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Conscientious participants and the ethical dimensions of physician support for legalised voluntary assisted dying
  1. Jodhi Rutherford
  1. Australian Cente for Health Law Research, Queensland University of Technology Faculty of Law, Brisbane, Queensland, Australia
  1. Correspondence to Jodhi Rutherford, Australian Cente for Health Law Research, Queensland University of Technology Faculty of Law, Brisbane, Queensland, Australia 4001; jodhi.rutherford{at}qut.edu.au

Abstract

The Australian state of Victoria legalised voluntary assisted dying (VAD) in June 2019. Like most jurisdictions with legalised VAD, the Victorian law constructs physicians as the only legal providers of VAD. Physicians with conscientious objection to VAD are not compelled to participate in the practice, requiring colleagues who are willing to participate to transact the process for eligible applicants. Physicians who provide VAD because of their active, moral and purposeful support for the law are known as conscientious participants. Conscientious participation has received scant attention in the bioethics literature. Patient access to VAD is contingent on the development of a sufficient corpus of conscientious participants in permissive jurisdictions. This article reports the findings of a small empirical study into how some Victorian physicians with no in-principle opposition towards the legalisation of VAD, are ethically orientating themselves towards the law, in the first 8 months of the law’s operation. It finds that in-principle-supportive physicians employ bioethical principles to justify their position but struggle to reconcile that approach with the broader medical profession’s opposition. This study is part of the first tranche of empirical research emerging from Australia since the legalisation of VAD in that country for the first time in over 20 years.

  • clinical ethics
  • end-of-life
  • euthanasia
  • law
  • suicide/assisted suicide

Data availability statement

Data are available upon request.

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Introduction

Voluntary assisted dying (VAD) has been lawful in Victoria, Australia since 19 June 2019. It becomes lawful in a second Australian state in 2021, and is being actively pursued in other parts of Australia,1 New Zealand2 and Europe.3 4 The Victorian law generally permits only self-administration of VAD (sometimes referred to as physician-assisted suicide). Practitioner administration, where a doctor intravenously administers the substance (sometimes referred to as voluntary euthanasia), is permitted in Victoria only if the person is physically unable to ingest or digest the VAD substance. The Victorian law is proclaimed as one of the strictest in the world, with a total of 68 safeguards built into the regime.5 Many of these safeguards place obligations and oversights on physicians, and the law can only operate through the deployment of substantial medical expertise.6 Access to VAD in Victoria and other jurisdictions which constitute physicians as primary providers, is thus contingent on their willingness to provide it.7–9

It is known that few physicians choose to participate in VAD after it has been made legal.10–12 Some physicians hold conscientious objection; others are disincentivised by the increased workload, fear and emotional toll that being a provider of VAD may entail.13–15 There is a copious literature on conscientious objection in VAD.15–19 Yet, there has been relative silence in the bioethics literature on what might motivate ‘conscientious participation’ in VAD. Conscientious participation was defined as ‘the act of conscience where a person may actively, morally and purposefully support a practice’ in a recent study by Oliphant and Frolic in this journal.20 They note ‘the predominance of objection as a focus in the ethics literature creates a chilling effect on the voices of participants’. Their research finds that personal and professional values and identity, experience with death and dying, and organisational context, are all motivations for conscientious participation in VAD by some clinicians.

The significant literature on why physicians choose to participate in VAD is supplemented by little bioethical analysis.21–23 It is important to understand and explore how conscientious participants in VAD are reconciling their position in the face of major opposition to the practice by their profession, evident in the way that some professional medical codes of ethics, for example the respective codes of the American Medical Association and the Australian Medical Association, do not authorise VAD, despite its lawful status in parts of their jurisdictions.24 25 In the absence of explicit professional mandate, physicians espouse patient-centred justifications when explaining their support for legalised VAD.26

This article reports the ethical justifications some Victorian physicians provide for their support of legalised VAD. These are findings from broader research into some Victorian medical practitioners’ general perspectives and experiences with the new VAD law. Study participants were required to have no in-principle opposition to the law so that any experience of working with the legislation could be explored during the study; this meant that participants prospectively conformed with the notion of a conscientious participant. Any ethical analysis of conscientious objection to legalised VAD is therefore outside the scope of this article. Existing literature about why physicians object to legalised VAD have identified concern for vulnerable populations27; lack of access to best practice palliative care28; patients feeling a duty to die to prevent being a burden29; impaired patient autonomy30 31 and that VAD is incompatible with physicians’ duty to do no harm.32 33

Clinician perspectives provide optimal insight into ethical dilemmas in VAD because ‘it is doctors who are doing the killing’.34 Empirical research of physician perspectives has generally employed quantitative methods of data collection, which inhibits sufficiently nuanced reporting.23 Such reporting does little to mitigate the contested space that opens when the same bioethical principle is applied towards opposing positions on VAD. For example, one physician’s belief in a beneficent obligation to protect the vulnerable from the prospect of legalised VAD, conflicts with another physician’s belief in the beneficence of providing a ‘good’ death to a terminally ill patient who is suffering unbearably. This study reports findings about the ethical imperatives that some physicians nominate for their support for VAD laws, to supply a more nuanced understanding. Participants identify autonomy (of both patient and physician), beneficence (relief of suffering; a better way to die; the reassuring effect of legal access) and justice (effective regulation; facilitating a patient’s legal right) as ethical imperatives for conscientious participation.

