Yet another argument against physician assisted suicide

Years ago, I read a clever argument against physician assisted suicide that held that medical procedures need informed consent, and informed consent requires that one be given relevant scientific data on what will happen to one after a procedure. But there is no scientific data on what happens to one after death, so informed consent of the type involved in medical procedures is impossible.

I am not entirely convinced by this argument, but I think it does point to a reason why helping to kill a patient is not an appropriate medical procedure. An appropriate medical procedure is one aiming at producing a medical outcome by scientifically-supported means. In the case of physician assisted suicide, the outcome is presumably something like respite from suffering. Now, we do not have scientific data on whether death causes respite from suffering. Seriously held and defended non-scientific theories about what happens after death include:

1. death is the cessation of existence

2. after death, existence continues in a spiritual way in all cases without pain

3. after death, existence continues in a spiritual way in some cases with severe pain and in other cases without pain

4. after death, existence continues in another body, human or animal.

The sought-after outcome, namely respite from severe pain, is guaranteed in cases (a), (b) and (d). However, first, evidence for preferring these three hypotheses to hypothesis (b) is not scientific but philosophical or theological in nature, and hence should not be relied on by the medical professional as a medical professional in predicting the outcome of the procedure. Second, even on hypotheses (b) and (d), the sought-after outcome is produced by a metaphysical process that goes beyond the natural processes that are the medical professional’s tools of the trade. On those hypotheses, the medical professional’s means for assuring improvement of the patient’s subjective condition relies on, say, a God or some nonphysical reincarnational process.

One might object that the physician does not need to judge between after-life hypotheses like (a)–(d), but can delegate that judgment to the patient. But a medical professional cannot so punt to the patient. If I go to my doctor asking for a prescription of some specific medication, saying that I believe it will help me with some condition, he can only permissibly fulfill my request if he himself has medical evidence that the medication will have the requisite effect. If I say that an angel told me that ivermectin will help me with Covid, the doctor should ignore that. The patient rightly has an input into what outcome is worth seeking (e.g., is relief from pain worth it if it comes at the expense of mental fog) and how to balance risks and benefits, but the doctor cannot perform a medical procedure based on the patient’s evaluation of the medical evidence, except perhaps in the special case where the patient has relevant medical or scientific qualifications.

Or imagine that a patient has a curable fracture. The patient requests physician assisted suicide because the patient has a belief that after death they will be transported to a different planet, immediately given a new, completely fixed body, and will lead a life there that is slightly happier than their life on earth. A readily curable condition like that does not call for physician assisted suicide on anyone’s view. But if there is no absolute moral objection to killing as such and if the physician is to punt to the patient on spiritual questions, why not? On the patient’s views, after all, death will yield an instant cure to the fracture, while standard medical means will take weeks.

Furthermore, the medical professional should not fulfill requests for medical procedures which achieve their ends by non-medical means. If I go to a surgeon asking that my kidney be removed because Apollo told me that if I burn one of my kidneys on his altar my cancer will be cured, the surgeon must refuse. First, as noted in the previous paragraph, the surgeon cannot punt to the patient the question of whether the method will achieve the stated medical goal. Second, as also noted, even if the surgeon shares the patient’s judgment (the surgeon thinks Apollo appeared to her as well), the surgeon is lacking scientific evidence here. Third, and this is what I want to focus on here, while the outcome (no cancer) is medical, the means (sacrificing a kidney) are not medical.

Only in the case of hypothesis (a) can one say that the respite from severe pain is being produced by physical means. But the judgment that hypothesis (a) is true would be highly controversial (a majority of people in the US seem to reject the hypothesis), and as noted is not scientific.

Admittedly, in cases (b)–(d), the medical method as such does likely produce a respite from the particular pain in question. But that a respite from a particular pain is produced is insufficient to make a medical procedure appropriate: one needs information that some other pain won’t show up instead.

Note that this is not an argument against euthanasia in general (which I am also opposed to on other grounds), but specifically an argument against medical professionals aiding killing.

Medical recommendations and informed consent

It is widely accepted that medical treatments require informed consent from the patient. This requires medical professionals to educate patients, to a reasonable degree, on the relevant scientific aspects of the treatment.

Interestingly, I have been told by a medical ethicist that it is not widely accepted that medical recommendations, whether from one’s individual physician or from a government body, are governed by similar informed consent standards. Thus, before giving you an injection, the physician is required to give you both the medical pros and cons of the injection, but if the physician recommends exercise to you, there is no such education requirement (e.g., the physician is not required to tell a clueless patient that exercise can result in joint pain).

