 Our next speaker is a dear friend and colleague, Dr. Lynn A. Janssen, who is the Madeleine Brill Nelson Chair in Ethics Education at the Oregon Health and Science University. It was a great pleasure seven years ago to lure Dr. Janssen from New York to OHSU. She received her degree initially after a career in nursing by going to Columbia University and had a doctorate in political science with a focus on political theory. Prior to coming to OHSU, she was Director of the John C. Connolly Center for Medical Ethics at St. Vincent Hospital in New York City and the Director of the Bioethics Institute at New York Medical College. Previously, you have heard from Dr. Janssen about her NIH research on phase one clinical trials and optimistic bias. She will be taking us in a different direction today. As she talks about aid in dying, Oregon has legalized medical aid in dying 21 years ago and yet there isn't agreement on whether it's the right thing or the wrong thing to do and we have scholars who pursue both courses of thinking. But she will be helping us look at a new question, a new edge of this with where we should draw the line. Please join me in welcoming Dr. Janssen. Just to get started, over the past several decades as many of you are aware, the availability of physician aid in dying or what we now refer to as PAD, P-A-D, has increased markedly. Currently in the United States, seven states have established laws allowing for the practice with respect to terminally ill patients. But more recently, scholars and policymakers both in the United States and in Europe have advanced arguments to extend the availability of PAD to non-terminally ill patients. Now one of the striking features of these arguments is that they rest on dubious claims about rights. So today, I want to talk about a paper I co-wrote with my colleagues, Franklin Miller and Stephen Wall, a paper that is forthcoming soon to be published in the Journal of Medical Ethics, in which we call these arguments into question and we offer an alternative normative framework to help policymakers and ethicists think about how best to address this emerging issue. Now I think one thing I need to really mention up front is that the three of us have very different views about physician aid in dying for patients who are terminally ill. And so with that in mind, we posed for ourselves a conditional question. And that was if physician aid in dying has been established as a legal option for terminally ill patients in a given jurisdiction, should it be confined to this group of patients? Now all of us answered this question in the affirmative, but as I said, since we have all different views about the permissibility of physician aid in dying, it really became important for us to seek reasons for this shared view that we could all accept. And I think even more strongly than that, we sought to present reasons for our position that could be accepted by both proponents and critics of physician aid in dying for the terminally ill. And these reasons can be justified by a normative framework, which we call group-centered fair paternalism. Now in our work, we focus primarily on two groups of non-terminally ill patients. And we focused on these groups because these were the groups precisely that have become so much the object of attention recently, especially in Europe. These are first, the severely depressed patients who are judged to be treatment-resistant. And second, the so-called tired-of-life patients. These patients, they're not suffering from a grave physical illness, either physical or mental, but they nonetheless feel that their lives have been completed. So in the paper, we actually argue that neither group has a strong claim to have a legal option to physician aid in dying. But in my remarks today and in the interest of time, I'm going to limit myself to the first group of patients, and that is the patients who are diagnosed with severe treatment-resistant depression. These patients, many content, have a very strong, if not the strongest claim to access physician aid in dying among those who are not terminally ill. So if it can be shown that they do not have a claim to physician aid in dying, then we thought that we would be well on the road to establishing our conclusion that physician aid in dying should not be extended to those who are not terminally ill. So that's the sort of background wind-up of what got us all engaged with this project. I want to now just turn to our argument and just start out by letting you know that it's a two-pronged argument. Writings on physician aid in dying are littered with appeals to fundamental moral rights. Writers often announce that patients have a fundamental moral right to control the time, the manner, and the circumstances of their own deaths. And we don't deny this. Indeed, we think patients have a fundamental right to refuse unwanted medical treatment, including life-sustaining medical treatment. But we do deny that patients have a fundamental moral right to control the time, manner, and circumstances of their deaths with the assistance of a physician. So the first prong of our argument maintains that the question of the proper scope of physician aid in dying is not a question of fundamental moral rights, but instead a question really of well-considered policy. The strength of these claims here, I think, can be pretty vividly captured by considering the following scenario. Consider, if you will, the case of a young adult patient who does not have a life-threatening illness. Such a patient, perhaps after a bad romantic breakup, could