The following Response to Who Decides? concentrates
on proposals in the Green Paper relating to decision-making for mentally
incapacitated persons in respect of their healthcare. The reason for this
concentration is twofold: first, that the expertise of The Linacre Centre
is in the field of healthcare ethics, and, secondly, that, as it happens,
the most questionable proposals advanced by the Law Commission concern decision-making
in regard to the medical care of mentally incapacitated persons.
This Response has been prepared by the undersigned and by Dr John Keown,
Lecturer in the Law and Ethics of Medicine in the Faculty of Law of the
University of Cambridge, who is also Vice-Chairman of the Board of Governors
of The Linacre Centre. We are very grateful to Professor John Finnis FBA,
Professor of Law and Legal Philosophy in the University of Oxford, for his
criticisms of an earlier draft and for his most helpful contributions to
the improvement of the text.
Work on the preparation of this Response was commissioned by the Conference
of Roman Catholic Bishops of England and Wales (President: Cardinal Basil
Hume OSB), by the Conference of Roman Catholic Bishops of Scotland (President:
Cardinal Thomas Winning), and by the Conference of Roman Catholic Bishops
of Ireland (President: Archbishop Sean Brady).
Our comments on Who Decides? are intended as a contribution to public
policy debate on what are in fact fundamental issues of justice for our
society. Nothing we say relies on the doctrinal authority of the Church
to which we belong. We aim to commend the positions for which we argue to
those who do not share our religious beliefs but who are concerned for the
basic rights of all human beings, however underdeveloped or incapacitated.
Luke Gormally
Director, The Linacre
Centre for Healthcare Ethics
March 1998
1. Introduction: A threat to the
vulnerable?
Who Decides?
is in large part an exercise in commending the Law Commission's legislative
proposals as drafted in the Bill published with their Report on Mental
Incapacity. The Government, we are told, is "in a number of areas
... minded to accept the principles underlying the Law Commission's recommendations".
(1.4) The three principal contentions in our critique of both documents
are:
they exhibit a serious failure to uphold a true
valuation of the lives of those who are not capable of making decisions
for themselves. This failure is most glaring in the scope the legislative
proposals provide for assistance in suicide and euthanasia by planned omission.
they attach an unwarranted value to autonomy
(exercises of self-determination) in ways which are seriously damaging
to the "best interests" of those lacking capacity to make decisions
for themselves.
in their proposals to legalise non-therapeutic
experimentation and the using of the mentally incapacitated as sources
of organs and tissue a crudely utilitarian attitude to those patients is
exhibited: they are regarded as exploitable without regard for even the
tenuous criteria of their `best interests' advanced elsewhere in the proposed
legislation.
If the proposed legislation becomes law in its
present form the regulatory machinery it establishes will not unambiguously
protect those vulnerable patients who are mentally incapacitated; what it
will in part regulate is their exploitation.
We would emphasise that this Submission is based on ethical and legal considerations
which make no assumptions based on religious belief or derived from religious
authority. It is based on considerations the cogency of which should be
recognisable by anyone who sees that if there is to be justice in society
certain basic truths about human beings have to be acknowledged.
*******
We welcome the opportunity to comment on the Consultation
Paper Who Decides?1 issued by the Lord Chancellor's
Department. We acknowledge the need to clarify the legal position of those
undertaking the care of mentally incapacitated adults who are not detained
under the Mental Health Act 1983. And there is evidently merit in having
a common framework of law to regulate decision-making for the mentally incapacitated
which embraces their health and welfare broadly understood as well as their
financial interests. In what follows we will be mainly concerned with decision-making
in respect of health care for the mentally incapacitated.
The task of producing
such a comprehensive framework of law to regulate decision-making for the
mentally incapacitated is extremely delicate. There are influential ideological
tendencies in our society which depreciate the value of the lives of the
mentally incapacitated and there are grounds for thinking that these tendencies
have to some degree found expression in the legislative proposals advanced
by the Law Commission.2
It may seem implausible to suggest that a tendency to depreciate the value
of the lives of mentally incapacitated people underlies at least some of
the legislative proposals in a document which in its own terms is concerned
that "vulnerable people may not be getting all the help and protection
they need and deserve"(LawCom231: 1.2) But the suggestion will be seen
not to be implausible if one considers some of the legislative proposals
in the Law Commission's Bill:
that courts, donees
of continuing powers of attorney, court-appointed managers, or doctors
appointed by the Secretary of State may, without regard to the best interests
of the patient
- discontinue tube-feeding of an unconscious patient;
[LawComBill: 10.-(1)]
- authorise the carrying out "of any medical
or surgical procedure in relation to a person without capacity to consent
which, though not carried out for his benefit, will in the opinion of the
Secretary of State not cause him significant harm and be of significant
benefit to others." [LawComBill: 10-(4)]3
to establish mechanisms to authorise non-therapeutic
research on those lacking the mental capacity necessary for consent. [LawComBill:
11]
Precisely what is wrong with these proposals will
be explained in Section 2 below.
