Testimony on Physician-Assisted Suicide Legislation
Published on May 3rd, 2018
Testimony of the New York State Catholic Conference regarding the “Medical Aid in Dying Act” (A.2383-A / S.3151-A). Submitted by Edward T. Mechmann, Esq., Assembly Hearing Room, 19th Floor, 250 Broadway, New York, N.Y.
May 3, 2018
Mr. Chairman, Members of the Assembly, good afternoon. My name is Edward Mechmann, I am the Director of Public Policy of the Archdiocese of New York. I am grateful for the opportunity to testify on behalf of the Archdiocese and the New York State Catholic Conference, which is the public policy arm of the eight Catholic dioceses in New York State. I was the author of an amicus brief on behalf of the Catholic Conference in the Myers v. Schneiderman litigation.
I am here to speak in opposition to the so-called “Medical Aid in Dying Act”. I will focus my testimony on the legal flaws in this assisted suicide legislation. Taken together, these critical and inherent legal flaws pose real dangers to the public and to vulnerable patients. In our view, there is no way to fix this legislation, and we will oppose any bill that would legalize physician-assisted suicide.
1. Assisted Suicide is Fundamentally Different from Accepted Medical Practices
One of the central arguments offered by supporters of assisted suicide is that it is essentially indistinguishable from accepted medical practices such as palliative sedation and the withdrawal of excessively burdensome treatments. But this fails to recognize crucial ethical, medical and legal distinctions in the intention of the physician and the causality of death.
In the case of palliative sedation, the intention of the doctor is to treat symptoms, not to cause death. In fact, the American Medical Association’s Code of Ethics states that while sedation to unconsciousness may be ethical under certain circumstances, it “must never be used to intentionally cause a patient’s death.” In contrast, in the case of assisted suicide the intention of the doctor is precisely to intentionally cause the patient’s death. There is also a critical difference in causation. In the case of palliative sedation, death will happen due to the underlying illness, while with assisted suicide, the patient’s death is directly and unequivocally caused by the lethal drugs the doctor prescribes.
The same key distinctions apply between declining life-sustaining treatment and assisted suicide. When a patient declines treatment, the doctor does not intend to cause the patient’s death. Instead, he is respecting the patient’s wishes, which he is required under the law to do, or else he would be prosecuted for battery. The cause of death is the underlying condition –the doctor is not the direct cause of death. In contrast, when the doctor prescribes lethal drugs, the intention is to cause the patient’s death and the cause of death are the drugs. When the patient declines treatment, the doctor stands aside and allows nature to take its course. In assisted suicide, the doctor preempts nature and is complicit in the patient’s suicide.
These distinctions can be seen when we focus on the drugs themselves. In palliative sedation, the medication causes a relief of symptoms like pain, anxiety, etc., but does not cause death. In declining treatment, there is no medicine involved, and again, death comes from other causes. But in the case of assisted suicide, the drugs are the only thing that causes the patient’s death. That is its only purpose, that is its only effect. It is there only to kill.
Making distinctions between intention and causality is very common in the law. We treat actions very differently based on the intent of the actor, and the result they cause. The Court of Appeals in the Myers case clearly understood this, and it was a major factor in their decision to reject assisted suicide.
2. Legalization will hurt efforts to prevent suicides.
This legislation is being proposed as if it will only affect individual patients and it has nothing to do with suicide in general. Nothing could be further from the truth. This bill contradicts and undermines current legal and policy efforts to safeguard vulnerable people from suicide.
Suicide is a serious public health concern. It is the tenth leading cause of death in the United States; it kills as two-and a half times more people than homicide, more than motor vehicle accidents, and seven times more than HIV; the number of deaths from suicide has increased over 26% in the last decade. Experts suspect that the numbers are actually even higher but are hidden behind drug overdoses.
In response, clear messages to discourage suicide are ubiquitous in New York, such as billboards, signs on bridges, and posters on mass transit saying “life is worth living.” Great efforts are made in our schools and correctional system to prevent suicides. Legalization of assisted suicide would contradict and undermine those efforts by sending a dangerous message – namely, suicide is okay for some people.
This bill would also strip suicidal patients of existing legal protections. Under current law, persons at risk of harming themselves can be involuntarily committed for evaluation and treatment, pursuant to Article 9 of the Mental Hygiene Law. This bill would prevent that – it states that “A patient who requests medication under this article shall not, because of that request, be considered to be a person who is suicidal…” § 2899-n(1)(a). It thus creates an invidious double standard — terminally ill and disabled patients are denied safeguards that are guaranteed to all others. That sends a clear message to them that their lives are not worth protecting.
