George, Katrina --- "Autonomy and Vulnerability at the Death Bed" [2006] UWSLawRw 6; (2006) 10(1) University of Western Sydney Law Review 139

AUTONOMY AND VULNERABILITY AT THE DEATH BED

Katrina George*

The principle of autonomy is central to arguments in favour of voluntary euthanasia and physician-assisted suicide.^[1] This is underscored by the most recent effort to legalise these practices. In November 2005 Lord Joffe tabled his third private member’s bill (Assisted Dying for the Terminally Ill Bill) in the House of Lords in as many years. It aims to legalise physician-assisted suicide and awaits further debate in the House of Lords. Lord Joffe has stated that ‘The underlying principle on which the whole bill is based upon is personal autonomy and people making decisions for themselves.’^[2]

In Australia the same philosophy is echoed by voluntary euthanasia organisations who advocate for legislation that gives ‘effect to freedom of choice’^[3], and promote the ‘right to choose’^[4] and ‘respect for personal autonomy, our right to make decisions that are primarily our own concern.’^[5]

In this paper I review the counter point to the autonomy argument: that although legalised assisted death might expand the range of choices for some patients, its wider availability would pose special risks to the autonomy of the so called ‘vulnerable’ who would experience pressure to end their lives. Thus in response to Lord Joffe’s bill, R J D George et al argue:

The cardinal argument against euthanasia… is the insoluble ethical conflict between meeting individuals’ demands for therapeutic death and ensuring that incapable, vulnerable, or voiceless patients will not have lethal treatment prescribed as their best interest.^[6]

In Part I of this paper I provide a brief overview of the competing conceptions of autonomy that find expression in this debate. I point out that notwithstanding these different views, there is consensus that autonomy must involve one important characteristic: the freedom from controlling influences. In Part II I explore the meaning of vulnerability, a much cited but little examined concept, and consider the attitudes of vulnerable populations towards assisted death. In Part III I consider the interpersonal and contextual factors that could act as controlling influences at the time of death, rendering certain patients vulnerable to deciding for assisted death. Finally Part IV identifies the legal relevance of vulnerability and considers whether existing common law doctrine can adequately safeguard the interests of vulnerable people on the death bed.

I – Autonomy at the end of life

Autonomy is the principle that humans have the right to non-interference and self determination when making decisions about themselves.^[7] In a society which places high value on freedom of choice in education, career, family and lifestyle, choice in dying may seem a consistent extension and assistance in doing so the logical corollary. Singer summarises the sentiment:

the principle of respect for autonomy tells us to allow rational agents to live their own lives according to their autonomous decisions, free from coercion or interference; but if rational agents should autonomously choose to die, then respect for autonomy will lead us to assist them to do as they choose. ^[8]

Research confirms the significance of autonomy for patients at the end of their lives. The strongest determinants of the desire among patients for assisted death stem not from unrelieved pain, but from anxieties about autonomy: losing control, being a burden, being dependent and losing dignity. ^[9]

In a modern medical setting where over-treatment is as much an issue as under-treatment and a noted spur to euthanasia, the value of autonomy might safeguard patients against ‘medical paternalism and therapeutic insistency.’ ^[10] On this view, to force a person to continue with his or her life constitutes a lack of respect for that person’s dignity and a violation of his or her conscience.

Others in the debate are committed to autonomy as an important value but do not regard it as absolute. ‘It is foolish to think that one’s commitment to [moral autonomy and civil liberty] is measured by how far one will extend them.’ ^[11] On this view, respect for autonomy does not extend to assistance in suicide. Some commentators highlight the ambivalence of the principle. For example, if we equate autonomy with dignity then this implies that dignity is lost when control cannot be exercised, even over what is uncontrollable: age, sickness, dependency, disability and suffering.^[12]

Similarly, while respect for autonomy may be intended to protect liberty, there are concerns that it could have the opposite effect for those who are judged to be non-autonomous and result in wrongful discrimination. ^[13] Undue emphasis on autonomy may also ignore the wider societal impact of individual decisions,^[14] a consideration particularly relevant to euthanasia.

