Safeguards for Non-Medical Assisted Dying
From permissive to restrictive
This is the third instalment in my series on non-medical assisted dying. Part II is here and Part I is here.
When people say there’s a right to die, they mean that people should be able to choose the timing of their deaths without needing anyone’s permission. For example, Jessica Flanigan, who argues for a more general right to access drugs, says that “Competent people have the right to end their lives without prior authorization from a physician or public officials.”
If the right to die exists, it could be done through the medical system by removing many of the current requirements, but this is unlikely to happen. The appeal of the non-medical approach is that it’s likely to be more permissive. However, the downside is that it could be too permissive by allowing people to die when, according to many people, they shouldn’t be allowed to. Reasonable people disagree about how much paternalism should be permitted. The current system has a lot of it, which some right-to-die advocates want to change.
Switzerland is unique in taking a non-medical approach to assisted dying. Its laws are also permissive. Swiss law only requires that
The person is of sound mind.
The person self-administers the medication.
Assistance isn’t provided because of a selfish motive.
As I’ve discussed, requiring self-administration is unethical, since it discriminates against people with physical disabilities who are unable to take the medication on their own. But the option to self-administer might work for many people who don’t want to involve others. Also, although the Swiss system is permissive in theory, in practice, access is more restricted, since the Swiss Medical Association has more requirements physicians must meet.
The non-medical approach isn’t a single option, though. Instead, it can be more or less permissive depending on the balance between access on the one hand and safeguards on the other. Here are some of the possible safeguards that could be put in place.
Capacity
To have decision-making capacity is to be able to understand relevant information and appreciate the consequences of one’s choices. I’ve written about capacity a lot, including in the context of mental illness. I don’t know of anyone who argues that capacity doesn’t matter for assisted dying. Flanigan, who argues that almost all drugs should be freely available—i.e., there should only be prescriptions for drugs that cause collective action problems, such as antibiotics—says that deadly drugs should be behind the counter so pharmacists can assess capacity. She compares this to background checks for purchasing guns.
Philip Nitschke, whom I also mentioned in my previous post, similarly says that capacity is required. According to Exit International, the group Nitschke runs, “Our philosophy at Exit also requires that Exit makes reasonable efforts to ensure that members who attend workshops have decision-making capacity including requesting photo ID.”
Mental Health Assessments
Assessing capacity comes in degrees, ranging from “nothing suggested the person lacked capacity” to a formal capacity assessment by a qualified professional. The requirement could go beyond capacity by requiring a mental health assessment that checks for conditions that might interfere with sound decision making. This approach gives more deference to healthcare providers, which the non-medical approach is trying to avoid, so the system would have to balance these competing values.
Age
Nitschke and Flanigan both think that age matters. Exit International sells the Peaceful Pill Handbook, which is a guide to ending one’s own life non-medically. To purchase the book, Exit requires you to be at least fifty years old or have a serious illness, and have no psychiatric illnesses. Nitschke says that the age requirement is arbitrary, but it’s meant as a safeguard. It prevents young people who have capacity from making an impulsive decision which, on reflection, they would recognize as a mistake.
This assumes that younger people are more likely to act impulsively. In 2019, the highest rate of suicide occurred among people fifty to sixty-four years old for both males and females. (Among males, the rate for that age group is almost four times as high as people ten to nineteen years old.) None of this measures impulsivity, but there are reasons to doubt that young adults should be the focus of prevention efforts.
Waiting Period
Impulsivity can be addressed in other ways. Currently, in Canada, there’s a ninety-day waiting period for people whose natural deaths aren’t reasonably foreseeable. Such a period could be used for non-medical assisted dying too.
Witness Requirement
Having capacity doesn’t mean that an individual has made the choice voluntarily. They might be seeking the drugs because they’ve been pressured or coerced. While a non-medical approach makes it less likely that patients will be pressured by their healthcare providers, it might make it more likely that they’ll be pressured by others. One safeguard is to require a witness, such as a social worker or legal representative, who can accompany people when they get the drugs to help ensure they are doing so voluntarily.
Education
On the non-medical model, there’s a greater risk that people will seek deadly drugs without understanding what they’re doing. The medical approach avoids this by requiring informed consent, which is required since assisted dying in Canada is almost entirely a healthcare provider administering the drugs for the patient. Since someone else is doing something to the patient, consent is required.
Self-administered assisted dying isn’t like this when the assistance is merely accessing the medication. If you’re doing something on your own, you don’t need to give yourself informed consent. You can go rock climbing without ropes or do any other dangerous activity without anyone’s permission. Still, maybe there should be an education requirement that goes over the risks and benefits, how to do it safely, and alternatives to assisted dying. Perhaps each person who wants to receive a prescription must access support services to explore alternatives, or perhaps they should have to speak to a healthcare provider to see if they have medical alternatives.
Options
My point here isn’t to argue for any specific set of policies, but rather to show that the non-medical model doesn’t have to mean unrestricted access. Flanigan and Nitschke both advocate for permissive versions, which might be best, but there are many alternatives.