This view seems wrong to me. The main reason for requiring informed consent is patient autonomy. But autonomy can be compromised just as much by recommendations omitting salient information as by actual treatment. Let’s say that Jeeves is annoyed by Wooster’s ugly mustache, and recommends to a Wooster the deliciousness of a particular brand of chocolate, having heard from the factory owner's valet that this brand has been contaminated with a chemical that makes one’s facial hair fall out. Jeeves has violated Wooster’s bodily autonomy through the recommendation almost as much as if Jeeves had shaved Wooster in the night.

More on doing and allowing

Let’s suppose disease X if medically unchecked will kill 4.00% of the population, and there is one and only one intervention available: a costless vaccine that is 100% effective at preventing X but that kills 3.99% of those who take it. (This is, of course, a very different situation than the one we are in regarding COVID-19, where we have extremely safe vaccines.) Moreover, there is no correlation between those who would be killed by X and those who would be killed by the vaccine.

Assuming there are no other relevant consequences (e.g., people’s loss of faith in vaccines leading to lower vaccine uptake in other cases), a utilitarian calculation says that the vaccine should be used: instead of 316.0 million people dying, 315.2 million people would die, so 800,000 fewer people would die. That’s an enormous benefit.

But it’s not completely clear that this costless vaccine should be promoted. For the 315.2 million who would die from the vaccine would be killed by us (i.e., us humans). There is at least a case to be made that allowing 316.0 million deaths is preferable to causing 315.2 million. The Principle of Double Effect may justify the vaccination because the deaths are not intentional—they are neither ends nor means—but still one might think that there is a doing/allowing distinction that favors allowing the deaths.

I am not confident what to say in the above case. But suppose the numbers are even closer. Suppose that we have extremely precise predictions and they show that the hypothetical costless vaccine would kill exactly one less person than would be killed by X. In that case, I do feel a strong pull to thinking this vaccine should not be marketed. On the other hand, if the numbers are further apart, it becomes clearer to me that the vaccine is worth it. If the vaccine kills 2% of the population while X kills 4%, the vaccine seems worthwhile (assuming no other relevant consequences). In that case, wanting to keep our hands clean by refusing to vaccinate would result in 158 million more people dying. (That said, I doubt our medical establishment would allow a vaccine that kills 2% of the population even if the vaccine would result in 158 million fewer people dying. I think our medical establishment is excessively risk averse and disvalues medically-caused deaths above deaths from disease to a degree that is morally unjustified.)

From a first-person view, though, I lose my intuition that if the vaccine only kills one fewer person than the disease, then the vaccine should not be administered. Suppose I am biking and my bike is coasting down a smooth hill. I can let the bike continue to coast to the bottom of the hill, or I can turn off into a side path that has just appeared. Suddenly I acquire the following information: by the main path there will be a tiger that has a 4% chance of eating any cyclist passing by, while by the side path there will be a different tiger that has “only” a 3.99999999% chance of eating a cyclist. Clearly, I should turn to the side path, notwithstanding the fact that if the tiger on the side path eats me, it will have eaten me because of my free choice to turn, while if the tiger on the main path eats me, that’s just due to my bike’s inertia. Similarly, then, if the vaccine is truly costless (i.e., no inconvenience, no pain, etc.), and it decreases my chance of death from 4% to 3.99999999% (that’s roughly what a one-person difference worldwide translates to), I should go for it.

So, in the case where the vaccine kills only one fewer person than the disease would have killed, from a first-person view, I get the intuition that I should get the vaccine. From a third-person view, I get the intuition that the vaccine shouldn’t be promoted. Perhaps the two intuitions can be made to fit together: perhaps the costless vaccine that kills only one fewer person should not be promoted, but the facts should be made public and the vaccine should be made freely available (since it is costless) to anyone who asks for it.

This suggests an interesting distinction between first-person and third-person decision-making. The doing/allowing distinction, which favors evils not of our causing over evils of our causing even when the latter are non-intentional, seems more compelling in third-person cases. And one can transform third-person cases to be more like first-person through unencouraged informed consent perhaps.

(Of course, in practice, nothing is costless. And in a case where there is such a slight difference in danger as 4% vs. 3.99999999%, the costs are going to be the decisive factor. Even in my tiger case, if we construe it realistically, the effort and risk of making a turn on a hill will override the probabilistic benefits of facing the slightly less hungry tiger.)

