According to one important view, individuals enjoy a fundamental right of self-determination for critical personal decisions. In this view, the right to control one's destiny is a core right in our society. Different arguments have been put forward to justify such a fundamental right, but the important point for this discussion is the view that the right includes the freedom to end one's life. Although the state may have an interest in prolonging a person's life, the state's interest must yield to the right of individuals to decide the circumstances and timing of their deaths. Or, to put it another way, the state's interest in prolonging a person's life exists only as long as the person wants the life prolonged. The state can act to protect individuals from having their lives taken involuntarily but not to protect individuals from taking their own lives voluntarily. In his dissenting opinion in the Cruzan case, Justice Brennan invoked this view to explain why Nancy Cruzan's right to have her feeding tube withdrawn superseded Missouri's interest in preserving her life.
At first glance, this theory might permit all four of our patients to end their lives. All four patients chose to take death-hastening action. Alternatively, an autonomy-based theory might permit the treatment withdrawal from the permanent-ventilator patient and the suicide of the end-stage cancer patient but not the treatment withholding from the curable patient or the suicide of the depressed patient. With the latter two patients, one could object to the refusal of antibiotics or the suicide on the ground that neither person was making a choice that reflected a genuine expression of autonomy. But whether two or four of the patients could end their lives, the important point is that it should not matter whether the personcould live for several decades in good health or for only a few months in poor health. It should not matter whether the person needs antibiotics for a couple of weeks or a ventilator for the rest of his life. It also should not matter whether the person would die by treatment withdrawal or suicide. With individual self-determination as our guide, we would only want to ensure that the patient was making an informed and voluntary choice of death-hastening action.
However, even acepting a fundamental right to die for all persons, we still can derive an explanation for the law's categorical distinction between treatment withdrawal and suicide. This explanation reflects concerns about the validity of a person's decision to die. Even assuming that all individuals have a right to end their life, we still want to ensure that the choice to end one's life is a genuine expression of the person's autonomy.
Autonomy is not served if the person chooses to die out of incompetence, irrationality, mistake, fraud, or coercion. Accordingly, before we honor a patient's request for life-shortening action, whether a treatment withdrawal or an assisted suicide, we would want to confirm that the request is a valid exercise of self-determination.
To be sure, for any decision by a person, we would be concerned whether it reflects a genuine expression of autonomy. Nevertheles, because so much more is at stake with life-and-death decisions than routine, daily decisions, we have special concern about the validity of those decisions. This point was made by Ronald Dworkin in his discussion of the The Philosopher's Brief to the Supreme Court in the physician-assisted suicide cases. The brief argued in favor of a fundamental right to make momentous personal decisions, including decisions about the circumstances and timing of death. The brief also acknowledged that people may make their momentous personal decisions "impulsively or out of emotional depression, when their act does not reflect their enduring convictions." Given the irrevocability and far-reaching consequences of a decision to die, Dworkin wrote, the state may prevent people from ending their lives when the state believes it unlikely that the person is acting on the basis of an enduring conviction.
A need to ensure that a decision to shorten life is genuine does not necessarily preclude a regime in which all patients could choose death, whether by treatment withdrawal or suicide. Under such a regime, there would be some kind of mechanism to ensure that the person actually was competent, was thinking rationally, had a clear understanding of the situation, and was not acting in response to coercion. In large part, the requirement of informed consent is just that kind of mechanism, so we might say that a patient can choose to hasten death once a physician has confirmed that the patient is acting voluntarily after being fully informed about the decision (as we do with decisions to retuse life-sustaining treatment). We might also require thata second physician make the same confirmation, and we might encourage or require the participation of a mental health expert to ensure that the patient does not have a treatable depression (as Oregon does in its assisted suicide law).We would also want some assurances that the decision came out of an enduring conviction. To ensure that the choice to hasten death comes out of an enduring conviction, we might require a period of time over which patients must persist in their desire (again, as Oregon does in its assisted suicide law).
