Deferring to the Mastery of Death: Hippocrates, Judge Gorsuch, and the Autonomy Fallacy

April 3, 2017
Ronald W. Pies, MD
Volume 34, Issue 4

There are no simple solutions to the plight of the terminally ill patient. With commentary by Cynthia Geppert, MD.

COMMENTARY

We must care for the dying, not make them dead.

Leon R. Kass, MD1

Lately, I’ve been rummaging through 3 impressive books and thinking a great deal about the contentious issue of . . . -well, let’s just call it “end-of-life care” for now. The first book is classicist and philosopher Ludwig Edelstein’s collection of essays, Ancient Medicine, with its scholarly analysis of the Hippocratic Oath.2 Next is physician-ethicist Steven H. Miles’s 2004 work, The Hippocratic Oath and the Ethics of Medicine,3 which challenges some of Edelstein’s conclusions. Finally-and particularly relevant to the moment-is Judge Neil Gorsuch’s book, The Future of Assisted Suicide and Euthanasia,4 which seems to have attracted little attention from medical ethicists, until Judge Gorsuch’s recent nomination to the US Supreme Court. This event gives us an opportunity to examine Judge Gorsuch’s scholarly writing-without in any way implying a political endorsement.

What do these 3 works have in common, and how do they touch on psychiatric practice? All deal with the thorny issues of suicide and assisted suicide, although from quite different perspectives.

Recently, my colleague, medical ethicist Dr. Cynthia Geppert, and I dealt with end-of-life issues in response to a thoughtful letter from a psychiatrist. I will not re-litigate all the arguments and counter-arguments in that exchange-including several impassioned comments by Psychiatric Times readers. Rather, I focus here on 3 related topics:

1. That part of the Hippocratic Oath that addresses the use of a “deadly drug”

2. The ethos of “Hippocratic medicine” and how it has shaped medical practice

3. The principle of respecting the patient’s autonomy, and how that principle has been misunderstood in the debate over end-of-life care. On this last topic, Judge Gorsuch has some important things to say.

The perils of terminology

I acknowledge that the term I will use in this essay, “physician-assisted suicide,” is both controversial and value-laden, albeit no more so than the alternative terms, “physician-assisted dying” and “assisted death.” I doubt we can discuss these matters using terminology that is completely “value-neutral.” Medical ethics is inherently concerned with values, and this is inevitably reflected in our language. Even if we used the most descriptively precise term, “Deliberate Prescription of a Lethal Drug,” we would still be making an implicit value judgment of sorts; ie, that we should avoid terms like “suicide” or “death” in our description of the act that now has legislative approval in 5 states. While acknowledging these complexities and controversies, I will use the term “physician-assisted suicide” in this essay, for reasons detailed in the Footnote at the end of this article. In brief, my view is that the terms “physician-assisted dying” and “aid in dying” function as comforting euphemisms that prevent legislators, physicians, and patients from seriously examining the moral implications of helping a patient commit suicide.

Finally, a few caveats: having witnessed the prolonged decline and death of several family members, I can see both sides of the physician-assisted suicide debate, and I do not presume that the problems surrounding “end-of-life care” admit simple solutions. While I am opposed to physician-assisted suicide, I recognize that many physicians-including several psychiatrists whom I respect-disagree with my stance. By the same token, I intend no condemnation or disparagement of terminally ill patients or their physicians-who, in good conscience, choose the path of physician-assisted suicide.

With these caveats in mind, let’s begin with the father of medicine, Hippocrates of Kos (ca. 450 - 380 BCE).

 

The Hippocratic Oath and its legacy

In the Oath traditionally attributed to Hippocrates or his followers, we find a clear prohibition, “I [the physician] will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect.” As ethicist Steven H. Miles, MD, has pointed out, it is unlikely that Hippocratic physicians anticipated anything resembling our current model of state-regulated physician- assisted suicide. Indeed, Miles argues that the clause regarding deadly drugs probably “. . . addresses the fear that physicians would collaborate with murder by poisoning.”3

Nevertheless, Miles acknowledges that “Medical ethicists customarily interpret ‘I will not give a drug that is deadly’ as an ancient medical disavowal of euthanasia or physician-assisted suicide.”3 Indeed, Ludwig Edelstein argues that it is reasonable to interpret the Oath as prohibiting physicians from “aiding or advising suicide,”2 even in cases of terminally ill patients. Note that this stricture does not merely prohibit actual “assistance” of a suicide. It also admonishes the physician to avoid even suggesting suicide as a course of action. But to whom, precisely, should one refrain from suggesting this? I interpret the Oath as saying, “Do not suggest suicide as a course of action either to patients, or their family members, or to colleagues who may seek your consultative advice.” After all, who else would seek such advice?