There are a number of other reasons for thinking that the Law Commission's
legislative proposals lack adequate regard for mentally incapacitated persons:
the Law Commission propose an inadequate conception
of the "best interests" of patients; [LawComBill 3.-(2)]
the concept of "basic care" which is
proposed [LawComBill: 9.- (8)] does not adequately cover all that may be
owing in the way of care for a patient;
it is contrary to the respect owing to the mentally
incompetent to oblige doctors to cooperate in the implementation of advance
refusals of treatment which were made when the patients were competent
and which are suicidal in character. But the wording of LawComBill 9.-(3)
makes it clear that doctors would be so obliged. Such a course of conduct
on the part of a doctor is not merely morally wrong but is also inconsistent
with long-standing principles of the common law which should be upheld.
it is directly contrary
to the respect owing to the mentally incompetent to require doctors to
implement withdrawals of treatment and care ordered by managers and others
when the reason for withdrawal is the judgement that the patient no longer
has a worthwhile life; and it is likewise unjust for doctors to comply
with such orders. For what is then undertaken is simply non-voluntary euthanasia
by planned omission. It seems to us quite plain that the effect of legislating
along the lines proposed by the Law Commission will be to give statutory
force to non-voluntary euthanasia4
by planned omission. Were that to be thought acceptable it is difficult
to see on what basis it could be consistently held that it is unacceptable
to aim to bring about a patient's death by direct action (such as a lethal
injection), especially since the latter course of conduct is generally
likely to bring about the patient's death in a more merciful fashion.
Each of these points will also be explained in
Sections 2 and 3 below.
Who Decides? is "not seeking views on [the] subject" of
euthanasia [1.8], so it may be said that these last two criticisms of the
Law Commission's proposals are out of place. Unfortunately they are not,
and the attempt to exclude them from this consultation is unwarranted.
The Consultation Paper seeks to sideline discussion of euthanasia as irrelevant
to its proposals by the device of stipulatively defining euthanasia as "a
deliberate intervention undertaken with the express intention of ending
a life, albeit at the person's own request or for a merciful motive".
[Footnote 6 at 4.5; emphasis added; see also 1.8] The authors of Who
Decides? appear to rely on the `authority' of the House of Lords' Select
Committee on Medical Ethics for this definition. But that Select Committee's
Report is open to the fundamental objection that it evaded one of the most
challenging issues facing it precisely by giving a stipulative definition
of euthanasia which is neither ethically nor legally defensible. That challenging issue was
the "morally and intellectually misshapen" (Lord Mustill) state
of the common law resulting from the judgements in the Bland case
to the effect that it is lawful deliberately to bring about someone's death
by omission while being unlawful to do so by a positive act. 5
The Consultation Paper also seeks to deflect the criticism
that its proposals in respect of advance refusals of treatment would accommodate
suicidal refusals which doctors would be obliged to implement. The attempt
to deflect this criticism takes the form of invoking the authority of Lord
Goff's contention in Bland that "in cases of this kind [viz.
advance refusals of treatment], there is no question of the patient having
committed suicide, nor therefore of the doctor having aided and abetted
him in doing so". Precisely what Lord Goff had in mind in saying this
is by no means clear. But it ought to be clear that judicial fiat cannot
make it to be the case that patients cannot express suicidal intentions
in advance declarations and that compliance with the patient's will cannot
constitute, on the part of a doctor, aiding and abetting suicide. As we have noted elsewhere:
"Suppose everyone knows that the patient's directive that on a certain
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?" 6
Invocation of Lord Goff's dictum cannot serve
to show that aiding and abetting suicide cannot be at issue in compliance
with certain advance refusals of treatment. What it does serve to illustrate
is a characteristic feature of Who Decides? derivative from the Law
Commission Report: that of seeking to give statutory force to a number of
judicial decisions of the past decade which are inconsistent with long established
principles of the common law. This feature of Who Decides? will be
highlighted in Section 3 below. In our view what is needed is statutory
reversal of some of these decisions both for the sake of justice
in the treatment of the vulnerable and for the sake of coherent and consistent
development of the law.
