For decades, Californians have resisted making assisted suicide legal for the terminally ill. Now another try, the End of Life Option Act, is making its way through the Legislature. It has passed one committee, been endorsed by U.S. Sen. Dianne Feinstein, and was buoyed by the attention paid to Brittany Maynard, who last year left her California home for Oregon to carry out her own legal assisted suicide. Dr. Ken Murray is a retired clinical assistant professor of family medicine at USC, whose touchstone essay on death, "How Doctors Die," has ricocheted around the Internet since it was published in 2011 on the Zocalo Public Square website. I asked him to assess the law's ethics and options.
What should the Legislature's role be in end-of-life decisions?
It's the Legislature's job to open the door [to legal assisted suicide] but provide safeguards for patients who are extremely vulnerable.
It's easy to see that someone could be coerced or guilt-ridden into feeling they need to get themselves out of the way. I find it very distasteful, but I have to accept there's some reality to this: In the era of HMOs, where saving money [is] a predominant thought, you could see incentives created to treat people with terminal illnesses by assisting them in committing suicide. You have to worry about that.
There are provisions in SB 128, the California bill, to prevent that kind of thing, though.
Having worked in a managed-care setting, there are subtle ways of passing the message that don't violate the letter of the law, where you get physicians under contract to understand that it's to their benefit to have people who are terminally ill go in this direction. It's scary to talk about this stuff, and even scarier to see it in practice. It justifiably scares people.
What kind of safeguards do you endorse?
Being that very small numbers choose assisted suicide, we can afford to take extraordinary safeguards. The key thing is to have independent oversight. For example, you're a managed-care patient and want to do this — you would need a physician outside your HMO to evaluate your situation at its expense. It's not a new concept. When you get an independent opinion, that eliminates a lot of problems.
Does the California bill address your concerns?
The law is based on the Oregon model, so it contains both its virtues and flaws. One of the biggest problems is that the tracking mechanisms are pretty weak. It's important that we know what actually happens; otherwise we can't be guided too well. Unfortunately, they don't track what the outcomes are. The [Oregon] Department of Health is required to produce a report every year. However, that report is[n't] a public document.
I am happier [with a law] passed by the Legislature than by initiative [as Oregon's was]. If there's some major flaw, the Legislature can change the law. If there's a problem with an initiative, the only way you can change it is through the initiative process, so it becomes extremely difficult to fix an error.
There's a major effort by Compassion & Choices, the [right-to-die] advocacy group [supporting SB 128], to avoid the word "suicide" or "physician-assisted suicide."
Polling [finds] there's about 50% acceptance when it's described as physician-assisted suicide, but when it's described as "compassionate passing" or "aid in dying," the acceptance rate goes to 65% or 68%.
We have today a process of helping people die, using palliative care and hospice medicine. These are highly effective, but the problem is they're not as widely available as they could or should be, so a lot of people die without the aid of this advanced form of healthcare.
We could say we're going to make these things available everywhere and help people — or we can help them commit suicide.
What are other potential pitfalls?
[Terminal patients] who are simply depressed. Just because someone is depressed isn't a reason for them to be killing themselves under this law. If a person has a terminal disease and major depression, they're at a very high risk of committing suicide. Depression is treatable, and in those situations, people often reverse the decision that they want to commit suicide.
Many in the psychiatric community feel a person who has major clinical depression isn't really competent to make a decision about life and death. This is acknowledged in the law but only to the degree that a primary-care physician should evaluate whether a person is depressed, and [if so] the person should obtain psychiatric consultation. When you poll psychiatrists, 90% of them said they could not evaluate someone for major depression in a short visit. So if a psychiatrist cannot do it, you wonder how a primary-care physician can be making that diagnosis.
Should I conclude you're not in favor of this kind of legislation?
I strongly favor the concept of a patient being able to make a self-determination if they want to end their life. Where I have a problem is the physician being the agent of doing it.
For several thousand years, we have specifically prohibited physicians giving people something to kill them. I'm leery of discarding thousands of years of ethical thinking without very careful thought. You don't want to have conflicting loyalties. The loyalty has to be to the patient and the healing process.
I have a compromise: There are a lot of people who can write prescriptions — physicians' assistants, nurse practitioners. Veterinarians can write basically any prescriptions for their patients; we could simply change the law to allow that prescription to be written by a veterinarian and we wouldn't have that [physician] opposition. You would still have to go through the whole process; it's just that the final prescription is written by a veterinarian, physicians' assistant, any of those. I don't think we're going to see that happen, but I find it an intriguing concept.
What don't people understand about making this choice?
They don't understand that there's already an alternative that will get them to the same place, a technique called voluntary cessation of nutrition and hydration, where you don't eat and drink.
Isn't that a rough way to go compared to, say, an overdose of morphine?
A large survey of hospice nurses rated voluntary cessation as nine out of 10 in terms of quality of death. And that's my experience. I've had a number of patients for whom nutrition and hydration could not be given, or who refused it, and who died in a very peaceful manner — one of the most gentle types of death I've ever seen.
Your 2011 essay was about how physicians choose to die differently than other patients. Would doctors choose stopping food and water?
I think most physicians would go the palliative care and hospice route. Fifty years ago it was common for physicians to have a stash of medicine set aside in case they came down with something really bad. It's not common now. Thankfully, we've progressed.
Could self-administered deaths make dying more an intimate, family event, less clinical?
That's a fascinating question. Every day I'll hear about some famous person dying, at home surrounded by family. They're usually people of means who have more choices than the average person, and probably more assertiveness. But over the last 10 years we've seen a doubling in the use of hospice, and that's a dramatic change. There hasn't been a concomitant rise in the number of people dying at home, but we're seeing an increasing move toward the home environment. Most people want to die at home.
To what extent are doctors willing to relinquish "heroic measures"?
It's been a struggle. I think it has to do with the training people receive. Thirty-five, 40 years ago, we didn't talk about this at all. In medical schools nowadays, they do. When I'm in a doctor's dining room and people are discussing difficult cases, this sort of thing gets talked about, where it didn't years ago.
Are doctors mindful of patients' wishes?
The big problem is getting people to express their wishes. The trite saying is, it's never the right time, until it's too late.
When I first met patients I would make it a habit to say, "Well, how do you want to die?" That gave me an entree to say that when the time comes and you're really sick, I'm going to have to be the one to implement what you want done, and how can I do that if I don't know? Most would respond positively
This interview has been edited and condensed.