Interview with Solveig Klæbo Reitan and Ida Øygard Haavardsholm
In some countries, the option of assisted suicide is offered to people who, due to illness, wish to end their own lives. If the illness affects cognitive functions, it can be difficult to determine if the person is competent to consent when the trip abroad is to be carried out. In Norway, it is illegal to assist in someone’s death.
Solveig Klæbo Reitan is a psychiatrist and sits on the board of the Norwegian Psychiatric Association. Some time ago, she brought up a concern to the board regarding the assessment of competence to consent. In psychiatric contexts, we are most accustomed to assessing consent in relation to involuntary psychiatric care. But this was about something else.
“I was contacted about a patient with a severe condition. The illness is expected to progress until the person loses all functionality. The person had been in contact with an organization abroad that performs assisted suicide. It was the person's own wish to be able to use the service 'when the time comes.' The place abroad required that a Norwegian psychiatrist confirm that the person was competent to consent to the decision about assisted suicide. I was asked to perform this assessment of competence,” Reitan says.
"I did not want to take on the assessment myself, but I understood that the person had been going from psychiatrist to psychiatrist over time, hoping to find one who would say yes. For the sake of both the patient, myself, and colleagues, I wanted to highlight the issue rather than just push it away," she continues.
Reitan’s immediate response was that helping someone to carry out assisted suicide goes against what she stands for as a doctor. At the same time, she is clear that it is her duty to assist people in desperate situations. She is grateful that she could seek advice from colleagues and the Norwegian Medical Association. She sought advice from both the legal department and the Council for Medical Ethics. The clear conclusions from both bodies were of great support in this particular case, but also for future similar situations. She is happy to share the message so that her own experience from this case can support colleagues in similar situations.
Ida Øygard Haavardsholm, a lawyer at the Norwegian Medical Association who also has served as secretary for the Council for Medical Ethics, says that such inquiries are not very common, but they do occur occasionally. During her years as secretary for the Council, they have only had one case involving assisted suicide.
She further explains that most cases reported to the Council are complaints against doctors, but that such a principled investigation of ethical questions as this inquiry falls within the core of the Council's mandate. It also involves providing advice to members. She encourages members to reach out when needed. It feels meaningful to contribute advice to colleagues, she says.
The Council for Medical Ethics’ tasks can be summarized in four points: 1) Investigate principled ethical questions, 2) Advise members, 3) Participate in public debate, and 4) Handle complaints. The Council has six meetings a year.
Regarding complaints, her impression is that psychiatrists are overrepresented among the doctors complained about. Some complaints are dismissed because they involve medical matters. In such cases, the proper recipient is the County Governor. Other complaints may involve patients being dissatisfied with how they were treated. The Council can then make an assessment.
Patients can file complaints with the Council, as can relatives, but relatives must have the patient’s consent for the case to be processed. Doctors who are the subject of complaints have the same duty of confidentiality as usual, and only the patient can release the doctor from confidentiality to clarify the case. It is not uncommon for parents of adult children or adult children of elderly parents to make inquiries. The consent provisions with exceptions outlined in the Patient and User Rights Act apply.
When a question or complaint is received by the Council, they first assess whether it is an ethical question and not just a matter of pure medical or legal nature. Haavardsholm, in consultation with the head of the Council, decides whether the case is sufficiently clarified or whether the Council for Medical Ethics needs more information to handle the case.
In the case of assessing competence to consent regarding assisted suicide, the case was sufficiently clarified. The inquiry and all available information were presented to the Council members at the next meeting.
As a lawyer, Haavardsholm assists the Council with her knowledge of laws and regulations when necessary. The five members of the Council then discuss the case, and the conclusion or decision is recorded. The Council members receive the minutes afterward for comments and input before they are sent to the person or persons who made the inquiry.
In the Council for Medical Ethics' annual report, all decisions and conclusions are presented and made available to the public.
In the inquiry regarding the assessment of competence to consent, the following conclusion was sent out by the Council:
"Doctors should not perform euthanasia or assisted suicide, both of which are acts where the doctor intentionally contributes to hastening the time of death. Limiting life-prolonging or futile treatment is not considered euthanasia, as the patient then dies from their underlying illness. The same applies to palliative sedation at the end of life, where the intent is to control symptoms that cannot be relieved in any other way.