It cannot be right to seek to exclude substantial moral and legal issues
from consideration in the assessment of legislative proposals when the substance
of those issues is demonstrably at stake in the legislative proposals. Administrative
declaration that such-and-such matters are "outside the scope of these
proposals" is incompatible with democratic deliberation about legislation.
2. Some moral considerations which should
govern legislation
The previous section has highlighted a number of
issues raised by Who Decides? and by the Law Commission's Report
and Bill (LawCom231). All these issues concern, in one form or another,
both (i) the value to be recognised in the lives of those lacking mental
capacity to make decisions for themselves and (ii) what is therefore owing
to them, especially by carers. This section of our response is therefore
concerned to explain the fundamental considerations which ought to govern
the understanding of these matters and some practical implications of those
considerations. The explanation offered is in terms which are intellectually
accessible to anyone and which ought, in our view, to commend themselves
to anyone who recognises the need for an ethic of sufficient content to
secure at least the basic requirements of justice in society.
1. It is necessary to begin with the recognition that every human being,
however immature or impaired, possesses a fundamental worth and dignity
which are not lost as long as he or she is alive. Contrary to the view of
some, human worth and dignity do not depend on acquiring and retaining some
particular level of understanding or capacity for choice or for communication.
On that view of human worth and dignity, it turns out that the relevant
level of developed understanding or of capacity for choice always requires
to be determined in an arbitrary fashion. In making the possession of human
worth and dignity depend on an arbitrary discrimination between individuals,
this view destroys the indispensable foundation of justice in society. For basic human rights belong
to us precisely because of our worth and dignity, and if our possession
of the latter is to be determined arbitrarily so will be our possession
of the former. But there cannot be a framework conducive to just relationships
in a society if who are to count as the subjects of justice is determined
in an arbitrary fashion. That is why recognition of the fundamental worth
and dignity of every human being is the indispensable foundation
of justice in society.7
It follows from recognition
of the fundamental worth and dignity of every human being that it can never
be consistent with justice intentionally to kill a human being because his
or her life is judged to be without value - because it is judged to be "not
worthwhile". So
it is certainly absolutely impermissible intentionally to kill the innocent. 8 That moral prohibition is
the core of the principle of the sanctity of life 9, and respect for the principle is an indispensable condition
of respect for human beings.
2. We should distinguish between the inalienable worth and dignity proper
to every human being and the kind of dignity exhibited most conspicuously
by mature human beings in full possession of their powers of understanding
and choice. The loss or diminution of these powers or of other abilities
may result in what is experienced as a `loss of dignity'. But it would be
a serious error to speak of the lives of those who have suffered such loss
as wholly lacking dignity and the fundamental worth which that dignity imports.
This kind of error is exhibited in two kinds of judgement which one frequently
encounters in discussions of the mentally incapacitated.
3. It is exhibited, first, in the view that those who have suffered severe
brain damage, resulting in permanent loss of consciousness or of cognitive
abilities, no longer possess worthwhile lives. But this view of certain
gravely impaired human beings is incompatible with recognition of their
basic worth and dignity. It is the view which underlies the claim that it
is reasonable to aim, at least by omitting treatment and care, to end the
lives of these persons when they are patients. This judgement may also be arrived at on the basis of the
assertion that such persons, being unaware, no longer have any `interests'10, so that, there being no positive
good of theirs at which one could aim, one may rather aim at ending their
lives. But none of us has to be conscious of all prospective benefits to
be the recipient of those benefits. And if we can be the recipients of benefits
unawares we can have an interest in being benefited without that interest
being a conscious interest. All of us, indeed, have an interest in not being
treated in ways which are inconsistent with recognition of our dignity as
human beings, whether or not we are aware of that interest.
4. A second way in which the error of denying worth to certain human lives
is exhibited is in the judgement that the value of a life depends wholly
on the value a person gives to his or her life through their choices.
