Abstract
The article from Ho et al. in this issue, The Seismic Shift in End-of-Life Care: Palliative Care Challenges in the Era of Medical Assistance in Dying (MAiD), describes the palliative care challenges in the era of MAiD in Canada. They interviewed health care professionals working in palliative care and describe the cultural changes related to the introduction of MAiD in Canada three years ago and the distress and conflicts this has caused in the provision of palliative care.
This kind of research looking at the consequences of changed ethical and societal standards is very important. Many other countries are discussing legal issues around assisted suicide or euthanasia, and the subsequent changes to societal, cultural, and ethical norms are often neglected in this discussion. As an example, we can provide a brief summary of the recent development in Germany.
Assisted suicide was no criminal offence in the German penal code, even though physicians were not allowed to assist with suicide from their professional code. This changed in 2015, when the German parliament passed a bill prohibiting assistance with suicide in case these actions are intended as a recurring pursuit. This was meant to stop right-to-die organizations offering assisted suicide for their members, garnering a lot of media attention and raising public awareness. Therefore, the new legislation also stated that those who are either a relative or close to the person committing suicide are exempt from punishment if their actions are not intended as a recurring pursuit. However, the term recurring pursuit, or “business-like” and, respectively, “as a professionalized service” in a rather literal translation of the bill, are not well defined in the German jurisdiction, and thus caused confusion. Some palliative care professionals were even afraid to talk with their patients about the wish for hastened death, as they feared such conversations could be construed as assisting with suicide.
Even though there was no prosecution in the years since the bill had been passed, several constitutional complaints were brought to the German Constitutional Court. The court ruled in February 2020 that the bill was unconstitutional. The judges explained that there is not only a constitutional right to suicide, but also to seek and, if offered, utilize assistance from third parties to this end. Nobody can be obliged to assist with suicide, but if there are individuals or organizations offering such help, they must not be obstructed.
The court went so far in defining the right to assisted suicide, “that the right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person's existence. Restricting the scope of protection to specific causes or motives would essentially amount to a substantive evaluation, and thereby predetermination, of the motives of the person seeking to end their own life, which is alien to the [German] Basic Law's notion of freedom.” However, the judges agreed that the legislators have a right to define safety criteria, for example, to ensure the voluntariness, sustainability, and sincerity of the request for assisted suicide.
Proponents of assisted suicide in Germany have rejoiced over this ruling, confirming the high value of patient autonomy. The organizations for assisted dying have restarted their work. The German Ministry of Health has collected suggestions for safety criteria from a range of experts and associations, but neither government nor legislators have yet produced any draft for such regulations. The court ruling does provide some ethical dilemma. How can there be an evaluation of sincerity, if the motivation may not be challenged? What waiting times are appropriate to ensure sustainability, if assisted suicide is not restricted to severe illnesses with restricted life expectancy? How much waiting time, for example, is appropriate for someone with suicidal intention after the death of a significant other? Surely a few weeks would not be sufficient for these cases?
However, what we found most challenging is the cultural change that is accompanying the recent development. In Germany, similar to many other Western European or North American countries, the concept of autonomy has gained an absolute priority in the public opinion. This concept leaves little place for other considerations. On the legal level, the court ruling has confirmed the constitutional right to end one's own life. However, if enacted, this right may deeply afflict others who are close to this person. On a societal level, this may lead to a shift toward a societal rectification of individual personal ideas of life's worthlessness. We are asked not only to respect and accept a person's wish for suicide, but are also asked to accept his underlying value judgment about his life not being worth living, and this may profoundly change ethical norms in a society. Potential societal consequences should not be used as an argument against legal rights, but they must be addressed on a societal discourse level.
Recently, a theatre play presented a 76-year-old man requesting assisted suicide in the form of access to lethal medication. The play was construed as a public hearing of an ethics council, and the audience was asked to vote on his request at the end of the play. His reason for the request was that his wife had died three years ago; he was lonely and sad. Life, he said, had for him no more to offer. The author, Ferdinand von Schirach, has drafted this play explicitly to provide some form of public poll, and inform legislators and decision makers about the public preferences. However, the reasoning of most parties in this hearing were rather skewed, mixing up different ethical categories in their argumentation, and so it came as no surprise that 70% of the audience voted for him to receive the suicide medication when the play was presented on German television some weeks in November 2020.
The development of palliative care initially benefited from a bill on further development of hospice and palliative care that was—not unexpectedly—passed on the day before the new bill on assisted suicide in 2015. However, since 2015 we have had the same challenging development as described by Ho et al. for Canada in our German palliative care association, with a heated controversial discussion about whether or not assisted suicide should be accepted. The conflict between the parties intensified when the bill on assisted suicide was depleted. This year's palliative care congress tried to offer a platform for controversial discussions. In this study, as well as in the public discussion, those in favor of the right to assisted suicide tried to force a position of neutrality on the board of the association pointing at the broad range of opinions and positions across the association's membership. The board refrained, as a position of neutrality had been shown to be understood as ending the opposition, for example, when the Californian Medical Society changed their position to neutrality. 1
We, the authors, have different professional backgrounds, and agree on many, but not all matters of this controversial issue. We agree on definitely having to hear and respect requests for assisted suicide as well as other forms of a wish for hastened death. We also agree on having to try to understand the reasons for such wishes, and try to work together with that person to find alternative solutions.
For my individual standing (B.J.), as coming from a philosophical background, am not opposed to physician-assisted suicide or individual access to lethal medications through, for example, agencies such as the Federal Institute for Drugs and Medical Devices, but I see the great difficulties in finding an ideology-free justification strategy for the formulation of safety regulations. The vast majority of palliative care associations state in their position articles that they do not want the provision of assisted suicide as part of palliative care, based on the definitions of palliative care. This is fine with me, but the discussion must go beyond contrasting palliative care and the right to (assisted) suicide.
For my individual standing (L.R.), as a physician, I am still opposed to physician-assisted suicide. I cannot align the provision of a lethal medication with the ethical and moral values that I feel are inherent in the medical profession. As palliative care specialists, we certainly should not include the provision of assisted suicide as a part of palliative care.2–4 As a member of society, if people are desperate, lonely and sad, or do not want to be a burden unto others, I can certainly understand their wish to end their life. I just do not want to live in a society that readily accepts this as a rationale for assisted suicide, and not as an imperative to improve end-of-life care, providing adequate medical and social care in an adequate economic setting.