The Council for Medical Ethics believes that contributing to the process when a patient wishes to go abroad to receive euthanasia encourages the act. Doctors have no obligation to contribute to what is necessary for the patient to fulfill their wish for euthanasia. According to the Ethical Rules for Doctors, a doctor should not contribute to euthanasia. The Council for Medical Ethics views this as including necessary facilitation.
The Council for Medical Ethics emphasizes that the patient, regardless of such a wish for euthanasia, naturally has the same rights as everyone else and should be treated with the same care and respect as other patients."
In its work, the Council adheres to the Ethical Rules for Doctors, which in §1 begins with the following words:
"A doctor shall protect human health. The doctor shall cure, alleviate, and comfort. The doctor shall help the sick to regain their health and help the healthy to maintain it."
And in §5, active euthanasia and assisted suicide are mentioned:
"Doctors should not perform euthanasia or assisted suicide, both of which are acts where the doctor intentionally contributes to hastening the time of death. Limiting life-prolonging or futile treatment is not considered euthanasia, as the patient then dies from their underlying illness. The same applies to palliative sedation at the end of life, where the intent is to control symptoms that cannot be relieved in any other way."
In addition, there is a specific regulation for the Council for Medical Ethics, which is openly available on the Norwegian Medical Association's website.
In the question of assessing competence to consent in a seriously ill person, there was no complaint, but a request for advice. The case was also assessed by the legal department of the Norwegian Medical Association. They have had similar cases before, with questions about assisted suicide and active euthanasia. Ida explains that the feedback from the legal department is often that if a doctor assists in assisted suicide or active euthanasia, it cannot be ruled out that they will be convicted of complicity under the Penal Code. According to Haavardsholm, there are no court rulings on complicity in euthanasia, and it is not possible to give a clear answer on where the line for criminal liability lies. She explains that there is a lot of case law related to complicity in criminal acts in general, on which their legal assessment is based.
“It is difficult to draw a clear line between palliative care and assistance in dying,” she explains. She herself wrote her master’s thesis on palliative sedation for the dying, based on the so-called "Bærum case" from 1998-2002. As Haavardsholm stated in her thesis, Dr. Stig Ottesen, who was then working at Bærum Hospital, was reported to both the police and the Health Inspectorate by his colleague Carl Magnus Edenbrandt for allegedly performing active euthanasia. The case was assessed by the Health Inspectorate, which did not find that the treatment constituted active euthanasia.
Haavardsholm further explains that after the Bærum case, work was initiated to create guidelines for palliative sedation at the end of life. The guidelines were developed by a multidisciplinary group led by Reidun Førde. They were adopted by the Central Board of the Norwegian Medical Association on June 17, 2014.
Sometimes, the boundaries are very difficult to define. In the case of assessing competence to consent to travel abroad, the boundaries are not as unclear, but the ethical questions for the individual doctor can still be challenging. "Do no harm" is an important ethical principle. It is illegal to assist in suicide. On the other hand, doctors may feel strong loyalty to the patient and their relatives. Patient autonomy and the right to make choices about one's own life will also be significant for the doctor.
If a psychiatrist had not known that the consent assessment was to be used for euthanasia abroad, the assessment would not have conflicted with the Penal Code or medical ethics. But to assess competence to consent, the recipient of the assessment and what the person is consenting to are crucial in evaluating the person's competence. It is therefore impossible to avoid knowing what is behind the request to be assessed as competent to consent.
Another example of situations that healthcare personnel may encounter is a question a cancer nurse sent to an ethics committee at a Norwegian hospital. The facts of the case were that a patient with newly diagnosed, incurable cancer with metastasis did not want further investigation or treatment, only help to die quickly. The ethics committee discussed the case and advised that one should always give the patient time to reflect and come to terms with the situation when confronted with a desperate statement. This is especially important when the patient is very ill and in a state of shock.
It is not easy to draw clear boundaries between what is ethically justifiable and what is legally and ethically unacceptable. The discussion should continue. It is also important that we all have sufficient knowledge about what is legally and ethically acceptable and not.
For Reitan, the encounter with the situation of assessing competence to consent for euthanasia abroad made a strong impression. As doctors, we encounter many different situations, and some require that we seek support. We must not stand alone, especially in such difficult cases. □