DO I LOSE THE RIGHT-TO-DIE
WHEN I LOSE
CONSCIOUSNESS?
SYNOPSIS:
One hundred years from now,
the right-to-die will be firmly established in all societies.
And this right-to-die will not disappear
when the individual passes over from being a full person
—with
all capacities to make medical decisions—
to some lower state of limited decision-making capacity.
At present, this is one of the dilemmas
of how the right-to-die is exercised:
One of the common safeguards requires that the patient
be fully capable of making wise medical decisions
up to the very last moment
of life.
As we live longer and depend more
on life-support machinery at the end of life,
most of us will have serious limitations
to our thinking powers at the end of our lives.
But no matter how severe our limitations,
we should never lose the right-to-die.
OUTLINE:
1. HOW "YOU MUST BE CONSCIOUS AND CAPABLE"
CAUSES SOME PREMATURE DEATHS.
2. THE REASONING BEHIND THIS SAFEGUARD.
3. THE DEATH SHOULD BE RULED A MERCIFUL DEATH
IF THE PROXIES ARE FOLLOWING THE WISHES OF THE PATIENT.
4. WHEN THERE IS NO DOUBT ABOUT WHAT THE DYING PERSON
WANTED,
THEN SAFEGUARDS SHOULD NOT STAND IN THE WAY OF THE RIGHT-TO-DIE.
5. A PROBLEM IN THE NETHERLANDS:
DEATH "WITHOUT EXPLICIT REQUEST".
6. THE UNITED STATES ALREADY HAS A STRONG ROLE FOR
PROXIES.
7. THUS, I DO
NOT LOSE MY RIGHT-TO-DIE WHEN I LOSE
CONSCIOUSNESS.
Law and ethics now recognizes the right of competent
and capable persons
to choose the time and means of their own deaths.
This right can be actualized by increasing pain medication,
by terminal sedation, by withdrawing life-supports,
or by giving up eating and drinking.
All of these are recognized legal ways of ending one's own life.
(Another cyber-sermon discusses these four ways in detail:
"Four Legal
Means to Choose a Voluntary Death or a Merciful Death"
.)
The right to die should not be exercised lightly.
The more careful safeguards we fulfill,
the more fully we can show that it was a wise voluntary death
rather than a foolish irrational suicide.
(Here is another related cyber-sermon,
which explores some useful safeguards for separating
voluntary death from irrational suicide:
"Fifteen
Safeguards for Life-Ending Decisions"
.
And here is a cyber-sermon specifically separating
voluntary death from irrational suicide:
"Four
Differences between Irrational Suicide and Voluntary Death"
.)
One of the most common safeguards suggested by
advocates of the right-to-die
is to require the patient to be awake and capable of making
decisions
at the final moment of life.
Those who advocate this must-be-conscious
safeguard
believe this is the best way to make certain
that the decision for death was free and autonomous.
For example, some right-to-die laws require the
patient
to physically take the pills
or push the button
that is going to cause death to occur.
Under such provisions, the person who is
no longer capable of making a life-ending decisions
or no longer capable of doing the necessary action loses the
right-to-die.
Is this a wise and necessary safeguard?
1. HOW "YOU MUST BE CONSCIOUS AND
CAPABLE"
CAUSES SOME PREMATURE DEATHS.
All of us know that as we approach death from
natural causes,
we often lose our abilities to make wise decisions
and to carry them forward—long
before we actually die.
If we happen to be victims of Alzheimer's disease,
we can lose our capacities to make good decisions
literally years before we will die of natural causes.
Does it seem wise public policy to deprive Alzheimer's victims of the
right-to-die
merely because they have this particular disease rather than cancer,
for example?
Some advocates of the right-to-die have killed
themselves prematurely
precisely because they feared losing the capacity to choose their own
deaths.
They knew they were on the downward path.
But they did not know how many more meaningful days of life they would
have had.
In order not to lose the
right-to-die, they decided to take the pills now
rather than waiting until some time when it might be too late
to make the decision and physically to do the action themselves.
The obvious way to prevent such premature deaths
is to allow proxies for the patient to carry forward the plan
if and when the patient can no longer express an opinion or take a
life-ending action.
A well-constructed advance directive
should be sufficient to prove that the author wanted the right-to-die
when certain conditions of decline were realized
—whether
or not the patient was still conscious and capable at the
last moment.