Hippocrates-who was probably influenced by the Pythagoreans’ opposition to suicide-was something of a revolutionary. As Edelstein has observed, “. . . in antiquity, it was not generally considered a violation of medical ethics to do what the Oath forbade.”2 Some medical contemporaries of Hippocrates probably did provide poisons to their dying patients to spare them protracted suffering. Hippocrates opposed this practice, although he did not believe that terminally ill patients should be exposed to unnecessary and futile medical treatment. As medical ethicist Leon Kass, MD, has noted:

The ancient Hippocratic physicians’ refusal to assist in suicide was not part of an aggressive, so-called “vitalist” approach to dying patients, or an unwillingness to accept mortality. On the contrary, understanding well the limits of the medical art, they refused to intervene aggressively when the patient was deemed incurable, and they regarded it as inappropriate to prolong the natural process of dying when death was unavoidable.5

In Miles’s memorable phrase, Hippocratic physicians, faced with a dying patient, “. . . would have recognized a duty to defer to the mastery of death.”3 The distinction, then, is between a physician’s aiding the suicide of a patient, on the one hand; and withholding or discontinuing futile medical interventions for terminally ill patients, on the other. The latter has sometimes been termed “removing impediments” to death.6 This crucial distinction has been a cornerstone of Hippocratic medicine for many centuries. As Yang and Curlin put it:

For centuries, physicians have worked to preserve the health of persons with terminal illness, respecting patients’ authority to refuse any treatment recommended. . . . To patients who are concerned that palliative measures might hasten their death, physicians promise to use only those medications and dosages proportionate to relieve the symptoms the patient experiences . . . [and] pledge never to intentionally hasten the patients’ death. All this physicians do without controversy and under ethical norms that have guided medicine for centuries. Yet with physician-assisted suicide, the physician is to disregard what is perhaps the most universal moral injunction-do not kill-and write a lethal prescription with the express intent of helping patients kill themselves.7

The critical distinction between removing impediments to death versus causing death via lethal medication has also been implicitly recognized by the US Supreme Court. Thus, in Cruzan v Director, Missouri Department of Health, the US Supreme Court established a mentally competent patient’s right to refuse medical treatment, even if that refusal would ultimately lead to the patient’s death. However, since Cruzan, the Supreme Court has not recognized any constitutional “right” to commit suicide-much less a right to physician-assisted suicide. And, in 2 cases-Washington v Glucksberg and Vacco v Quill-the Supreme Court made a critical distinction between allowing death versus hastening death.

Judge Gorsuch on the patient’s “autonomy”

Judge Neil Gorsuch-who earned a PhD in philosophy from Oxford University-argues that physician-assisted suicide is always wrong. His argument is founded not on a particular religious claim, but on “secular moral theory and the common law.”4 Gorsuch argues that “. . . all human beings are intrinsically valuable . . . [and] the intentional taking of human life by private persons is always wrong.” Gorsuch carves out an ethical middle ground, which he calls, “. . . a mean between two extremes;” that is, “. . . between the extreme. . . of those who would deny equal treatment to some persons’ lives and effectively declare them less than fully human; and the other extreme of those who would demand that the respirator never be pulled, or the feeding tube never withdrawn. . . .”4

Judge Gorsuch focuses an entire chapter on the concept of “autonomy”-essentially, the patient’s right to “self-determination” with regard to the dying process. Autonomy is indeed 1 of the 4 cornerstones of medical ethics, alongside beneficence, non-malfeasance, and justice. But the patient’s autonomy must always be weighed against these additional and sometimes competing principles. Furthermore, Gorsuch notes that societal endorsement of autonomy is not unconditional. For example, we don’t support a person’s autonomous wish to sell herself into slavery, or a policeman’s autonomous wish to accept a bribe.

As Gorsuch observes, autonomy is valuable only when it facilitates morally defensible goals. But, as Gorsuch observes, “. . . even the most rational act of suicide” can impose real harms; ie, “Spouses can be left behind, bereft of their companions; children may be orphaned and without support . . . [and] legalizing the practice of assisted suicide . . . may also create an incrementally greater risk that a certain number of persons might be killed without their consent, due to abuse, mistake, or coercion.”4

Notwithstanding such harms, Gorsuch observes that the past few decades have witnessed a rise in support for physician-assisted suicide, principally in the name of autonomy and self-determination. As Miles notes, the emphasis on personal autonomy has arisen, in part, as a protest against genuine medical abuses, such as the unjustified use of restraints or conducting research without the patient’s informed consent. As I have argued elsewhere, however, the myopic focus on the patient’s personal preferences has also coincided with the rise of the consumer movement, and its attendant vocabulary of consumer rights.8 Concomitantly, physicians have become increasingly relegated to the role of “providers,” whose principal function is to satisfy the wishes of the “service user” or “consumer.”