Notwithstanding the complexity of the debate there seems to be wide agreement that autonomy is an important value in death as in life. ‘[I]f personal autonomy is a worthy objective then there can be few contexts where its exercise is more important than in confronting one’s mortality in the closing stages of life.’ ^[15]

Although theories of autonomy are diverse and there is disagreement as to its meaning and limitations, Mappes and DeGrazia point to wide agreement that for an action to qualify as autonomous it must, inter alia, be sufficiently free from internal and external constraints.^[16] External constraints might include physical barriers and actual coercion, as well as strong family and cultural influences.^[17] Internal constraints could comprise of mental illness, alcoholism and more common pressures such as fear, intense pain, discomfort and intense emotions.^[18] Similarly, Beauchamp and Childress argue that notwithstanding the diversity of autonomy theories, one defining characteristic is considered essential: liberty - the independence from controlling influences.^[19]

II - Who are the vulnerable?

In broad terms vulnerability is intrinsic to the human condition and the experience of us all. Kottow, for example, refers to the ‘essential vulnerability of being human’, evidenced in the risks we all face of aggression, abuse of rights and in the obstacles to human flourishing. This essential vulnerability finds expression in the widely held principle that every member of society is entitled to equal protection.^[20] However, in the sense referred to in this paper, vulnerability denotes a more determined deficiency that predisposes a person to further frailty and even harm.^[21]

The International Ethical Guidelines for Biomedical Research Involving Human Subjects lists the vulnerable as elderly persons with dementia and residents of nursing homes; people receiving social security, the unemployed, homeless persons and patients with incurable diseases.^[22] Poor people, minorities and those who are least educated have also been identified as vulnerable populations. ^[23] Other definitions describe a group of captive individuals, including prisoners, the mentally ill and, what is noteworthy here, the acutely ill, the terminally ill or dying.^[24]

The notion of vulnerability has received some attention in the area of research ethics. The chief characteristic of vulnerability identified by ethics guidelines ‘is a limited capacity or freedom to consent or to decline...’^[25] For example:

Vulnerable persons are those who are relatively (or absolutely) incapable of protecting their own interests. More formally they may have insufficient power, intelligence, education, resources, strength or other needed attributes to protect their own interests.^[26]

This definition of vulnerability highlights the features of the subject’s context that could act as ‘controlling influences’, thus limiting the capacity to consent to or decline participation in research. These features include structural inequalities and disparities in power, social and economic disadvantage and oppressive cultural stereotypes. One issue is whether these features of vulnerability could act as controlling influences that undermine the autonomy of decisions for death.

Attitudes of vulnerable populations toward assisted death

Voluntary euthanasia and physician-assisted suicide appear to receive the least support amongst populations identified as vulnerable. Opposition has been noted particularly amongst women, black people, the elderly, those with less education, low incomes, dementia or intellectual impairment.^[27] For example, a 1994 United States poll found that 74% of men compared with 67% of women supported life ending practices, and 73% of Anglos, 65% of Hispanics and 53% of Blacks were in favour. ^[28] This lower level of support for voluntary euthanasia and physician-assisted suicide might be explained by religious belief that tends to be more widely and more strongly held in these populations. ^[29]

Alternatively, this reluctance could be interpreted as a response to historic disadvantage, the anxiety that voluntary euthanasia and physician-assisted suicide could be practised oppressively and that the marginalised would be the likely victims. Such was the interpretation of the New York Times of exit polls after a Californian referendum that defeated a proposal for the legalisation of AVE:

Those polls showed support for the measure lowest among women, older people, Asians and African Americans and highest among young men with postgraduate education and incomes over $75,000 per year.^[30]

There is evidence that black people, for example, may be less likely than white people to trust doctors and the health system and that, with abuses like the Tuskegee syphilis study, such caution may not be unjustified.^[31]

Similarly, a study of women from vulnerable populations in the United States (the homeless, elderly, non-English speakers, survivors of abuse) revealed that distrust of doctors, racism in health care and language barriers were the primary concerns regarding end of life decisions and major reasons for opposition to voluntary euthanasia and physician-assisted suicide.^[32]

While surveys of attitudes are instructive, the real question is whether such reticence among vulnerable populations is well founded: are they in fact vulnerable and at special risk with the practice of assisted death or is this mere perception?

III – Vulnerable lives, fragile autonomy?

