Physician-Assisted Death: Is This Measure the Answer? : Prop. 161--a good try, but it’d be better to go back to the drawing board

Slow death, death without peace and without dignity, was grimly familiar long before the rise of modern medical science, but modern medicine has seemed to many to prolong the pain and worsen the indignity; in brief, to make a natural process artificial and even cruel. California, as usual leading the way in a long-overdue reform, enacted its Natural Death Act in 1976 and updated it in 1991. By its provisions an adult may at any time sign a declaration directing that life-sustaining treatment, including artificial nutrition and hydration, be forgone in the event of terminal illness or permanent unconsciousness. And because a dying person may be unable to insist that the declaration be respected, the state has passed the 1983 Durable Power of Attorney for Health Care Act, by which life-and-death responsibility may be entrusted to a family member or other proxy. These are all very helpful options.

For some, however, these measures are not enough. They draw an analogy between drug-assisted labor and drug-assisted death. Once a woman is in labor, it is neither unnatural nor immoral, they argue, to use drugs to help her to the end of that process. Similarly, once a dying man or woman is in the last stage of his or her dying, it is neither unnatural nor immoral to use drugs to bring that process to a quicker and less painful close. Such, in broadest terms, is the thinking that underlies Proposition 161, the physician-assisted death initiative on the November ballot. Needless to say, many Californians, including not just religious leaders but medical professionals, reject this thinking as a simple but drastic mistake. Death, they insist, is not to be confused with birth, much less with any mere medical procedure.

Religion and philosophy cannot in the end be pushed altogether to the side in a dispute like this one. And yet, where Proposition 161 is concerned, these heaviest guns of argument need not be rolled out. There are reasons enough to vote against Proposition 161 simply as a dangerously ill-drafted law:

INFORMED CONSENT: The proposition envisions two key moments in physician-assisted death: the first, when a written directive is signed in the presence of two witnesses; the second, when an oral instruction is given to an attending physician. At neither moment, however, is there any requirement that information be provided about medical condition, prognosis or alternative treatment, including pain-control treatment, nor is there any requirement for a psychological evaluation to rule out treatable depression as a cause for the request.

Though the initial directive must be witnessed, the crucial instruction to carry out the directive need not be. In this connection, it should be noted that the proposition contains no requirement that family members be notified. Given the fact that the attending physician, especially in the case of an indigent patient or an abandoned nursing-home patient, may be a stranger to the patient and may not be a native speaker of the patient’s language, the possibility of simple error as well as outright abuse cannot be ruled out.

At such a moment, one would want a neutral, medical witness to protect against possible abuse by the family as well as, wherever possible, a family witness to protect against error or abuse by the physician. Many an elderly, terminally ill person may be inclined to end it all a bit sooner just to spare the family the expense. Even if such a wish seems worth honor-ing, the same wish on the part of the family (“Her life is over, let’s cut our losses”) is not. Extraordinary--not ordinary, much less casual--safeguards seem in order at this extraordinary moment. The proposition does not provide them.

SEE CALIFORNIA AND DIE? The mentioned oral instruction is intended to be more than a whim. But an “enduring request,” to use the language of the proposition, is defined simply as one that has been made twice, and there is no minimum interval between the two requests. Since the initial directive may be executed anywhere in the world, California could conceivably become a mecca for the dying, not excluding the indigent dying. What the well-intentioned sponsors of the proposition--and their good and humane intentions are beyond question--clearly see as a tool in the hands of a caring physician during the last hours of a close relationship with a patient could become something grotesquely different in the hands of unscrupulous physicians willing to set up euthanasia mills.

There is every likelihood that, if defeated, this initiative may return to the ballot in some revised form. We do not claim that California’s laws--much less the frequent inattention of the medical profession to pain relief--are beyond improvement. Hardly. But existing law and available therapies go a good distance in protecting the dignity and autonomy of the dying. In our judgment, Proposition 161 is not the improvement we need.