1.5. Objetivos de la investigación
1.5.2. Objetivos específicos
Those opposing a law on assisted death often argue that adequate palliative care can
alleviate a patient’s desire for assisted death.220 Studies in the UK show that suicidal
patients who have expressed a strong desire for death have been known to subsequently
change their views once given high-quality palliative care.221This is demonstrated by
Price et al’s 2010 study which investigated the desire for a hastened death in patients receiving palliative care. The researchers noted that such a desire tends to fluctuate over time. The study found that a number of remedies available through palliative care services, such as symptom control, treating depression and improving social support, may contribute to reducing the desire for a hastened death in people with progressive
214
Somerville (n29) 5-6.
215
I Illich, Limits to Medicine. Medical Nemesis: The Expropriation of Health (Penguin 1976) 210.
216
R Kastenbaum, ‘Psychological death’ in L Pearson (ed), Dying and Death: Current issues in the treatment of the
dying person. (Case Western Reserve University Press 1969).
217
Seymour (n211) 692.
218
S Timmermans, ‘Resuscitation technology in the emergency department: towards a dignified death’ (1998)20(2) Soc Health Illness 144,148.
219
When a patient begins hospice care, the focus of treatment is on palliative care: V Cox, ‘The Hospice Concept: Dying as a Part of Living’ (1988) Nursing Homes and Senior Citizen Care 29,29-30. ‘[H]ospice is known as a philosophy of care; a medically oriented team approach to managing the pain and symptoms for individuals with a limited life expectancy.’: WL Wheeler, ‘Hospice Philosophy: An Alternative to Assisted Suicide’ (1993)20 Ohio N.U.L.Rev 755,755.
220
ME Chopko & MF Moses, ‘Assisted Suicide: Still a Wonderful Life?’ (1995)70 Notre Dame Law.Rev. 519,531- 32.
221
M Hotopf et al, ‘Assisted suicide: why psychiatrists should engage in the debate (Editorial)’ (2011)198 Br J Psychiatry 83.
incurable illnesses.222 In Seale’s 2007-2008 survey on end-of-life care, 27% of doctors found their patients’ desire for a hastened death to have reduced over time, with 21%
thinking that this was in response to the care provided.223 Further commentary on the
ability to change one’s desire for death can be seen in Hotopf et al’s 2010 editorial comments on the role of psychiatrists in assisted suicides. They note that psychiatrists who see patients over long periods of time often find that their patients’ distress and
suicidality fluctuate.224 Additionally, there is also the potential for patients to adapt to
their terminal illness. As demonstrated in a 2005 study on depression and anxiety in women breast cancer sufferers, the researchers found that distress at the early stages of
cancer often remitted as patients adapted to their illness.225 This is often referred to as
the ‘response shift’ phenomenon, and will be discussed further in Chapter Four.226
Foreign studies such as Chochinov et al’s 1995 American study also found that the desire for death among the terminally ill is inconsistent and changes over time. These researchers also observed that whilst a desire for death is strongly influenced by pain
and depression, these are potentially reversible.227
As observed by Seale and Addington-Hall, a concern often raised by those campaigning for or against the legalisation of assisted death is that not all terminally ill patients have
access to effective palliative care or hospices.228 The validity of this concern was
established by the 2011 Palliative Care Funding Review. The Review found that of approximately 470,000 people who die in England annually, an estimated 355,000 require some form of end-of-life care, with 92,000 having unmet specialist palliative
needs.229 This is supported by the 2005 report of the charity, Help the Aged, which
stated that older persons (defined as over-75s) in England and Wales did not all have equal access to palliative care. Help the Aged found that older people in care homes were far less likely than others to access specialist palliative care, or be admitted to a
222
Price (ch1 n45).
223
C Seale, ‘Hastening death in end-of-life care: a survey of doctors’ (2009)69(11) Soc Sci Med 1659.
224
Hotopf (n221).
225
C Burgess et al, ‘Depression and anxiety in women with early breast cancer: five year observational cohort study’ (2005)330 BMJ 702.
226
See section 4.4.1 under An objective professional evaluation.
227
Chochinov (ch1 n79) 1189-90.
228
Seale and Addington-Hall (n32).
