This Submission has
been prepared on behalf of The Linacre Centre for Health Care Ethics,
1 a national Catholic
bioethics centre established in 1977 by the Roman Catholic Archbishops of
England and Wales, who are its Trustees. The Centre has a record of academic
research and publication in the field of health care ethics, 2 and an involvement in
teaching and in consultancy work both for the Church, nationally and internationally,
and for other bodies.
It is not the aim
of this submission to make a documented presentation of the teaching of
the Roman Catholic Church on the topics which concern the Select Committee.
3 A simple statement
of position is unlikely greatly to aid the Committee in its deliberations.
The Centre has always sought to make intelligible to non-Catholics and non-Christians
the Church's moral teaching in its bearings on the practice of medicine.
Much of that teaching belongs to what has been called the tradition of common
morality, whose central tenets belong to the moral patrimony of civilised
societies.
Accordingly, the present submission is devoted
to a broad exposition of that framework of moral understanding which has
long shaped the traditional ethic of medical practice. Offering such an
exposition seemed the most useful exercise we could undertake in relation
to the deliberations of the Select Committee. For it is unlikely that the
members of the Committee will find themselves disagreeing only about relatively
derivative issues. Decisive disagreements are more likely to focus on the
most fundamental issues: the value of human life, the moral significance
of intention, the ethics of killing, the claims of autonomy, the purpose
of medicine and its relation to duties of treatment and duties of care.
Fundamental topics such as these are what the present submission seeks to
illuminate, in a way accessible to those who do not share the religious
faith of its authors.
Part One of
this submission (Sections 14) is a sustained exposition which seeks to clear
away some of those systematic misunderstandings of traditional moral principles
which have obstructed a clear grasp of their continuing relevance to the
practice of medicine and their implications for legislation and public policy.
Without an accurate understanding of these principles it is not possible
to appreciate what a traditional ethic requires of medical practice. Central
to that ethic has been the prohibition on intentionally killing patients,
a prohibition respect for which has been a necessary foundation of the trust
between doctor and patient which is so essential an ingredient of the therapeutic
relationship.
Systematic misunderstandings of traditional
moral principles, and false inferences from them, are nowadays offered to
justify jettisoning a traditional ethic of medicine in the interests of
having doctors kill patients. In some cases this change is supposed to be
in the interests of patients. But often enough the change seems to be promoted
in response to the concerns of those who want patients killed because they
are perceived to be an unwelcome burden either to families or to the Health
Service.
In Part Two of this Submission (Sections
56)the proper role of the Courts in interpreting the law is discussed
along with general and specific proposals for change in the law.
In Part Three (Sections 78) the Submission comments on (a) the changed character of
the apologetic for legalising euthanasia which has in part come about in
response to the success of the Hospice Movement, and (b) the lessons to
be learned from the permissive practice of euthanasia in Holland.
4
Lord Justice Hoffmann
rightly remarked in Airedale NHS Trust v Bland 5:
`This is not an
area in which any difference can be allowed to exist between what is legal
and what is morally right.' There cannot be a true determination of what
is morally right and legally appropriate if competing moral viewpoints on
so fundamental a matter as killing are treated as having equivalent claims,
and, in consequence, proposals for legislative change are designed as a
pragmatic compromise between these viewpoints.
The moral issues which confront the Select Committee are not radically new in
character, though they may have been given new forms by advances in medical
technology and clinical practice. Questions about when to withhold or withdraw
treatment and whether it can ever be right for doctors to kill patients are
questions with a long history. A carefully considered and elaborated set of
answers to them has for centuries supported a humane practice of medicine, of
which a shining example in our own age has been the development of palliative
care in the Hospice Movement. Those carefully considered answers and their
relevance to contemporary variations on old challenges deserve the attentive
consideration and endorsement of the Select Committee. It is in the hope of
promoting those ends that this Submission is respectfully offered.
Part 1
1. Sanctity of Life and Autonomy
Central to the concerns of the Select Committee are the questions: What may
justify decisions and courses of conduct intended to bring about a person's
death? 6 and: Can such
decisions and conduct be justified by either the wishes or the best interests of
the person to be killed? These questions are nowadays apt to give rise to talk
of a conflict between respect for the sanctity of human life and respect for
autonomy (self-determination). Accordingly, it seems appropriate to begin with a
consideration of the significance and grounding of these moral requirements and
of their precise implications for certain central issues in medical practice.
1.1 Justice and the Sanctity of Life
1.1.1 The Sanctity of Life
In the Christian tradition the idea of the sanctity of life was employed
exclusively of human life, to assert its inviolability, i.e. the
entitlement of any human being to protection from unjust attack. So employed the
idea con notes the specific grounds for such inviolability, namely that human
life possesses an intrinsic dignity and value because created by God in his own
image (Genesis 1:26) for the distinctive destiny of sharing in God's own life. A
significant body of theological reflection on this revealed doctrine analysed
the meaning of the image of God (imago Dei) in terms of the distinctive
capacity for rational existence inherent in man's nature. It is in the
nature of human beings to possess the capacity to develop both the ability to
understand what is truly good and the ability to be moved by the desire for what
is good. The authentic development of these abilities can lead us into a life of
self-giving love which mirrors the very life of God: being made in the image
(imago) of God, we are able to acquire his likeness (similitudo), an achievement
which is the proper fulfilment of a human life.
Traditional understanding of the sanctity of human life, set in its original
theological context, may be summarised in three points:
(1) The notion of the sanctity of life explained why certain reasons for
killing human beings were inadmissible precisely because incompatible with the
distinctive dignity human beings possess. Allowing for certain justifications of
killing which were thought compatible with recognition of human dignity,
7
the core of the principle of the sanctity of human life was formulated in the
requirement that one ought never intentionally to kill the innocent (that is,
one ought never to adopt any course of action or omission intended to terminate
the life of an innocent human being).
(2) The distinctive dignity of human beings belongs to them in virtue of a
radical capacity inherent in their nature. Since it belongs to them in virtue of
their nature it belongs to all human beings equally.
(3) The rational abilities that human beings characteristically develop (in
virtue of the radical natural capacity for such development) may be exercised in
ways which are consistent or inconsistent with the fulfilment which is proper to
human beings. To choose and to act in ways which are inconsistent with our
proper fulfilment is to choose and to act at variance with the point of
the radical capacity in virtue of which we possess dignity. But to act in ways
at variance with human dignity is not to lose human dignity: for there remains
the ability to repent of bad choices and to give a right direction to a hitherto
disordered life.
1.1.2 Sanctity of Life, Human Dignity and Justice
In modern Western societies the theological understanding of human dignity
has been transformed into secularised doctrines of the equal dignity of all
citizens, doctrines which are the basis of what is sometimes called the
`politics of universalism', which insists on the equal basic rights and
entitlements of citizens. Secularised doctrines of human dignity need to provide
(a) some account of what underpins the claim that human beings possess dignity,
and (b) some account of what is required if choice and action are to be
consistent with human dignity. In what follows some of the accounts which are on
offer in our society will be assessed with particular reference to the adequacy
of the answers they offer to the question of when Killing is justified. A
correct answer to this question is clearly fundamental to an understanding of
justice in society, and to the criminal law, since protection from being
unjustifiably killed is a precondition of enjoying whatever rights an individual
may have.
1.1.3 Contemporary denials that human worth and dignity
belong to all human beings.
The traditional belief in equal human dignity, both in its religious and
secularised versions, is denied by a number of influential voices in our
society. The understandings they offer of the basis for attributions of human
dignity entail that dignity does not belong to all human beings. Broadly
speaking, possession of human dignity is said by these thinkers to depend on two
requirements: (a) on a human being having developed presently exercisable
psychological abilities for understanding, choice and rational communication;
and (b) on a human being actually exercising such abilities in the enjoyment of
an acceptable quality of life. The precise relevance of the first requirement is
variously explained.
1.1.3(i) A characteristic explanation of the unequal value of human
lives.
A number of thinkers begin from the assertion that human beings are not equal
in possessing basic dignity (and the value such dignity imports); they regard
belief in the equal and distinctive dignity of human beings as a manifestation
of an irrational prejudice (sometimes labelled `speciesism' 8).
Rather, they say, a human life has value only in so far as the person whose life
it is is in a position to value things and projects and activities and does
value them. This means that if one does not possess the developed mental
abilities to make it possible for things to seem valuable to one then there is
no account one can give of one's life having value. Human beings who do not
possess the mental capacities to make things matter to them do not in
themselves matter.
On this account a human being can give worth and dignity to his life
in so far as he is able to maintain a sense of things and projects being
worthwhile and valuable. The corollary of this account of what it is for a human
life to have value is that those lacking the mental abilities to confer value on
their own lives must depend on others to attach value to their lives. This
means, for example, that if those one would normally expect to value the life of
an unborn child (the child's parents) or the life of a senile parent (his or her
children) do not themselves account that life valuable, then not only is there
unlikely to be a social basis for treating that life as valuable, but there is
no account to be given of its value.
1.1.3 (ii) Warnock and Dworkin
The requirement that a human being possess presently exercisable abilities in
order to possess dignity or distinctive value underlies the distinction Mary
Warnock makes between `simply being alive' and `the specifically human
consciousness of having a life to lead'. Only those enjoying such consciousness,
and having the abilities responsibly to lead their lives, possess a distinctive
value; and it is only the possession of that consciousness which explains the
gravity of killing certain human beings. For humans with some idea of having
lives of their own to live, for which they are responsible, `dying, or being
killed, is a different matter from the mere cessation of life'. Those, on the
other hand, who are `simply alive', who have merely `biological life', cannot
have lives with distinctive significance, value or dignity. 9
Despite immediate appearances, a similar distinction and a similar conclusion
are also basic to Ronald Dworkin's more complex reflections on human worth and
dignity and his explanation of why there should be extensive liberty for
medicalised killing of innocent human beings. Professor Dworkin claims that
almost all citizens have a shared ideal of wishing to honour the conviction that
human life is sacred. He himself speaks of human life being intrinsically
valuable and sacred, and formally rejects the view that nothing is valuable
unless someone wants it or needs it to get what he wants. 10
But he also considers that one reasonable `interpretation' of this value and
sacredness of human life is the `liberal' view that `life's inherent value ...
depends on the intrinsic importance of human creative investment' in it; that
is, on what people `make of their own lives', so that the life which is sacred
and inviolable is not `biological life' but the `human life ... created ... by
personal choice, training, commitment and decision'. 11
So Dworkin's own (liberal) view is that a person suffering from Alzheimer's
dementia
`is no longer capable of the acts or attachments that can give it [life]
value. Value cannot be poured into a life from the outside; it must be generated
by the person whose life it is, and this is no longer possible for him.'12
On Dworkin's view, while some locate the `transcendentally important source
of ... sacred value' in `biological life', others (like himself) think the
source of that value lies in the exercisable abilities, especially for rational
control of one's life, in virtue of which people can give the shape and
significance they wish to their lives.
