Internationally, pressure to legalize or expand euthanasia and assisted suicide is mounting, primarily in industrialized countries. France and the UK are two major jurisdictions that are currently considering legislating some form of what is now often referred to as “assisted dying.” Amid the UK debate on a private member’s assisted suicide bill currently before the House of Lords, Jennifer Hardes Dvorak’s recent article, Is Assisted Dying Really A Matter of Medical Regulation?, raises crucial—yet often overlooked—questions related to the role of medicine: Should assisted suicide and euthanasia be regulated as medical practices? What are the implications of involving medical professionals?
Dvorak offers a nuanced analysis—grounded in empirical evidence from existing regimes—of the problems with medical models of ‘assisted dying’. These are models in which physicians (and in some countries also nurses) play an essential role as prescribers, or as those providing a lethal injection, and in which medical criteria determine whether a person obtains access. She also discusses whether what is often treated as a ‘demedicalized’ model, like Switzerland, where assisted suicide is organized by volunteer organizations with only a limited role for physicians, offers a better approach. Her paper presents a balanced review of regulatory approaches and highlights the complexities of interpreting evidence in this polarized debate. The paper makes a compelling argument about the challenges with medical models of assisted dying, while also acknowledging that a demedicalized system of legalized assisted dying is not unproblematic.
Dvorak identifies four key issues complicating the regulation of legalized assisted dying: pragmatic concerns about physician involvement, the effects of medicalization, the intersection of medical and criminal law, and health economic pressures.
Discussing the practical challenges, she notes that integrating assisted dying into medical regulation can impact in very contrasting ways. On the one hand, it may hinder access due to conscientious objection and the emotional burden it places on physicians. On the other hand, it can open the door to overuse, particularly through “doctor-shopping.” She gives the example of a woman whose Alberta physicians diagnosed her with a treatable reaction to mental health medication, which would have made her ineligible for ‘Medical Assistance in Dying’ [MAiD], but who was approved by out-of-province British Columbia physicians after an online consultation. An injunction ultimately blocked the BC provider from ending her life. But there is now even another court case which documents how a provincial health authority explicitly facilitated, and even organized doctor-shopping. In this case, a young woman’s MAiD request had been blocked twice after only one assessor of the two assessors in two subsequent requests considered her eligible, but the Alberta health authorities then appointed the first assessor as the tie-breaker for the second request. The young woman, according to her father, had autism and otherwise no diagnosed illness. Dvorak also notes, as a pragmatic issue, how institutional culture, and bullying, may result in additional pressure on physicians to participate in MAiD, further undermining the notion of professional independence. This has indeed also been documented in the Canadian context.
Dvorak’s deeper engagement with the concept of ‘medicalization’ is particularly compelling. Drawing on sociological literature, she illustrates how assisted dying regimes transform dying into a medical procedure—an issue that is often overlooked by commentators who claim that assisted dying empowers people in the face of overbearing medical practice. While medicalization is sometimes presented as a means of destigmatizing death and delineating the practice through the identification of medical access criteria, Dvorak is skeptical of its overall benefits. She discusses how the vagueness of medical criteria tends to lead to bracket creep and often results in expanding the practice beyond its original intention. Her point that medicalization can individualize social problems—masking structural inequalities—is especially powerful.
Dvorak examines as examples of bracket creep the expansion of euthanasia for mental illness in the Netherlands, and Canada’s broadening of eligibility beyond the end-of-life context. It is not a coincidence that in the two jurisdictions she selected, most cases of assisted dying are euthanasia cases (thus involving deadly injections), and in both jurisdictions there never was an explicit restriction to a terminal illness with limited survival prognosis. The developments in those jurisdictions highlight, according to Dvorak, how medicalized regimes can normalize and expand assisted dying in ways that risk obscuring structural harms. Interestingly, more recent evidence in both jurisdictions, not yet discussed in the paper, provides further support for her argument. Dutch experts have recently raised the alarm about the striking increase in cases of euthanasia for mental illness among very young people, particularly women. With respect to Canada, several Ontario coroner reports, of which she cites one, now confirm how even suffering directly resulting from structural inequalities and lack of support and only vaguely connected to a medical condition, has been transformed into a medical problem for which euthanasia is now considered a therapy. Dvorak further questions whether a healthcare system’s promotion of assisted death as medicine can be reconciled with key public health goals of improving people’s lives and alleviating the health impact of structural inequalities.
But Dvorak is also attentive to the limitations of models that claim to avoid medicalization altogether. The article further nuances convincingly the claim that the Swiss model of assisted suicide is fully ‘demedicalized,’ and argues why this model is also not without problems. Discussing recent case law, she shows how it operates in a grey zone. Prescription practices are still regulated by the state and the medical profession, and the criminal law still applies in the margins. Dvorak expresses caution about embracing this model as a solution to the concerns raised by more medicalized assisted dying regimes, particularly given the challenges related to transparency and oversight, and the difficulties of using the criminal law to delineate the practice.
In her final section, Dvorak emphasizes the importance and real challenge of addressing the broader social context in which assisted dying operates. As she notes, “Decisions to medicalize AS/E are not neutral; instead, they are heavily laden social decisions.” She highlights how economic pressures on patients, families, and healthcare systems influence these choices, and questions whether medical professionals can adequately evaluate such complex decisions: “Expecting all medics to be sociologists and ethicists, on top of already overburdened workloads may be too much to ask.”
Dvorak explicitly leaves open whether a fully ‘demedicalized’ model is to be preferred. In concluding, she retreats to what is perhaps an overly familiar response: calling for more data collection and improved oversight. Her recommendation that regulation must ‘ensure voluntary choice’ is obviously important, but she understandably offers no clear solution how to ensure that, in light of the impact of structural inequality, and considering the failures of current systems.
A recent British Medical Journal commentary puts more bluntly that “[a]ssisted dying is an existential matter rather than a treatment matter.” Its authors argue that integrating any form of assisted dying into medicine risks undermining healthcare practice and medico-legal doctrine. Perhaps legal scholars should more readily acknowledge, in the face of mounting evidence, that existing assisted dying regulations are really causing irreversible harm, without feeling the need to suggest vague and perhaps unrealistic solutions under the guise of pragmatism. Still, Dvorak’s paper enriches the debate with a thoughtful, balanced, and evidence-informed critique of the challenges facing legalized assisted dying regimes, both medicalized and ‘demedicalized’ alike.