Opponents of assisted death argue that the legalisation of these practices would lead to ‘euthanasia as oppression’^[33] where hidden, subtle pressure is imposed on the vulnerable to ‘do the right thing’ and decide for death. A disability rights advocate, for example, claims that:

Their ‘autonomous decision’ then becomes not an expression of powerful autonomy, but of an over-ridden will to live. And our silent acquiescence to their demand for their lives to be ended is not in fact the respect for autonomy we would construct it to be, rather it is an act of severe social neglect, a derogation of social responsibility. ^[34]

Controlling influences: interpersonal

The increasing physical and emotional frailty and dependency of dying patients renders them more susceptible to controlling influences than in any other clinical context. At the same time, the patient’s decline is fertile ground for the presence and operation of controlling influences on their decisions. The impact of a patient’s terminal decline resonates widely: families are strained financially and emotionally; doctors and health care professionals carry the burden of care, often times with limited resources; the health care system juggles competing demands. It may not be just the patient who has motivation for the patient’s hastened death; others may have strong reasons for wielding a ‘controlling influence’ upon his or her decision for assisted death.

This is not to say that such influence is necessarily wielded by Machiavellian scheming. As death approaches, controlling influences may be discreet and hidden, even well meaning or unconscious:

is it not at least possible that in the family discussions concerning the future, pressure will be applied which will suggest…that no good can come from their purposeless clinging to life, that they have become a mere burden, and that they owe it to their suffering family to request an officially sanctioned death?…that even among those…who are genuinely loved…some, in the depths of depression and fear, will imagine falsely that it is their death that their families most desire?^[35]

Doctors can wield influence in a similar manner. For example, one study about doctors and their patient’s suicides concluded that ‘a patient’s suicidal decision can at least partly arise in response to a physician’s need for release from a painful clinical relationship, rather than as an independent patient’s choice.’^[36]

Thus the potential for abuse of patient autonomy at the end of life is compounded by the fact that controlling influences may not be overt but subtle and difficult to detect.

Controlling influences: contextual

Controlling influences may not only be interpersonal, but emanate also from social, cultural and economic circumstances such as entrenched disadvantage as experienced by some populations in particular. If vulnerable groups are subject to such controlling influences that render them at special risk of deciding for assisted death, one indication of this might be a disproportionate percentage of such groups requesting and receiving assisted death. However, an overview of the available literature indicates this is not the case.

In 1998 Muller et al published their analysis of the empirical research regarding the elderly as a vulnerable population in the Netherlands, Australia, the United Kingdom, the United States, Denmark and Norway. They found that no such disproportion is evident in the oldest age group and concluded that the elderly are not vulnerable in relation to assisted death.^[37]

Nor is there evidence to suggest that women are disproportionately represented among assisted deaths. In the Netherlands both voluntary euthanasia and physician-assisted suicide have been decriminalised since 1973 and legalised since 2001 in accordance with a statutory protocol. Quantitative studies of the rates and characteristics of voluntary euthanasia and physician-assisted suicide were conducted in the Netherlands in 1990, 1995 and 2001 (the data from 2005 are not yet available in English). Random samples were taken of death certificates from the central death registry.

When the data is projected across the sample periods the incidence of euthanasia and physician-assisted suicide taken together is equally balanced between gender: overall in 1990, 1995 and 2001, 51% of these deaths were men and 49% were women.^[38]

In Oregon, United States, physician-assisted suicide has been legal since November 1997. The Oregon Department of Human Services collects information regarding the numbers and characteristics of the patients who ingest fatal dosages of medications prescribed pursuant to the legislation. Vulnerable populations are not overrepresented in the 246 deaths between 1998 and 2005. To the contrary. Those with a higher level of education are more likely to use the legislation than those who did not graduate from high school. Overall women are as likely to avail themselves of physician-assisted suicide as men.^[39] Rates of participation in physician-assisted suicide decreased with age although 65 per cent of participants were aged 65 years or older.^[40] Ninety seven per cent of the deaths were white people, the remainder Asian and Native American.^[41]

In sum, an overview of some of the relevant empirical studies does not suggest that people with characteristics of vulnerability (such as old age, gender, lower education, marginalised race) decide for assisted death in disproportionate numbers. However, I argue that even if there is no greater incidence of vulnerable populations deciding for voluntary euthanasia or physician-assisted suicide, their vulnerability to these practices could be indicated by the reasons they choose assisted death.^[42] There is no such thing as the generic patient. Every decision for assisted death occurs within a particular context. Patients who experience social, cultural or economic marginalisation may well decide for assisted death for reasons different to patients who enjoy relative privilege or power.

