ISSUES IN LAW & MEDICINE

By Barry A. Bostrom, M.Div., J.D.

Editor's note. Issues in Law & Medicine is a peer-reviewed professional journal published three times a year by the National Legal Center for the Medically Dependent & Disabled, Inc. and the Horatio R. Storer Foundation, Inc., Published since 1985, Issues is devoted to providing useful information on recent legal and medical developments to assist attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions.

Of particular interest to pro-lifers in the March edition of Issues in Law & Medicine is "Countertransference and Assisted Suicide," written by psychiatrists Francis T. Varghese and Brian Kelly. This intriguing analysis looks at the unexamined role of countertransference (the conscious or unconscious emotional response of a physician to a patient) in requests for assisted suicide.

The authors point out that the wish of a patient for an assisted death or euthanasia needs to be carefully evaluated within a broad context that takes into account the interpersonal, social, and cultural factors that can influence the patient's understanding of suffering; the kind of concerns he or she feels; and how they make their decisions. Central to this discussion is the nature of the relationship between the patient and doctor.

When physicians attempt to put themselves "in the patient's shoes" in order to make clinical decisions and evaluations of "quality of life," it leaves the patient highly vulnerable to the doctor's personal and unrecognized biases concerning illness, death, and disability, Varghese and Kelly write.

While doctors may presume that proper medical decisions can be made based on what treatment they think they would wish were the physician in the patient's situation, in fact this adds a new and potentially very dangerous dimension to the doctor-patient relationship: the wishes of the doctor for the patient are presumed to be identical to those of the patient. This type of interaction between doctor and patient is not empathy; it is what psychiatrists call "countertransference."

The authors explain that it is well known that doctors have great difficulty dealing with death and dying. Indeed, dealing with terminally ill patients can be very emotionally draining for the doctor. Physicians must tread a difficult path, facing the patient's suffering and distress with its many determinants while attempting to maintain empathy but avoiding over- identification.

The legal and ethical arguments in favor of euthanasia, which enshrine the principle of individual autonomy, fail to address this key issue: there often are a host of other players with less than altruistic motives who have an interest in a patient's perceived suffering coming to a [lethal] end. Candor requires that policy makers understand that the patient's expression of a wish to die may be accompanied by - - or be a reflection of - - the doctor's wish to kill.

Compare euthanasia with other instances where physicians are ethically constrained, such as the well-recognized and accepted prohibition on doctors not to act on their love of or lust for patients. Although it may be disguised as love, when euthanasia or assisted suicide is legalized, there is very little to stop them from acting on their hate of patients.

We should not assume that the doctor's countertransference is always positive and helpful, Varghese and Kelly write. In fact it may be highly negative and destructive toward the patient. In the care of the dying patient, the doctor may experience feelings of impotence and rage toward the patient, triggered by a perception that the patient is thwarting all his/her therapeutic efforts.

The authors discuss evidence emerging from a range of research in clinical populations concerning terminally ill patients, end- of-life and other treatment decisions by medically ill patients, and the impact of care of the dying patient on the treating doctor. They conclude that empirically based research demonstrates that psychopathological factors in the doctor - - including reactions to illness, death, and the failure of treatment - - can influence the dying patient's end-of-life decision to pursue life or shorten life.

Finally, Varghese and Kelly warn that a doctor's ability to understand the full context of the patient's end-of-life dilemma is severely compromised by the removal of the prohibition against killing, one of several prohibitions that form the therapeutic framework that allows the doctor-patient relationship to function. Absent such a prohibition, it is simply not possible for a doctor to assess "competence" of the patient to decide about euthanasia, because the very question is outside the therapeutic frame.

The first item in the Verbatim section, "On Human Embryos and Medical Research: An Appeal for Ethically Responsible Science and Public Policy," has been endorsed by well over 100 nationally and internationally known physicians, scientists, theologians, ethicists, lawyers, and organizations. The declaration was first published by the Center for Bioethics and Human Dignity in Bannockburn, Illinois. Offering a wealth of legal, ethical, and scientific objections, the declaration calls for a ban on the use of federal funds to support human embryo research and stem cell research that requires the destruction of human embryos. The declaration concludes that destruction of human embryonic life is unnecessary for medical progress, as alternative methods of obtaining human stem cells and of repairing and regenerating human tissue exist and continue to be developed. Thus, it calls for federal funding for the development of alternative treatments that do not require the destruction of human embryonic life.

The second item in the Verbatim section is the introduction and abstract to a booklet entitled Abortion, Information & the Law: What Every Doctor Needs to Know. It discusses informed consent and malpractice law in Australia regarding abortion.

The booklet concludes that there are compelling medical reasons for treating abortion as a social, non-therapeutic, potentially harmful procedure with which conscientious doctors would choose not to involve themselves.

The third item is a short commentary by Henk Jochemsen, Ph.D., on the recent move to legalize euthanasia in the Netherlands. [See story, page 24.]

On November 28, 2000, the lower chamber of the Dutch Parliament accepted a proposal to legalize euthanasia and physician- assisted suicide. On April 11, 2001, the upper chamber also approved it. The proposal will become law when signed by the Queen.

Dr. Jochemsen raises a number of objections: (1) there are inadequate safeguards; (2) legalization will lead to broader acceptance and increased practice of euthanasia; (3) euthanasia is incompatible with the role of the physician as healer; (4) accepting euthanasia of minors 12-18 years of age overestimates their capacity to evaluate the meaning of a request for euthanasia and places an unacceptable burden on them; (5) legalizing euthanasia by advance directive will likely broaden the requirement of "unbearable suffering" to "loss of dignity"; and (6) physicians who refuse to participate in euthanasia or make referrals for euthanasia must make this known to patients early on or face possible liability or danger of professional ostracization.

Be informed, stay informed! Issues in Law & Medicine is a peer- reviewed journal published three times a year. The annual subscription rate is $69 for individuals, $89 for institutions, for three issues. Single issues are $23. Requests may be sent to Issues in Law & Medicine, 3 South 6th Street, Terre Haute, IN 47807-3510.

Barry A. Bostrom is the executive editor of Issues in Law & Medicine.