It is clear, then, that Dworkin's talk about the `shared ideal of sanctity of
life' is practically empty.
13The ideal can guide
no one's deliberations until it is given content by `interpretation'; the
interpretations which ground competing claims about right conduct and just law
are contradictory; and Dworkin's conclusions coincide with the position
favoured by Warnock. The contest which he professed to expel with his talk of
consensus about life's sacredness returns with undeniable vigour in the struggle
between the thesis (which he dubs `conservative' but which in many periods and
cultures has been recognised as radical and transforming) that human life has
dignity even in the most undeveloped human beings or in those severely disabled
by disease or decrepitude, and the thesis (which he approvingly dubs `liberal')
which accords to the relatively powerful lethal dominion over the relatively
weak. This is a struggle in which the law simply cannot be neutral without
abdicating its claim to uphold basic justice, the state's most fundamental duty
to protect the lives of innocent citizens against deliberate extinction at the
hands of others.
One does not have to rely on religious premises to see that the understanding
of human worth advocated by Baroness Warnock and Professor Dworkin, precisely
because it is a direct attack on the principle of the basic equality-in-dignity
of human beings, is radically subversive of justice. A secularised doctrine of
human dignity needs to be consistent with our fundamental intuitions about
justice.
1.1.4 The Basis of Human Dignity and Justice
What are the implications for justice of the kind of understanding of the
worth and dignity of human life proposed by Warnock and Dworkin and similar
thinkers who would like to see a radical revision of our homicide laws? Common
to their positions is the requirement (explicit or implicit) that human beings
possess presently exercisable abilities in order to be counted subjects
of justice, and specifically to be counted among those entitled not to be killed
intentionally without just reason. For such exercisable abilities are necessary
if one is to find value in objects or projects, or to entertain some idea of
having a life of one's own for which one is responsible (Warnock), or if one is
to be well placed `to make something' of one's life, thus having a `life in
earnest' whose `sacredness' might count for something in any competition with
the `investments' which someone else has made in his own life (Dworkin).
The rational abilities necessary to these activities are various, and come in
varying degrees in human beings. If actual possession of such abilities is a
necessary condition of the claim to be treated justly, questions will have to be
faced about precisely which abilities must be possessed, and how
developed they must be before one enjoys this claim to be treated justly. And
these questions could be answered only by choosing which to count as the
relevant abilities and precisely how developed they must be to count. But any
such line-drawing exercise is necessarily arbitrary. A distinction between A and
B, where A and B fall on either side of a line determining some minimal level of
proximate capacity for the exercise of an ability, will not admit of reasoned
defence when what is at issue is whether A and B are subjects of justice. If A
qualifies for just treatment, B will fail to qualify even though there is very
little difference in the degree to which he possesses the relevant abilities.
14
Arbitrary choices may be reasonable and unavoidable in determining some
entitlements (such as the requirement that one must have been a member of a club
for three years in order to enjoy certain benefits). But if one's understanding
of human worth and dignity commits one to being arbitrary about who are to be
treated justly (i.e. about who are the very subjects of justice) it is
clear that one lacks what is recognisable as a framework of justice. For it is
incompatible with our fundamental intuitions about justice that we should
determine who are the subjects of justice by arbitrary choice. The need for a
non-arbitrary understanding of who are the subjects of justice requires us to
assume that just treatment is owing to all human beings in virtue of
their humanity.
This indispensable assumption is also intrinsically reasonable. It is true
that the distinctive dignity and value of human life are manifested in
those specific exercises of developed rational abilities in which we achieve
some share in such human goods as truth, beauty, justice, friendship and
integrity. But the necessary rational abilities are acquired in virtue of an
underlying or radical capacity, given with our nature as human beings,
for developing precisely such abilities. Yet it should be clear that the dynamic
development of this radical natural capacity 15
is not directed to the acquisition of rational abilities for them to be
exercised in just any fashion. Our abilities to know and choose are not properly
exercised by, for example, believing falsehood or choosing to act unjustly, any
more than our abilities to see and to walk are properly exercised in
double-vision and tripping over obstacles. The nature in virtue of which we come
to acquire rational abilities has its proper fulfilment, then, in exercises of
rational abilities in which we recognise worth and dignity. But if it is
characteristic of the nature of human beings to acquire abilities which are
properly exercised in ways which are inherently valuable, then it is reasonable
to hold that there is an inherent value or dignity in the nature we share in
common, and seriously unreasonable (and radically subversive of justice) to
judge that the lives of some human beings lack inherent value because those
human beings lack certain presently exercisable psychological abilities.
1.1.5 Dualism and the false valuation of human life
It is clear enough from the brief descriptions offered above that Warnock's
and Dworkin's accounts of which human lives possess worth rest on contrasting
what they term the condition of `simply being alive' or possessing mere
`biological life' with the condition involved in `having a life' (on which worth
depends). Discussing obligations to patients in a persistent vegetative state in
his essay `The Right to Death' Dworkin writes:
`... nothing in the idea that life has intrinsic importance ... can
justify a policy of keeping permanently comatose people alive. The worth of
their lives - the character of the lives they have led - cannot be improved just
by keeping the bodies they used to inhabit technically alive.'16
Here we have a contrast between, on the one hand, a personal life (a life
which a person has consciously led, to which value attaches), and, on the other,
the ongoing biological life of a body which for some stretch of its existence
may be inhabited by a person (`may be', because according to some of these
thinkers some human bodies may never have truly `personal' inhabitants).
This dualism left clear traces in the judgements in Airedale NHS Trust v
Bland, in which a distinction was made between Tony Bland himself and his
body; e.g. `his spirit has left him and all that remains is the shell of his
body' (Brown P); `his body is alive, but he has no life.. . He is alive but has
no life at all' (Hoffmann L J, consciously echoing Dworkin).
A dualism `which thinks of the body as if it were some kind of habitation for
and instrument of the real person, is defended by few philosophers... It renders
inexplicable the unity in complexity which one experiences in everything one
consciously does. It speaks as if there were two things ...: a non-bodily person
and a non-personal living body. But neither of these can one recognise as
oneself. One's living body is intrinsic, not merely instrumental, to one's
personal life. Each of us has a human life (not a vegetable life plus an animal
life plus a personal life); when it is flourishing that life includes all one's
vital functions including speech, deliberation and choice; when gravely impaired
it lacks some of those functions without ceasing to be the life of the person so
impaired.' 17
Living human beings are organisms. On a non-dualistic view the unified life
of the human organism is throughout human. There is not some separable
organic substrate, the life of which is `purely biological', and to which some
personal subject, whose life is uniquely manifested in psychological activities,
may be attached. The life that is exhibited in thinking is the very same life
that is manifested in respiration and heartbeat. To cease to be able to
think is to lose an ability, not to lose one's life.' 18
The rejection of (anthropological) dualism is important to recovering an
appreciation of the inherent dignity of every human life. There is a fundamental
conflict between the position of those who acknowledge a value and dignity in
human beings given with their humanity and the position of those who
think that value and dignity belong to a life only in so far as a person
is in control of his life and can give it a valued meaning. The latter position
is not reasonable. It fails to acknowledge the value of the radical natural
capacityto develop abilities to find meaning in life, and the
dignity of the nature in which that radical capacity inheres. And it fails to
acknowledge that the developed abilities find their fulfilment not in just any
way of life which one can be said to be in control of but in a way of life in
which one submits, for example, to the claims of truth and justice. And one is
not in control of what counts as true and just. To attach value and dignity
exclusively to autonomous control is to have blinded oneself to the true source
of the basic value and dignity in a human life.
It is of considerable importance to note one implication of the
inseparability of recognising someone's human dignity and recognising his status
as a subject of justice. Since denial of the former entails denial of the
latter, our practical reasoning should never involve us in judgements which
amount to the denial of the inherent worth or dignity of a human being. The
basic human dignity of the other is an ineliminable consideration when we
deliberate about how we should treat him.
1.1.6 Justice and the Sanctity of Life Ethic Recovered
1.1.4 and 1.1.5have argued for the necessity and reasonableness of
attributing a fundamental worth and dignity to every living human being
if we are to have a defensible understanding of justice. In so doing we have
recovered from contemporary criticism, without benefit of religious premises,
the basic truth about human worth and dignity which shapes the content of a
sanctity of life ethic.
1.2 Justice and Killing
1.2.1 Killing for reasons incompatible with recognition of human dignity
Anyone who causes the death of another human being with intent to do so (i.e.
who intentionally kills by `act' or omission) acts on the basis that there is
some reason for thinking that the person killed should have died. Quite
generally what one does intentionally is identified by reference to one's
chosen purpose in acting (under that description which makes clear its
perceived desirability) and the means which are chosen (under that
description which makes clear their perceived relevance to the achievement of
one's purpose). Both of these must feature in any adequate statement of why one
is acting, i.e. in any adequate statement of one's reasons for doing
precisely what one is doing.
It is clear that one can intentionally bring about someone's death by an
omission which is intended to bring about death: one can want someone dead
and one can bring it about that he dies precisely by choosing to omit to do what
one could (and otherwise would) have done to keep him alive. When what
one omits with such an intention to terminate life is not merely something one
could have done but something one had a duty to do, then the law has
rightly regarded such intentional omissions bringing about death as murder.'
19
There is no morally significant general distinction to be made between
killing and letting die, and any attempt to rely on such a distinction is
intellectually perilous. 20
One may let a patient die for perfectly sound reasons (see 2.2 below), but one
may also `let a patient die' for unacceptable reasons, including the absolutely
unacceptable reason that one wants (however reluctantly) to hasten his death.
Both omissions contrary to duty which intentionally bring about someone's
death and actions which intentionally cause death raise two questions which the
person responsible should answer:
- Why was it that X should die?
- What entitled you to bring about the death?
Distinguishing between acceptable and unacceptable answers to the first
question is the most fundamental task in determining what is justifiable
killing.
Since it is in virtue of the worth and dignity which attaches to our humanity
that we establish to whom justice is owing, recognition of that dignity
is the precondition of human beings treating each other properly. That being so,
any purported justification of killing must at the very least be consistent
with recognising the dignity of every human being. What is absolutely
excluded, therefore, is bringing about another's death for reasons
incompatible with recognising the dignity of the person killed.
As we have already remarked, at the beginning of this subsection, the
relevant reasons are identified in the description of one's intended course of
action which identifies the perceived desirability of one's goal/purpose and the
perceived relevance to one's goal of one's chosen means.