229
T Hughes-Hallet et al, Palliative Care Funding Review, Funding the Right Care and Support for Everyone:
Creating a fair and transparent funding system; the final report of the Palliative Care Funding Review: an independent review for the Secretary of State for Health (July 2011) 11.
hospice.230 Higginson et al observe that overall, there is a general trend for the number of hospice deaths among older people to decrease as their age increases, while the numbers
dying in care homes show a parallel increase.231 It is argued that this lack of access to
palliative care could make older people vulnerable under any law which permits assisted death. This concern is further exacerbated by the government’s announcement in July 2013 to phase out the Liverpool Care Pathway for the Dying Patient (‘LCP’), a UK care
pathway, due to the abuse and misuse of its procedures by staff.232 The LCP was
designed to offer a peaceful death for elderly patients who are nearing the end of their
lives.233 It was developed to help doctors and nurses provide quality end-of-life care, and
covers palliative care options for patients in the final days or hours of life.234 Its
end-of-life care includes the withdrawal or withholding of medication and food from
incompetent patients.235
It is argued that although physicians may do everything medically possible to minimise
the distress and discomfort of a terminally ill patient through palliative care,236 terminal
illness may involve intolerable pain and suffering that is beyond the scope of optimal palliative care. This possibility was challenged by the RCS in its written evidence to the 2010 Commission on Assisted Dying, when it stated that ‘It is unusual to encounter a patient whose symptoms are truly unmanageable and greater availability of palliative
care expertise would help this further’.237 As Miller forcefully argued in 1992, although
effective palliative care can reduce the demand for assisted death, it will not eliminate it
completely.238 This was also reflected in the message by the National Council for
230 Help the Aged, Dying in Older Age: reflections and experiences from an older person’s perspective (T Owen ed,
May 2005).
231
IJ Higginson et al, ‘Where do cancer patients die? Ten-year trends in the place of death of cancer patients in
England’ (1998)12 Palliative Medicine 353.
232
The government review and its reports can be located at: Independent Review of the Liverpool Care Pathway,
More Care Less Pathway: A Review of the Liverpool Care Pathway (15 July 2013) <www.gov.uk/government/
publications/review-of-liverpool-care-pathway-for-dying-patients> accessed 30 August 2013. The LCP was originally developed by the Royal Liverpool University Hospital and the Marie Curie Hospice in Liverpool for the care of terminally ill cancer patients. The Marie Curie Palliative Care Institute Liverpool has overseen the
development and dissemination of the LCP since then, and the LCP aims to ensure that uniformly good care is given to everyone, wherever they are – in hospitals, nursing homes, or in their own homes – when it is thought that they will die within hours or within two or three days.
233
See H Saul, ‘Liverpool Care Pathway: Controversial “end-of-life” regime for dying patients “to be replaced”’ The
Independent (London,13 July 2013).
234
See the Marie Curie Palliative Care Institute, Liverpool Care Pathway for the Dying Patient (LCP):Supporting
care in the last hours or days of life: LCP Model Pathway UK Core Documentation (October 2012).
235
Saul (n233).
236
ED Pellegrino, ‘Compassion Needs Reason Too’ (1993)270 JAMA 874,874.
237
Report of the Commission on Assisted Dying (ch1 n51) 79.
238
Hospice and Specialist Palliative Care Services in 1997: ‘universal availability of excellent palliative care services will not and can never eliminate all such rational and
persistent requests for [assisted death].’239 Studies in the UK have also demonstrated that
palliative care is not able to provide total relief for some patients. For example, a working group of the RCP in 2000 found that opioids could produce good pain control
in only 80% of patients.240 This was supported by further studies between 2000 and 2002
that found that pain control for some patients will remain inadequate even with pain
control measures.241 Inadequate pain control was also a concern under Oregon’s DDA.
In its 2012 Annual Report, the OPHD found that 90.4% of terminally patients who died
under the DDA between 1998 and 2012 received hospice care,but 23.5% of these
patients had concerns about inadequate pain control.242
Singer and Siegler express concern that the legalisation of physician-assisted death would remove incentives for the medical profession to improve pain control, and
provide adequate palliative care.243 A lack of expertise in palliative care, and thus its
inadequacy, was raised by Pollard in 2001 when he argued that, ‘Because virtually every survey of palliative care [in the UK] has revealed serious shortfalls in training and
practice, it could never be assumed that care had always been adequate.’244 Those
against the legalisation of assisted death in England and Wales also argue that such a
law would detract from the growing need for palliative care services.245 To the contrary,
as will be observed in Chapter Five, the physician-assisted suicide law in Oregon has had quite the opposite effect. The law has led to improved and better palliative care for patients requesting physician-assisted suicide. Ganzini et al’s survey on physicians’ attitudes in Oregon found that 30% of physicians increased their number of referrals to
239
The National Council for Palliative Care (NCPC) is the umbrella charity for all those involved in palliative, end of life and hospice care in England, Wales and Northern Ireland. See also: International Association for Hospice & Palliative Care, ‘Statements on Euthanasia and Physician Assisted Suicide’ <www.hospicecare.com/Ethics/ statements.htm> accessed 18 June 2013.