This privileging of autonomy-though not without its positive elements-largely ignores the ethical constraints that have defined Hippocratic medicine for centuries; ie, it ignores the deontological (duty-based) nature of medical ethics. By way of analogy: we would not tolerate a physician’s engaging in sex with a (mentally competent) patient under active treatment, on the theory that the patient “autonomously” consented to, or sought out, a sexual relationship with the physician. On the contrary, we would view the physician as having committed a serious boundary violation, based on the principle of non-malfeasance, as the American Medical Association’s Code of Medical Ethics makes clear. In short: the patient’s autonomy must sometimes stop at the border of the physician’s duty.

When the principle of autonomy is applied to the issue of physician-assisted suicide in isolation from the other principles of medical ethics, the foundation of Hippocratic medicine begins to crumble. As Dr. Geppert and I have argued, physician-assisted suicide involves 2 separate and independent moral judgments: first, that of the patient, who has decided that ending her life is justified; and second, that of the physician, who has decided that facilitating the patient’s self-inflicted death is ethically (and medically) justified. Thus, any analysis of the morality of physician-assisted suicide must take into consideration the moral framework of Hippocratic medicine, and not merely the autonomous wishes of the terminally ill patient. As bioethicist Lisa S. Lehmann, MD, PhD, has aptly commented: “Writing a prescription that allows [patients] to acquire a lethal dose of a medication with the explicit intention of ending their own life really goes beyond the accepted norms of what physicians do . . . .”9 Indeed, it is hard to imagine a more serious boundary violation than helping one’s patient take her own life-notwithstanding the patient’s express wish that one do so. As Yang and Curlin put it:

If physicians were solely service providers who accommodated the self-determining choices of patients, then physician-assisted suicide would be logical if assisted suicide were justified. But the heart of the medical profession is not providing services. Rather, the physician’s constitutive professional role is to attend to those who are sick and debilitated, seeking to preserve the measure of health that can be preserved, and to help them bear the pain and progressive loss of autonomy and bodily function that illness often brings.7

In my view, we must be guided by a deeper and more transcendent understanding of what it means to be a member of a healing profession. Renowned medical ethicist and physician Dr. Leon Kass writes:

In forswearing the giving of poison, the physician recognizes and restrains a godlike power he wields over patients, mindful that his drugs can both cure and kill. But in forswearing the giving of poison when asked for it, the Hippocratic physician rejects the view that the patient’s choice for death can make killing him-or assisting his suicide-right. For the physician, at least, human life in living bodies commands respect and reverence-by its very nature.5

 

Conclusion

There are no simple solutions to the plight of the terminally ill patient. Perhaps, in theory, there is a case for creating some legislative mechanism by which terminally ill patients can obtain lethal drugs, without including the physician or other health care professionals in the process. A mechanism of this sort was actually proposed by Lehmann and Prokopetz,10 who envisioned a “central state or federal mechanism” that would dispense and monitor use of lethal medication for terminally ill patients, without direct involvement of the physician. Such a strategy would present its own ethical and logistical problems but is worthy of discussion and debate.

In the meantime, physician-assisted suicide amounts to a corruption of the physician’s solemn obligation to safeguard the well-being of the patient-including the terminally ill patient. The presence of a fatal illness does not nullify the physician’s duty to respect the boundary of the patient’s bodily integrity-even as physicians and patients rightly forgo futile or heroic measures that merely prolong death. Nor is moral clarity brought by those who insist that ingesting a lethal, prescribed medication is not really committing suicide. On the contrary, such Orwellian linguistic contortions indicate only that we are trying to obfuscate the plain character of our actions (see Footnote).

