The Legality and Ethics of Death

In the summer of 1976, I had a new job as an orderly at the local hospital.  I remember well one of the patients from that time, a gentleman in his mid-50s in the last stage of terminal cancer.  His pain was agonizing and when he was awake he screamed non-stop.  The days he was hospitalized were excruciating for him, the staff, and especially the family members who had to sit by and were unable to do more than watch and hold his hand.  One day I came to work and saw his face bandaged, his hands now tied to the bed railing; during the night, in his agony, he had clawed out an eye.  I found myself avoiding that ward as much as possible.  When he (finally) died, the overwhelming feeling of all was not of loss, but relief.

During those days, I heard over and over, “Why can’t we do more than this?  We’re more humane with suffering animals than we are people.”

Despite this horrific scene, or maybe partly due to it, it turns out that quite often we do more than just watch and wait.  In the early 80s, now a pharmacist working in a teaching hospital, I was on duty one evening with two other pharmacists, JT and LV, when I received the following order: “Morphine 1500mg in 50 cc saline.  Run in over 5 minutes.”  The doctor’s progress note read, “Discussed with family.  Will ease patient out.”  I had gotten my first order for human euthanasia.  I took the order to the other two pharmacists to discuss.  LV said it was illegal (she was correct) and she would have nothing to do with murder.  JT did not want to discuss the issue—he grabbed the order, filled it himself and sent the medication off to the floor.

Physician assisted suicide (I hate that term.  A lot more people like pharmacists, nurses, etc have to take part), clinically assisted suicide, or what I now prefer—Clinically Assisted Patient Demise (CAPD) is now legal in 3 states.  Several others are considering enacting laws that would permit CAPD.  However, the truth is that CAPD occurs often in all 50 states on a mostly regular basis, and pharmacists are taking part, usually knowingly and willingly.  They are just as aware that what they are doing is a crime.

But first, lets address pharmacists in those states where CAPD is legal.  Pharmacists have the right to refuse to take part in ending a patient’s life, and there can be no liability for this refusal, even if there is no other pharmacist on site who is willing to prepare the fatal cocktail.  There may no repercussions from the employer from either taking part or refusing.  For the pharmacist taking part, there can be no liability if her actions are in good faith and the fatal cocktail is prepared correctly.  Even if the drugs fail to bring about the death of the patient, the pharmacist is protected.  Still, the pharmacist should review all the law and protocols for the institution where the death will be brought about before agreeing to take part.  Any and all questions and concerns should be addressed with both the ordering physician and the institution to the pharmacist’s satisfaction.

Now, a few words about the rest of the nation.  Almost every other state permits the “living will” by which patients can state the conditions of treatment if they become terminal or are in a “persistent vegetative state.”  Several cases have gone through the court system all the way to SCOTUS, the result being that living wills may restrict treatment—drugs, nutrition, etc—but they may not require persons or institutions to engage in what the Court refers to as “affirmative steps” toward death.  Affirmative steps are those that seek to bring about death artificially early.  The Court considered the “hastening” of death to be illegal. (The 3 states to pass laws permitting CAPD did so under the auspices of the 10th Amendment.  Since the Constitution does not address medical care or the termination of life, laws regarding these topics rightfully belong to the states.  Thus, SCOTUS is overruled.)

Prosecutors in these states have taken two approaches in response to what seems to be a growing (with substantial opposition) movement to make CAPD legal.  Most DAs have eased back on prosecutions, recognizing the movement is headed their way.  Others, a minority, take the opposite view and energetically pursue, arrest, and try those involved in illegal CAPD.  Actual arrests or indictments are few; prosecutions are few and far between.

Pharmacists in states where CAPD remains illegal are nonetheless advised to strongly consider the consequences of taking part in CAPD.  If a prosecution ensued, it would likely see the pharmacist charged with second degree murder or something similar.  After that, the state board of pharmacy would then be free to act against the pharmacist’s license.  Even a sympathetic board would be required to take steps that would likely end a career.

Very aware of the possible consequences, many pharmacists still willingly take part in and support CAPD.  A study in the AJHP showed that just under 50% agreed that CAPD should be an option open to the terminally ill, most of this group also stating that using prescription drugs for ending a life was an appropriate use for the medications.  The decision to take or not take part is almost always based on the pharmacist’s ethics.  Pharmacists have employed both moral and professional considerations in their decision to engage in CAPD, citing a professional duty to their patient’s well-being, as determined by the patient.   However, ethics is most often the cornerstone for the decision. A lot of such thoughts relied on the SCOTUS ROE V WADE holding that a person has a right to decide how and what will happen with their own body.  Pharmacists reason this now includes treating certain medical conditions through the termination of life.  Further, they hold that if we have medicines to increase the quality and quantity of life, those same medicines can be used to end suffering, and pharmacists have a morl duty to ease suffering by all available means..

Pharmacists opposing CAPD, once again mostly for ethical reasons, rely on the arguments of the sanctity of life—any life—as well as religious convictions.  All life, no matter in what state of health, is sacred and should be preserved as long as possible no matter what..  Some religions hold that suicide, which they view CAPD as, is an unforgiveable sin, while others regard affirmative steps toward death as an intrusion upon God’s plan for that patient.  Two pastors I know, love and respect both stated the same sentence: it is up to God when you die, not up to you.  Many pharmacists share this tenet.  Thus, the most common basis for refusal to engage in CAPD is religious conviction.  Professional considerations also enter into the debate; pharmacists hold to the “do no harm” tenet as a basis for refusing to aid in the death of a patient.

However we may feel about this issue, it is out there.  People across this nation daily end their lives through clinically assisted patient death, and the pharmacist is an integral part of the process.  Retail pharmacists who believe this is solely an institutional issue should beware.  With the ever increasing restrictions of managed care, people who seek an escape from terminal conditions and horrific pain will be getting prescriptions to take at home, and this is coming sooner than most of us think.  In short, it is decision-making time for all of us.

I am sure you are wondering.  What would I have done back in the 80s in that hospital if JT had not taken the order away from me and filled it?  Would I have filled it?  Yes.  Do I support CAPD?  At this time, yes.  Do I feel morally right?  If I did not think I held the moral high ground, I would not support CAPD.  Do I feel religiously right?  No.  See the comment about those two pastors above.  But I do believe that ending suffering in certain situations is not a sin.

So, what would you do?

2 thoughts on “The Legality and Ethics of Death

  1. Tough question, Pete! I wholeheartedly support an individuals right to end their suffering and die with dignity. I would want to fill it. But the potential legal consequences make it messy. Something to further muddy the waters: what if it were prescribed for a child? When do you consider someone capable of making the decision to end their own life? When do you consider CAPD medically acceptable?

    I heard an investigative report on the radio a few weeks back about this dilemma in terminally ill children.

  2. New thought: If the physician is willing to write the order, then maybe he/she is willing to dispense it as well. If CAPD were not legal in my jurisdiction, I would contact the prescriber, discuss physician dispensing options, and offer my assistance in getting that process setup for him or her.

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