If that were so, then loss of the capacity to choose would bring about a
state of affairs in which the only value one's continued existence would
have would depend on the value one had chosen to attach to it when competent.
This is the understanding of the value of a life behind the view that, in
respect of a person's own life, his or her choices made prior to loss of
competence should be allowed to determine when his or her life is to be
ended -- at least when that may be purposefully achieved by omission of
treatment or care.
5. Exercises of autonomy (i.e. of the capacity for self-determining choice)
are not the fundamental source of worth and value in a person's life. Human
beings possess an ineradicable value prior and subsequent to the possibility
of exercising autonomy. Autonomy itself as a capacity is to be valued precisely
in so far as its exercise makes for the well-being and flourishing of the
human beings who possess it. But it is plain that many exercises of the
capacity, that is, many self-determining choices, are destructive of human
well-being -- both in the life of the chooser and in the lives of others
affected by his or her choices. The mere fact that someone has elected
to act or to be treated in a certain way establishes no title to moral
respect for what has been chosen. The character of the choice must satisfy
certain criteria in order to warrant our respect. The most basic criterion
is that a choice should be consistent with respect for the fundamental dignity
both of the chooser and of others.
6. Since justice
in society rests on belief in the ineradicable value of every human
life, whatever its condition, a just legal system cannot look favourably
on choices to kill a person based on the judgement that his or her life
is no longer worthwhile. Whether explicitly or implicitly, this is the judgement
which standardly underpins the choice of suicide in the context of medical
care11, the choice to assist
a patient's suicide, and the choice of euthanasia. In the case of suicide,
a person is persuaded that his life is now (or will be) no longer worthwhile.
In cases of assisting in suicide and euthanasia, the person assisting or
carrying out the killing is persuaded that the life of the person to be
killed is no longer worthwhile; if he were to think otherwise he would have
a conclusive reason for not killing.
7. Both suicide (including assisting in suicide) and euthanasia may be carried
out by omission as well as by action if what one aims to bring about by
omitting, say, nourishment or some treatment, is precisely the death of
a person. The Consultation Paper Who Decides? is mistaken in defining
euthanasia as a "deliberate intervention undertaken with the express
intention of ending a life, albeit at the person's own request or for a
merciful motive". [Footnote 6 at 4.5; emphasis added; see also 1.8.]
It likewise fails to confront an issue central to its area of concern in
overlooking the reality of suicidally motivated advance refusals of treatment.
In the absence of an adequate understanding of the moral and legal reality
of euthanasia and suicide, the repeated assertions of Who Decides? [as
at 1.8, 1.15, 2.6, 4.5] that the Government does not propose to change the
law relating to euthanasia offer inadequate reassurance. In so far as current
judicial practice is now governed by the judgements in Bland , and
specifically the ruling by a majority of the House of Lords that, provided
it is not `positive action', it may be lawful (and indeed legally required)
to adopt a 'course of conduct' deliberately and precisely with the aim of
terminating life, that judicial practice needs to be restored to a sounder
legal basis. For
the common law is now in the "morally and intellectually misshapen"
[Lord Mustill] condition of prohibiting active euthanasia yet permitting
euthanasia by planned omission. This incoherent state of affairs
needs to be rectified by legislation reversing the ruling in Bland.12
8. It is often falsely asserted by advocates of euthanasia
that our legislators have declared suicide to be lawful behaviour, as if
our society could endorse the assumption that a person might reasonably
think any human life, even his own, no longer worthwhile. As we point
out in Section 3 (at 6), this is a wholly unwarranted misreading of the
Suicide Act 1961. That the law continues to take an adverse view
of suicide is evident if one considers the seriousness of the penalty which
attaches to assistance in suicide. Because of the fundamental truth about
the ineradicable value of human life which is implicitly denied in the committing
of most suicides, we believe it is important that the law should continue
to discourage assistance in suicide, even when the assistance takes the
form of omitting care and treatment, in accordance with the terms of an
advance refusal of treatment.
9. It is one thing for the law to prohibit any assistance in suicide, including
assistance in suicidal refusal of treatment or care. It would be a quite
distinct requirement were it to oblige doctors always to override
suicidal refusal. Doctors would satisfy the prohibition of assisting suicide
by, for example, discharging from their care competent patients who persistently
refused and suicidally refused the care needed in order to live. Compliance
with this prohibition does not entail that doctors are required to do all
they can to override suicidal refusal. There may, for example, be considerable
physical difficulties which make force-feeding impracticable.