To be sure, as psychiatrists, we recognize cognitive, psychodynamic, and contextual distinctions among various subtypes of suicide, just as sociologist Emile Durkheim did over a century ago. A person who impulsively kills himself in the midst of a major depressive episode differs in important respects from a terminally ill patient who-after careful consideration, preparation, and consultation-ingests a lethal drug prescribed by a physician. But let us be clear: both people commit suicide. To argue otherwise is to turn language and logic on their heads. In this respect, we find refreshing clarity from our colleagues in the nursing profession. As the American Nurses Association puts it in its 2013 statement:

Suicide is the act of taking one’s own life. In assisted suicide, the means to end a patient’s life is provided to the patient (ie, medication or a weapon) with knowledge of the patient’s intention. . . . Despite philosophical and legal arguments in favor of assisted suicide, it is the position of the ANA as specified in The Code that nurses’ participation in assisted suicide and euthanasia is strictly prohibited.11

This prohibition against giving deadly drugs was recognized by Hippocratic physicians more than 2 millennia ago and has been a cornerstone of medical ethics ever since. It is the physician’s role to provide emotional support to both patient and family, during the patient’s final days; and to do everything medically possible to alleviate the dying patient’s pain and suffering. This includes, but is not limited to, using palliative sedation, or supporting patients who voluntarily stop eating and drinking.

As Christopher White has pointedly observed,

The practice of physician-assisted suicide represents society’s failure to provide the love and adequate care to ensure that the suffering and dying are given the support they need. Shamefully, it also provides an easy excuse for us to avoid promoting better care options for those that are dying and it limits our ability to think critically about the dying process itself.12

Furthermore-however well-intentioned-physician-assisted suicide undermines the ethical foundation of Hippocratic medicine. As Kass eloquently summarizes the matter:

The legalization of physician-assisted suicide [perverts] the medical profession by transforming the healer of human beings into a technical dispenser of death. For over two millennia the medical ethic . . . has held as an inviolable rule, “Doctors must not kill.” The venerable Hippocratic Oath clearly rules out physician-assisted suicide. Without this taboo, medicine ceases to be a trustworthy and ethical profession. . . . 1

Footnote: In recent years, some physicians, ethicists, and medical organizations (including the American Academy of Hospice and Palliative Medicine) have advocated the use of the term “assisted dying” or “physician-assisted dying,” rather than physician-assisted suicide to describe the procedures now legislatively approved in Oregon, California, and 3 other states. Some clinicians have also advocated using the term “physician-assisted dying” for cases in which the patient has a demonstrably terminal illness versus physician-assisted suicide for cases in which a patient is given a lethal prescription for a non-terminal condition, such as a potentially treatable psychiatric disorder (eg, see letter from Dr. R. Krugley and the rejoinder from Dr. Geppert and me13).

 

Commentary on Deferring to the Mastery of Death >

 

Commentary on Deferring to the Mastery of Death

by Cynthia Geppert, MD, MA, MPH, MSBE, DPS, FAPM

I am grateful to Dr. Pies-my longtime mentor and friend-for the opportunity to provide some concluding remarks to his brave and trenchant essay “Deferring to the Mastery of Death” and to participate in the ongoing discussion regarding the ethics of physician-assisted suicide. The position we have articulated in our various commentaries in Psychiatric Times is, as the subtitle of this essay makes clear, grounded in the ethos of Hippocratic medicine. It is obvious that those who deem this ancient body of thought irrelevant or antiquated will perforce reject our premises. But they will be hard-pressed to refute the claim that Hippocratic medicine has constituted the irreducible core of medical ethics in the West for nearly 3 millennia.

This is not to argue that there has always been a universal consensus among physicians or ethicists regarding the medical morality of physician-assisted suicide, or any other major ethical issue. Nor was this the situation when the Hippocratic corpus was authored. We know that the Hippocratic school was only one of many medical-philosophical sects active in the Greco-Roman world. Scholars like Edelstein believe that the school of Hippocrates was a kind of reform movement that objected to many common practices of physicians of the time, including euthanasia. Indeed, Professor Owsei Temkin, the editor of Edelstein’s Ancient Medicine, comments, “There would be little sense in solemnly forswearing murder, cooperation in suicide . . . and euthanasia if doctors had never been known to participate in such deeds.”1

The reasons physicians engaged in these actions were manifold and resemble those in our own day: some sought money, others fame; some lacked the insight or courage to question and oppose the prevailing culture in which suicide and infanticide were widely accepted. Other physicians genuinely believed they were relieving suffering and freeing the soul from its burden. What motivated the Hippocratic physicians was qualitatively different. It was a spiritual belief in the sacredness of life and a reverence for Nature as the power animating that life. It is crucial to recognize that this is not synonymous with a religious faith, notwithstanding that many of the world’s great religious traditions also reject physician-assisted suicide. And, while it is probable that Pythagoras influenced the Hippocratic school, a 21st-century physician need not ascribe to esoteric Pythagorean mathematics to affirm the teaching on the sanctity of life, and the cardinal duty of physicians to safeguard it.

