The most important
document on euthanasia to have appeared in the UK in the decade since Euthanasia
and Clinical Practice was published in 1982 is the British Medical Association
Working Party Report on Euthanasia2. This is a substantial
document3 which is more
comprehensive in scope than Euthanasia and Clinical Practice, which
concentrates almost exclusively on the ethics of clinical practice.
By contrast the BMA Report specifically discusses,
among other questions, whether voluntary euthanasia should be legalized.
Nonetheless, it is the view which the BMA Working Party took of the
ethical considerations that should govern clinical practice which also determined
the case they make against legalization of euthanasia. Concern with the
ethics of clinical practice is central to both documents. This chapter seeks
to analyse and evaluate the case which the BMA Report makes against the
legalization of voluntary euthanasia.
The Working Party which produced the Report
was chaired by Sir Henry Yellowlees, a former Chief Medical Officer of The
Department of Health and Social Security, and comprised two specialists
in community medicine, a general practitioner, a consultant paediatrician,
a professor of geriatric medicine, and the medical director of a hospice. It was served
by officers of the British Medical Association, and there were three `observers':
one a solicitor who was a former chief nursing officer of a district health
authority, one a barrister, and the third a professional philosopher who
is also a neurosurgeon4.
The seven members of the Working Party were, then, all members of the medical
profession and, apart from what came to them in the form of submissions
and evidence, had access to advice on legal and philosophical questions
from the `observers'.
The Working Party was established early in 1987
in response to a resolution passed at the 1986 Annual Representative Meeting
of the British Medical Association urging that the Association `reconsider
its policy on euthanasia'. To this end the Working Party held 15 meetings
in a period of as many months, publishing the Report in May 1988.
The Working Party undertook to review a wide
range of considerations with some bearing on the question of whether euthanasia
should be legalized: ethical and legal considerations, the teaching of religious
bodies, practices in other countries, as well as professional views about
what is appropriate in those areas of clinical practice in which the issue
of euthanasia can arise.
The primary objective of the Working Party was
to define a general rule of appropriate professional conduct in regard both
to voluntary and non-voluntary euthanasia. The position advanced is that
euthanasia, whether voluntary or non-voluntary, is generally undesirable,
and, accordingly, the Working Party concludes that killing patients for
euthanasiast reasons should remain a criminal offence.
In section 2 of this Chapter I shall outline
the main ethical considerations which lead the Working Party to conclude
that euthanasia should not be legalised. In section 3 I shall identify what
seem to be the weak points in that case. Those weaknesses are sufficiently
grave to be damaging to a coherent professional ethic. The framework of
principle required for a coherent ethic has been analysed in the Submission
(Book II, Chapter 1 of the present volume), and in some respects is
explored in greater depth in Euthanasia and Clinical Practice: trends,
principles and alternatives (Book I).
2. The Working Party's
case against legalizing voluntary euthanasia
2.1 Euthanasia and the value of
the individual
The Working Party claim that a constant and
core feature of the ethos of medicine is `the conviction that human life
is of inestimable value and ought to be protected and cherished' (para.72).
An ethos dominated by that conviction leads one to embrace the arduous task
of finding value in the lives of patients suffering pain and severe disability;
to end those lives would be a comparatively easy option (para.62). The view
that someone would be `better off dead' is linked to being `discriminatory
about the kind of worth that attends a life' (para.56). In being asked to
kill patients doctors are being asked to abandon the conviction that human
life is of inestimable value and ought to be protected and cherished (para.72).
The principal reason for rejecting `a change in the law to permit doctors
to intervene to end a person's life' derives from recognition `of the supreme
value of the individual, no matter how worthless and hopeless that individual
may feel' (Conclusion 16).
One strand in the thinking of the Working Party
involves distinguishing between the objective value of individual
human beings, which remains `inestimable', and the subjective sense
of value an individual experiences, which may wax and wane. The `inestimable'
objective value does not permit us (it is at least suggested) to discriminate
between the value of individual lives in such a way as to provide justification
for ending some of those lives on the grounds that the individuals concerned
would be `better off' dead. To take that view of a human life would be to
abandon the conviction that human lives are of `inestimable value'.
Here we have the sketch of a line of reasoning
for opposing euthanasiast killing. It needs a more developed and systematic
statement, but seems clearly to represent one strand in the thinking of
the Working Party. However, there are other elements in that thinking which
are at odds with the reasoning sketched here and which tend to undermine
the conclusion the Working Party seek to advance. It will be necessary to
discuss those elements in the next section (see 3.1 below).
2.2 The importance of an unambiguous
rule against euthanasiast killing for maintaining the true character of
the doctor's commitment to patient care.
The second point presupposes and develops from
the first. A sense of the inestimable value of individual human lives is
essential if doctors are to `maintain a dedication to care of patients and
the preservation of life' (para.238). But if they do not have this dedication,
`if patients were to perceive that doctors were ready to kill where they
cannot cure' (ibid.), then patients would cease to have confidence in the
commitment of doctors. The destruction of trust in the character of doctors'
commitment would under mine the doctor-patient relationship. To permit euthanasia
would be to create a climate in which certain patients are perceived `as
lingering nuisances whose worth and well being are no longer significant'
(ibid.) In so far as euthanasiast killing rests on the view that those to
be killed would be better off dead because they no longer have lives worth
living, it is premised on a valuation of human life incompatible with that
valuation which is essential if doctors are to maintain a positive, creative
commitment to the care of patients. For the sake of supporting that commitment
doctors need to be forbidden to engage in killing which rests on the assumption
that the lives of some human beings are not of inestimable value. For in
so far as they engaged in such killing they would have ceased to grasp the
practical import of the belief that each human life is of inestimable
value.