This is what I have said in my own advance
directive:
If and when I can no longer take my own life-ending decisions,
my proxies are fully authorized to make those choices for me.
(See especially Question 6 in the link above.)
They will follow my medical
ethics as explained in my advance directive.
And when I am no longer capable of choosing,
they have all the same powers I had
while I was still fully able to conduct my own life.
There could be some problems in such a provision.
But these problems should be resolved before the drawer of the advance
directive
becomes unable to participate in further discussions
concerning just when and how his or her life should come to an end.
When such writings are in order,
when there is no doubt that the patient made these wishes known
when he or she was still fully capable of making decisions,
then if and when the patient loses consciousness,
the right-to-die is not lost.
The right to made life-ending decisions merely shifts
to the duly-authorized proxies for the patient.
In short, when I lose consciousness (either temporarily or permanently),
I do not lose my right-to-die
if I have fully and clearly claimed this right in my advance directive.
It is quite ironic that some parts of the
right-to-die movement
have insisted on this safeguard:
The you-must-be-conscious safeguard
forces some people to rush into premature death
rather than risk losing the right-to-die at a later time
when they might have lost the ability to make their own medical
decisions,
including any decisions that will result in the end of their lives.
Advocates of the right-to-die should never find themselves in the
position
of forcing capable people to choose a premature death
because of they fear losing the right-to-die
if they become incompetent or unconscious
before they exercise their right-to-die.
2. THE REASONING BEHIND THIS SAFEGUARD.
Some advocates of the right-to-die take this
safeguard
—that
you must be conscious and capable to make a life-ending decision—
as if it were a regulation handed down by God.
But actually this safeguard was created by people who were rightly
concerned
that some individuals might put
to death by others
who did not have their best interests at heart.
Thus, in order to protect the autonomy on the
individual,
they require that the choice to end one's life
be affirmed several times before it can actually take place.
This is a wise safeguard in that it can prevent many irrational suicides
by people who have only a temporary
urge to kill themselves,
perhaps based on a misapprehension of some medical facts
or because they have a distorted perspective on their future
possibilities.
However, a careful set of safeguards could protect
against irrational suicide
and against people being manipulated or coerced into making life-ending
decisions
by simply asking a number of independent people to approve of the
decision.
If several people are persuaded by the facts that death is the best
choice,
then it should be carried forward
without regard the mental status of the patient at the end of his or
her life.
Several such safeguards are presented in another
cyber-sermon:
"Fifteen Safeguards for Life-Ending Decisions"
http://www.tc.umn.edu/~parkx032/CY-10SG.html
And this set of safeguards makes sure that the life-ending decision is
wise
without requiring the patient
to reaffirm the choice up to the very last moment.
When the patient becomes unconscious
or otherwise incapable of making a life-ending decision,
then the proxies are empowered to follow the medical ethics of the
patient
and make the life-ending decision that he or she would have made
if he or she were still fully capable to carrying out the plans
written down in his or her advance directive for medical care.
3. THE DEATH SHOULD BE RULED A MERCIFUL
DEATH
IF THE PROXIES ARE FOLLOWING THE WISHES OF THE PATIENT.
Sometimes well-meaning relatives decide on their own
to end the life of someone they love who has suffered enough.
This is commonly called a "mercy killing".
And it should remain a crime
under any revision of our laws concerning causing premature death.
In brief, a mercy killing is harmful,
irrational, capricious, &
regrettable.
However, in contrast to mercy killings, we need a
new concept,
which might be called "merciful death".
A merciful death is carried out by someone other than the patient
because that patient has already lost the power to end his or her
life.
But if the patient were still able to choose death,
it would be called a voluntary death, not an irrational
suicide.
In short a merciful death is helpful,
rational, well-planned, &
admirable.
(This distinction is worked out in full details
in another cyber-sermon:
"Four
Differences between Mercy Killing and Merciful Death"
.)
When all the proper and relevant safeguards are
fulfilled,
then the proxies can carry forward the plans laid out in advance by the
patient
for achieving a timely death—not
too soon and not too late.
And, of course, if it is really the death chosen by the patient,
then no crime has been committed.
Those who help someone they love to die have done no harm.
As this new concept of merciful death comes into
fuller use,
doctors will know when to put that term on the death certificate.
And the family will admire the foresight of the patient
to plan a meaningful death
rather than merely waiting for natural death to occur.
The patient has laid out in advance the conditions under which
death now is to be preferred to death later.