This is some of the first empirical research emerging from the Australian context post-legalisation of VAD, and is therefore useful to other jurisdictions that may be considering law reform, given the ability of the medical profession to influence both the public and policy debates.6 35 This research suggests that continuing clinician discussion of their conscientious participation in VAD is critical to counterbalance the copious evidence base around conscientious objection, and may assist to reconcile the fundamental challenge that VAD presents to the medical profession and the practice of medicine.

Methods

Maximum variation sampling was used to recruit participants via an initial flyer to publicly available email addresses. Semistructured interviews were used to carry out the study, with written consent obtained from all participants. The principles of constant comparison and purposive selection of participants guided data collection during interviews, and sampling continued until saturation. Exclusion criteria for interview was in-principle objection to legalised VAD. Interviews included inquiry into the reasons why participants have no in-principle opposition to legalised VAD. Interview transcripts were coded using a deductive analytical approach36 based on principles of biomedical ethics as the theoretical framework.37

Participants

Twenty-five Victorian physicians from a range of medical specialities which made them likely to encounter a request for VAD participated in the study, see table 1.

Table 1

Participant information

Results

Twenty physicians indicated their explicit support for legalised VAD. Of these, 13 had actively (ie, more than mere information provision) participated in VAD since the commencement of the law. Of the remaining study participants, three physicians held qualified support for the VAD law and two physicians were uncertain about their support. One participant was uncertain about legalised VAD because of his belief that medicine could sufficiently manage most end-of-life conditions. However, he acknowledged the existence of a small subset of patients who might be experiencing pain and suffering but not be imminently dying, in which situation he thought that it might be appropriate for physicians to provide a legal alternative to such pain and suffering. One participant was undecided about his support as he had not yet been confronted with a request.

For participants who held qualified support, one was a palliative medicine specialist who had no in-principle opposition to the legislation and was not opposed to other physicians participating in the practice but did not intend to offer VAD as part of her own medical practice. One participant was supportive of the legislation but held concerns regarding the emotional impact she anticipated experiencing if she participated in the practice. One participant was supportive of the law but uncertain of its utility to meet the needs of terminally ill people to die with dignity. He was also concerned about lack of engagement from the medical profession.

Ethical rationale of physicians who support VAD

The 20 interviewees who profess explicit support for legalised VAD can be characterised as actual (n=13) or prospective (n=7) conscientious participants in VAD. Table 2 details, in order of frequency, the reasons that these physicians offered for their support for VAD, where such a reason was given by 20% (n=5) or more.

Table 2

Reasons for participants' support for legalised VAD

Autonomy

Twelve participants embedded the principle of autonomy in their support. This was expressed as either patient autonomy (n=12), patient control over the means of their death (n=8) or physicians’ personal right to autonomy in terms of wanting access to VAD for themselves (n=7) or being an advocate for the law (n=5).

Patient autonomy

One geriatrician participant observed, “Patient autonomy is the over'-riding concern. I believe that is reflected in Western culture more generally and specifically in the VAD law, which clearly puts patient autonomy over whatever other concerns.” An intensive care physician reflected on how patient autonomy can often conflict with the traditionally paternalistic approach adopted by some physicians.

When the articles are talking about doctors and the doctors’ discomfort and doctors’ problems and the physiciansdoctors’ Hippocratic oath, I shall never give poison and all that stuff. It’s all about the doctor, the doctor, the doctor. On the other hand, if you change that, and say it’s not actually about the doctor, it’s about the patient, and how the patients feel about it and how the public feel about it and you look at the data, then you know people are very highly supportive. So, in a way, if you're the sort of doctor who reacts to patient needs and wants, perhaps you’ll take one attitude. If you're a more conservative sort of a doctor, where it’s about you and the patient should do what you tell them, then you're going to take a different attitude.

A cardiologist saw patient control of the means of their death as another way to promote autonomy.

The whole premise of VAD, really is that it’s the patient being given access to something that they control, that gives them control over the end of their life, in a manner at the time of their choosing… And what we're doing is facilitating that for the patient. It’s not us, killing the patient. It’s just giving them the means to take control of their own lives.