The reasoning of the Working Party here connects
practical belief in the inestimable value of individual human lives
with the character of doctors. `If the profession is seen as sometimes
curing and sometimes killing depending on a rather complex set of guidelines
... the patients may well have some apprehension about the nature of
the individuals who are supposed to be jealously preserving their lives.'
(para.77, emphasis added)
For reasons explained in the Submission (section
1.2.2), the Working Party is right to see a close connection between euthanasiast
killing and the valuation of human life.
However, it is not clear that the Working Party's
understanding of the kind of prohibition of euthanasiast killing they support
will do the job they think required: the job of sustaining doctors in their
commitment to the care of patients. For though the Working Party wish to
see maintained a legal prohibition on euthanasiast killing they do not support
their case by arguing for an absolute moral prohibition, i.e. a prohibition
which does not allow of exceptions. The Working Party readily concede that
a doctor may be confronted by cases in which, however rarely, he may justifiably
kill a patient. It will be important to discuss the reason for allowing
such exceptions and to ask whether the logic of doing so does not undermine
a general prohibition (i.e. one which is meant to hold for the most part)
and consequently the role of such a prohibition in protecting the character
of doctors in their commitment to the care of patients (see 3.4 below).
2.3 The insensitivity of euthanasia
In a number of places the Working Party Report
advances the following consideration against permitting euthanasiast killing:
euthanasia carried out as a solution to problems of pain and suffering is
very often insensitive to the underlying significance of a plea to be killed
and to the potentially transient character of the outlook which prompted
the patient to make the plea (para.92.2; see para.61). Evidence for the
frequently transient character of the desire that one's life be brought
to an end is seen in the fact that `failed suicides rarely repeat their
attempts and that most are glad that their lives were saved' (para.42).
Considerations of this kind are not insignificant
in considering the effect legalization of voluntary euthanasia would have
on the practice of medicine. If it were legalized there should be little
doubt that ostensible pleas to be killed which are covert pleas for considerate
and committed care will be treated as providing sufficient justification
for killing patients. The
Netherlands has now provided us with ample evidence of how doctors are likely
to behave when euthanasia is not in fact treated as a criminal offence.5
Nonetheless, someone might doubt whether a consideration
of this kind provides sufficient reason for a blanket prohibition of euthanasia.
In conjunction with the two other reasons offered it is indeed a powerful
consideration. But those two reasons carry the main burden of the case for
a blanket prohibition and so it is important to examine how well-grounded
and consistent is the Working Party's presentation of those reasons.
3. Weaknesses in the
Working Party's case.
3.1 Which human beings are of `inestimable
value' and why are they?
The key assertion on which the Working Party's
case against euthanasia hangs is that `human life is of inestimable value'.
At first sight this might be taken to mean that any human life is
of inestimable value. But a reading of the sections of the Report on Brain
Death (paras.29-33) and the Persistent Vegetative State (paras.34-39) undermines
this interpretation.
The Working Party think that acceptance of `brain
death as a criterion for the end of life' indicates `that it is the distinct
functions provided by the human brain that make human life of unique ethical
importance' (para.31). This confuses two questions which are quite distinct
(though they may have a single correct answer): (1) When is X dead? and
(2) When does X's life cease to have special moral significance?
A particular understanding
of the meaning of death and certain physiological claims about the role
of the brain stem in the human organism, together provide grounds for accepting
that diagnosis of `brain stem death' (which is what the UK protocol purports
to establish6) is an
adequate basis for diagnosing death. The understanding of death referred
to here is `the cessation of the bodily life of the human individual'. By a living human individual
is meant (given the falsehood of dualism7) a living human organism. For something to cease to
be an organism is for it to cease to be an integrated whole; death is loss
of the capacity for integrated functioning. Given the truth of the physiological
claim about the role of the brain stem as the key organ in the integration
of the human organism, it is reasonable to hold that total destruction
of the brain stem amounts to irreversible loss of the capacity for integrated
organic functioning. On this account `brain stem death' is a decisive indicator
of death because in establishing the existence of `brain stem death' one
establishes that there no longer is a living organism.
The Working Party, however, speaking more broadly
of `brain death' (rather than `brain stem death') think of its significance
as lying not in the loss of integrated organic functioning but in the loss
of the capacity for distinctively human experience (para.31). On this account
of why someone may be dead, death is compatible with a functioning brain
stem, for it could be declared on the basis of establishing irreversible
destruction of the neocortex. It is indeed the view of the Working Party
that all that stands in the way of declaring someone dead on the basis of
establishing `neocortical death' is the technical difficulty of establishing
`that irreversible and complete loss of all neocortical function has occurred'
(para.34).
Discussing the case of a child with hydranencephaly,
Dr. Christopher Pallis has written: `There is a spinal cord, a brain stem,
and perhaps some diencephalic structures but certainly no cerebral hemispheres.