Women

Unfortunately, there is a dearth of empirical research on this issue, although there has been some exploration of women’s context at the end of life. Canetto and Hollenshead, for example, argue that women’s decisions for assisted death are influenced by their entrenched social and economic disadvantage that limits their choices for care.^[43] Another aspect of social disadvantage according to Canetto and Hollenshead is the devaluation of women’s lives that is exacerbated by older age. They point to a study about the acceptability of suicidal behaviour. The most acceptable suicide attempts were those of older women, possibly ‘because they lack status, wealth and power.’^[44] In these circumstances women are more likely than men to be seen as reasonable candidates for assisted suicide.^[45]

Another explanation for women’s participation in assisted death points to cultural influences that idealise femininity in terms of self-effacement and self-sacrifice. Canetto and Hollenshead as well as Wolf point to the analysis of Carol Gilligan who identified a psychology of self-sacrifice among women, a psychology embedded in the Western cultural tradition.^[46] This ethic of self-sacrifice is encapsulated by the comments of a friend of one of the suicides who was assisted by Dr Jack Kevorkian: ‘She felt it was a gift to her family, sparing them the burden of taking care of her’.^[47]

The experience of women raises a possible risk that features of a patient’s vulnerability could operate as ‘controlling influences’ that undermine the autonomy of their decision for death. Similar dynamics could influence the decisions of other populations such as the elderly, the poor or racial minorities, even if they do not die in disproportionate numbers. However, we need more research. A focus on individual self-determination ignores the contextual dynamics that might influence end of life decisions.

IV - Vulnerability and the law

Voluntariness

Does vulnerability have any legal relevance? In relation to patient decision-making the term ‘vulnerability’ does not find explicit expression in the common law. However, the common law does recognise that freedom from controlling influences is an essential requirement in patient decision-making. This finds expression in the principle of voluntariness, an element of valid consent at law. Thus:

a man cannot be said to be truly “willing” unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditional, so that he may be able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will.^[48]

The voluntariness of the patient’s decision is one of the legal requirements in the Dutch, Belgian and Oregon legislation that legalises euthanasia and/or physician-assisted suicide. It is also a feature of Lord Joffe’s private member’s bill. ^[49]

It is entirely appropriate that patients should receive advice from family, friends, doctors and so forth and be influenced, even persuaded by that advice. The law will regard such a decision as voluntary as long as this influence ‘did not overbear the independence of the patient’s decision.’^[50] From a legal perspective controlling or ‘overbearing’ influences can take a number of different forms.

Controlling influences

(a) Duress

At the extreme is duress, influence that involves force or threats of force to the person, or their parent, spouse or child. The duress vitiates what would otherwise be consent. Such extremes of influence rarely manifest in health care. In Latter v Braddell ^[51] the plaintiff was a domestic servant who complied under protest with her employer’s direction to undress for a medical examination. The plaintiff sued for assault. On appeal it was held that she did consent. As commentators have noted, the plaintiff today could expect to succeed on the basis of duress.^[52]

(b) Undue influence

Controlling influences may take a more subtle form. The contractual doctrine of undue influence provides a framework for analysis. Central to this doctrine is the inequality and power imbalance that is also characteristic of the concept of vulnerability.

Contract law presumes the presence of undue influence in certain relationships where a dependent party has placed confidence in an ascendant party who has the obligation to act in the dependent’s interests. Common examples are the relationship of parent/dependent younger child and doctor/patient. The law will not allow the ascendant party to benefit from a contract or gift unless that party can prove the benefit was conferred freely, unhindered by undue influence. It is not necessary to prove any actual wrongdoing by the ascendant party.^[53] ‘Rather, the central issue is the plaintiff’s lack of capacity for self-management by reason of their excessive dependence on the other person in the relationship.’^[54]

Outside of such relationships undue influence could still be present in other relationships that are characterised by, for example, illegitimate pressure, inequality of bargaining power or exploitation of weakness and necessity.^[55]

The English Court of Appeal has adopted this approach to the refusal of consent by a patient. In Re T the patient’s mother had fervent religious beliefs and was held to have exercised undue influence upon the decision of her seriously ill (adult) daughter to refuse a life preserving blood transfusion.^[56] In considering the effect of outside influences on a patient’s decision Lord Donaldson MR considered both the strength of the will of the patient (weakened by illness and medication) and the closeness of the relationship with the influencer.^[57]

The real question in each such case is ‘Does the patient really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself?’^[58]

