Hendin, eds.. The Case Against Assisted Suicide (Baltimore: The Johns Hopkins University Press, 2002): 175-91.

78. Hillyard and Dombrink, supra note 10, at 174. 79. See J.A. Tulsky, R. Ciampa, E. J. Rosen, for the University of Pennsylvania

Center for Bioethics Assisted Suicide Consensus Panel, "Responding to Legal Requests for Physician-Assisted Suicide,"^nnafe of Internal Medicine 132 (2000): 494-99; L. Snyder and A.L. Caplan, "Assisted Suicide: Find- ing Common Ground" Annals of Internal Medicine 132 (2000): 468-69.

80. See, e.g., D. Asch, "The Role of Critical Care Nurses in Euthanasia and As- sisted Suicide,"M Engl. J. Med. 334 (1996): 1374-79.

81. Keown, supra note 45, at 63.

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