The cranial cavity is full of cerebrospinal fluid and transilluminates when
a light is applied to it. The child can breathe spontaneously, swallow,
and grimace in response to painful stimuli. Its eyes are open. The heart can beat normally
for months. No culture would declare that child dead.'8 That last observation does not appear to be one which
the Working Party would dismiss as irrelevant since they state that'. .
. it is important for doctors to be clear as to what they mean by death
and to ask whether that is commensurate with what the community at large
believes' (para.29).
Why did the Working Party come to think that
the determination of an appropriate criterion of death should be based on
an understanding of what is valuable in human life, as if loss of
value were equivalent to death? Some indication of the source of this confusion
may be found in the discussion of the Persistent Vegetative State (PVS):
`To be a human life of the type that we all regard as being of special ethical
importance we require that there be a persisting capacity for sentience.
Where we know that any such capacity has been irreversibly lost we conclude
that there is no ethical reason to prolong the biological functions that
remain ...` (para.32) Here loss of the capacity which makes for `ethical
significance' is seen as a reason for not seeking to prolong `biological
functions'. Whatever
the merits of this consideration as a reason for ceasing life-prolonging
treatment it is not as such a reason for saying that the remaining `biological
functions' are not the functions of a living human organism.9In one breath the Working Party recognises this (para.35)
but in another they seek to justify the brain death criterion by reference
to what functions are valuable to an individual10: `Where an individual can no longer have the experiences
of a human being and never will again we think that the functions that remain
are of no further value to that individual. That is why controversy over
whether the brain stem is completely and in every part dead and whether
the whole brain can be said not to be functioning just on the basis of the
accepted battery of tests, are beside the point.' (para.31; emphasis
added)
In fact our sense of the `unique ethical importance'
of human beings is not based on their possession of `sentience'. All
forms of animal life possess sentience. It is the exercise of the capacities
to understand and know the truth and to make free choices which exhibit
the distinctive dignity and worth of human beings. But the BMA Working
Party, along with most people, would be disinclined - for the present -
to declare someone dead who, through partial brain damage, had exclusively
lost the material vehicles of just those capacities. So they retreat to
the view that it is loss of sentience which renders someone dead. But in
doing so they are not entitled to defend that claim by explaining that sentience
is that distinct function provided by the human brain that makes human life
of unique ethical importance. The dangers of conflating questions about
whether or not a human being's life has lost its unique value or significance
with the question about whether that human being is dead ought to be obvious.
It is quite clear that there is a variety of conflicting views in our society
about the conditions under which human beings may be said to have lost unique
value or significance. If death is to be defined as the loss of such significance,
then an adverse view about the value of a human being's life can find expression
in the judgement that that human being is dead. Declarations of death would
then be the expression of merely qualitative discriminations between human
beings, that is discriminations based on the fact that a human being lacked
some significant qualitative attribute.
One effect of acting in this way would be to
disguise from people the extent to which they were involved in unjust discrimination
between living human beings. It is clear that the Working Party is disposed
to adopt this disguise in regard to PVS patients: as already noted, they
consider the only obstacle to moving from `brain death to neocortical death'
is our technical inability `to establish that irreversible and complete
loss of all neocortical function has occurred' (para.34). Hence there is
said to be a `vast clinical and philosophical distinction' between terminating
the life of a PVS patient and terminating `the life of a sentient person'.
While it is recognised that with PVS `In one sense there is a human being
still alive. . . in another the situation is often best described when a
relative remarks that the person they love is no longer there.' The testimony
of a distressed relative is invoked to give plausibility to the distinction
advanced nowadays by certain philosophers between `personal life' and `mere
biological life'. If
one can be said to enjoy only the latter, then, these philosophers would
say, one does not exist as a person.11
Philosophical thinking along these lines was
undoubtedly influential in the composition of the Report. For when considering
the case for killing a patient `in a state that can no longer be called
human life' (para.98), in which `there is no prospect of restoring the patient
to sentient life', the Report observes: `The situation is not the same as
one in which a sentient person is killed.' It immediately adds, however,
that `a patient in the UK who is in a persistent vegetative state, and,
consequently, who is non-sentient, is not killed.' (para.101) This has somewhat
the force of a detached ethnographic observation rather than a report on
practice which the Working Party has given convincing reasons for maintaining.
Indeed, when they say
....some patients have permanently lost
all capacity for the conscious quality of life that constitutes being
fully human... We have stopped short of saying that such a state ought
to be terminated by a positive act. (para.131 .1; emphasis added)
the position stated sounds decidedly pragmatic,
temporary and insecure. Two further points should be noted about this statement.
First, many more patients than those in PVS have `lost all capacity for
the conscious quality of life that constitutes being fully human'. Certainly,
on one interpretation of that formula (whether or not intended by the Working
Party) patients with advanced senile dementia have lost the sort of `conscious
quality of life that constitutes being fully human'. Secondly, the Working
Party merely stops short of recommending that these patients be killed by
a positive act. But it does not oppose killing them by a planned
course of omissions. That, however, is to raise another major point about
the unsatisfactory character of the Working Party's case against legalizing
euthanasia, a point to be considered more fully in the next section (3.2
below).