This general account of which causations of death are absolutely excluded by
recognition of the basic worth and dignity of every human life (viz, those
intentional causations decided upon for reasons incompatible with the recognition of human dignity) makes intelligible the moral significance of the
distinction between intentional (intended) and (merely) foreseen causation of
death. When death is merely foreseen, one's causing it does not feature among
the reasons one has for acting, and so is not chosen whether as end or as means
(and thus is not intended). Many worthwhile activities, entirely consistent with
recognition of human dignity, would be made impossible if all foreseeable
causation of death were forbidden (examples would be: high-risk surgery, the
giving of opiates for pain control in doses likely to hasten death, high-risk
sports).
It is clear that one of the motives of those who seek to show that there is
no morally significant difference between intention and foresight is to make aprohibition of the intentional causation of death seem as unreasonable as an
absolute prohibition of foreseen causation of death would evidently be. It
should now be clear why an absolute prohibition can justifiably cover at least
some intentional causations of death, namely all those the reasons for which are
incompatible with recognising the basic dignity of the persons to be killed. To
allow such killings would be to grant that human beings may be treated as though
their dignity were irrelevant to how one chose to act towards them.
1.2.2 Euthanasia: killing incompatible with recognition of human
dignity
In this section it will be argued that the core reason aperson
proposing to carry out euthanasia would have to identify, to make intelligible
what he sees to be the desirability of causing death, is areason for
action incompatible with recognising the dignity of the person to be killed.
It ought to be evident that the killing of a person for advantage or
convenience is inconsistent with recognition of that person's dignity, for the
person killed is certainly not treated as of equal dignity with those advantaged
by his death. Much advocacy of non-voluntary euthanasia is motivated by the
thought that it is advantageous to others, in relieving them of the burdens of
care for the handicapped and senile.
Purported justifications for voluntary euthanasia, however, as also for much
non-voluntary euthanasia, speak of it as a benefit or a good for
the patient. If the reason for saying that death is desirable qua benefit
to the patient is to be consistent with recognising the basic worth and dignity
of the patient's life, then it cannot rest on tacitly assuming (or seeking to
show) that no positive value attaches to that life. That assumption would
be made if the reason for saying that death would benefit the patient were that
it would terminate acondition of negative value, depriving the patient
of nothing of positive value. Justifications of that type, if they have any
place at all for recognising avalue attaching to our humanity (and many
do not), in effect treat it as a commensurable and therefore
eliminable value in calculating the overall `worth' of a life. But to treat
the basic human dignity of some human beings as an eliminable value is to
proceed by denying to those human beings their status as subjects of justice.
All standard justifications of voluntary euthanasia, in so far as they
represent it as a benefit to the patient killed, do so in a way which is
inconsistent with recognition of the basic dignity of every human being. Here
are four standard patterns of justification:
(1) One justification 21
represents human existence as no more than the possibility of enjoying
goods. A human life is abenefit in so far as it comes up to a
standard of normality in the goods available in it. But if it sinks below
that standard and is overtaken by evils it is overall an evil.
22
Deliberately to end alife in that condition (if the patient asks to
have it ended) is to benefit the patient.
Clearly this justification of voluntary euthanasia as a beneficial choice
begins from the premise that our mere existence has no worth or value as
such. So the justification is not consistent with recognising the dignity of
every human being.
(2) Sometimes an attempted justification of voluntary euthanasia will
concede that human life has value, but then argue that this value can be
eliminated by the realities of suffering. 23
But if one treats the value attaching to our humanity as eliminable by
countervailing disvalues one denies that basic dignity belongs to every
human being whatever his or her condition.
(3) Some justifications of voluntary euthanasia start from the premise
that human lives do not essentially possess a basic dignity and value. What
gives alife value, it is claimed, is the ability of the person whose
life it is to find value in projects, activities and relationships. Without
afelt, subjective sense of worth and value alife
lacks value. If a person is competent he is the only possible authority on
whether he enjoys a subjective sense of value. If he soberly sayshe
doesn't, his life lacks value. And those who lack presently exercisable
abilities for finding value in their lives in consequence lack lives of
value.
A justification of euthanasia which relies on the assumption that human
lives do not essentially possess value straightforwardly denies the
basic dignity of every human being.
(4) Some proponents of voluntary euthanasia speak of recognising the
dignity of the person to be killed while asserting that continued life is
not in the interests of that person. But this is mystificatory rhetoric. If
one says that someone's continued existence is not in the interests of that
person one means that person would be better off dead, that the nonexistence
of that bodily person is of less disvalue than continued bodily existence.
This could be true only if continued existence is reckoned to have a
negative value, for death itself can hardly be thought to have positive
value. So this form of justification is inconsistent with recognition of the
basic dignity of every human being.
1.3 Autonomy and Killing
It will be said that the above argument against euthanasia, both voluntary
and non-voluntary, is narrow-minded in basing itself exclusively on a doctrine
of equal human dignity. It will be argued that at least in respect of voluntary
euthanasia there is a case to be answered in its favour based on aright
to personal autonomy. As already noted, there is much talk of `conflicting moral
principles of the sanctity of life and the right to personal autonomy'
24,
and of the need to balance their differing claims. A reasoned assessment of such
talk must depend on what kind of claims in the name of autonomy are
well-grounded, and more particularly on whether `a right to personal autonomy'
ever reasonably overrides what is required by recognition of human dignity.
Something, therefore, needs to be said in general terms about autonomy and a
`right to personal autonomy', and about its relation to the normative
constraints on killing imposed by recognition of human dignity.
1.3.1 Autonomy and a `Right' to Personal Autonomy
The words `autonomy' and `autonomous' are used in respect of a capacity, acondition and a right.
To be autonomous, as the word implies, is to be self-governed or
self-directed or self-determining in the conduct of one's life; that is the
condition. `Autonomy' is used of the capacity to be self-directed in the conduct
of one's life. `Respect for autonomy' involves respect at least for this
capacity. `A right to autonomy' must be aright to at least some
exercise of the capacity for self-direction in one's life. But what exercise of
that capacity? The answer we give to that question must surely depend on the
understanding we have of the value of autonomy.
Some semi-popular talk about autonomy and the right to have one's autonomy
respected seems to suggest that what people value is doing what they want (in
the sense of acting on the wants, wishes and desires they happen to have)
as distinct from having to do what someone else wants. But it seems fairly clear
that the ability to do what one happensto want to do is not
sufficient for self-government in the conduct of one's life. Someone whose
condition is one of wanton self-indulgence does what he happens to want to do.
What is valued in the capacity for self-government is at the very least our
ability to evaluate our desires and to act selectively in accordance with our
evaluations.
But will action in accordance with any kind of evaluation count as an
exercise of autonomy? Our answer to this question will depend on what we think
the point of self-government or self-direction is.
The capacity for self-government is properly exercised and developed with aview to the flourishing or well-being of the person who possesses it, and of
the communities to which that person properly belongs in friendship and justice.
If so exercised it is indeed an aspect of that flourishing. In what way is it an
aspect?
Human happiness or well-being is not left to be wholly amatter of
luck, or of grace which does not require willing cooperation; what we make of
ourselves (our character) makes an important difference to whether or not we
flourish as human beings. And our characters are decisively shaped by our chosen
actions: these do not merely bring about effects external to us, they also serve
to form our dispositions. A person's exercise of choice will in this way
inescapably make for well-being or misery in his life.
So there is a clear case for valuing human choice, and hence for valuing the
exercise of autonomy, precisely in so far as it serves to form in us those
dispositions which are conducive to human flourishing.
People differ in their views on how wide an exercise of the capacity for
self-direction should be respected. One very important factor in determining
those differing views is whether or not one believes there is human knowledge of
moral truths, that is, knowledge of the objective requirements we need to meet
if we are to flourish as human beings.
If there is such knowledge, then it is clear why we should value the exercise
of choice in conformity with that knowledge: for evidently that would be an
exercise of autonomy which makes for human flourishing. But it would not be
obvious why we should value exercises of autonomy at variance with the objective
requirements of human flourishing.
Still, if there is to be choice one has to allow not just for the possibility
but also for the reality of erroneous choices. So, necessarily, respect for
autonomy must leave scope for some erroneous choices. But it does not
follow that any and every exercise of choice is to be respected. We need to bear
in mind why this capacity is to be valued; and if our choices seriously
undermine in us the capacity to flourish as human beings, and a fortiori
if they aim to damage aspects of this capacity in others, there is no reason of
moral principle why those choices should be respected.
1.3.2 Autonomy and the Justification of Voluntary Euthanasia
Can aright to autonomy be invoked to justify voluntary euthanasia? It
is important to recognise how limited a role in justification the actual request
to be killed can play. Certainly the mere fact of arequest in itself
provides little reason for a doctor to kill apatient. Can we envisage adoctor thinking it justifiable to kill a patient just because the patient
has asked to be killed? Hardly. Indeed, we can envisage many circumstances in
which doctors who are not opposed in principle to euthanasia would refuse
requests; as when they think the request is prompted by an erroneous view of the
prognosis, or by some relievable depression, or by circumstances which can be
readily changed. Any doctor who feels that agiven patient still has aworthwhile life to live will not accede to a request for euthanasia from
that patient. By contrast, it is precisely the judgement that a patient no
longer has a worthwhile life which will seem to justify euthanasia. The role
of this judgement in justifying euthanasia is not altered by the different
grounds a doctor may have for arriving at it. Sometimes it will seem true on the
basis of evidence which the doctor can independently take stock of: pain,
degeneration, depression, wretched circumstances. At other times the judgement
will be clinched in the doctor's mind only by what the patient asserts: that his
life is no longer worth living.
A doctor, minded to think that at bottom a human life can have value only if
the person whose life it is consciously finds value in it, may well accept, in
the presence of some corroborative evidence, apatient's judgement that
his life has irrevocably lost value and dignity. But that fact about the
doctor's background reasoning is not a ground for thinking that the doctor is
not himself responsible for the judgement that this patient no longer has a
worthwhile life. For it is this judgement which will make it appear to
him that a choice to bring about the patient's death is a beneficent choice.
Notwithstanding, then, that the killing which carries out voluntary
euthanasia is requested, the justification of that killing rests centrally on
the contention that the patient no longer has aworthwhile life.
But precisely that contention is inconsistent with recognising the continuing
worth and dignity of the patient's life.
In any apparent conflict between, on the one hand, the requirement that we do
not deny equal human dignity and respect for the sanctity of human life and, on
the other, the putative claims of respect for autonomy, the principle of the
sanctity of human life must always trump those claims. For recognition of equal
human dignity is fundamental to recognition of all human beings as subjects of
justice.