Forcing and threatening

Suppose the state thought it had good reason to force me to undergo a medical procedure that I believed to be immoral. The state would have two kinds of options:

1. Threaten me with a variety of serious threats such as deprivation of employment and educational opportunities, fines or imprisonment if I refused to cooperate with the procedure.

2. Force me to undergo the procedure by physically holding me down and performing the procedure.

Intuitively, the threat option seems like the “nicer” option, at least if the threats fall short of imprisonment. And the force option clearly violates standard principles of consent in medical ethics.

But what has struck me was this interesting fact: depending on the details of the case, I might well prefer being forced to being threatened. For if I am threatened, there are two possibilities: either I resist the threat or I give in. If I resist, then I have to suffer the serious losses that were threatened. And if I give in, then I have to live with the knowledge that I have violated my conscience. But if I am forced, then my conscience is clear, I do not suffer any of the threatened losses, and if the procedure is one that is in fact medically beneficial, I get the benefits of the procedure. (And note that it is quite possible to believe a procedure to be immoral while knowing that it is medically beneficial. For instance, one might reasonably think that it is immoral to accept an organ transplant from a prisoner who was compelled by an evil state to yield the organ, even though one knows that the transplant would be beneficial.)

Of course, if asked, I couldn’t very well say: “Please force me.” For that would be consent to a procedure I believed to be immoral. But nonetheless I might prefer the force option. In such a case, it’s hard to say that the threat option is “nicer”. Indeed, it might impose much greater hardship than the force option.

So from the point of view of a state that thinks the procedure is intrinsically permissible and necessary for the public good, it seems that there is good reason to prefer the force option, in that it might impose much less hardship. But this seems paradoxical. It seems obvious that the threat option is better, especially for non-punitive threats that are “naturally” tied to the refusal (“We won’t employ anyone who medically could be vaccinated but refuses to be”), even though the force option seems the better one for both the person being forced and for the rest of society (since it’s more effective).

Perhaps the way out of the paradox is that it is so important for us as a society to maintain the requirement of consent for medical procedures that forcing people to undergo a medical procedure should be avoided except in the most extreme of cases (such as when the very existence of society is at stake), and hence even though the short-term consequences of forcing are better than those of threatening—including morally better for the person being forced who isn’t tempted to violate conscience—forcing should be avoided. But this isn’t a complete solution. For normally we think threats also vitiate consent. But perhaps they vitiate it less?

Hormonal contraception and informed consent

In a 2000 article in the Archives of Family Medicine, Larimore argued that because the extremely high effectiveness rate of hormonal contraception is much higher than what one would expect on the basis of its often not very high rate of ovulation suppression, there is very good reason to think a significant portion of the high effectiveness rate is due to preventing implantation of the early embryo. But many women believe that the early embryo is a human being, and hence would take this effect to be a morally unacceptable abortion (and I expect there are additional women who do not take the effect to be utterly morally unacceptable, but for whom such an effect is nonetheless a significant reason against the use of the contraceptive method). Since patient autonomy requires that the patient be informed of those aspects of treatment that are salient given the patient's values and moral beliefs, the physician's duty in the case of such women is to inform the women of the risks of prevention of implantation. Because a physician may not know whether a particular woman consider this factor relevant, Larimore suggests that a physician can say something like: "Most of the time, the pill acts by preventing an egg from forming. This prevents pregnancy. However, women on the pill can still sometimes get pregnant. Some doctors think that the pill may cause the loss of some of these pregnancies very early in the pregnancy, before you would even know you were pregnant. Would knowing more about this possibility be important to you in your decision about whether to use the pill?"

Even bracketing the question whether contraception and abortion are morally permissible, Larimore is right about what is required what the current consensus on patient autonomy and informed consent. I've had a look at the titles and often abstracts of the 55 papers listed as citing Larimore's, and surprisingly none of them appears to be an argument to the contrary (though maybe some contain such an argument in their body). One interesting recent study of women in Western and Eastern Europe found that only 2% can correctly identify all the mechanisms of oral contraceptives and the IUD (for which the postfertilization effect is probably even greater), but that 73% said that their healthcare provider should inform them about effects that occur after fertilization even when these effects are before implantation. So not only is the information salient to many women, it is information that many women want.

It seems to me that pro-choice physicians should be impressed by the need to obtain informed consent for such postfertilization effects insofar as a significant part of the reasoning for the pro-choice position involves considerations of women's autonomy.