The qualitative discrimination between
patients that the Working Party introduces in its discussion of patients
in a PVS also plays an important role in its discussion of the treatment
of `severely malformed infants'. Some of these are clearly likened in status
to PVS patients. The paediatrician's duty is said to be that of ascertaining
`whether there is any hope that the child will have a life that could reasonably
be called the life of a person'. In regard to children with severe brain
damage this is treated as equivalent to asking whether the child has `the
capacity to love and be loved. If this is not present and is never going
to be then it is clear that the child lacks that crucial engagement with
persons that constitutes a basis for ethically significant life. Where a
child is responsive to human care and contact in some sentient way then
the child must be treated as a person, however poorly developed.' (para.
132) Some children, however, are said to lack `the capacity for meaningful
human life' (para 133)
Which human beings are, then, of inestimable
value? Those with the distinctive brain-related capacities which confer
`unique ethical importance' on human beings. It is wholly implausible to
suggest that sentience is the relevant capacity. Whatever developed level
of ability is required for a `meaningful human life' is also required if
one is to be a human being of inestimable value.
Which abilities, and what degree of development
of those abilities, are requisite will inevitably be contentious. In consequence the exercise
of distinguishing between those who may not be intentionally killed (because
they are of inestimable value) and those who may (because they lack that
value) will unavoidably be arbitrary and therefore unjust.12
3.2 What counts as intentional killing?
The Working Party are commendably clear in recognising the law's deep seated adherence to intent
rather than consequences alone [as] an important reference point in the
moral assessment of any action. A decision to withdraw treatment which has
become a burden and is no longer of continuing benefit to a patient has
a different intent to one which involves ending the life of a person. We
accept drug treatment which may involve a risk to the patient's life if
the sole intention is to relieve illness, pain, distress or suffering. [Conclusion
14]
Accepting the central importance of intention
to the characterization and, therefore, the evaluation of chosen actions,
the Working Party reject the view that it is only outcomes or consequences
which should count in the moral evaluation of actions. [see paras. 94-97]
On this latter, characteristically utilitarian view there is no significant
moral distinction between hastening death as a foreseeable consequence of
the administration of drugs aimed at controlling pain, and bringing about
death as a result of administering a lethal dose of drugs aimed precisely
at bringing about death.
While the Working Party's insistence on the
basic importance of intention is clear, their treatment of the important
topic of intentional omissions is unsatisfactory. They tend to discuss decisions
to terminate life as if they could be implemented only by positive acts.
Thus at para.92 we read:
There is a distinction between a decision
to terminate someone's life and a decision not to prolong a person's life.
The former involves an act or intervention which causes death and the latter
involves the cessation of life-prolonging treatment.
But a `decision to
terminate someone's life' may be carried out by a planned course of omissions
as well as by a positive act. This fact is never sufficiently clearly recognised
by the Working Party.'13
Indeed one of their conclusions explicitly contrasts non-treatment decisions
with `active interventions by a doctor to terminate life' as if the former
were in all cases no more than decisions `not to prolong life' [Conclusion
3].
Having recognised
the centrality of intention to the law's characterization and assessment
of action, the Working Party should have also taken account of the law's
recognition of homicidal omissions.14
3.3 Limits of the duty to treat
Some decisions to omit life-prolonging treatment
are morally acceptable and some are morally unacceptable for reasons other
than that they are aimed at hastening a patient's death. While a comprehensive
discussion of the limits of a doctor's duty to treat would be inappropriate
here, it is necessary to give some consideration to the views of the Working
Party about when omission of treatment is acceptable and to enquire whether
those views are compatible with a principled opposition to euthanasia.
Under the general title `Quality of life' the
Working Party outline the kinds of situation in which differing quality
of life considerations provide reasons for withholding treatment. They are:
(1) When `... patients have permanently lost
all capacity for the conscious quality of life that constitutes being fully
human' (para. 131.1). The quality of life judgement made here to characterise
the condition of the patient is one which determines in effect whether the
kind of life someone has is worth preserving. The Working Party are disposed
to ask whether a patient has `the capacity for meaningful human life' (para.
133). If the answer is no, they clearly believe that life-prolonging measures
should be withheld, though they stop `short of saying that such a state
ought to be terminated by a positive act' (para. 131. 1)
(2) When the burdens consequent upon treatment
greatly exceed the benefit secured by treatment, so that in effect the treatment
is inflicting `prolonged suffering then it is correct and wise to take the
kinder course and settle for comfort and care rather than further intervention.'
(para.131.2)
(3) When `life as a whole' has become `an intolerable
burden' to a patient, it is not the treatment as such which is a burden
but the medical prolongation of life; then `the right thing to do is to
agree not to take any measures which merely prolong life and cannot relieve
the patient's condition'. (para. 131. 3)
Of these three kinds
of reason for limiting treatment, (1) is clearly euthanasiast; for the reason
offered purports to be a comprehensive judgement on the very value of a
human being's existence such that, if the judgement is adverse, death may
be presented as `a good to be pursued by the doctor'.15
By contrast (2) offers a clearly non-euthanasiast
reason for limiting treatment: treatment is limited precisely to avoid imposing
unwarranted burdens consequent upon treatment and not with a view to hastening
death.
