10/13/2011 07:07 pm ET Updated Dec 13, 2011

The Double Effect of Aid in Dying

The doctrine of double effect enables medical providers of every faith, in every state, to treat end-of-life pain aggressively and to participate in treatment decisions that advance the time of death. Now, data from Oregon demonstrates that the doctrine applies to prescribing medication for aid in dying, too.

For years I have asserted that aid in dying is not really different from other end-of-life decisions and should be just as available to patients who ask. Aid in dying is the medical practice in which a physician grants the request of a mentally competent, terminally ill person for medication they may choose to ingest to advance the time of death if they fall into unbearable suffering.

At Compassion & Choices we believe the option of aid in dying is ethically and morally indistinguishable from other decisions a patient might make: to deactivate a cardiac pacemaker, submit to total sedation, forego nutrition and hydration, renal dialysis, artificial ventilation or any other life-sustaining treatment. In these examples, patients take responsibility for decisions to advance the time of death. Their decisions about whether to request and ingest medication for aid in dying should receive the same treatment in law and medicine.

Some people believe aid in dying is qualitatively different from other decisions because of the difference between an act and an omission. But that difference is elusive. One must take action to remove a ventilator, and administering total sedation to render a patient unconscious can hardly be called an omission. So that distinction doesn't hold up to scrutiny.

Others say aid in dying is qualitatively different from other end-of-life decisions because of intention. They say the intention in every other end-of-life decision is not to cause death, but to deliver pain relief or lift the burden of painful or intrusive treatment. Even when the patient and doctor both have certain knowledge that the action or omission will cause death, they are exempt from responsibility because that is not their intention.

The distinction between knowing an action will cause death and intending it to cause death is exceedingly important to these people because of the Catholic doctrine of double effect. The doctrine includes several conditional elements. But simply put, it holds that it is morally acceptable for a person to commit an act or omission they know will produce a bad effect if the intention is to produce a good effect. Thus, nurses and doctors, even in Catholic healthcare institutions, routinely disconnect feeding tubes and ventilators with the intention of following a patient's advance directive and removing the burden of unwanted medical treatment. In this moral construct, they do not intend the death that is 100 percent certain to ensue.

As the practice of aid in dying has emerged and matured over the past 14 years, it's become clear doctors write prescriptions for aid in dying, and pharmacists fill them, in a manner fully compatible with the doctrine of double effect. Many people who receive a prescription under Oregon's Death with Dignity law never fill the prescription. Many who fill the prescription never ingest the medication.

The doctors who wrote those unfilled prescriptions are very pleased because they know their action fulfilled its intended purpose. It granted their patient control over suffering. It reassured them they would not get stuck in whatever condition they feared most. It relieved the gnawing terror that unbearable pain or nausea might consume them. It delivered the security of knowing they could spare those they loved from last images of delirium, anguish or agony. Yet, it in no way caused the death of their patient.

Last year a full 40 percent of aid-in-dying prescriptions went unused, their recipients dying without ever feeling the need to exercise the option they had so diligently accessed. To me, this seems a perfect application of the doctrine of double effect. A physician may provide a prescription for life-ending medication with the clear purpose and intention of treating the patient's anxiety and improving the quality of life in their final weeks. It is quite likely the patient will never ingest it.