If he or she were still conscious and capable,
he or she would take the necessary actions to achieve a voluntary death.
I apply this to my own death:
If I lose consciousness before I die
and if I will never be capable to making a life-ending decision,
then my proxies shall consult my advance directive
to see if the conditions for choosing death have been fulfilled.
If so, they shall carry forward my plans for death
—just
as I would have carried them forward myself if I were still
able.
4. WHEN THERE IS NO DOUBT ABOUT WHAT THE
DYING PERSON WANTED,
THEN SAFEGUARDS SHOULD NOT STAND IN THE WAY OF THE RIGHT-TO-DIE.
Sometimes advocates of the right-to-die do not
realize
that the requirement that the dying person must be conscious and
capable
is really just one of
several
safeguards to prevent premature death.
And once they realize the reasons behind this safeguard,
they will rationally be able to
make exceptions
when the wishes of the patient has been clearly spelled out in writing
in advance.
When the patient has lost the personal
power to achieve death,
then the proxies are legally empowered to act for the patient.
The right-to-die does not
disappear with consciousness.
This is parallel to putting one's plans for assets
into writing before death.
An estate will does
not become invalid
when the person who created that will becomes unconscious
or otherwise loses the capacity to make further financial decisions.
On the contrary, the precise reason for putting an estate will into
writing
is to make sure that that wishes of the drawer are carried out after
death.
And if there is a long
period of incapacity before death,
the executor of the estate still has the power
to carry out the plans as specified in writing.
Sometimes this is done by establishing a guardian or conservator,
who will handle the financial affairs of someone
who has lost the ability to do such things for himself or herself.
A well-constructed advance directive
gives similar powers to the proxies
so that they can make all necessary medical decisions for the
patient
during whatever period of time the patient cannot make medical
decisions.
In the case of Alzheimer's disease,
this period of proxies acting for the patient can be many years.
And if explicitly authorized in the advance directive,
the proxies also have the power to make life-ending decisions for the
patient.
5. A PROBLEM IN THE NETHERLANDS:
DEATH " WITHOUT EXPLICIT REQUEST".
Holland is one of the places on the planet Earth
where voluntary death has now become a legal and common practice.
Thousands of people take advantage of this right-to-die every year.
On average, they choose to die about one month
before they would have died of natural causes.
One of the safeguards in the right-to-die law of the
Netherlands
is that the patient must be
conscious and capable up to the
very last moment.
The patient must be willing and able to give informed consent
for the doctor to give the death pill or the lethal injection.
But investigations have discovered
that there is a small percentage of Dutch patients
who have been put to death "without explicit request".
This means that the doctor helped them to die
even tho they did not
or could not consent
at the last moment of their
lives.
One report found 1,000 such cases.
However, what is not always reported along with this shocking number
is that most of these patients had previously requested
assistance in dying.
And they had just waited too
long to make the final request.
Some of them were unconscious
when the doctor gave them an injection to end their lives.
This was a violation of the Dutch law,
but no doctors have been prosecuted for this breach of law
—probably
because everyone can see that the right-to-die should not
end
when the patient loses the power to participate in the life-ending
decision.
The Dutch law does not give any explicit role for proxies to
decide for the patient.
So the doctor must
carry out the life-ending decision on his own
authority.
If such a case ever were to come to court,
then the doctor would just bring forth all the documentary evidence
and the recollections of all the people who were present
to prove that death at this time was what the patient would have
chosen.
The Dutch law needs to be changed so that this
common-sense extension
of the right-to-die is made explicit in the law and safeguards.
From the perspective of how American medicine is practiced,
it would be reasonable to include a new provision for
proxy-decision-making:
When the patient can no longer made medical decisions,
then that power passes to another individual or group of persons
who were selected by the patient
while the patient was still able to make all medical decisions.
6. THE UNITED STATES ALREADY HAS A STRONG
ROLE FOR PROXIES.
It will not be such a radical revision for the
United States
to extend the power of proxies to life-and-death decisions.
Most states already have laws empowering proxies to take over
medical-decision-making
when the patient no longer has the ability to
make medical decisions.
This power of the proxy is usually found in the laws
concerning advance directives.
But sometimes it is a separate law providing for durable power of
attorney for health care.
This simply means that the named proxy or proxies have the power
to made medical decisions for the patient who appointed them
when the patient becomes incompetent or incapable of making medical
decisions.
Some states have limited the power of proxies when
it comes to specific decisions,
such as the withdrawal of food and water.