Physician autonomy

Seven participants evinced an intention to access VAD if they require it in the future. One oncologist said, “The VAD process is something that I would want for myself. If the time came, and I was able to, then I would go to access it. Therefore, I'm obliged to make sure I'm in a position to help other people with it.” It is possible that doctor intent in this practice is motivated by a desire to avoid the potential harm of an inability to access VAD. Five participants noted their support for the law was motivated by a previous experience of either assisting patients to die, or political advocacy toward law reform, or watching a family member or patient die a bad death. In the words of one general practitioner:

I have had probably about 300 different people ask me to kill them over the last 20–30 years as a doctor. And I told them that I'd wish to, and it would be nice and fair, but I couldn't because I could end up in jail and that wouldn't be good for my family. And so, I've had that conversation many times and assisted people to die passively through not taking antibiotics or stopping their lifesaving medications.

Observing the potential clash of physician and patient autonomy in VAD, one oncologist said, “The reality is regardless of how I feel personally about it, the short end of it is, it’s not about me.”

Beneficence

Participants spoke of their belief in the duty to relieve suffering or to act in the patient’s best interest regarding VAD. The inability of medicine to relieve all suffering (n=10), the preference for more options for people at the end of life (n=8) and the reassurance that patients receive from the knowledge that they can access VAD (n=6), were all raised by participants as reasons why they support legalised VAD.

Ten participants flagged untreated pain and/or existential suffering as justifications for legalised VAD. One palliative medicine specialist observed, “For some people, it’s not about pain. It’s not about those things that I can fix. It’s about all the other stuff that I can’t fix, so I can understand and support it from that point of view in terms of the legislation existing.” Participants reflected that even the best palliative care is sometimes unable to deliver effective palliation of suffering in all cases.

Eight participants noted that people die bad deaths, with harmful consequences for themselves and their family members. A general practitioner noted, “Death can be pretty messy, and it can be protracted. And it can be unpleasant in all sorts of ways. And now there are ways that we can help people have an option to do it better.”

Six participants noted that knowledge of legal access to VAD had a palliative effect on the pain and suffering of dying patients. ‘The feeling of having the medication to be their insurance policy. The longer you have it for, the longer that feeling of comfort is, as opposed to a frenzied effort in the last days of life to get it there before the patient dies.’

Justice

The bioethical principle of justice incorporates both respect for patients’ rights and respect for morally just laws, and this principle emerged when participants pointed to the strict regulation of VAD that is provided by the law (n=9), and the obligation that falls to them as physicians to facilitate a patient’s lawful access to VAD (n=5).

Nine participants advocated for the rigour provided by regulation in terms of protecting both physicians and patients from malpractice of VAD. One oncologist, in reference to the regulator which oversees the legislation observed, “What you've got is a very, very tight system, that anything, any errors get bounced by the VAD Board anyway because they’re so scrupulous, much to our frustration at times, but much to our protection as well.” Some participants asserted that it was appropriate to have suitable regulated safeguards, rather than no regulation, with one general practitioner of the view that:

The slippery slope is much more of a risk where you don’t have legislation because that’s where, behind the scenes things are happening and being done without any oversight, without any jurisdiction being in control of it…. So, coercion, if it’s happening, it could be happening now. Because there’s no protection, but these laws protect against coercion.

Five participants observed their obligation to facilitate access to this lawful end-of-life care option. One oncologist with experience of both self-administration and practitioner administration of VAD observed, “Now we can say it’s the patient’s legislative right. And I’m not accessing it for them. I’m negotiating it on behalf of them, it’s them who’s brought it up and that’s what the legislation says had to happen. I’m not putting forward this patient for VAD. I’m responding.”

Discussion

The above reporting shows how some conscientious participants are navigating their way through the ethical dimensions of legalised VAD. Oliphant and Frolic’s study of Canadian medical aid in dying providers saw patient autonomy as a primary motivation for conscientious participation.20 The present research confirms the centrality of the autonomy principle for conscientious participation, both for the patient in terms of self-determination and control over their means of death, and for physicians in terms of wanting access to VAD for themselves if necessary and personal backgrounds which make them supportive of the law. Beneficence (relief of suffering and better end-of-life options) and justice (effective regulation and duty to facilitate patients’ legal right) also emerge as key ethical considerations for conscientious participants. These results supply additional nuance to earlier studies which have documented patient autonomy21 23 38; relief of pain and suffering21 39; and the appropriateness of legal access23 as major reasons for physicians’ support for VAD. The principle of non-maleficence did not figure explicitly in participants’ ethical deliberations in this study. This is unsurprising given that participants were recruited on the basis they held no in-principle opposition to legalised VAD, while non-maleficence is a principle which is commonly evoked by physicians opposed to legalised VAD on the basis that it causes harm to the patient.32 33