However, there are serious practical problems with efforts to ensure that choices of death-hastening action reflect genuine expressions of autonomy. We know that our methods for determining competence, assessing rationality and understanding, and detecting coercion are imperfect. As good as we might be in these activities, we are not perfect (and it is unlikely that we will ever be perfect). Given the imperfections of our methods for ascertaining the validity of individual decisions to shorten life, we are going to have a "false positive" rate. That is, in a number of cases, a physician will conclude that the patient is making a genuine expression of autonomy when the patient is in fact not doing so. The physician may wrongly conclude that the patient is competent, may wrongly believe that the patient's thinking is rational, or may fail to detect coercion by a family member. If the patient is allowed to die in such cases, the patient's autonomy will be frustrated rather than vindicated. In other words, we will have wrongful patient deaths from false positive determinations that a patient's decision to hasten death is genuine.
To protect against the risk of wrongrul deaths, we can turn to an important insight from Bayesian analysis." Bayesian analysis tells us that if we have imperfect methods of ascertainment, we can identify circumstances in which the false positive rate will be high and circumstances in which the false positive rate will be low. The false positive rate will be high when the "background" likelihood of the thing being measured is low. Conversely, the false positive rate will be low when the background likelihood is high. For example, suppose there is a medical test that is used to detect coronary artery disease. we limit the test to middle-age or older persons who have chest pain wnen they exercise, who eat a diet high in fat, and who have a family history of coronary artery disease (i.e., People who are at high risk for coronary artery disease), the false positive rate will be much lower than if we give the test to young people with no syptoms of chest pain, a diet low in rat, and no history of coronary artery disease (i.e., people who are at loW risk for coronary artery disease). Bayesian analysis tells us, then, that to lower the risk of wrongful deaths, we would want to permit patients to die only when there is a relatively high background likelihood that the patient's decision to hasten death is genuine. Indeed, given the grave consequences of a wrongtul decision to choose death, we would want an especially high background likelihood that the patient's decision is genuine. We might draw an analogy to decisions about guilt and innocence. Because of the great harm in finding an innocent person guilty, we employ many safeguards in criminal law to protect against wrongful convictions even though we thereby risk acquitting some guilty defendants. As is often said, it is better to let ten guilty people go tree than to convict one innocent person.
The categorical distinction between treatment withdrawal and suicide gives us the especially high background likelihood that we desire. When a patient refuses lite-sustaining treatment, we recognize that there are good reasons tora patient to do so. The patient may find the side effects of the treatment ntolerable, may feel that the benefits of continued life with serious and irreversible illness are outweighed by the burdens of such a life, or may have religious objections to the treatment. Given these reasons why patients in general may want to refuse treatment, we can safely allow right to refuse treatment as long as we are comfortable that the withdrawal is what the particular patient wants. The physician's conclusion that the patient genuinely is ready to die is likely to be a correct conclusion (i.e., a true positive result).
With suicide, on the other hand, we have good reason to suspect an insufficiently high likelihood that the person's choice reflects a genuine expression of autonomy. Temporary depression is a common reason for people to attempt, or seek assistance in, suicide. In most cases of suicide, we believe that the individual is acting irrationally, out of impaired mental competence or out of convictions that are not enduring. The young person who has had a serious setback in lite may have ditfhculty maintaining a long-term perspective. Given the insutfhcient likelihood of genuine wishes to die among suicidal persons, it is not safe to rely on individual assessments of the individual's desire to die. There is too high a risk that physcians or other evaluators will incorrectly conclude that a person's choice of suicide is genuine. Consequently, we have chosen to prohibit the practices of suicide and assisted suicide entirely. The categorical distinction between treatment withdrawal and suicide ensures that a person's choice of death is a genuine expression of the person's autonomy.
One might respond that I am using the wrong measure when I consider the validity of suicidal desires in the general population. Among terminally ill patients who request assisted suicide, the background likelihood that the request is genuine will be higher than for all persons who desire suicide. This is an important point, and I will respond to it below. Briefly, I will argue that differences between dying patients and other persons explain why the categorical distinction between treatment withdrawal and suicide needs refinement such that a right to assisted suicide should be permissible for terminally ill persons.
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Brilliant one