The formulation of (3) as it stands is unsatisfactory,
for two reasons: (a) because it does not distinguish between judgements
made by a competent patient which give a doctor reason to limit treatment,
and any parallel grounds there may be for limiting treatment of the incompetent;
and (b) because it does not sufficiently distinguish between a construal
of the suggested reason for limiting treatment which, in the mouth of a
competent patient, would be clearly suicidal and any possible non-suicidal
construal of the reason. [A clarification of these issues is offered in
the Endnote to this chapter.]
The Working Party does briefly consider the
question of cooperation with a patient's suicidal decisions when, in relation
to high spinal injuries, they discuss what a doctor's response should be
to a patient's refusal to consent to continuing respiratory support. At
this point they show themselves aware of the fact that death may be intentionally
hastened by deliberate omission, for they observe:
As the law stands it is impossible to
maintain a hard and fast distinction between withdrawal of such support
and assisted suicide. (para. 84)
Accordingly, they hold that `... in this situation,
doctors should make their position clear by both acting and being seen to
act according to a court decision'. (ibid.,)
The Working Party's endorsement of comprehensive
quality of life judgements in clinical practice along with their general
reluctance to recognise the reality of intentional killing by planned omission,
show most clearly their joint influence in what the Report is prepared to
accommodate in the field of paediatric care. It will be evident to anyone familiar with the debate
about management of handicapped newborns16 that para. 134 of the Report, in referring to `a practical
decision not to offer life-prolonging treatment', includes omission of adequate
nutrition. It is made evident from what is specified as the appropriate
treatment of children judged to be incapable of `meaningful human lives':
`Hydration should be provided and the patient should not be deprived of
the normal cuddling that expresses a fundamental human concern' (para. 134);
in other words, it is hydration and cuddling which alone should be given.
Of course the condition of some irreversibly dying infants may be such that
attempts at feeding may be an unwarranted burden. But `the practice of sedation
and demand feeding' (para. 172) is applied to infants with malformations
not because the provision of adequate nutrition would be burdensome but
precisely as a method of bringing about the death by starvation.
The Working Party (at para. 135) seek to resist
the logic of the position they have adopted in countenancing comprehensive
quality of life judgements:
`The profession's moral stance ought
to be that human life is generally worth saving and any slide toward the
view that quality of life can be used to exercise "quality control"
so that parents or society can opt to keep only "top quality"
infants should be strongly resisted. If the medical profession was ever
to allow such an attitude to influence our treatment of children then this
would clearly undermine our commitment to preserve and enhance human life.
The soundness of medical judgement is intimately dependent on a reverence
for human life, and any erosion of our intuitive feelings for the young,
the weak and the helpless carries great potential for making a fundamental
difference to the ethos of medical practice.' (para. 136)
Much of this is well said, but unfortunately
the Working Party have disabled their own case against these undesirable
developments both by countenancing comprehensive quality of life judgements
and by their intellectual evasiveness about the moral character of policies
of sedation and starvation.
3.4 General Rules and Exceptions
It will be obvious enough from the points surveyed
in 3.1-3.3 that the Working Party have not provided a case for an absolute
moral prohibition on the practice of euthanasia. But this observation
may be thought to be beside the point since the Working Party did not think
of themselves as constructing such a case but rather of arriving at a clear
general rule of conduct which would serve to sustain the character of the
doctor's commitment to the well-being of patients and thereby retain the
trust of patients in doctors (see section 2.2 above). As the Report observes:
`If the profession is seen as sometimes curing and sometimes killing depending
on a rather complex set of guidelines ... the patients may well have some
apprehension about the nature of the individuals who are supposed to be
jealously preserving their lives.' (para. 77) So what is at issue is the
character of doctors as the necessary guarantor of the character of clinical
practice.
The Working Party clearly does not think that
an exceptionless (or absolute) moral rule is necessary to foster the kind
of character they think desirable in doctors. Following the advice of Professor
Hare, they seem to think that what is required is a fairly simple and clear
general rule. Hare is quoted as saying:
Doctors would do well, having adopted
some fairly simple set of principles which copes adequately with the cases
they are likely to meet, to dismiss from their minds (at least when they
are doctoring) the possibility of their being further exceptions
to their principles. For doctors, like all of us, are human, and if once
they start thinking, when engaged on a case, that this case might be one
of the limitless and indeterminate set of exceptions to their principles,
they will find such exceptions everywhere . . . The temptation to special
pleading is too great. A doctor once said to me in connection with the proposal
to allow euthanasia: `We shall start by putting patients away because they
are in intolerable pain and haven't long to live anyway; and we shall end
up putting them away because it's Friday night and we want to get away for
the weekend'. [Quoted in para. 12; emphasis added.]
So Hare's advice is that one formulate a clear
moral rule which has built into it clear and unambiguous exceptions of a
kind that do not require much on-the-job reflection about whether the case
confronting one is covered by those exceptions. Clearly it is also required
that the rule should draw the line about what is impermissible in a fashion
sufficiently credible not to excite on-the-job doubts about its reasonableness.