It is important to distinguish between the prohibition and the positive
requirement mentioned here. Failure to attend to the distinction has led
to the false inference that because there is in truth no obligatory requirement
to override all suicidal refusals, the prohibition of assisting suicide
is not valid or binding, or is subject to exceptions.
10. If part of the rationale for criminalizing non-consensual touching is
that consent to having things done to one is a general condition for the
exercise of autonomy, then the strict requirement of consent can rightly
cede to other considerations with the loss of the capacity for self-determination,
especially when what is proposed to be done is for one's bodily good. The view of the common law
has hitherto been that the 'necessity' of preserving the life or health
of an incompetent patient was sufficient justification for medical interventions
without consent.13 This view
reflected a proper regard for the value of human life and for an objective
and substantive conception of the 'best interests' of patients. We believe
that it should continue to be a carer's duty to act on an objective understanding
of the best interests of the mentally impaired patient even if it means
acting contrary to an advance refusal of treatment which is clearly contrary
to the patient's best interests. As we have said [5 above], autonomy is
not the fundamental source of worth in a person's life and invocation of
autonomy should not be allowed to trump more basic considerations.
11. A patient's refusal of life-prolonging treatment need not be motivated
by the desire to end his life. It can be reasonable to refuse such treatment
on the grounds that it offers too little benefit for the burdens it involves,
or because, whatever the benefits, the attendant burdens either of physical
pain, or psychological stress, or social dislocation, or economic hardship
make the treatment intolerable. Given the great variation in dispositions
and circumstances between individuals, it is clear that what is intolerable
or excessively burdensome to one patient may not be to another. In assessing
the likely burdens of a course of treatment for a mentally incapacitated
patient account will often have to be taken either of the testimony of relatives
and friends about the patient's dispositions and circumstances or of written
testimony provided by the patient when competent. Advance declarations which
are not binding can play a useful role in informing doctors of a patient's
dispositions and circumstances.
12. The foregoing considerations are relevant to a correct understanding
of what is at issue when it is said that the duty of the doctor (or other
responsible carer) is to act in the "best interests" of the patient. The understanding
of `best interests' advanced by Who Decides? [3.22-3.25], following
the Law Commission [LawCom231: 3.24-3.28], lacks those objective ingredients
which are necessary in order to avoid abuse of the mentally incapacitated.14 As noted in 11 above, it is indeed
appropriate, in seeking to establish whether treatment is likely to be unduly
burdensome to a patient, to consult relatives and others well-placed to
know. But the views of others on a patient's "wishes and feelings and
what would be in his or her best interests" (3.23) should be allowed
to influence decision making for the patient only if they are consistent
with an objective, substantive conception of the `best interests' of patients.
13. Truly objective criteria of what is in a patient's best interests exclude
the thought that it can ever be in a person's best interests to have his
life ended through conduct (`action' or `omission') intended to end
his life. For the intention which such conduct carries out treats the life
thus deliberately suppressed as no longer a good to be respected; in that
way it treats the patient's very being as no longer worthwhile. It thus
denies the inherent worth and dignity of seriously incapacitated human beings.
If an advance refusal of treatment is clearly motivated by the view of the
person who made it that in such-and-such conditions his life would be no
longer worthwhile and for that reason he would want doctors to end treatment
and care precisely to end his life, then it should not be permissible for
doctors to comply with that refusal.
In the area of healthcare, the concept of `best interests' should be understood
to include the standard objectives of healthcare practice: the restoration
and maintenance of health, or of whatever degree of well-functioning can
be achieved, the prolongation of life, and the control of symptoms when
cure cannot be achieved. It is in serving these ends that doctors serve
the good -- and, therefore, the best interests -- of their patients.
If the understanding of `best interests' fails to include objective, substantive
requirements there will be no non-arbitrary way of judging whether the testimony
of relatives and others about a patient's "preferences" is self-serving,
no non-arbitrary way of settling differences of opinion, and no objective
criteria for determining whether a regulatory system is operating to really
protect patients.