The potential for the doctrine of undue influence to protect vulnerable patients was also evident in Mrs U v Centre for Reproductive Medicine.^[59] Here the issue was whether Mrs U’s husband had withdrawn his consent to the posthumous use of his sperm as a result of the undue influence of a nursing sister who impliedly threatened to interrupt or cease fertility treatment unless he did so. The Court of Appeal noted Mr and Mrs U’s emotional, mental and financial commitment to the treatment, ‘a considerable ordeal’, and observed that ‘they were both very vulnerable’.^[60] Nevertheless it upheld the decision of the President of the Family Division who concluded that although the pressure on the husband ‘must have been considerable’, it was not sufficient to amount to undue influence. The correct test was whether Mr U’s will was overborne, or whether he ‘no longer thought and decided for himself.’^[61]

Undue influence can also arise from the deliberate concealment of material facts.^[62] Although usually relevant in the context of financial transactions, this factor could have relevance in health care. The withholding or manipulation of information – by family, doctors or supporting health care workers – can impact on a patient’s perceptions and beliefs and impair the voluntariness of their choices. For example, a patient might not be told about alternatives to or risks of a recommended course of action; or a health professional’s choice of words could present a scenario in a particular light.^[63] The disparity in knowledge and power in a clinical relationship means that such influence may impact strongly on patients.

(c) Unconscionability

While the focus of undue influence and duress is on the quality of the consent of the weaker party, unconscionability challenges voluntariness when the stronger party has obtained a benefit by taking unconscientious advantage of the weaker party’s vulnerability. Relief will be granted in circumstances when the weaker party did not act voluntarily. However, unconscionability goes further than the doctrine of undue influence by granting relief to a party who, despite acting voluntarily, was ‘unable to make a worthwhile judgment as to what is in his best interest.’^[64]

The party seeking to escape the contract must be ‘placed at a special disadvantage vis-a-vis another.’^[65] The sex of the weaker party has been identified as a factor of special disadvantage.^[66]

In the Canadian case of Norberg v Wynrib^[67] a doctor prescribed a drug to an addicted patient in return for sexual favours. The patient sued for battery and one issue was the voluntariness of her consent. Justice La Forest adopted an unconscionability approach. He stated that the power relationship between the parties was central to the notion of consent. In his view, if the “justice factor” of unconscionability is relevant to voluntariness in contract, it is also relevant to voluntariness in tort in circumstances where the same ‘power dependency’ relationship and exploitation exists.^[68] However, on his Honour’s analysis it seems that the mere presence of power is not adequate to ground liability, but rather its actual abuse is required.^[69]

The patient’s limited education and addiction, the doctor’s knowledge of this and his medical expertise created an inequality between the parties that the doctor manipulated for his own benefit. This removed the possibility of the patient providing meaningful consent. However, La Forest’s J application of the unconscionability doctrine in this context has been criticised.^[70]

Legal significance of vulnerability at the death bed

Undue influence and unconscionability demonstrate the legal significance of vulnerability. In the realm of contract it has long been recognised that features of vulnerability (such as social and economic disadvantage or power dependency) can act as controlling influences that undermine the voluntariness of a party’s consent to a transaction. In these circumstances the law will assume a protective stance and closely scrutinise the validity of the apparent consent.

The impact of vulnerability may be keenly felt by patients at the end of their lives. The concerns identified by the Declaration of Helsinki about the decisions of vulnerable research populations could be extended to decisions at the death bed: the giving of consent under duress; making decisions from which one does not benefit personally; and decisions made on behalf of those who cannot give or refuse consent for themselves.^[71]

These concerns are compounded in the context of dying and death. All patients who are seriously or terminally ill experience increased dependency on physicians, health workers and family to whom they may naturally turn for advice and guidance. Depression or mental incapacity can further compromise judgment and crush the spirit. ‘One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful.’^[72]

The case of Re T in particular signifies a willingness to extend the doctrines of undue influence and unconscionability to decisions in the context of medical care. This offers a useful framework for analysing the legal approach to the impact of vulnerability on choices about assisted death. Its utility is, however, limited.

Firstly, unconscionability requires the conscious and deliberate abuse of ascendency by the stronger party who takes advantage of the other’s vulnerability. Such wrongdoing is not a requirement in presumed relationships of undue influence, although its presence will often be determinative of the outcome of any action. However, this overlooks the possibility that controlling influences can be exercised without any deliberate abuse. With patients reduced both physically and mentally, the ascendancy of doctors and family may be affected in the patient’s ‘best interests’, in a well meaning or unconscious manner. The impact on the voluntariness of patient decision-making may nevertheless be significant.