In-principle support versus conscientious participation

A few interviewees did not construct themselves as conscientious participants, for reasons including fear of the emotional burden of providing VAD, it not being part of their own medical practice or uncertainty about the utility of the law. This is consistent with literature which reports a challenging gap between in-principle support and conscientious participation in VAD.15 40 What disinclines otherwise supportive physicians from actual participation? And why do the ethical justifications physicians provide for their notional support of the law not compel their participation in it? One study of physicians’ willingness to provide VAD has found that different ethical beliefs are associated with each of the separate actions required for VAD. An Australian study found that physicians associated beneficence (specifically the duty to relieve suffering) with the situations of a patient requesting VAD, and a physician administering VAD, yet they did not associate beneficence with the acts of legalising VAD or discussing VAD with patients.30 Ethical imperatives—even where they form a core set of professional values and identity—appear highly contingent on other motivating factors, such as the personal backgrounds or organisational contexts clinicians function within. Therefore, ethical imperatives alone cannot be relied on to determine the potential for conscientious participation.

Conflicting justifications

Research indicates that physicians might have problems with specific operative provisions of the law which disincline them from participation in VAD, such as where a law provides for both practitioner and self-administration and a doctor with in-principle support for VAD cannot conceive of themselves as being responsible for intravenous administration of a VAD substance.41 Additionally, concern for reputational damage within a profession which is generally opposed to the practice might dissuade otherwise supportive physicians from participation.42 43 These are examples of personal and professional justifications which might outweigh the patient-centred justifications that many conscientious participants espouse.23 26 While many of the rationales provided by participants in this research appear to be patient-centred (control over the means of death; the reassurance provided by knowledge of legal access to VAD; duty to facilitate patients’ legal right), there is also evidence of personal (eg, emotional toll) and professional (eg, lack of engagement by medical colleagues) rationales which disincline some physicians with in-principle support from participation. This suggests one explanation for the gap between in-principle support and conscientious participation, namely the fundamental challenge which VAD presents to the medical profession and medical practice.

Study limitations

Research participants were from the first state in Australia to have legalised VAD in over 20 years. Sampling was difficult because of the potential for response bias, in that physicians with more strongly reconciled ethical positions might be more inclined to agree to interview and might be over-represented in the sample. The sample may therefore not be representative of the diverse views of ‘conscientious participants’ and physicians holding in-principle support for VAD in the Victorian context.

Potential further research

While this article has documented evidence of how conscientious participants might ethically justify the practice of VAD, further research is required into how physicians might be purposefully supported to conscientiously participate in VAD, to ensure that unwilling physicians do not constitute a barrier to access for otherwise eligible patients. It is important to continue to engage with clinician perspectives on how to optimise the law to better support their involvement in VAD, particularly where such laws construct clinicians as the only legal providers. For example, further inquiry into what aspects of local VAD laws (operational or proposed) might disincline otherwise supportive practitioners from participation should be made, and findings communicated to legislators and policymakers. Additionally, available scholarship on nudge theory44 could be applied to the experiences of in-principle supportive physicians to explore ways they might be voluntarily motivated to conscientiously participate in VAD.

Conclusion

It has long been known that ethical considerations around autonomy have formed a significant base for clinicians’ support of legalised VAD. This research shows how the medical bioethical principles of beneficence and justice are also engaged by some physicians in their ethical justifications for their support for VAD laws. Doctors with no in-principle opposition to legalised VAD are most likely to construct themselves as conscientious participants in VAD, which as an orientation is logically distinct from conscientious objection but has received scant attention in the bioethics literature by comparison. Conscientious participants constitute the only practicable way that people will be able to legally access VAD in jurisdictions which construct clinicians as the only legal providers of VAD, and it is therefore necessary to be more familiar with the conditions which motivate these providers. This research has illuminated some of the ethical imperatives which drive conscientious participants but has also observed that ethical principles alone are not enough to motivate physicians to participate in VAD.

Unlike conscientious objectors, whose ethical position routinely opposes them from participation, physicians with an ethically supportive orientation to legalised VAD do not always become conscientious participants. This is concerning because the baseline of physicians who support legalised VAD is already small. Personal and professional concerns, such as fear of the increased workload, emotional toll or potential for professional stigma that may result from participation in VAD, act to disincentivise some physicians who otherwise ethically support VAD laws. Patient-centred justifications for participation are sometimes overborne by a medical profession which remains largely opposed to legalised VAD, and the significant challenge that VAD presents to medical practice. Clinician perspectives must continue to unpack this challenge to cultivate the common ground for conscientious participants to actively, ethically and purposefully provide VAD.

Data availability statement

Data are available upon request.

Ethics statements

Patient consent for publication

Ethics approval

This research was conducted under the approval of the Queensland University of Technology’s University Human Research Ethics Committee clearance number 1800000970.

References

Footnotes

  • Twitter @jodhirutherford

  • Contributors JR contributed to concept and design, data collection and analysis, and drafting the manuscript.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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