The Working Party addresses the topic of exceptions
to a general rule against euthanasia at two points. At para. 76 it is allowed
that there may be `highly unusual and circumscribed situations' in which
`it may well not be appropriate to regard a doctor's actions as totally
and solely answerable to the general rule'; which seems to mean that it
may be reasonable for a doctor to act on the basis of the judgement that
the case he is dealing with is a justifiable exception to the rule. But
the Working Party then go on to say that in such situations the doctor should
`seek a second opinion and explore one of the many other recourses we have
suggested ... We believe that if the unusual problem is shared with a colleague
the doctor will almost always find a way to deal with it which does not
involve killing the patient'.
At paras. 115-120 the Working Party consider
what they believe to be a circumscribed kind of situation in which `mercy
killing' is justifiable, and the practical implications such an exception
may be thought to have for the practice of medicine. The situation they
have in mind is one in which
a person, usually not medically qualified,
kills a companion in order to avoid inevitable suffering before an equally
inevitable death. Such a situation could occur in wartime where one of two
companions is wounded and certain to be found by the enemy who will perpetrate
acts of cruelty before death is inflicted. It is only the certain knowledge
that a person will fall in the way of terrible and malicious suffering that
can justify a `mercy killing'. The Working Party did not feel that such
an action could be justified when there was any chance of the suffering
being averted in some other way or of some unpredictable `good' befalling
the victim. Such a mercy killing can be condoned only where the strongest
humanitarian motives act in accord with an uncontestable factual prediction.
(para. 115)
The Working Party believe that the situation
which may arise in warfare provides no precedent for what a doctor should
do in the face of situations in which euthanasia is demanded, both because
there can be no certainty about what might eventuate before natural death
and because terminally ill patients can normally expect to be well cared
for. Others,
however, may well think that the terms in which the Report expressed its
justification of mercy killing in warfare also provide justification for
killing in situations which may arise in clinical practice.17 According to the Report: `It is
only the certain knowledge that a person will fall in the way of terrible
and malicious suffering that can justify a "mercy killing".' That
a person's suffering is inflicted from malice may indeed make it more terrible,
but it is the certain knowledge that suffering will be terrible which
provides the purported justification of `mercy killing'. Many people think
one can be as certain in clinical situations that terrible suffering will
overtake people as one can be in military situations. So the Working Party
is likely to seem unreasonable in resisting the logic of the justification
of `mercy killing' which it concedes at para. 115.
However, it should be clear from 3.1-3.3 that
the Working Party has conceded much wider grounds for mercy killing than
just the certain knowledge of terrible suffering. For they take no principled
stand against killing by planned omission, and they allow that comprehensive
and adverse quality of life judgements may provide grounds for making a
patient's death the proper object of clinical management. Such judgements
are inevitably arbitrary (see 3.1 above).
All this means that, despite their protestations
to the contrary, the Working Party have conceded grounds on the basis of
which doctors might well feel they are justified in carrying out euthanasia
on an extensive scale. That being so, it is difficult to sustain the Working
Party's opposition to the legalization of euthanasia, an opposition which
assumes that the situations in which euthanasia may be called for are so
circumscribed, marginal and infrequent that there is no case for legalizing
it.
If the present reading of the Report is correct,
then the intellectual concessions made by the Working Party would accommodate
extensive euthanasiast practice, particularly of non-voluntary euthanasia.
It is difficult, therefore, to see that they have provided a solid moral
case for a legal prohibition of euthanasia. Moreover, in so far as the argument
of the Working Party implies that a doctor may choose to kill patients on
the grounds that they lack lives of value or that they lack `the capacity
for meaningful human life', they allow behaviour of a kind calculated to
undermine precisely that disposition which we need doctors to have: the
disposition to respect human beings simply because they are human. Lacking
this fundamental requirement of justice, doctors will not `stand by the
commitment that leads us to preserve life and meet suffering creatively'
(para. 75).
The reasoning of the Report fails, then, convincingly
to articulate and defend the moral norms or rules which would support the
cultivation of those dispositions which the Working Party recognise to be
indispensable to the practice of good medicine. And that failure makes the
Working Party's insistence on a blanket legal prohibition seem ill-supported.
The dispositions we require in doctors cannot
be cultivated without conformity to a different normative framework for
clinical practice from that envisaged by the Report. The elements of the
necessary framework are discussed and analysed in other parts of this volume.
Endnote: Euthanasia and the limits
of the duty to treat
The case outlined in the Submission is
both a case for an exceptionless (i.e. absolute) moral prohibition on the
practice of euthanasia as well as a case for a blanket legal prohibition:
the justification of euthanasia is too radically subversive of the foundations
of just law to be legally accommodated in any form.
The absolute moral
prohibition is implicit in what is called a sanctity of life ethic. Critics
of a sanctity of life ethic are apt to caricature it by claiming that it
requires a commitment to prolonging human lives whatever the circumstances.18 No such commitment is a requirement
of traditional morality. Some of the limits, consistent with a sanctity
of life ethic, to a doctor's duty to treat are discussed in chapters 5and 6 of the Linacre Centre Working Party Report (Book I in this volume,
pp.6l-7l). Here it will be useful to recall some of the clarifications established
in those chapters which have a bearing on elements of the BMA Working Party's
thinking which were surveyed earlier (at 3.3 above).