desire to end his or her life. And such a desire could be an autonomous desire. But we think, and I trust most of you would agree, that no physician should honor that request, and not because of a matter of law, but because of a matter of morality. A concern for the well-being of the patient, as well as a proper understanding of the physician's role, would rule it out. So this example is not controversial. We don't really know of anyone pressing for physician aid in dying for young, relatively healthy adults. But the example, I think, is nonetheless instructive, for it shows that there is not a fundamental right to physician aid in dying that is grounded in respect for patient autonomy. So when writers say, as they often do, autonomy trumps well-being, well, what they're saying is just false, at least when it's applied to physician aid in dying for young people and young patients. Now, it remains possible, I suppose, that patients acquire a fundamental right to physician aid in dying as they get older. This strikes me as somewhat mysterious. Proximity of death does affect our well-being interest, and this may make physician aid in dying more ethically acceptable as patients get closer to death. But this is a matter of patient well-being, not respect for their autonomy. So suppose, then, that we're right. Patients do not have a fundamental moral right to physician aid in dying. But might they still not have a strong claim to have a legal right to it? Well, whether or not they have such a right is a claim that we think is a question of policy. And this is what's going to bring us to our second prong in our argument. So policy judgments require us to balance conflicting interests of different categories of people. Sometimes a policy benefits everyone that it affects, but more commonly, policies benefit some people and they set back the interests of others. A well-considered policy is a policy that fairly balances these benefits and costs. So how do these general points relate to the specific policy concerning physician aid in dying for people who have treatment-resistant depression? Well, as I mentioned, we propose a group-centered fair paternalism normative framework for thinking about this issue. And this framework allows that some patients may have their interests set back by a restrictive policy on physician aid in dying that we favor. But, or so we contend, it's appropriate to ask such patients to bear this cost since the alternative would impose greater costs on other patients. So to see this more clearly, let's just consider some basic facts about the diagnosis of treatment-resistant depression. First, while severe depression can, patients with severe depression can have decision-making capacity necessary to make an autonomous decision to end their lives, the determination that they have in this capacity is notoriously fraught with difficulty. Much uncertainty affects this determination because severe mood disorders can compromise decision-making capacity. So given this uncertainty, we should expect mistakes to be made about this determination of capacity even among conscientious physicians. And second, treatment-resistant depression is a little bit of a misnomer, right, because it leads one to believe that there's really nothing left that can be done for the patient. And yet, it's precisely when a patient is diagnosed with treatment-resistant depression that it becomes appropriate to ask what treatment would now be appropriate for them. Further, there's no clinical consensus on the criteria for diagnosis of treatment-resistant depression. And so for this reason, experts believe that patients diagnosed with treatment-resistant depression are in reality only pseudo-resistant. So in calling these facts into your attention, we don't mean to say that it's never possible or to deny that patients can't suffer from treatment-resistant depression. We're simply highlighting the likelihood of mistake here. And once again, given the uncertainty, we should expect mistakes to be made even among conscientious physicians. But here's something that's really important to our argument. By denying patients who have been diagnosed with treatment-resistant depression the option to physician aid in dying, we can avoid both of these kinds of mistakes. So we avoid the mistake that results when a patient engages in physician aid in dying when they lack decision-making capacity to do so. And we avoid the mistake that results when a patient engages in physician aid in dying when further treatment would have been available to help them. And in protecting patients from these kinds of mistakes, in the paper, we refer to these kinds of mistakes as false positive mistakes, restrictive policies on PAD do indeed engage in a measure of paternalism. And I think it's natural to wonder or question whether this paternalism is justified. So in fairness, and right away, it should be acknowledged that in protecting some patients from the mistakes, we are indeed forcing other patients to bear costs that they would very much like to avoid. And we are conceding and allowing that there could be depressed patients who have decision-making capacity and for whom further treatment would be futile. Don't these patients have a complaint against the restrictive policy we favor? Well, indeed, some might even think that if one competent patient suffering from treatment-resistant depression is denied the option to physician aid in dying than a serious injustice has been done. Well, the short answer to these worries and their worries is that just because