• Ethics

It is disputed whether ‘depression’ refers to a set of closely related psychiatric illnesses characterised by a similar aetiology, or only to a family of symptoms, resulting from very different underlying conditions. Whatever it is, one of its most common symptoms is a mood disturbance: the patient is extremely unhappy, and his negative emotions cannot be understood as an appropriate response to his actual condition or events that have happened in his life. Death wishes are one common expression of this mood disturbance. That is one reason to doubt whether the patient's decision can be considered sufficiently competent to require to be respected. (Or even as ‘voluntary’ enough, but I will set that difficult issue aside.)

Schuklenk and van de Vathorst object that although the judgements about the future made by depressed patients are, given the same evidence, more negative than other people's judgements, it is still controversial whether they are inaccurate.1 But the study they quote as their authority for this statement argues that this is only true as regards the whole population of depressed patients. People with high scores on depressive symptoms really are unduly pessimistic and have difficulty discriminating between more and less likely events. But even if their characteristically negative judgements could still be seen as sufficiently sensitive to evidence, that would not be enough to attribute decision-making authority to them, because decisions do not only depend on judgements but also on affective states, and in their case these are distorted by mood disturbances.

There is a second reason for being restrained in respecting the choice for death of chronically depressed people. Characteristic for such death wishes is a high level of ambivalence, and this explains why so many people after a failed attempt to kill themselves feel grateful for having been rescued. Schuklenk and van de Vathorst suggest that people with a treatment-resistant depression will belong to the exceptions to this rule, but they cite no evidence for that claim, and, given the fact that about 60% of (registered) suicides are caused by depression, it seems unlikely.

For these reasons, the case against allowing psychiatrists to assist chronically depressed patients to end their own lives is stronger than the authors recognise. One reason to consider the case less than fully convincing, however, is that most such patients go through intermediate periods in between episodes of deep depression, and during these periods may be capable of a sober assessment of their situation. They may then conclude that a future life consisting of such episodes and waiting for them is a prospect so bleak that it is reasonable to want to avoid it. But, as the Guideline of the Dutch Society for Psychiatry (NVvP) insists, we have to make sure that this decision is the outcome of an adequate weighing process and is stably enduring through time. As the Guideline notes, some remaining ambivalence is acceptable, because it indicates a real weighing process, but the level should be much lower than is normal for depressed patients with death wishes.

Would this mean that a patient who permanently lives on more or less the same level of extreme gloom and sadness can never have his request granted? That would mean that we would not be prepared to help the most pitiable class of patients to escape from their misery. An insightful (and courageous) passage in the NVvP-Guideline states that if in such a case the psychiatrist on reflection shares the patient's belief that it would be better for him to die, she could apply somewhat lower standards of competence than the usual ones. I agree. But acceptance of this view requires a revision of two central tenets of present bioethical orthodoxy.

In the first place, on the presently dominant conception of competence we should judge a person's decision-making authority by assessing his general cognitive and affective abilities, without any reference to the extent to which we endorse or even understand the actual decision he is about to make.2 (Medical practice, of course, is different, but in that respect it is usually considered to be still in the grip of old-fashioned paternalism.)

The second article of present faith that should be questioned is also the starting point of Schuklenk and van de Vathorst: it is simply by appeal to the value of self-determination that we are justified to allow doctors to grant someone's wish to be assisted in ending his life. I wonder why, in that case, we are not justified (or are we?) in allowing two sworn enemies to decide by throwing a dice who of them will kill the other. On my view your right of self-determination only protects the self-regarding decisions that you act on yourself. A doctor, on the other hand, only can have a right to kill her patient with his consent, or to assist him in ending his own life, if she has the justified belief that she acts in his interests, in particular by helping him to leave a condition of extreme suffering that, on any realistic appreciation of the options, cannot be relieved by any therapeutic or non-therapeutic means.ⁱ Hence, reasons of respect for autonomy should be complemented by reasons of compassion. Otherwise our doubts about the authority of people with treatment-resistant depression to request assistance in ending their own lives could not be silenced.

According to Schuklenk and van de Vathorst, if legislators decide to make legal room for any form of physician-assisted death, they have no principled reasons to exclude patients suffering from therapy-resistant disorder. Whether the authors would count the following reason a principled one I don't know, but I can imagine these legislators to reason as follows. In the case of depressed patients, we have some reasons for extra caution: doubts about their decision-making capacities and about the stableness of their decisions.ⁱⁱ It is true that these doubts do not apply to all cases, but it is hard to think of institutional arrangements that will guarantee us to a sufficient extent that the exceptional cases are properly identified. So, let's err on the side of safety. After all, if these patients do not only have the time and the physical capacity, but also the mental capacity to carefully plan and execute their own decision, with humane means and in consultation with their friends and relatives, perhaps even their psychiatrist, they act within their rights and need no assistance.ⁱⁱⁱ

Would that reasoning be convincing? It depends on the extent to which we can actually trust existing or proposed institutional arrangements. In the Netherlands, the psychiatric community until recently hardly made any use at all of the options described in the NVvP-Guideline, and the present number of cases of assisted suicide is still very low. Yet there is some reason for concern.iv

According to Schuklenk and van de Vathorst, “in the review process of cases of people suffering from depression who were granted assistance in dying in the Netherlands the competence question is seldom a matter of discussion or controversy.” Seldom, perhaps. But, fortunately, in some decisions of the review committees the patient's competence is considered explicitly, and in one recent case (2014-1) the doctor's action has been deemed ‘not careful’ on account of such considerations. In other cases, however, the committee did, indeed, not explain why it thought that questions about competence which had arisen in the process of decision making and consultation had received a satisfying answer.^iv

The Dutch minister of health care has proposed a change in the review procedure, as a result of which a psychiatrist would be involved in the assessment of all cases concerning psychiatric patients. Recently the review committees have adopted this proposal. We will have to wait and see whether the Dutch practice will develop in such a way that we can trust the requirement of extra caution to be met.

The author is professor emeritus of moral philosophy at the University of Amsterdam. He has been a member of one of the Dutch review committees for euthanasia from 1998 to 2010.