At that point it was noted that, whereas the
first reason given for limiting treatment was euthanasiast (the judgement
that someone lacks `the capacity for meaningful human life'), and the second
reason (that the burdens consequent on treatment greatly exceed the benefit
secured by it) was consistent with opposition to euthanasia, the character
of the third reason was in this respect not entirely clear.
The third reason envisaged by the BMA Working
Party for limiting treatment is that `life as a whole' may become `an intolerable
burden' to a patient, so that it is not treatment as such which is burdensome
but rather the medical prolongation of life. In those circumstances the
Working Party took the view that `the right thing to do is to agree not
to take any measures which merely prolong life and cannot relieve the patient's
condition'. (para. 131.3)
A number of quite distinct lines of reasoning
might be covered by what the Working Party has in mind at this point. In
distinguishing them it would be useful, first of all, to separate the reasoning
a competent patient might offer to a doctor as grounds for limiting
treatment, from comparable reasoning about limiting treatment for an incompetent
patient.
If patients are not in the ordinary sense of
the term dying, the fact that they may be `in pain, distressed, incontinent,
upset at their insight into the fact that they are severely deformed or
disabled, or becoming demented' (para. 131. 1) would not provide grounds
for discontinuing a treatment for some other condition (such as insulin
for diabetes) when the treatment does nothing to alleviate precisely what
is burdensome in the patient's condition. For what could motivate discontinuing
it other than the thought: My life is miserable and I can put an end to
it by refusing insulin treatment? To proceed on that basis is to choose
suicide by omission.
Similarly, when a patient who is dying and wretched
decides to refuse treatment for some supervening condition which may hasten
death precisely so that death will come sooner, it is clear that his attitude
is suicidal.
But Euthanasia and Clinical Practice envisages
the following scenario in which a patient who is dying is overcome by a
supervening condition (e.g. pneumonia) which may hasten death. He reflects,
after taking stock of the unalleviated wretchedness of his condition, on
whether he has a duty to continue to strive to prolong his life and decides
that he has not and for that reason declines treatment for the supervening
condition. This
line of reasoning is to be distinguished from the suicidally motivated reasoning
of the previous patient.19
At one point Euthanasia
and Clinical Practice seems firmly to rule out the possibility of a
parallel judgement being made (by a doctor or others) in respect of an incompetent
patient.20 But this
impression is belied a few pages later by what is implicit in the management
of the patient with Parkinson's disease.21For
what the doctor does implies that he has come to the decision that he does
not have to keep on treating the repeated supervening bronchitis
in a patient who is manifestly dying. Why? Not (as some have assumed22) because he judges the patient
no longer has a worthwhile life. Rather, what he judges is that curative
treatment is no longer effectively securing some approximation to health
in his patient. The recurrence of bronchitis is evidence in this case of
the inexorable decline we call dying. It is not the purpose of medicine
to seek to prolong life irrespective of whether it is possible to restore
the patient to some approximation to health. (See Submission 2.1) And if that is
so, one may judge, in respect of an incompetent patient, that one no longer
has a duty to treat a life-threatening supervening condition (just because
it is life-threatening23)
when the patient is already irreversibly dying.
These brief analyses of differing lines of reasoning
which may determine clinical treatment are significant not because they
always lead to obviously different overt behaviour but precisely because
of the different character of the reasoning: some is compatible with recognition
of human dignity, some is not. And the differences matter not only because
of the large consequences they can have for the treatment of patients but
also because of their significance for the moral integrity of doctors, which
is undermined by choices to act for reasons incompatible with the recognition
of human dignity.
1 This
paper is published in Luke Gormally (Ed), Euthanasia, Clinical Practice
and the Law, The Linacre Centre, 1994, and all references to 'this volume'
in the footnotes refer to this book. back to
text
2 Euthanasia, Report
of the Working Party to review the British Medical Association's guidance
on euthanasia. London, British Medical Association, May 1988. back to text
3 The main part of the
document is ordered consecutively in 271 paragraphs, organized into 14 chapters.
A final Chapter 15 contains 16 conclusions.
References in the text of the present chapter to the BMA Report will be
by paragraph number (e.g. para.16) or to a numbered conclusion (e.g. Conclusion
16).
There are frequent cross-references in the present
chapter to the Linacre Centre's Submission to the Select Committee of
The House of Lords on Medical Ethics (pp.111-165 of the present volume).
Such references are indicated by the short title Submission, followed
by the section number. back to text
4 Dr Grant Gillett. For
some evidence suggestive of his influence on the Working Party Report see
footnote 9 to this chapter. back to text
5 See the two chapters
by John Keown in this volume. back to text
6 The protocol is contained
in Conference of Medical Royal Colleges and their Faculties in the UK. `Diagnosis
of Brain Death'. British Medical Journal 2(1976) 1187-1188. See further
Conference of Medical Royal Colleges and their Faculties in the UK. `Memorandum
on the diagnosis of death'. British Medical Journal 1(1979) 322. back to text
8 Christopher Pallis.
ABC of Brain Stem Death London, British Medical Association 1983,
3. Dr Pallis, who has been the principal apologist for UK practice in the
diagnosis of brain stem death, specifically repudiates neocortical death
as an indicator of death; ibid., 2. back
to text
9 The conflation of grounds
for discontinuing treatment with grounds for declaring someone dead may
be said to have occurred already in the change of position that occurred
between the 1976 Report and the 1979 Memorandum of the Conference of Medical
Royal Colleges and their Faculties in the UK. back
to text
10 There is reason to
think that this strand in the Working Party's thought derives from one of
its `observers', Dr Grant Gillett. See Grant Gillett, `Why let people die?'