There is no authentic conflict between rightly respecting the sanctity of
human life and rightly respecting autonomy. The exercise of human autonomy in
giving shape, direction and character to ahuman life is not a
source of value and dignity which is properly at odds with the
fundamental source of human worth and dignity in human nature itself. For, as we
saw (1.1.4), what makes it reasonable to recognise human nature as the source of
our basic worth and dignity as human beings is the fact that our nature in its
development is intrinsically directed to human fulfilment and human good. And
what best makes sense of the ideal of respect for autonomy is the role played by
free choice in the achievement of that fulfilment to which our nature is
directed; for self-determining choice is integral to that achievement. But if
the moral significance of autonomy is to be understood in that way, then the
value of autonomy is derivative from, and reflective of, that which gives value
to our humanity. So it should be clear that the claims of autonomy cannot
properly extend to choices which are inconsistent with recognising the basic
worth and dignity of every human being.
1.3.3 Autonomy and the Justification of Non- Voluntary Euthanasia
It is sometimes said 25
that debility, degeneration and dependency experienced by those who have become
permanently incompetent, or the undignified way in which (sometimes unavoidably)
they are treated, are inconsistent with the meaning and character they had given
to their lives while competent. It is then claimed, or insinuated, that this
meaning and character have been the exclusive source of dignity in the lives of
many such people so that their present condition should be recognised as
completely depriving them of dignity. For this reason, therefore, it would be
beneficent to put an end to their lives.
Sufficient has already been said to show that such a line of reasoning
provides no defensible ground for euthanasia of the incompetent who were
formerly competent. As many of those nurses and others who care for such persons
know, and testify to by their dispositions and acts of solidarity, communion or
friendship with them, these people, though sadly weakened or wounded and
scarcely or no longer able to exercise their autonomy, remain the very same
persons they always were. Their state is in a sense undignified, but it is
not an indignity (of the kind inflicted upon people by demeaning actions).
Right down to their deaths they continue to share in the radical
equality-in-dignity of all human beings.
1.4 Sanctity of Life and Autonomy: Conclusion
The teaching of Christian tradition about the sanctity of life can be recast
in secular terms as a doctrine of equal basic worth and dignity. This doctrine
has to be assumed if there is to be a non-arbitrary understanding of who are the
subjects of justice, but the intrinsic reasonableness of the assumption can be
defended.
Since we must hold all human beings to possess an ineliminable worth and
dignity if they are to be recognised as subjects of justice, any justification
for killing incompatible with recognising that worth and dignity is
inadmissible.
Justifications of voluntary and non-voluntary euthanasia as beneficent rely
essentially on the judgement that, overall, the present life of the
person to be killed is of negative value (not worthwhile). But such a judgement
is incompatible with recognising the ineliminable worth and dignity of the
person to be killed. Hence intentional killing (by act or omission) for
euthanasiast reasons falls under the absolute prohibition of intentional killing
of the innocent (itself the core requirement of respect for the sanctity of
life).
2. The Duties of Doctors:
Duties of Treatment and Duties of Care
2.1 The Purpose of Medicine and Duties of Treatment
Doctors are skilled practitioners of the art of medicine. The generic skills
of diagnosis, prognosis and treatment draw on a basis of scientific knowledge,
itself based on research.
It is of the first importance in seeking to define the duties of doctors in
respect of treatment to be clear about the purpose of medicine. The purpose of
medicine is the restoration and maintenance of health (or of some approximation
to health) or the palliation of symptoms. Traditionally, health has been
understood as that condition of the body in virtue of which it functions well as
an organic whole, so that the individual both enjoys physical vitality in itself
and is well-placed to achieve some of the other goods intrinsic to human
well-being. 26 Health is
valued as inseparably an intrinsic and an instrumental good. The palliation of
symptoms (when cure is not achievable) aims precisely to control those
impediments to participation in other human goods which arise from organic
malfunctioning; in other words, given that not even an approximation to health
can be achieved, one aims to secure as tolerable a state of the organism
as possible so that conscious living (with family and friends and others) may
continue. Thus, palliative medicine, in deploying techniques of pain control, is
focused, just like other forms of medicine, on the organic component of our
aptitude to share in other human goods. 27
The prolongation of life has not traditionally been understood as an
independent goal of medicine, without reference to the good of health. It has
been considered a justifiable aim only in so far asa patient has
had some continuing capacity for organic well-functioning sufficient to allow
him to share in some of the goods of human life (e.g. contemplation, the
exercise of choice, communication, or - and these are particularly relevant to
babies - some form of play, the affection of others, the enjoyment of one's own
vitality).
The recognition that prolongation of life has not been considered as per
se an objective of medical practice should help to dispose of a radical
misunderstanding of the requirements of respect for the sanctity of life which
has been encouraged in recent years by those who wish to subvert the core
requirement (that one ought never to kill the innocent intentionally). The
misunderstanding has been to the effect that those who claim that a life has
worth or value must mean that one should seek to prolong that life.
28
Section 1 has shown that recognition of human dignity would require that a
doctor should never intentionally kill apatient. The fundamental
worth and dignity of every human life has its source in the human nature each of
us shares precisely in existing as a human being. A proposal to kill a patient
is a proposal to put an end to that person's existence. But such a
proposal cannot be justified for areason compatible with
recognising the worth and dignity of his very existence.
It is in the nature of human beings that they die. There is nothing that we
have come to know in recent years which suggests that medicine should revise its
traditional goals and seek to defy the inevitability of death. A doctor's
decision not to seek to prolong apatient's life need not find its
justification in reasons entailing any denial of the fundamental worth or
dignity of that patient's life. There may be sound reasons for such a decision,
compatible with respect for the fundamental dignity of the patient; these
reasons are discussed in the next section.
It follows from the nature of the purpose which the institution of medicine
exists to serve that the central duty of a doctor to an ill patient is that of
competently employing those medical skills relevant either to aiding and
abetting whatever capacity the patient may have for a return to health or to
palliating those symptoms arising from disease or disability which impede apatient's remaining capacity to live well.
2.2 Limits on Duties of Treatment
2.2.1 Patient Consent and Duties of Treatment
Two statements by Pope Pius XII may usefully introduce the topic of patient
consent in relation to a doctor's duties of treatment. In 1952 he said:
`First of all, one must suppose that the doctor, as a private person,
cannot take any measure or try any intervention without the consent of the
patient. The doctor has only that power over the patient which the latter gives
him, be it explicitly, or implicitly and tacitly. The patient for his part
cannot confer rights which he does not possess'29
And in 1957 he made the same point in connection with restating the
traditional norms on `ordinary and extraordinary treatment':
`The rights and duties of the doctor are correlative to those of the
patient. The doctor, in fact, has no separate or independent right where the
patient is concerned. In general he can take action only if the patient
explicitly or implicitly, directly or indirectly, gives him permission.'30
These statements reflect a centuries-long tradition of theological thinking
on the doctor-patient relationship, which offers no support for the unbridled
paternalism which is sometimes said to have been accommodated by a
traditional ethic of medical practice.
It is important to understand the underlying reasons for the place given to
patient consent in the traditional thinking articulated by Pope Pius XII.
Medicine is abody of practices which are given their unity by the
varied relations they have to the good of health. But the good of health as it
is instantiated in the lives of individuals is an aspect of their personal
well-being. Precisely as a personal good each person's health is primarily his
responsibility. Once aperson has reached that stage of physical
development at which he is also able to exercise responsible choice, health is
effectively promoted only through the choices and commitments of the person
himself. For some the choices at a certain stage of their lives need be no more
than moderation and good sense in regard to what they eat and drink; for others
the required choices are much more exacting.
The view that there is an intimate connection between health and personal
responsibility implies that health cannot be viewed as a commodity which one can
acquire by going to adoctor's surgery or to hospital. Health is
effectively promoted only when a person takes responsibility for his health. The
doctor's responsibility to aid and abet the restoration of health can best be
discharged if the basic responsibility of the patient is recognised and
respected. This means that the doctor must, within limits, respect the competent
patient's choice.
There is asecond important reason for insisting on respect for the
competent patient's choice. Because health is apersonal good it
may be more or less intensively realised in one's life. The degree to which it
is achieved depends in part upon the place other commitments occupy in one's
life and the demands they make on one. What persons devote themselves to is a
matter of choice influenced by aptitude, opportunity, inclination and
inspiration. Sometimes it is a consequence of a serious and worthy choice of a
way of life that health is impaired and one loses the opportunity to recover it.
A doctor lacks the competence and so the authority to tell us to abandon the
shaping commitments of our lives.
Because health is a personal good, an aspect of the flourishing of persons,
it is wrong to neglect health problems simply because of laziness, it is wrong
to damage health through self-indulgence, and it is wrong because of cowardice
to avoid seeking the treatment one needs. While such behaviour is morally
unreasonable, it is rarely the case that a uniform course of action is alone
morally reasonable: the place one can give to fostering or restoring the good of
health in one's own life will depend upon the responsibilities which arise from
one's other basic commitments. So for this reason, too, the choice of the
patient must be respected.
Nothing in this way of explaining the significance and importance of patient
consent suggests that the rationale for its true significance is the right of
patients to construct (and deconstruct) their lives as they will, providing only
that they do not damage the legitimate interests of non-consenting parties.
The second line of argument for the importance of patient consent suggests
that a doctor has a duty to provide therapeutic or palliative treatment of a
kind compatible with the reasonable commitments a person has undertaken, even if
the `compatible' treatment is not, in the doctor's view, the ideal therapy for
the patient's condition. That kind of compromise is necessary and reasonable.
But there are patient wishes a doctor cannot justifiably accommodate. One
such wish is the demand for euthanasia: the case against accommodating it has
been fully explained in Section 1. At this point it would be appropriate to add
consideration of the request for aid in suicide.
2.2.2 Duties of Treatment and Suicide
A request for euthanasia is not, of course, a request for assistance in
suicide. A request for euthanasia from a patient to a doctor is a request that
the doctor kill the patient. Suicide is the carrying out of a choice directly to
kill oneself. One can carry out such a choice either by a positive course of
action, e.g. by taking alethal substance, or by deliberately omitting
life sustaining treatment or care (precisely in order to end one's life). Just
as willingness to carry out euthanasiast killing rests on a false valuation of
the life of another, so willingness to commit deliberately chosen suicide rests
on a false valuation of one's own life (to the effect that it is no longer
worthwhile). Since that valuation is incompatible with respect for one's own
fundamental dignity, it is morally impermissible to aid a person to carry out an
act of suicide. 31
It is clear what this conclusion excludes when suicide is to be accomplished
by an act such as taking a lethal dose of a drug: it excludes providing the
necessary quantity of the drug with the intention of enabling the person to
commit suicide.
When a competent person proposes to commit suicide by refusing necessary
life-prolonging treatment (e.g. insulin for diabetes) or by refusing basic care
(e.g. being fed) one does not collaborate by failing to override his proposal.
The alternative to respecting the requirement of consent is to take a suicidal
proposal as evidence that the person in question is incompetent and to force
upon him the treatment or care which is in his best interests. But it is
unreasonable to treat suicidal proposals as though they were always evidence of
incompetence; that would be to act as if people could never be guilty of
suicide.