Secondly, the doctrines exist to respond to problems within certain kinds of relationships. Although the doctrines foresee that the characteristic power imbalance can arise from features of the weaker party’s context such as social and economic disadvantage, this disparity is ‘played out’ within a particular relationship: there is always an ascendant party and a dependent party. The doctrines do not accommodate the concern that risks to the voluntariness of a patient’s choice can arise solely from structural factors such as their social, cultural and economic circumstances, independently of any relationship.

Conclusion

In one sense a patient’s decision for voluntary euthanasia or physician-assisted suicide is a paradigmatic expression of autonomy. However, on the death bed claims to autonomy are particularly ambiguous: a competent patient with full capacity may articulate a clear decision about death. But I have argued that powerful influences may be operating which control the why of some decisions and subvert genuine independence.

Notwithstanding the current lack of empirical evidence, there is reason to be concerned that some populations are vulnerable to controlling influences that undermine the autonomy of their choices for assisted death. A patient’s physical and psychological vulnerability at the end of life might be compounded by features of his or her context that belie the rhetoric of choice: economic disadvantage, social marginalisation or oppressive cultural stereotypes.

The doctrines of undue influence and unconscionability demonstrate that the law recognises the significance of vulnerability as a factor that can undermine the voluntariness of choice within relationships. However, in decisions at the deathbed, greater legal focus should be placed on structural factors that might be controlling influences on patient choices, independently of any excessive dependence on an ascendant party.

With evidence that euthanasia and physician-assisted suicide are practised even under prohibition,^[73] a genuine commitment to patient autonomy demands research about the reasons vulnerable populations decide for assisted death. One of the aims of this paper has been to lay the groundwork for such research.

---

* Lecturer, School of Law, University of Western Sydney; PhD Candidate, Faculty of Law, University of Sydney. My thanks to Associate Professor Roger Magnusson.

¹ Voluntary euthanasia is defined as the intentional killing of a patient at the request of the patient, usually by lethal injection administered by a physician. Physician-assisted suicide is defined as the ending of one’s life through the voluntary self-administration of lethal medications prescribed by a physician for that purpose. In this paper ‘assisted death’ is a shorthand reference for both voluntary euthanasia and physician- assisted suicide.

^[2] Hélène Mulholland, ‘A Matter of Life and Death’, Guardian Unlimited (2005) http://www.guardian.co.uk/uk_news/story/0,,1599498,00.html at 29 August 2006.

^[3] Die With Dignity Tasmania Inc, (n.d.) http://www.vest.org.au/aims.htm at 29 August 2006.

^[4] Dying With Dignity Victoria, (n.d.) http://www.dwdv.org.au at 29 August 2006.

^[5]South Australian Voluntary Euthanasia Society, (n.d.) http://www.saves.asn.au/resources/facts/fs09.htm at 29 August 2006.

^[6] R J D George, I G Finlay and D Jeffrey, ‘Legalised Euthanasia Will Violate the Rights of Vulnerable Patients’ (2005) 331 British Medical Journal 684, 684.

^[7] I Kerridge et al, Ethics and Law for the Health Professions, Katoomba, NSW, Social Science Press, 1998, 72.

^[8] P Singer, Practical Ethics, Cambridge, Cambridge University Press, Second Edition, 1993, 195.

^[9]A L Back, J I Wallace, H E Starks, R A Pearlman, ‘Physician-Assisted Suicide and Euthanasia in Washington State’ (1996) 275 Journal of the American Medical Association 919; L Ganzini, and S Block, ‘Physician-Assisted Death – A Last Resort?’ (2002) 346 The New England Journal of Medicine; Oregon Department of Human Services, Sixth Annual Report on Oregon’s Death with Dignity Act (2004) http://www.dhs.state.or.us/publichealth/chs/pas/pas.cfm at 28 May 2004.

^[10] M A M Pijnenburg, ‘Catholic Healthcare and the Dutch National Character’, in D C Thomasma et al (eds) Asking to Die. Inside the Dutch Debate About Euthanasia, Dordrecht, Kluwer Academic Publishers (1998), 252.

^[11] R Gaita, ‘The Victorian Doctors and the Demands of Compassion’, Quadrant, May (1995), 24.