As Dr. Pies underscores, to embrace life as possessing high and great value is not to regard the continuation of life as a moral “absolute.” Hippocratic physicians fundamentally believed that it was Nature, not human beings, who controlled life and death. For precisely this reason, Hippocratic physicians declined to try and sustain life when it was clear that Nature, through sickness, had overmastered the body. But by the same token, they adamantly refused to dispatch the spirit by assisting a patient’s suicide.

This is a delicate balance and requires prudence and compassion, self-discipline and discernment-virtues not widely taught nor esteemed in technological medicine. The ancient Greeks distinguished episteme-roughly, knowledge or understanding of a matter-from techne, which denoted the art and skill involved in some action.2 Thus, knowledge of how one and the same medicinal can heal and kill is necessary, but not sufficient, for ethical medical practice. Every good medical educator knows that episteme may be corrupted without techne: the inseparable art of medicine, and the moral life that the Hippocratic Oath embodies.

Understandably, those who follow Hippocrates in his opposition to physician-assisted suicide are often said to value imminent physical life above all other considerations; and callously to ignore the pain of dying and the suffering of patients and families. Nothing could be further from the Hippocratic ethos. The physician is called upon to serve mankind precisely because the Hippocratic ethos attributes a transcendent spiritual dimension to the human being. And it is for the very same reason that the physician swears, “I will not give a fatal draught to anyone if I am asked, nor will I suggest any such thing.”3

References for Dr. Geppert's commentary:

1. Temkin O. Hippocrates in a World of Pagans and Christians. Baltimore, MD: Johns Hopkins University Press; 1991.

2. Rawlins FIG. Episteme and techne. Philos Phenomenol Res. 1950;10:389-397.

3. Lloyd GER. Hippocratic Writings. London: Penguin Books; 1978.

 

This article was originally posted on 3/8/2017 and has since been updated.

Disclosures:

Acknowledgments-All of the following colleagues contributed in some way to this essay: Drs. Leon Kass, Cynthia Geppert, James L. Knoll IV, Mark Komrad, Anne Hanson, Tony Yang, James Ellison; and Prof. Lars Johan Materstvedt. I am especially indebted to Farr Curlin, MD, for his helpful comments on my manuscript.

References:

1. Kass LR. Dehumanization Triumphant. 1996. http://legacy.bishopireton.org/FACULTY/GAVINW/HomepageGavin_files/Euthanasia/Dehumanization%20Triumphant%20Leon%20Kass.htm. Accessed February 24, 2017.

2. Temkin O, Temkin CL, eds. Ancient Medicine: Selected Papers of Ludwig Edelstein. Baltimore, MD: Johns Hopkins University Press; 1967.

3. Miles SH. The Hippocratic Oath and the Ethics of Medicine. New York: Oxford University Press; 2004.

4. Gorsuch NM. The Future of Assisted Suicide and Euthanasia. Princeton, NJ: Princeton University Press; 2006.

5. Kass LR. A dignified death and its enemies: why doctors must not kill. In: A Worthy Life: Finding Meaning in America. New York: Encounter Books (in press for 2017).

6. Telushkin JA. Code of Jewish Ethics. Vol. 2. New York: Bell Tower; 2009.

7. Yang T, Curlin FA. Why physicians should oppose assisted suicide. JAMA. 2016;315:247-248.

8. Pies R. Physician-assisted suicide and the rise of the consumer movement. Psychiatric Times. August 2016;32:40-43.

9. Conaboy C. Assisted dying, without the doctor? Ethicist says physicians can help without prescribing lethal dose. http://archive.boston.com/whitecoatnotes/2012/07/12/assisted-dying-without-the-doctor/oXqQYicMqaazlG8THxTlpN/story.html. July 2012. Accessed February 27, 2017.

10. Lehmann LS, Prokopetz JJ. Redefining physicians’ role in assisted dying. N Engl J Med. 2013; 368:486.

11. American Nurses Association. Position Statements: Euthanasia, Assisted Suicide, and Aid in Dying. April 24, 2013. http://www.nursingworld.org/euthanasiaanddying. Accessed February 27, 2017.

12. White C. Bishops of England and Wales refresh the art of dying well. Crux. February 17, 2017. https://cruxnow.com/commentary/2017/02/17/bishops-england-wales-refresh-art-dying-well/. Accessed February 27, 2017.

13. Krugley R. Not just a matter of semantics. Psychiatric Times. January 2017. http://www.psychiatrictimes.com/blogs/not-just-matter-semantics. Accessed February 27, 2017. ❒