one has their interests set back, it doesn't follow that one has a complaint against the policy. So recall the general point that I started with, well-considered policy must fairly balance the conflicting interests of different parties. So our view is that it's fair to ask the patients whose interests are set back by our favored policy to bear these costs since the alternative would impose greater costs on others. Extending the option of physician aid in dying to treatment-resistant patients will almost certainly result in a substantial number of false positives. And it's unfair to ask the victims of these mistakes to bear that cost. And there's a further point to be made here, too. And that is that critics of our view object that without the option to engage in physician aid in dying, severely depressed patients would have no option to alleviate their suffering and that they would, in effect, be locked in a harsh prison ward with unbearable pain and no way to escape it. It's important to see, however, that this claim is not strictly speaking true. People in their lives without the assistance of a physician, they do that all the time. Moreover, as we explained in the paper, depressed patients who were judged to have decision-making capacity have also the option to refuse food and fluids and thereby precipitate their own deaths. Now, in calling attention to this possibility, we're not recommending that physicians propose this as an option to their patients. The ethics of the practice of voluntary stopping of eating and drinking is really complex and it needs to be addressed on its own terms. The point is that depressed patients with decision-making capacity have the option to refuse food and fluids insofar as it's an implication of their right to refuse unwanted medical care. And physicians must respect this right, even if they think that their patients shouldn't exercise it. This point really matters in the context of our argument. Since it reduces the costs to those patients who lose out under our restrictive policy, even though they're denied the option to physician aid and dying, they retain the option to end their lives by alternative routes. And by reducing the costs that they must bear in this way, the availability of this alternative route makes it fairer to ask them to bear the costs of a restrictive policy on Pat, the one that we favor. So let me just conclude. Policies on physician aid and dying must be sensitive to empirical realities and empirical realities can change as we learn more about the diseases in question. Perhaps there'll come a time when physicians know more about the treatment-resistant depression that we're grappling with today and they'll know more to be able to avoid these sort of false positive mistakes that I've highlighted, but perhaps not. In the meantime, I think we need to settle on the best policy on Pat given what we know. And we need to keep in mind that different policies have different impacts on different groups of patients. This important fact, which is a fact that is obscured by thinking of Pat as a fundamental moral right, makes our framework, the framework of group-centered fair paternalism, appropriate. So even if you think we've drawn the line on Pat in the wrong place, I hope you'll agree with us that this framework is the right one for thinking about how to draw it. Thank you. And I'd like to acknowledge my co-authors, Steven Wall and Franklin Miller. Oh, good. Dan. Hi, Dan Bredner, University of Chicago. Thank you, Lynn. That was really, really good. And you've convinced me. But as I understand the analysis, there are two uncertainties which jointly underpin this policy recommendation. One of which is the uncertainty about whether or not a given form of psychological pain is really intractable. And whether further research might help discover something that could alleviate the pain for the patient. But the other has to do with being sufficiently confident of decisional capacity in a given patient. Given that the patient may be suffering pain and depression and so forth. So why isn't, so I see this, your proposal really is one for, in effect, a temporary policy and that the real goal should be, and this was something that was talked about at the end of one of the earlier sessions, of trying to figure out whether the concept of decisional capacity actually can be made workable with patients with various forms of psychiatric illness. So I would think the take home here is that that's an area where the research has to really be done to see whether at least one of the premises of your paper, as I understand it, could be pushed away. Right. And so right, Dan, that's a good point. So you're right to see that the position is grounded in sort of pragmatic, it has a sort of pragmatic stance to it, right? So we're concerned both with the mistakes that can arise from determining decision making capacity in that particular context, as well as the suffering too. But actually the mistakes that can be made in actually offering a diagnosis of when one is actually treatment resistant. And what we know now is these mistakes are pretty high, likely to occur. But I do agree with you, and I would think my co-authors would agree as well, that if more was learned, and if we were able to hammer down both of these kinds of mistakes so that they weren't so weighty, then we could revisit the matter. So the policy isn't, it's defeasible, right? It's, the view could be challenged, but I think certain empirical realities would have to be in place. Thank you. Thanks. Well, thank you very much.