240
‘Principles of pain control in palliative care for adults. Guidance prepared by a Working Group of the Ethical Issues in Medicine Committee of the Royal College of Physicians’, (2000)34(4) Journal of the Royal College of Physicians of London 350.
241 J Davies and A McVicar, ‘Issues in effective pain control. From assessment to management (review)’ (2000)6(4)
Int’l J Palliative Nursing 162; I Gilron et al, ‘Patients’ attitudes and prior treatments in neuropathic pain: a pilot study’ (2002)7(4) Pain Research and Management 199.
242
OPHD, Oregon’s Death with Dignity Act — 2012 (15th Annual Report).
243
PA Singer & M Siegler, ‘Sounding Board: Euthanasia - A Critique’ (1990)322 N Engl J Med 1881,1883.
244
BJ Pollard, ‘Can Euthanasia Be Safely Legalized?’ (2001)15 Palliative Medicine 61,63.
245
hospice care, and 76% worked to increase their knowledge of pain medication.246 Hospice nurses and social workers in Oregon have also noticed an increase in physicians’ knowledge of palliative care, and in their willingness to refer patients to
hospice care.247
In this thesis the view is taken that a law on physician-assisted suicide will not meet the
needs of society if it operates against a backdrop of inadequate palliative care.248 Under
such circumstances, such a law may be viewed as a backlash against a medical
profession which fails to address the needs of the terminally ill.249 As Pollard rationally
asserts, ‘Even though good palliative care cannot always relieve all distressing symptoms, it would surely be wrong to propose [assisted death] for a terminally ill
patient who had not received adequate medical and nursing care.’250 It is submitted that
with the legalisation of physician-assisted suicide, a contemporaneous development of palliative care should also be promoted in England and Wales. Rather than being considered as an alternative to assisted death, palliative care should be explored and
exhausted before resorting to physician-assisted suicide as an option of last resort.251 As
with the assisted death laws of jurisdictions such as Belgium, Oregon (US) and the Northern Territory (Australia) (discussed in Chapter Five), the legalisation of physician- assisted suicide in England and Wales should require that palliative care options be explored (and possibly be exhausted) as a prerequisite to assisted suicide.
It is submitted that a physician’s powers should not be limited to curing and treating, but should also include alleviating the suffering of those terminally ill patients who are
beyond the reach of effective palliative care through physician-assisted suicide.252 It is
inhumane to force a terminally ill patient to continue a life of unbearable pain and
suffering.253 Since doctors are already legally permitted to withhold or withdraw life-
246
L Ganzini et al, ‘Oregon Physicians’ Attitudes About and Experiences with End‐of‐Life Care Since Passage of the Oregon Death with Dignity Act’ (2001)285 JAMA 2363,2365.
247
ER Goy et al, ‘Oregon Hospice Nurses and Social Workers’ Assessment of Physician Progress in Palliative Care Over the Past 5 Years’ (2003)1 Palliative& Supportive Care 215,217.
248
Keown (ch2 n389).
249 DR Schanker, ‘Of Suicide Machines, Euthanasia Legislation, and the Health Care Crisis’ (1993) 68(3) Indiana LJ
977, 1009.
250
Pollard (n244) 63.
251
FG Miller & H Brody, ‘Professional Integrity and Physician-Assisted Suicide’ (1995)25(3) Hastings Cent.Rep 8.
252 M Gunderson and D Mayo, ‘Restricting Physician-Assisted Death to the Terminally Ill’ (2000)30(6) Hastings
Cent.Rep 17,18.
253
sustaining treatment from patients and allow them to die slowly,254 it would be more compassionate and humane to assist a patient to end their life quickly by taking a lethal
dose of medication.255
Those opposing the legalisation of assisted death believe that most terminally ill
patients can experience a dignified death with palliative care.256 Some commentators
argue that the basic tenets of palliative care ‘relieving symptoms, enhancing control,
and preserving dignity’257 constitute an overall goal of enabling patients to die with
dignity.258 Significantly, the BMA is also of the view that the continuing improvement in
palliative care allows patients to die with dignity.259 The issue of dying with dignity will
be discussed in the following section.