Consideration will be given in Section 4 (Advance Directives) to what adoctor's moral responsibilities are towards an incompetent patient who while
competent had left suicidally motivated instructions for his medical treatment
in specified circumstances.
2.2.3 General Grounds for Limiting Treatment
There are two quite general grounds for limiting treatment: (i) one is that a
particular treatment is failing to achieve its therapeutic or palliative goal
(i.e. it is inefficacious treatment); (ii) the other is that it involves
burdensome consequences which it is not reasonable to expect a patient to bear.
When the patient is competent his own judgement of what is a tolerable burden
must be decisive.
(i) Inefficacious treatment
Since prolongation of life is not an independent goal of medicine, the
possibility of continuing to prolong life does not independently create an
obligation to continue to provide life prolonging treatment. If a patient is in
the terminal phase of dying it will normally be the case that it is clearly
inappropriate to persist with life-prolonging treatment unless that treatment
has distinct palliative benefits.
More broadly, therapeutic treatment is to be judged inefficacious if the
condition of the patient is such that it would be impossible to secure even an
approximation to health in that patient, i.e. some desirable degree of
well-functioning of the organism as a whole. It is on precisely this ground that
it would be reasonable to withdraw specifically therapeutic treatment from a
patient who has been securely diagnosed as irreversibly in a persistent
vegetative state (PVS). For the organic condition of the patient has been
rendered so seriously defective that it is impossible to achieve a desirable
approximation to health (viz, the well-functioning of the organism as a
whole).
To say that it may be reasonable to withdraw therapeutic treatment
(including, for example, antibiotics for recurrent infection) from PVS patients
is not to say that it is reasonable to withdraw ordinary care from them. (For a
discussion of what is required in this respect see 2.3.1 below.)
Doctors do not have aduty to provide inefficacious treatment, and
patients (and families of patients) cannot reasonably require such treatment of
doctors. But it is very important that in answering a question about the
worthwhileness of a given treatment adoctor should focus very
firmly on whether the treatment can deliver medical benefits (cure, mitigation
of disability, palliation of symptoms) and should not allow the basis of his
answer to shift to a judgement on the worthwhileness of the patient's life, so
that the question he comes to answer is whether the patient is worth benefiting.
For a negative answer to that question would seem to justify not merely
withholding aparticular medical treatment but withholding all
medical treatment and all basic care in order to end what is judged a worthless
life.
(ii) Excessively burdensome treatment
Doctors do not have aduty to provide treatment which a
competent patient would reasonably reject on the ground that it was in some
respect excessively burdensome in its consequences. Typically treatment will
hold out some prospects of benefit (specifically for prolonging a life) but will
also involve burdensome consequences. There is no single right answer to the
question of when those burdens become sufficiently burdensome to justify
discontinuing atreatment. Providing apatient has
discharged serious duties which he may have, such as duties to family, and
providing he is not motivated by suicidal intentions, it may be reasonable for
him to reject life-prolonging treatment because the burdens consequent upon it
are more than he is disposed to put up with. Burdens may take the following
forms:
(a)treatment may be excessively costly: the cost in question
may be to an individual, to a family, or to a health service. A patient
considering the financial consequences of treatment for different
payers/providers may reasonably decide to forgo treatment even before a point is
reached at which it would be obvious that acceptance of treatment would be
unfair to others.
(b) Treatment may be excessively damaging to possibilities one cherishes. It
may be reasonable to refuse chemotherapy for cancer because of its very likely
effect on other bodily functions; e.g. that it renders one sterile and one is
recently married and wanting a child.
(c) Treatment may be excessively painful: there will be limits to each
individual's courage.
(d) Treatment may be excessively taxing psychologically: abroad
species of burden, of particular relevance when considering treatment for the
very elderly. When there is progressive failure of a number of systems of the
body aggressive therapy can prove very oppressive.
(e) Treatment can be excessively restrictive on physical liberty: thus,
doctors may promise an elderly patient a further year of life providing she
remains under their constant care in hospital. She may reasonably want to spend
the time remaining to her in visiting her children and grandchildren who are
willing to give her ordinary nursing care.
(f)Finally, treatment may be excessively disruptive of one's inner
life: thus thought, conversation, prayer may be most important to a patient, who
therefore reasonably refuses the analgesia which dulls his mind.
These six categories of burden [a-f] are burdens consequent upon treatment.
They provide a fairly clear way of analysing the elements that can make for
an acceptable or unacceptable quality of life when that phrase is used in
a justifiable fashion to refer to the predictable consequences of treatment.
32
A competent patient who rejects treatment because of its excessively
burdensome consequences rejects it because of a judgement on the treatment not
because of a judgement on the fundamental worth of his own continued existence.
Such rejections may at times be faulted because they display a lack of prudence
or courage, but they should not be faulted as euthanasiast.
2.2.4 Duties of Treatment to the Incompetent
Clearly doctors should not give inefficacious medical treatment to the
incompetent. In this context astandard synonym for `inefficacious' is
`futile'. Some judge treatment futile when they are inclined to think the life
of the patient `futile' (meaning `no longer worthwhile'), and they think this
judgement particularly well-founded if there is evidence for thinking that, in
anticipation of his present condition, an incompetent patient took such a view
of it while still competent. But any such judgement (and especially one invoked
to justify the withholding of treatment with a view to ending the patient's
life) is, for reasons already explained (see 1.3), an unacceptable basis for
treatment decisions.
A doctor would be justified in withholding or withdrawing medical treatment
the consequences of which a proxy decision-maker reasonably judged to be
excessively burdensome. A proxy's decision would generally be reasonable if it
was clear that a competent patient in similar circumstances would have good
reason for refusing treatment. However, in assessing burdens aproxy
needs to take account of the difference that incompetence itself may make to the
burdensome character of treatment. Sometimes, sheer inability to understand what
doctors are attempting and the painful, even though temporary, effects of
treatment, may create considerable fear and repugnance, so that treatment which
would not be excessively burdensome for the competent may become so for the
incompetent. Incomprehension can also limit the ability to cooperate with
certain forms of treatment.
Both aproxy decision-maker for an incompetent patient and the doctor
responsible for the care of that patient owe it to the patient to secure justice
in his treatment. This means in summary that -
(i) it is absolutely excluded that management of the patient should be
directed to ending his life;
(ii) where there is scope for securing through acourse of treatment
significant medical benefits, without excessive burdens in consequence, that
course of treatment should be provided;
(iii) if any suggested course of treatment which promises some medical
benefits also carries with it some likelihood of unacceptably burdensome
consequences then those responsible for treatment should be scrupulous in
assessing the burdens of treatment. They should wish to ascertain that
prospective burdens truly would be considerable before deciding that potentially
beneficial treatment should be withheld.
2.3 Doctors' duties of ordinary care towards hospitalised patients
When apatient is admitted to hospital for treatment, responsibility
is assumed not merely for providing him with beneficial medical treatment but
also for providing him with what is ordinarily needed if the patient is to
continue living: nourishment, shelter, warmth, hygiene. Dependence on a doctor
in respect of such needs cannot be repudiated simply because distinctively
medical goals are not achievable. No one would ordinarily doubt this. It is
against this background that we should consider the question of tube-feeding of
those diagnosed as irreversibly in a `persistent vegetative state'.
2.3.1 Feeding the P VS patient
In considering what adoctor's duties of ordinary care are
towards a PVS patient certain propositions should not be in doubt:
(i) PVS patients are living human beings, albeit gravely impaired. (See 1.1.5above.) As living human beings they possess the ineliminable worth and
dignity of our common humanity.
(ii) Since they are living human beings it is incompatible with recognition
of their dignity to judge their very existence to be without worth or value. If
aPVS patient's life is judged to be without worth it will indeed seem
reasonable to conclude that he would be better off dead, and, accordingly,
reasonable to make his death the object of clinical management.
(iii) If one aims to kill a patient by deliberate omission of treatment or
care, (i.e. omission decided upon precisely to bring about death), one is
intentionally killing. Such intentional killing of the innocent by planned
omission is as gravely wrong as intentional killing by positive act.
33
(iv) Death can occur as a foreseen consequence of omitting to do something
one had good reason not to do. In such a case one cannot be held to be guilty of
the death.
(v) PVS patients are entitled to the ordinary care to which any impaired and
vulnerable person is normally entitled.
Given the exposition of the limited goals of medical treatment
presented in this submission, one might argue that enteral feeding of a
PVS patient (i.e. feeding by nasogastric tube or gastrostomy) is medical
treatment, and since the limited goals of medical treatment are not achievable
in a PVS patient (see 2.2.3 above) there can be no continuing obligation to
supply enteral feeding once the irreversibility of the persistent vegetative
state hasbeen confirmed. Hence if one were to discontinue enteral
feeding one might do so simply because there is no obligation to continue, and
without entertaining any intention to cause the patient's death, even though
foreseeing that discontinuance of feeding will cause his death.
The objection to this view is the weakness of the case for saying that
enteral feeding is medical treatment rather than ordinary care. The
definition of medical treatment should include some reference to the
distinctive goals of medicine (the restoration and maintenance of health, or of
some approximation to health, and the palliation of symptoms), so that medical
treatment will have some identifiable therapeutic or palliative function.
Enteral feeding serves neither such function but the ordinary function of
nourishing the patient.
It can hardly be that just anything done by a doctor in the course of
caring for patients is to count as medical treatment; if it were, then the
distinction between medical treatment and ordinary care would collapse. Nor will
it do to say that the intrusive or `invasive' character of what is done
to the patient makes it medical treatment. 34
Any adult finding a choking child might reach to the back of the child's mouth
to pull his tongue forward. Nor is it very convincing to suggest
35
that what makes enteral feeding medical treatment in the case of PVS patients is
the fact that it substitutes for an ordinary bodily function. Many PVS patients
retain some degree of swallowing reflex, and they standardly possess a capacity
to digest food in the normal way. Enteral feeding is an expeditious way of
delivering to the PVS patient the food any human being needs, and it serves the
same purpose that eating and drinking do.