These states sometimes say that withdrawing such means of sustenance
cannot be chosen unless the patient has specifically given permission
for the proxies to withdraw food and water
as a means of bringing the patient's life to an end.
Even in states that have no such provision in their law,
it is always a good idea to make such permission explicit in one's
advance directive.
Then there will be no ambiguity in anyone's mind
concerning whether or not this power was given to the proxies.
While we are still competent and capable ourselves,
we always do have the authority to give up eating and drinking,
with the clear recognition that this decision will bring our lives to
an end.
And if we live in one of the states with strong proxy laws
and if we have appointed strong proxies,
we will in fact be able to have our end-of-life decisions carried
forward
as we have prescribed in our advance directives.
This is what it means for a state to have a strong
proxy law:
The state law authorizes the appointment of a person or persons
who will have as much power and authority to decide for the patient
as the patient has for himself or herself while fully able to make
medical decisions.
And when we write our advance directives,
we should explicitly state that we do intend to give
all these decision-making powers to our named proxies.
You might include an expression such as the following:
"I empower and authorize my proxies
to exercise all powers to make medical decisions for me
if and when I am no longer able to make my own medical decisions
or when I am unable to express my medical choices.
If I could make such a decision while I was still fully competent and
capable,
then that full decision-making-power will rest with my proxies
if and when I cannot make my own medical decisions.
This authority explicitly extends to the right to make all life-ending
decisions for me,
including the withdrawal or withholding of food and water."
In addition to making the completeness of your
transfer of authority explicit,
you will need to appoint some individual or group of individuals
who will assert this right even possibly against the medical advice
they receive.
Because you yourself always have the right to refuse any treatment,
so your proxies will also have the full right to refuse any medical
treatment,
even if that refusal will inevitably lead to your death.
This will prevent the problem called in Holland
"without explicit request".
When you can no longer make your own life-ending decisions,
your proxies will step in and make them for your
—if
you have explicitly given them this power in our advance directive
and if your state or country allows proxies to have this much power.
7. THUS, I DO NOT LOSE MY RIGHT-TO-DIE
WHEN
I LOSE CONSCIOUSNESS.
If I have a careful statement of my right-to-die in
my advance directive
and if I have appointed proxies who will carry my wishes forward,
then I do not lose the right-to-die merely because I can no longer give
informed consent.
This will eliminate any temptation to kill myself
prematurely
because I worry that I might lose my right-to-die at some later time.
I will know that I can allow myself to survive for more weeks and months
because I have the assurance that a wise life-ending decision
can still be taken by my proxies when the appropriate time comes.
Created November 9, 2006; revised
11-14-2006; 1-24-2008
AUTHOR:
James Park is an independent existential philosopher
and advocate of the right-to-die.
His own advance directive gives his Medical Care Decisions Committee
explicit powers to make all the medical decisions
he himself could make while he is still capable.
His proxies' powers come into effect
whenever he loses the power to make wise medical decisions.
His advance directive is available on the Internet:
http://www.tc.umn.edu/~parkx032/JP-LW.html
Much more information about James Park will be found
on his
website:
An Existential
Philosopher's Museum
:
http://www.tc.umn.edu/~parkx032/
Here are a few related cyber-sermons also by James
Park:
When Is A
Person?
Pre-Persons & Former Persons
.
Advance
Directives for Medical Care:
24 Important Questions to Ask
.
Fifteen
Safeguards
for Life-Ending Decisions
.
Four
Differences between Irrational Suicide and Voluntary Death
.
Four
Differences between Mercy Killing and Merciful Death .
Four Legal
Means to Choose a Voluntary Death or a Merciful Death .
Do I Lose the
Right-to-Die When I Lose Consciousness?
Voluntary Death
by Dehydration
.
Depressed?
Don't Kill
Yourself! .
Further Reading:
Best
Books on Voluntary Death
Best
Books on Preparing for Death
Books
on Terminal Care
Books on Helping People to Die
Best Books on
the Right-to-Die
Books Opposing
the Right-to-Die
Go to the Right to Die
Portal.
Go to the Book
Review Index
to discover more than 400 book reviews
organized into more than 40 bibliographies.
Return to the DEATH
page.
Go to the Medical Ethics
index page.
Go to other
cyber-sermons by James Park,
organized into 9 subject-areas.
Return to the beginning of this
website:
An Existential
Philosopher's
Museum
.