States that have legalized assisted suicide have also seen an increase in suicides in general. In Oregon, for example, the overall suicide rate is 42% higher than the national average. The phenomena of “suicide contagion” and “suicide clusters”, in which one suicide leads to others within a social group, is well recognized as a substantial danger. This makes logical sense. Legalization of assisted suicide would send a message to people with depression, a decrease in daily functioning or a disability that their life is not worth caring for and that suicide is an acceptable option. If it becomes normalized as a medical practice, more people will get the same deadly message.
3. Physician Assisted Suicide Cannot Be Limited
Passage of this bill will inevitably lead to an expansion of assisted suicide to euthanasia.
This bill is supposed to be limited to those who are terminally ill at the very end of life. But the bill defines a “terminal illness or condition” as “an incurable and irreversible illness or condition that has been medically confirmed and will, within reasonable medical judgment, produce death within six months”. § 2899-d(17). This definition would include many persons with disabilities or chronic debilitating illnesses, who would soon die if they simply declined to continue their regular treatments. The language of the bill itself shows the intent to expand assisted suicide beyond the terminally ill.
This expansion has already happened elsewhere, as Judge Fahey explained in his concurring opinion in the Myers case. In Belgium and Holland, euthanasia has been extended to those without terminal illnesses, to people who have dementia or mental health problems. It is also offered to those who simply feel old, isolated, or have lost interest in life. There is also an increasing number of cases of involuntary euthanasia — killing people who did not even ask for death, including children. Canada is already considering expanding assisted suicide beyond terminal illnesses and to minors, and advocates in other states have been calling for the same.
Prominent advocates for assisted suicide have openly stated that their ultimate goal is to legalize it for people without a terminal illness. They have expressed support for removing any legal restrictions such as age restrictions, and have argued that doctors should be allowed to administer the fatal medicine – in other words, they want to legalize euthanasia.
We should listen to the advocates. This bill will not be the final frontier for assisted suicide.
4. There are inadequate safeguards to protect vulnerable patients.
Advocates for legalization frequently point to alleged safeguards that are in the bill. But these are grossly inadequate and endanger vulnerable persons.
The only safeguards in the bill deal with the time before the patient receives the prescription for deadly drugs. We believe those safeguards themselves are inadequate. For example, there is no mandatory referral of the patient to determine if they are suffering from a treatable mental illness that led to the suicide request (e.g., clinical depression). Instead, a referral is only optional and it is limited to determining whether the patient has decision-making capacity. § 2988-f(c). In Oregon, fewer than 5% of patients are ever referred for this limited evaluation. This is a glaring flaw and shows a shocking indifference to persons suffering with mental illnesses.
The danger is much worse after the patient receives the pills. There are absolutely no safeguards to protect vulnerable patients:
- There is no follow-up evaluation to determine if the patient’s condition has changed or if other treatments have become available.
- There is no further evaluation to determine if the patient is suffering from a mental illness (e.g., clinical depression).
- No physician or other health professional is required to be present when the patient takes the lethal pills.
- There is no evaluation of the patient’s decision-making capacity at the time they take the lethal drugs.
- There is no way to know if the patient is being coerced into taking the lethal medication.
- There is no way to know if the patient is even self-administering the pills.
- There is no way to ensure that only the patient is taking the drugs.
This bill abandons patients, and puts them at risk of coercion, abuse, and even outright murder. This danger is exacerbated by the lack of transparency and oversight in the bill.
5. There will be no accountability and oversight to prevent abuses.
The bill actually requires that the physician state untruthfully on the death certificate that “the cause of death was the underlying terminal illness or condition of the patient.” § 2899-p(2). That is simply not true – it was a suicide caused by lethal drugs. Lying on the death certificate will cripple efforts to oversee the implementation of the law, since there will be no way to do an independent evaluation of cases.
There is also no mechanism for a systematic evaluation and oversight by the Health Department. The Department is also given no authority to investigate suspicious cases or to enforce the bill. The result is that assisted suicide will take place in the shadows and we will never be able to tell if there are abuses.
There are a number of other serious flaws in this legislation. Taken together, it is clear that this legislation poses real dangers to the public and to vulnerable patients. We strongly urge the Assembly Health Committee and the Legislature as a whole to reject it.