^[12] S D Stolberg, ‘Human Dignity and Disease, Disability, Suffering: A Philosophical Contribution to the Euthanasia and Assisted Suicide Debate’ in M Sommerville, Death Talk . The Case against Euthanasia and Physician Assisted Suicide, Montreal & Kingston, McGill-Queen’s University Press, (2001), 258.

^[13] M. Sommerville, ‘Labels versus Contents: Variance between Philosophy, Psychiatry, and Law in Concepts Governing Decision-Making’, in ibid., at 316.

^[14] See for example A MacIntyre, After Virtue: A Study in Moral Theory, Notre Dame, University of Notre Dame Press, 1981; M Sommerville, ‘The Song of Death: the Lyrics of Euthanasia’, (1993) 9 Journal of Contemporary Health Law and Policy, 26.

^[15] M Magnusson, Angels of Death. Exploring the Euthanasia Underground, Carlton South, Melbourne University Press (2002), 281.

^[16] TA Mappes and D DeGarzia, Biomedical Ethics, New York, McGraw-Hill (2001), 39

^[17] Ibid 41.

^[18] Ibid 42.

^[19]T.L.Beauchamp and J.F. Childress, Principles of Biomedical Ethics, Oxford, Oxford University Press (2001), 58.

^[20] M H Kottow, ‘The Vulnerable and the Susceptible’ (2003) 17 Bioethics 460, 461 - 462. Similarly, O O’Neill says human beings are ‘persistently vulnerable in ways typical of the whole species’. See O O’Neill, Towards Justice and Virtue, Cambridge, Cambridge University Press, (1996), 192-193, quoted in M. H. Kottow, Ibid, 462

^[21] M. H. Kottow argues strongly for a distinction between ‘the fundamental vulnerability intrinsic to human nature’ on the one hand and susceptibility which refers to this more deficient state on the other. It is this more deficient state that is the subject of this paper. See Ibid 463.

^[22] Council for International Organizations of Medical Sciences, International Ethical Guidelines for Biomedical Research Involving Human Subjects (2002) Guideline 13: 64.

^[23] E Morrow, ‘Attitudes of Women from Vulnerable Populations Toward Physician Assisted Death: A Qualitative Approach’, (1997) 8 The Journal of Clinical Ethics 279, 279.

^[24] L Lasagna quoted in B Raudonis, ‘Ethical Considerations in Qualitative Research With Hospice Patients’ (1992) 2 Qualitative Health Research 238, 239

^[25] R Macklin, ‘Bioethics, Vulnerability, and Protection’ (2003) 17 Bioethics 473, 474.

^[26] Council for International Organizations of Medical Sciences, above n 22.

^[27]H G Koenig, D Wildman-Hanlon, K Schmader, ‘Attitudes of Elderly Patients and Their Families Towards Physician-Assisted Suicide’ (1996) 156 Archives of Internal Medicine 2240, 2240.

^[28]E Morrow, n 23 at 279; similar findings were also reported by R L Lichtenstein, K H Alcser, A Corning, J G Bachman and D J Doukas, ‘Black/White Differences in Attitudes Toward Physician-Assisted Suicide’ (1997) 89 Journal of the National Medical Association 125, 128.

^[29]R L Lichtenstein et al, Ibid 28; J Hare, D Skinner, D Riley, ‘Why Older Age Predicts Lower Acceptance of Physician-Assisted Suicide’ (October 2000) 20 Wisconsin Medical Journal 20.

^[30] S M Wolf, ‘Gender, Feminism, and Death: Physician-Assisted Suicide and Euthanasia’ in S M Wolf (ed), Feminism & Bioethics: Beyond Reproduction, Oxford, Oxford University Press, 1996, 282, 290.

^[31]R L Lichtenstein et al, above n 28, 132.

^[32]E Morrow, above n 23, 281-282.

^[33] Smith W, Forced Exit: the Slippery Slope from Assisted Suicide to Legalized Murder, New York, New York Times Books, (1997), 181. See also, for example, R Manne ‘Life and Death on the Slippery Slope’, Quadrant, July-August 1995.

^[34] J Fitzgerald, ‘Legalizing Euthanasia: Its Implications for People with Disabilities’, (1996) 2 Australian Disability Review, 3-14, 7.

^[35] R Manne, n 33, at 17.

^[36] S H Miles, ‘Physicians and their patient’s suicides’ (1994) 271 Journal of the American Medical Association, 3.