It is true that it normally requires a doctor's decision to first establish
enteral feeding, though it will often not require specifically medical skills to
maintain feeding by nasogastric tube. It is also true that the doctor's purpose
in making such a decision will normally be to sustain the patient while
diagnostic investigations are carried out and an attempt is made to establish an
appropriate therapeutic regimen. But the tube feeding itself is not therapy and
is not reasonably discontinued on the grounds that therapeutic efforts
have proved futile. 36
In Bland what the Law Lords approved was discontinuing tubefeeding on
the basis of a medical judgement that tubefeeding had become futile because
continued existence in Tony Bland's condition was not a benefit; in other words,
Tony Bland's existence was without worth or value. In consequence, as Lord
Browne-Wilkinson observed:
`What is proposed in the present case is to adopt a course with the
intention of bringing about Anthony Bland's death. As to the element of
intention or mens rea, in my judgement there can be no real doubt that it is
present in this case: the whole purpose of stopping artificial feeding is to
bring about the death of Anthony Bland."37
There can certainly be a sound case for stopping tubefeeding if a patient is
in the final phase of dying or if tubefeeding involves gross burdens for a
patient (though the latter reason hardly applies to PVS patients who are
supposed to be insensate). And in certain situations of extreme scarcity or
disorder (which do not obtain in our society) doctors and nurses might
reasonably neglect the permanently unconscious and other severely damaged
patients because of overriding duties to others.
3. Withdrawing Treatment and Intentional Killing
This section simply draws together the relevant distinctions which have
already been sufficiently explained in earlier sections.
3.1 It is certainly morally unacceptable to aim or intend to bring about
someone's death for a reason or reasons incompatible with recognising the basic
worth and dignity of that person as a human being, and incompatible, therefore,
with justice. One's intent to bring about someone's death will be equally
unacceptable whether it is achieved by
(a) a positive act, such as a lethal injection;
(b) the omission of treatment decided upon precisely to hasten death;
(c) the omission of care decided upon precisely to hasten death.
3.2 It can be morally acceptable to withhold or withdraw treatment precisely
because it is reasonably judged inefficacious (futile) or excessively burdensome
(2.2.3), even if one foresees that in consequence death will occur earlier than
it might otherwise have done. One's reason for withholding treatment is
not a judgement about the desirability of putting an end to the patient's life
but a judgement about the desirability of putting an end to treatment,
either because it is inefficacious or because it is imposing excessive burdens
on the patient.
3.3 There are few circumstances (they are noted at the end of 2.3.1) in which
it is reasonable to withdraw ordinary care, especially feeding, of a patient.
4. The Role of Advance Directives
and Proxy Decision-makers
Here, as in previous sections, we consider the moral case for certain broad
conceptions of what is desirable rather than the details of legislative
proposals. 38
4.1 Advance Directives
4.1.1 The unilateral emphasis on autonomy
(a) Many proposals for advance directive legislation are vitiated by a
unilateral emphasis on autonomy in their justification, with little or no
recognition that the individual in his or her self-determination may rightly be
expected to acknowledge a number of moral norms. Without recognition of norms
about the wrongness of suicide and euthanasia (accomplished either by act or
omission), apologias for advance directives articulated in terms of the claims
of autonomy must seem to justify the inclusion of euthanasia and assistance in
suicide within the effective scope of advance directives. 39
(b) A strictly unilateral emphasis on autonomy leads to the view that the
sole determinant of how one should be treated when incompetent is the
anticipatory decision one made when competent. But the consequences of such a
position are fairly obviously unacceptable. All advance directive legislation
provides that, while competent, makers of declarations may readily revoke them.
That provision acknowledges that for a variety of reasons one may come to
recognise original directives asmistaken. But why should one's family or
friends be prevented by one's present incompetence from making decisions
on one's behalf on the basis of one's best interests?
(c) Some defend treating as immutable and effective an unrevoked anticipatory
decision about treatment made by a person when competent. 40
They often base their defence on the claim that those acting on the now
incompetent person's behalf are properly confined to the role of exercising
his right to self-determination.
The claim is based on a muddle. There are indeed rights protecting one's
fundamental interests and well-being (life, privacy, reputation, bodily
integrity, etc.) which can be vindicated and, in that sense, exercised on one's
behalf while one is incompetent. But a right which is a right to form one's own
intentions and make and execute one's own choices, simply cannot be exercised by
the choices of another. Just as the refusal (which may but need not be
unjustified) to carry out a dead man's last will and testament frustrates the
intentions, purposes and will which he once had but does not and cannot violate
his autonomy, so the refusal to carry out a now-incompetent person's unrevoked
advance directive that he be killed if permanently incompetent frustrates his
earlier intention but does not and cannot violate his autonomy; he no longer has
any autonomy to be exercised, though he retains his ineliminable human dignity,
and the rights and interests which should be respected in virtue of that
dignity. 41
(d) The radical incoherence of the notion that the incompetent have
autonomy rights (asdistinct from dignity and welfare rights) becomes
more evident when those incompetent persons who have never made any advance
healthcare directive are declared to have an autonomy right exercisable on their
behalf, even by an agent or `guardian' or other `representative' whose decision
is to refuse treatment on the ground that these patients, were they competent
and reasonable, would choose to refuse treatment and accept death, perhaps not
for their own supposed benefit but at any rate for the benefit of others liable
to the costs and burdens of caring for them.
The unbalanced primacy of autonomy is thus tightly connected with the notion
of substituted judgement.In turn, the widespread appeal to the
`standard' of substituted judgement, in preference to the alternative standard
of the patient's best interests, sets all concerned on a royal road towards
decisions to bring about the death of incompetent persons on the plea that if
they were reasonable they would choose to seek death, if not by `active' then by
`passive euthanasia'.
What is characteristically missing in much modern discussion of autonomy and
self-determination is any strong sense that the most fundamental expression of
respect for the dignity of human beings is not respect for autonomy but respect
for the good of human beings. When persons have exercisable capacities
for self-determination then respect for their self-determination is integral to
respect for their good as persons: for it is in and through choice that they
have the possibility of shaping their characters for good (or ill). But when
persons do not yet, or no longer, possess presently exercisable capacities for
self-determination, self-determination cannot be an essential ingredient, so to
speak, in what one respects in respecting their good. Any exercise of
self-determination which seeks to determine what should (or should not) happen
to one, if and when one comes to be incompetent, should be respected only to the
extent that doing so in consistent with respecting the good of the now
incompetent patient.
4.1.2 Advance declarations and the burdensomeness of treatment
It is certainly consistent with respecting the good of an incompetent patient
to take account of the likely burdensome consequences of a course of treatment
when considering it. [See 2.2.3(ii)] Now, whether certain consequences will
amount to an undue burden of, say, pain or psychological stress for a patient
will often depend upon the individual dispositions and circumstances of that
patient. So there certainly is a role for advance declarations (rather
than directives) in which a person, while competent, offers written
advice on the sorts of consequence of treatment which he anticipates he would
find oppressively hard to bear. That advice should then be taken carefully into
account when doctors and others are deciding whether or not to proceed with a
particular course of treatment which is likely to have significantly burdensome
consequences.
However, the evidence supplied by the kind of advance declaration envisaged
here could never be the sole determinant of the treatment decisions made. For in
deciding treatment for the incompetent one would always have to make a judgement
about whether it would be in the interests of the patient to bear with certain
significant burdens in order to secure the benefits which treatment offered -
benefits one could envisage the patient appreciating.
4.1.3 Advance directives and the refusal of ordinary care
Some patients who make advance directives, stipulating withdrawal of
tubefeeding in certain conditions, do so for suicidal reasons, believing that
life in the anticipated conditions would not be worthwhile and choosing
(prospectively) the withdrawal of tubefeeding precisely as ameans
of terminating their life. When it is plain to a doctor that the intentions of apatient who has made such adirective are of this sort, the doctor
should certainly not put the directive into effect, for to do so would be to aid
in the carrying out of asuicidal intention.
However, it should also be recognised that an advance directive stipulating
that in certain circumstances one would not want the continued provision of
significantly expensive care, including tubefeeding, need not be suicidal.
Persons making such directives may have in mind that even tube-feeding and
nursing care, while not burdensome to them, could prove financially very
burdensome to others. They might truly wish that the resources be used to meet
other needs. This reason for rejecting such care is, then, not a false valuation
of what their life might be at some future time. Rather it is a desire not to
take up resources which they think disproportionate, to the detriment of others.
That desire shows a sensitivity to the needs of others, and one would not be
acting in a way contrary to a person's dignity it one honoured a
directive which was prompted by what is generally agreed to be an admirable
desire and involved an acceptance of death rather than the choice of death as a
means or an end. 42
Many patients (perhaps a majority) who stipulate that in certain
circumstances they should not receive tubefeeding will do so in terms which
leave it unclear whether their intentions are suicidal or not. It seems to us
that someone who has made an advance directive seeking to limit not care (or
expensive care) in general but quite specifically the provision of nourishment
probably has in mind that doctors should aim to bring about his death by means
of this omission. And sometimes doctors will have reliable evidence from other
sources that a patient's intentions were suicidal. In either kind of case,
doctors should not withdraw or withhold tubefeeding. If the law as declared by
the House of Lords in Bland is inconsistent with this, and imposes a
legal duty to withhold tubefeeding in every case where consent has been
withdrawn, the law should be amended by Parliament so as to restore its
coherence with the principles of the Suicide Act 1961 concerning complicity in
suicide (see further 6.2.2 below).
Sometimes apatient's intention in stipulating discontinuance of care,
including tubefeeding, is left unclear not only by the advance directive but
also by other available evidence. When that is the case, it seems to us not
unreasonable for adoctor to assume that what motivated the
stipulation was a desire that others should cease to undertake the burdens and
costs of burdensome and costly care, accepting death as an effect of such
discontinuance but not choosing it as a means to relieving them of costs and
burdens. Making that assumption, the doctor can reasonably respect the patient's
declared wishes, treating the patient like the patient whose motives are known
to be those of self-sacrifice and whose choice is known not to have been
suicidal in intent. 43
4.1.4 Advance directives and the doctor-patient relationship
There is so much scope for doubt and conflict about whether the wording of an
anticipatory decision is `applicable in the circumstances' that it would be
extremely imprudent to make advance directives enforceable by legislation. The
proposal that doubt and conflict, where they arise, may be resolved by referring
cases to a judicial forum 44
promises to introduce a degree of complexity to the decision-making process
which will frequently be at odds with securing the interests of patients.
It would better accord with those interests and with sound doctor-patient
relations if doctors were educated in aclear sense of those choices
which are inconsistent with recognition of the dignity of patients, together
with a clear sense of their obligations to try to secure medical benefits for
their patients while remaining sensitive to the burdensome costs which sometimes
make atreatment option undesirable.
4.2 The Proxy Decision Maker
The spurious conception of the role of the proxy decision-maker as consisting
in the exercise of the incompetent patient's right to self-determination was
noted in section 4.1.1.
In considering the burdensome consequences of treatment, the proxy
decision-maker does have aduty to consider available knowledge
about the distinctive sensibility and circumstances of the patient whose
interests he represents (2.2.3/ii; 4.1.2). What is involved in doing so is
something of an exercise in trying to see through the patient's own eyes. But
this limited exercise of imaginative identification with the patient is
justified by the unavoidably subjective element in what is to count as unduly
burdensome for a given patient. An exclusive invocation of the `claims of
autonomy', however, affords no general justification for giving or withholding
treatment on the basis of substituted judgement (4.1.1/d).