Journal of Medical Ethics 12 (1986), 83-86, and `Euthanasia, letting
die and the pause' Journal of Medical Ethics 14(1988), 61-68.
His position is stated more fully in Grant Gillett,
Reasonable Care, Bristol: The Bristol Press 1989, especially pp.15-19,
56-68, 93-94, 99-105, and 145. back to text
11 Speaking of malformed
babies held to be incapable of giving `an appreciative response to care-giving',
the Report says there is a `threshold' below which `there is only a biological
vestige of life which it is pointless and cruel to preserve in its distorted
state' (para.l75). back to text
12 See further the Submission,
section 1.1.4 back to text
13 Paras. 261 and 262
do not provide clear evidence of such a recognition. back
to text
14 Perhaps the clearest
direction, of obvious relevance to certain medical practices, is the one
approved by the Court of Criminal Appeal in R v Gibbins and Proctor(1918)
13 Criminal Appeal Reports 134 at 137-8:
'...if you think that one or other of the prisoners
wilfully and intentionally withheld food from that child so as to cause
her to weaken and to cause her grievous bodily injury, as the result of
which she died, it is not necessary for you to find that she intended or
he intended to kill the child then and there. It is enough if you find that
he or she intended to set up such a set of facts by withholding food or
anything as would in the ordinary course of nature lead gradually but surely
to her death.'
This direction was of the clearest relevance
in Regina v Arthur, but the issue was regrettably obfuscated by the
trial judge in his summing up in that case.
The court in Gibbins and Proctor was
aware of many earlier directions to like effect, and specifically approved
that given in R v Bubb and Hook (1850) 10 Cox CC. 455att
459. The concept of murder by omission is fully confirmed by the Infanticide
Act 1938, s.l(l), and the Homicide Act 1957, s.2(l). back
to text
15 See Linacre Centre
Working Party Report in the present volume, Book I, chapter 3, sec.5, pp.43-5. back to text
16 For some summary
documentation of the debate as it had taken shape over a decade ago see
the Linacre Centre Working Party Report, chapter 2, pp.15-22 in this volume. back to text
17 The members of the
BMA Working Party very clearly felt (as would a majority of people in our
society) that it is intolerable to maintain an absolute prohibition on euthanasia
in face of harrowing situations of the kind which are recorded as having
arisen in the Burma campaign in the Second World War (para. 117 and reference).
But we need to reflect on the terms in which the Working Party express their
reason for making exceptions: it is the certain knowledge that suffering
will be terrible that provides the purported justification of `mercy
killing'. Even if this were the only ground for mercy killing conceded by
the Working Party (and it is not) many would think it a ground that in principle
allowed extremely wide scope for euthanasia in clinical practice. For the
logic of conceding the exception is to allow that there are circumstances
in which it is reasonable to treat the human dignity of the person to be
killed as a value which can be nullified by the entirely predictable evils
which are about to overtake a life (see Submission,section
1.2.2). But it is the standard case for euthanasia that incontestably predictable
evils of suffering and loss of faculties rob so many lives of dignity and
value that the ending of such a life is a benefit.
Absolute norms do confront us with hard cases
where pressures of sympathy and compassion can make the norm seem intolerable.
But the choice of euthanasia as the solution to intolerable suffering has
implications that go far wider than the relief of hard cases and extends
to the introduction, willy nilly, of very great evils. Among these evils
is certainly to be included the corruption of the character of doctors in
respects fundamentally subversive of the commitment to patient care that
we require of them. back to text
18 The caricature makes
its most recent appearance in Medical Ethics Today. Its Practice and
PhilosophyLondon: British Medical Association, 1993. The volume,
produced by the Medical Ethics Committee of the BMA, offers `practical advice..,
in order to guide doctors in any aspects of their practice where ethical
considerations arise'. (p. xxvi). At p.165 we read: `The BMA does not espouse
a strict vitalist "sanctity of life" approach although it recognises
some of its members do.' This approach has been introduced in the text as
requiring that `life is... to be indefinitely sustained in all circumstances,
for example, where its prolongation by artificial means would be regarded
as inhumane and the treatment itself burdensome'. back
to text
19 See the careful analysis
in sections 6 and 7 of chapter 5. [pp.64-66 in this volume] back to text
20 See section 3 of
chapter 6. [pp.69-70 in this volume] back
to text
21 Chapter 7 [pp.77-78
in this volume] back to text
22 Such as Helga Kuhse,
who thinks that implicit in the Linacre Centre Working Party's description
of this case is a comprehensive quality-of-life judgement on the life of
the patient: treatment is discontinued allegedly because he is judged no
longer to have a worthwhile life. See Helga Kuhse, The Sanctity-of-Life
Doctrine in Medicine. A CritiqueOxford: Clarendon Press 1987,
pp.193-194. back to text
23 Consideration of
what is required for proper palliative care may of course suggest that one
ought to treat the supervening life-threatening condition. back to text