^[37] M T Muller, G K Kimsma and G van der Wal, ‘Euthanasia and Assisted Suicide: Facts, Figures and Fancies with Special Regard to Old Age’ (1998) 13 Drugs & Aging 185.

^[38] Percentages calculated from table 3, B D Onwuteaka-Philipsen, A van der Heide, D Koper et al, ‘Euthanasia and Other End-of-Life Decisions in the Netherlands in 1990, 1995, and 2001’ (2003) 362 The Lancet 395, 397.

^[39] Oregon Department of Human Services, Eighth Annual Report on Oregon’s Death with Dignity Act (2006) <http://oregon.gov/DHS/ph/pas/docs/year8.pdf> at 30 August 2006 at 12.

^[40] Ibid 5.

^[41] Ibid 19.

^[42] This was also the argument in relation to women by S M Wolf, above n 30, 294.

^[43] S S Canetto and J D Hollenshead, ‘Gender and Physician-Assisted Suicide: An Analysis of the Kevorkian Cases, 1990-1997’ (1999-2000) 40 OMEGA 165, 186.

^[44] J M Stillion, H White, P J Edwards and E E McDowell, ‘Ageism and Sexism in Suicide Attitudes’ (1989) 13 Death Studies, quoted in S S Canetto and J D Hollenshead above n 43, 188.

^[45] S S Canetto and J D Hollenshead, above n 43, 188

^[46] S S Canetto and J D Hollenshead, above n 43, 187; S.M. Wolf, n 30 at 289. See also N Loraux, Tragic Ways of Killing a Woman, Cambridge, Mass., Harvard University Press, (1987).

^[47] S S Canetto and J D Hollenshead, above n 43, 180.

^[48]Bowater v Rowley Regis Corpn. [1944] KB 476, 479 (Scott LJ).

^[49] Section 293(2) Dutch Criminal Code and Article 2 of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act; Act Concerning Euthanasia section 3 § 1(Belgium); Oregon Death with Dignity Act, Or. Laws ch 3 (initiative measure no. 16), 1995.

^[50]Re T (adult: refusal of treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649, 662 (Lord Donaldson MR).

^[51]Latter v Braddell (1881) 50 LJQB 448.

^[52]See for example, I Kennedy and A Grubb, Medical Law, London, Butterworths, 2000, 756; H Luntz and D Hambly, Torts Cases and Commentary, Sydney, LexisNexis Butterworths, (2003), 745.

^[53] See for example Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113.

^[54] F R Burns, ‘Undue Influence Inter Vivos And The Elderly’ (2002) 27 Melbourne University Law Review 499, 507.

^[55] Ibid 504.

^[56] Re T (adult: refusal of treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649.

^[57] Re T (adult: refusal of treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649, 662 (Lord Donaldson MR).

^[58] Re T (adult: refusal of treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649, 662 (Lord Donaldson MR).

^[59] [2002] EWCA Civ 565.

^[60] Mrs U v Centre for Reproductive Medicine [2002] EWCA Civ 565, [21].

^[61] Centre for Reproductive Medicine v U [2002] EWHC 36, [28].

^[62] F R Burns, above n 54, 504.

^[63] President’s Commission, Health Care Decisions (1983), in I Kennedy and A Grubb, above n 32, 754.

^[64] The Commercial Bank of Australia Limited v Amadio & Anor [1983] HCA 14; (1983) 151 CLR 447, 461 (Mason J).

^[65] The Commercial Bank of Australia Limited v Amadio & Anor [1983] HCA 14; (1983) 151 CLR 447, 462 (Mason J).

^[66] Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 405 (Fullagar J).

^[67] (1992) 92 DLR (4^th) 449.

^[68] Norberg v Wynrib at 457 per (La Forest J).

^[69] T Allen, ‘Civil Liability for Sexual Exploitation in Professional Relationships’ (1996) 59 Modern Law Review 56, 65.

^[70] See for example Sopinka J in the same case.

^[71] World Medical Association, Declaration of Helsinki (1964), Paragraph 8, as amended by the World Medical Association 52^nd General Assembly, Edinburgh, Scotland, October 2000.

^[72] Re T (adult: refusal of treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649, 662 (Lord Donaldson MR).

^[73] H Kuhse, et al, ‘End–of-Life decisions in Australian medical practice,’ (1997) 166 The Medical Journal of Australia 191; R Magnusson , above n 15.