A substitute decision-maker who represents the interests of a patient will be
concerned to act as a friend intent at least on securing justice for the
patient. Friends desire the good of the person whose friends they are. What is
just to a patient and what is good for apatient can in fundamental
respects be determined objectively. The traditional framework for making that
determination is the framework outlined and defended in this Submission.
Part 2
5. The Courts and `Responsible Medical Opinion'
The responsibility for ensuring that every person within the jurisdiction is
treated with fundamental justice belongs in a unique way (though not
exclusively) to the courts. It is the courts that, on their own initiative,
developed and upheld habeas corpus to prevent the injustice of false
imprisonment. It is the courts that have defined and enforced the law against
homicide, which underwrites justice's primary demand that one person must never
impose on another innocent person the radical injustice of extinction. Even
today the activities of the legislature have in no way superseded the role of
the courts in identifying and upholding the demands of right.
The decision of the House of Lords in Bland involves an abdication of
the courts' responsibility. This abdication is illustrated most vividly, but not
unrepresentatively, in the following passage from the judgement of the senior
Law Lord, Lord Keith of Kinkel:
`...a medical practitioner is under no duty to continue to treat such a
patient where a large body of informed and responsible medical opinion is to the
effect that no benefit at all would be conferred by continuance. Existence in a
vegetative state with no prospect of recovery is by that opinion regarded as
not a benefit, and that, if not unarguably correct, at least forms a
proper basis for the decision to discontinue treatment and care: Bolam v
Friern Hospital Management Committee [1957] 1 WLR 582.
`Given that existence in the persistent vegetative state is not a
benefit to the patient, it remains to consider whether the principle of
sanctity of life, which it is the concern of the state, and the judiciary as one
of the arms of the state, tomaintain, requires this House to hold that
the judgement of the Court of Appeal was incorrect.'
[1993] 2 WLR at 362 (emphasis added)
The significance of this judicial surrender of a vital premise (about the
value of human existence) to the opinion of part of the medical profession is
masked, in Bland itself, by the fact that the judges there seem likely to
have reached the same decision even if they had not embraced the `Bolamprinciple' of deference to `a body of responsible medical opinion'. But
that principle of deference is unsound, as is stated plainly by Hoffmann L. J.
45
and noncommittally by Lord Mustill. 46
Even in the area of medical negligence, there is reason to doubt the
soundness of a legal rule that a doctor is not negligent if he acts in
accordance with a practice accepted at the time as proper by a responsible body
of medical opinion (even though other doctors adopt a different practice). That
rule was disapproved by Lord Scarman, dissenting in Sidaway v Governors of
Bethlem Hospital [1985]A. C. 871 at 876, where the issue was
not one of competence in diagnostic or therapeutic procedures but involved the
patient's right to be informed. In a case involving similar facts, the High
Court of Australia has now unanimously disapproved the entire Bolam
principle of determining the standard of medical care by deference to the
standards of `a responsible body of medical opinion': Rogers v. Whitaker
(1992)67 A. L. J, R. 47 at 50-51, a decision reached, ironically, on the same
day as the President of the Family Division gave judgement in Bland.
Where a medical decision involves aright even more fundamental than the
patient's right to be informed, the right not to be intentionally killed, it
cannot be appropriate for the courts to proceed on the basis that a
death-dealing course of conduct (deliberate omissions) is lawful simply because
aresponsible and informed body of medical opinion judges that life is no
benefit to this patient, and/or that death and/or acourse of conduct
intended to terminate life is in this patient's best interests, and/or that
tube-feeding is a medical treatment or form of `medical care' and therefore
may be terminated like any other medical treatment (as if it were not also
an ordinary form of non-medical care). Each of these judgements is one which,
though relating to the art of medicine, goes clearly beyond the expertise
intrinsic and proper to that art. Each assumes a stance on the nature and
meaning of human existence, the demands of justice, and/or the proper forms and
limits of relationships between dependent people and those upon whom they
depend.
6. Proposals to Change the Law
6.1 Proposals which should not be adopted
6.1.1 Medical Treatment (Advance Directives) Bill [H. L.
Bill 73, 1993]
The wording of this Bill confirms what one would expect from a bill promoted
by the Voluntary Euthanasia Society.
First, it must be observed that the form of advance directive scheduled to
the Bill is purely optional (clause 1(3)) and cannot restrict the import of the
Bill's own provisions for giving effect to advance directives of many kinds.
Secondly, it is clear from clause 9 of the Bill that it seeks to authorise
conduct on the part of doctors intended to bring about the death of patients,
the permissible conduct being limited to what is termed `permitting the process
of dying to take its course'.
Thirdly, vagueness about the definition of `terminal condition' (clause 10)
and, therefore, about `the process of dying', means that the advanced directives
which the Bill would authorise and make binding on doctors would be effective in
regard to a far wider range of patients than those in the terminal phase of
dying. Indeed they would be effective in regard to patients who are not, in the
normal sense of the term, dying. For `terminal condition' is defined as `an
incurable or irreversible condition which, without the use of life-sustaining
treatment, will ... soon result in death.' Diabetes, for example, seems to fall
within the scope of this definition of a terminal condition: it is an incurable
condition, for which insulin treatment is life-sustaining and without the
insulin certain patients with diabetes will soon die.
Fourthly, `life sustaining treatment' is defined (clause 10) to mean `any
medical procedure or intervention which, when administered to a qualified
patient, has the effect only of prolonging the process of dying'. Because of the
definition of `terminal condition', the notion of prolonging the process of
dying is made indistinguishable from the notion of `delaying the moment of
death'. (The word `only' in the phrase `effect only of prolonging' is so vague
and elusive that it cannot provide any effective control on the meaning of the
clause.) Since treatment for any life-threatening condition delays the moment of
death (perhaps for decades!), a substitute (or proxy) decision-maker may, under
clause 4(1) withhold any life-sustaining treatment, whatever its
prospective benefits, providing only that the patient who appointed him is
`comatose, incompetent or otherwise mentally or physically incapable of
communication'. This is a charter for the extensive practice of non-voluntary
euthanasia.
Fifthly, the provision in clause 5(2) is designed to exempt doctors from
prosecution for aiding and abetting suicide in circumstances in which the
natural interpretation of their behaviour would be that they were doing
precisely that. For it is certain that sometimes apatient aims to bring
about his own death at some time in the future by a course of planned omissions
to be carried out by others on his authority, and makes it clear that that is
his intention; the implementation of such a course of planned omissions on the
basis of that prior authorisation and in the knowledge of that intention is,
morally speaking, aiding and abetting suicide.
Sixthly, clause 4(2), read in conjunction with direction 2 in the Schedule to
the Bill, makes it clear both that provision of food and fluids may be
classified as `life-sustaining treatment' in relation to a broad range of
conditions, and that withdrawing food and fluid is sanctioned whatever
the intention of the patient may have been, or the intention of a substitute
decision-maker is, in authorising such withdrawal.
We respectfully urge the Select Committee to recommend that the Medical
Treatment (Advance Directives) Bill be rejected since it would very clearly
legalise (and is no doubt intended to legalise) assisted suicide and
non-voluntary euthanasia.
6.1.2 Termination of Medical Treatment Bill [H.L. Bill 70, 1993]
The Bill is simply a charter for non-voluntary euthanasia (clause 2) of the
incompetent (clause 1a) and assisted suicide (clause 3) of the competent (clause
1b) by the withdrawal of medical treatment or food and fluids. Its brevity has
the merit of making its purpose eminently transparent. There is no need for
legislation to cover the withdrawal of treatment on the grounds that it is
medically otiose or unduly burdensome in its consequences.
We respectfully urge the Select Committee to recommend that any such Bill be
rejected.
6.1.3 Legalising Euthanasia: General Observations
There are a number of general objections to all proposals for legalising
euthanasia:
(1) Precisely in so far aseuthanasia is considered beneficent
to patients it involves killing on the basis of judgements about the value of
their lives which are inconsistent with recognition of the dignity of the
patients (1.2.2). Since recognition of the dignity of every human being is
fundamental to justice, and, therefore, to the law regulating our conduct
towards each other (1.1.4), it would be incompatible with what is basic to
the law to allow euthanasiast killing.
(2) Killing the fundamental justification of which is that the patient would
be better off dead (because of the disvalue of his continued existence)
comprehends non-voluntary euthanasia. As clear-headed advocates of euthanasia
recognise, if euthanasia is at all justified, there can be no good reason for
denying the `benefit' of killing to a patient because he is incapable of
consent. 47 The evidence
from the Netherlands is that doctors are aiming to bring about deaths in
cases of incompetent patients much more frequently than in the case of competent
patients (see Section 8 and references there).
(3) Propaganda for the legalisation of euthanasia in the past heavily
emphasised its desirability to deal with intractable terminal pain. But
developments in pain control associated with the Hospice Movement have provided
a solution, at least in principle, to the large majority of cases of intolerable
pain. In consequence, the case for legalising euthanasia has significantly
shifted from drawing attention to intractable pain to emphasising `intractable
suffering'. But `intractable suffering' is a very capacious reason for killing
people, one possible effect of invoking which (see Section 7) is to encourage
the cruellest pressures on those who are dependent.
(4) In so far as the legalisation of euthanasia made doctors the authorised
agents of euthanasiast killing, such legislation would profoundly corrupt the
practice of medicine by corrupting the character of doctors.
Quite generally, intentional acts (such as deliberate killing) do not merely
bring about effects external to the agent, they also shape his dispositions. If
a doctor kills a patient because he judges the patient no longer has a
worthwhile life then in doing so he makes himself further disposed to kill
patients for that reason (unless he repents of what he did). That is why a
certain kind of argument for the legalisation of voluntary euthanasia is
radically mistaken about what is at issue. The argument goes roughly as follows:
a society should seek to prohibit only those practices which do harm to those
who do not consent to the practices. But in voluntary euthanasia no party who
has not consented to the practice is harmed. It is a purely private transaction
between consenting doctor and consenting patient, the effects of which are
contained within the confines of that relationship.
One reason that picture is false is that a doctor's character is very
significantly shaped by killing patients on the grounds that their lives are now
without value. A doctor disposed to think that some of his patients may lack
inherent worth, and that he may therefore be justified in killing them, has
seriously undermined in himself a disposition indispensable to the practice of
medicine: the willingness to give what is owing to patients just in virtue of
their possession of basic human dignity. The absence of that willingness is
likely to be fateful for other patients, including patients who never consented
to be killed or to be denied what they are owed in virtue of their basic human
dignity.
For the sake of all its citizens, who all at one time or another are likely
to become patients, civil society has a basic interest in maintaining a legal
framework for the practice of medicine which is conducive to respect on the part
of doctors for the basic dignity of all their patients.
