Pain, Death, and the Law

The Problem of Pain and the Right to Die

The Problem of Pain and the Right to Die Shai J. Lavi Introduction: Pain and Modernity Side by side with the development of medical knowledge, technologies , and institutions for solving the problem of pain,l there has been a growing interest in the social sciences and humanities with the emergence of pain as a modern problem.2 Close attention has been given to historical changes in the understanding of pain and its treatment,3 to the emergence of new forms of pain, especially chronic pain,4 and to the varying cultural experiences of pain.5 This paper aims to deepen and challenge this line of inquiry by examining the pain of dying as an extreme case of the problem of pain, and by focusing on the medical hastening of death as a uniquely modern solution to this problem. The pain of dying and the hastening of death as its solution The author wishes to thank Mark Antaki, Roger Berkowitz, Karl Shoemaker, and Sara Chinsky for their insightful remarks on early drafts of this paper, to Jill Colbert and Austin Sarat for drawing my attention to important if neglected aspects of the problem of pain, and to Hamutal Tsamir for her friendship in times of pain and pleasure. 1. For a comprehensive overview see Ronald Melzack and Patrick D. Wall, The Challenge ofPain (London: Penguin Books, 1982). 2. See, for example, Ivan Illich, Medical Nemesis: The Expropriation of Health (New York: Pantheon Books, 1976); and Mary-Jo DelVecchio Good et al., Pain as Hunlan Experience : An Anthropological Perspective (Berkeley and Los Angeles: University of California Press, 1992). 3. Martin S. Pemick, A Calculus of Suffering: Pain, Professionalism, and Anesthesia in Nineteenth-Century America (New York: Columbia University Press, 1985); and Roselyne Rey, The History ofPain (Cambridge: Harvard University Press, 1998). 4. For example, R. Hilbert, "The Acultural Dimensions of Chronic Pain: Flawed Reality Construction and the Problem of Meaning," Social Problems 31, no. 4 (1984): 365. 5. M. Zoborowski, People in Pain (San Francisco: Jossey-Bass, 1969). 137 PAIN, DEATH, AND THE LAW expose-more than any other encounter with pain-the growing intolerance of modern society to bodily suffering, and the uniquely modern ambition to not only overcome pain, but to annihilate it altogether. Standing at the intersection of death and pain, medicine and law, this paper asks: Why has the pain of dying become a problem for us, and how has the active hastening of death, implied in the quest for a "right to die," become its solution? What can we learn about pain and its place in the modern world from the way in which it has become so unbearable that death is sought as a refuge from life? This paper is based on the argument that the struggle over the right to die is more than an attempt to grant individuals the abstract freedom to end their life. Rather, the right to die should be seen in the medical context in which it arises, and primarily as a solution to the problem of pain in dying. This is perhaps most notable with regard to the right to physician-assisted suicide. Research has shown that the primary reason for patients' wish to hasten their death is either the pain they are currently suffering, or the fear of the pain awaiting them in the future.6 The medical hastening of death includes, in addition to physician -assisted suicide, the passive withholding of medical treatment, and its active withdrawal. By exploring these different forms of hastened death, this paper inquires into one of the more extreme confroIltations of law and medicine with the problem of pain. While there are clearly other legal and moral justifications for hastening death,? the central role of pain in these decisions cannot be denied. That pain and in particular the pain and suffering of dying patients has become a major concern among medical practitioners (and society 6. Kathleen Foley, "The Relationship of Pain and Symptom Management to Patient Requests for Physician-Assisted Suicide," Journal ofPain and Symptom Management 6, no. 5 (1991): 289. 7. From a legal point of view, the most common justification for hastening death is the autonomy of the patient. According to an old common-law tradition and the more contemporary interpretation of constitutional law, patients have the right to refuse any kind of medical treatment, even when such treatment is necessary for maintaining their life. Autonomy, however, in this context is an insufficient justification. It does not explain why the patient...