(5)Once legalised, euthanasia would become a quick and facile
technical `fix' to dispose of certain difficult patients (whether or not at
their own request) in response to the heavy demands they made on care. Medicine
would thereby be robbed of the incentive to find genuinely compassionate
solutions to the difficulties presented by such patients. The kind of humane
impulses which have sustained the development of hospice medicine and care would
be undermined, because too many would think euthanasia a cheaper and less
personally demanding solution. It is widely recognised that the country in which
the practice of euthanasia has become widespread is a country in which
palliative care medicine is very inadequately developed.
Those who protest that they advocate no more than the legalisation of
voluntary euthanasia are at best naive, though more often, it is to be
feared, disingenuous. It is characteristic of certain advocates of legal reform
to speak as if they could remain in control of the reform they propose once it
is on the statute book. That is an illusion, as legalisation of abortion has
shown. What legalisation of voluntary euthanasia would enshrine is the novel
principle that one may be justified in killing people because, since they lack
worthwhile lives, to do so is to benefit them. In enshrining such a principle in
our laws we would have to contend with what Justice Cardozo described as `the
tendency of a principle to expand itself to the limit of its logic'.
48
6.2 Proposals which should be adopted
6.2.1 The Bland ruling on lawful intention
to terminate life should be overturned
By far the most serious of the immediate legal implications of the Bland
caseis, we think, the ruling by a majority of the House of Lords
(neither followed nor challenged by Lords Keith and Goff) that, provided it is
not `positive action' and is adopted because, in accordance with a body of
responsible medical opinion, it is considered to be in the best interests of the
person whose life it terminates, it is lawful (and indeed may be legally
required) to adopt a `course of conduct' deliberately and precisely with the
intention, aim and purpose of terminating life.
The basis on which Lords Lowry, Browne-Wilkinson and Mustill assumed such an
intention in relation to Anthony Bland is legally obscure. 49
Be that as it may, there certainly are circumstances in which someone might
decide to cease providing life support yet have no intention to terminate the
life of the patient (though foreseeing and accepting that the death of the
patient would be highly probable or even certain to follow in consequence of the
cessation). For there can be circumstances in which those providing the support
should or at least can give a higher priority to other responsibilities (e.g. to
patients who can benefit more from the limited resources available).
But the tail must not be allowed to wag the dog. The fundamental and
momentous issue whether intentional killing is to be allowed, ratified and
indeed commanded in our society must not be determined by the topsy turvey
process of first deciding against continued life support in hard cases such as
Bland, then deciding that that solution involves an intent to terminate
life, and accordingly abandoning the hitherto central principle of our common
morality and our law: no intentional killing of the innocent.
We do not dispute the finding of all the judges in Bland that what was
involved was legally an `omission'. Nor do we question the general stance of
English law that omissions are unlawful only if they involve the violation of a
duty of care. We do not question even the more stringent position of English
law, that X's omission (e.g. to warn Y of imminent danger) deliberately chosen
with malicious intent to harm Y (e.g. so as to enjoy Y's suffering or death) is
not unlawful if, independently of the intent, X owed no duty to protect Y from
such harm or death. But the ruling of the majority in the House of Lords in
Bland goes far beyond these positions. For it treats as lawful the omissions
of persons who admittedly had aduty to care for Anthony Bland, and who
were ready and willing to continue an extensive medical, nursing and general
care for him right up to the moment of his death. It treats as lawful (and
sometimes, indeed, compulsory) the proposal that terminating someone's life,
i.e. the bringing about of his death (by deliberate omissions), be a part of
carrying out their duty of care.
The judges in question all admit that the distinction they draw is morally
indefensible and leaves the law `misshapen' or `almost irrational'.
50
They were right to do so. The law will indeed be misshapen and indefensible for
so long as it treats as criminal a harmful `act' while treating as lawful (and
indeed compulsory) an `omission', with the very same intent, by one who has a
duty to care for the person whose life is thereby terminated. There is
nothing misshapen about a law treating acts and omissions alike when
deliberately adopted with the same intention. And the settled legal (not moral)
doctrine that harmful intent by itself does not make an omission criminal should
not govern when the omission is by one who admittedly has a legal duty to
protect the party harmed against that type of harm.
Neither in the judgements in Bland nor in any other legal source can
we discover any reason for thinking that English law has ever, until 4 February
1993, accepted that someone who has a duty of care can carry it out by intending
to terminate the life of the person in his care. We think that English law has
in fact always rejected any such notion. We are surprised to note that the
decided cases 51 in
which English law manifested its rejection of this notion were not even cited to
the judge of first instance in Bland, went completely unmentioned in the
oral argument and the judgements in the Court of Appeal, and received mention in
only two of the judgements in the House of Lords. We accept that those previous
cases did not concern doctors and did not have to confront the arguments raised
in favour of terminating Anthony Bland's life. But we think that the rule
articulated in those cases sets out a legal position of principle which could
and should have been reaffirmed and developed by the judges in response to those
arguments. The fundamental argument, which in fact the judges accepted, was that
the doctors et al. owed no duty to Bland to keep him alive. The
fundamental answer to that argument, an answer which the judges seem never to
have clearly envisaged, is that whatever the scope of the duty of care of
those caring for Anthony Bland, they had a moral and legal duty not to
exercise their care for him with intent to terminate his life.
In any event, it is now most urgently necessary, we suggest, to restore the
integrity of the English law of homicide by rejecting the misshapen, almost
irrational and wholly unnecessary rule or position adopted by the majority of
the Lords in Bland. The necessary statute would not solve the problem of
deciding whether and when life support can be withdrawn from incompetent
patients. But it would restore one vital parameter or principle for any
acceptable solution to that problem.
We respectfully ask the Select Committee to recommend the early enactment of
a Bill along the following lines:
No person may in or in connection with providing to another person
medical, nursing or other treatment, services or care do or omit anything with
the intention52
of terminating that other person's life. A person who by any such act or
omission with such intention causes the other's death shall be guilty of murder.
A provision of this kind would not purport to settle the debate about whether
withdrawal of life support from PVS patients causes their death. It would not
purport to settle the debate about the extent of the duty to maintain such
support. It would simply restore the integrity of the fundamental principle of
the law of murder, gravely impaired by the decision in Bland. That
principle of the law of murder is an indispensable element in the recognition
and protection of the basic rights of all members of our community, and an
integral part of the state's fundamental duty of justice.
6.2.2 Unacceptable kinds of advance directive
should be deprived of all legal effect
A majority at least of the House of Lords in Bland went out of their
way to give a blanket and indeed indiscriminate approval to the idea that
advance directives to discontinue treatment or care are of binding legal effect:
see Lord Goff (Lords Keith and Lowry agreeing), [1993] 2 WLR at 367H. Quite
mystifyingly, Lord Goff stated, in this connection, that `in cases of this kind,
there is no question of the patient having committed suicide ...' (p.367H).
Unless he meant this, despite the syntax, to be aqualification on his
ratification of advance directives, one must ask: Why is there `no question' of
suicide? Can it really be by sheer judicial fiat or stipulative definition?
Suppose everyone knows that the patient's directive that on acertain
date insulin (or food and water) be withdrawn was motivated simply by his
intention of dying before the expiry of a term life insurance policy. On what
legal principle is this not suicide?
What should be Parliament's response to this remarkable and evidently
unsolicited judicial development of the law? We think it should be to legislate
at an early date so as to provide that
where a patient is incompetent to give or withhold consent to medical
treatment or care, the existence of a declaration made by that patient at some
earlier time purporting to give directions for the withdrawal of treatment or
care (or of any specified form of treatment or care) shall not be taken to
require those responsible for his treatment or care to follow any course of
conduct (including omission) otherwise than in accordance with their judgement
as to the best interests of the patient, and shall not be taken to require or
authorise any person to give any assistance in suicide (including suicide by
omission).
7. The Hospice Movement and Advances in Palliative Care
Formany ordinary people the pain associated with terminal conditions
still appears the most pressing reason for allowing euthanasia in certain types
of case (witness expressions of sympathy for Dr. Cox). Those actively engaged in
hospice care have documented its role in controlling the pain which is
associated with a number of fatal conditions, and certain carcinomas in
particular. In this connection, the very success of the development of
palliative medicine within the context of hospice care has had a paradoxical
effect. It is this paradoxical effect that is worth remarking on here.
In so far as satisfactory control of pain is achievable with the vast
majority of patients 53,
the common case for euthanasia would seem to have lost its force. Investment in
extending the benefits of palliative care would seem a far more rational
response to the incidence of severe pain than legalisation of euthanasia. And in
so far as people come to know of the successes of contemporary palliative care
they generally acknowledge this truth.
The response of proponents of the legalisation of euthanasia, however, has
been to shift from emphasising the problem of intractable pain to emphasising
the problem of `intractable suffering'. Intractable suffering, as we have
already remarked, is a much more wide-ranging reason for killing patients, and
covers experience that is not amenable to medical management in the way that
pain has been.
It is worth remarking here on just how elastic the concept of `intractable
suffering' can be in rationalising the practice of euthanasia. An instructive
case in point (referred to again in the following section) is provided by recent
research on the practice of euthanasia in The Netherlands. One informant, a
leading practitioner of euthanasia, said he would be put in a very difficult
position if a patient told him that he really felt anuisance to his
relatives because they wanted to enjoy his estate. Asked whether he would rule
out euthanasia in such a case, [he] replied: `I think in the end I wouldn't,
because that kind of influence - these children wanting the money now - is the
same kind of power from the past that.., shaped us all. The same thing goes for
religion ... education ... the kind of family he was raised in, all kinds of
influences from the past that we can't put aside.' 54
If the misery provoked by the knowledge that one's children want one's estate is
to count as a reason for euthanasia, then there will be an open invitation to
children to make the lives of their dependent parents such a misery that the
`burdensome' parents will be queuing up for euthanasia. If this were to happen
then euthanasia by request would have become a facade covering a reality much
closer to involuntary euthanasia.
In summary: one paradoxical consequence of the hospice movement's success in
managing pain and making it seem a less pressing reason for euthanasia is that
apologists for euthanasia's legalization have shifted to emphasising intractable
suffering. And intractable suffering as a reason for euthanasia nominates a far
wider range of candidates for euthanasia (voluntary and nonvoluntary) than
intractable pain ever did.
The intentional killing of a person at his `express and serious' request is
an offence contrary to Article 293 of the Dutch Penal Code, and assisting
suicide is prohibited by the following Article. However, in a line of cases over
the past twenty years, Dutch courts have held that a doctor charged with either
offence can successfully avail himself of the defence of necessity (contained in
Article 40) if he acted in accordance with `responsible medical opinion'
measured by the `prevailing standards of medical ethics'.