14. The attitude of Who Decides? to non-therapeutic experimentation
on mentally incapacitated persons and organ transplantation from them treats
those persons as means to be used, on characteristically utilitarian grounds,
for the ends of others. No doubt useful knowledge can be gained from experimenting
on people without their consent, and functional capacity can be restored
to others by transplanting organs from those who cannot consent to parting
with their organs. But the moral justification for such procedures is voluntary
solidarity with others, i.e. a willingness to meet the needs of others
in ways which involve some cost to oneself and no comparable benefit. If
one subjects people to non-therapeutic experimentation or to removal of
organs or tissue without their consent one is failing to respect them as
persons and treating them as merely useful.
Those charged with making
decisions for the mentally impaired should not think they have any moral
warrant, independent of an advance statement offering specific warrant,
to authorise non-therapeutic experimentation or removal of non-vital organs
or tissue from patients.15
Vital organs should never be removed prior to ascertaining that the person
from whom they are to be removed is certainly dead.
3. Legislating
in accordance with fundamental principles of the common law
1.16
In order fully to understand the main principled
objections to Who Decides?, it is helpful to have some appreciation
of the extent to which the law has historically enshrined the ethical fundamentals
advanced in Section 2 and how in recent years decisions of the courts have
tended seriously to weaken the law's adherence to those principles. For
it is against the background of, if not under the influence of, these recent
decisions that the Law Commission Report and the Consultation Paper have
been drafted.
This Section will, firstly, sketch the law's adoption of the principle of
the inviolability of human life and its recognition of the important yet
subordinate value of individual autonomy before, secondly, tracing the inversion
of these values in recent judicial decisions.
2. The principle of the sanctity or inviolability of life holds that, because
the lives of all human beings share the same fundamental worth simply in
virtue of their humanity, regardless of their physical or mental abilities
or disabilities, it is always wrong intentionally to kill another
person for reasons other than the requirements of justice. This principle,
a hallmark of civilised societies, is enshrined in Article 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
which provides that:
" Everyone's right to life shall be protected
by law. No one shall be deprived of his life intentionally save
in the execution of the sentence of a court following his conviction of
a crime for which this penalty is provided by law." [Article 2 (1)]
(Emphasis added.)
It has also long been enshrined in our criminal law. In particular, intentionally
to kill an innocent person constitutes the offence of murder. And it is
well established that murder can be committed by an act or by an omission
in situations where there is a duty to act. It is also clear law that it
is murder regardless of the request or consent of the victim. Further, suicide
was, until relatively recently, a criminal offence and assisting suicide
remains an offence.
In short, the criminal law has traditionally held that the value of human
life transcends the value of individual autonomy. Life is valuable in itself,
whether or not the individual possesses certain physical or mental abilities,
and whether or not the individual, or others, considers his or her life
to have worth. The law has steadfastly refused to discriminate between those
thought to have "worthwhile" and those thought to have "worthless"
lives.
3. Autonomy is, therefore, trumped by the inviolability of life. But it
is also commonly trumped by other principles and policies. Indeed, individual
autonomy is extensively restricted by the criminal law, often in the interests
of others, but sometimes solely in the interests of the individual. Not
only, therefore, does the law prohibit murder and rape; it also prohibits
the possession of certain drugs, even for one's own use, and the infliction
of actual bodily harm, even with the victim's consent. And it sometimes
requires positive conduct largely if not exclusively in the individual's
own interests, such as the wearing of seatbelts when driving or being driven
in a vehicle. In short, the law has historically accorded individual autonomy
an important, but subordinate and qualified status, a status consistent
with the understanding of its ethical value sketched in Section 2 rather
than with the inflated significance uncritically accorded to it in the Law
Commission's Report and in Who Decides?
4. Unfortunately, in recent years the courts, as a result of misunderstanding
some of the ethical fundamentals underpinning the law, have arrived at decisions
which effectively undermine the inviolability of human life and exaggerate
the significance of autonomy (sometimes doing the former by doing
the latter).
In a series of decisions
culminating in the landmark case of Airedale NHS Trust v. Bland ,17 the courts have fatally compromised
the law's adherence to the principle of the sanctity of life. They have
done so by holding that, while it remains murder for a doctor intentionally
to kill a patient by an act, in certain circumstances a doctor may (if not
must) intentionally terminate a patient's life by deliberate omission. As Lord Mustill noted in
Bland, this has left the law in a "morally and intellectually
misshapen" state.18
Yet the Law Commission's Report and the Government's Consultation Paper,
far from proposing that the law be returned to its former, coherent shape,
have advanced proposals which would serve only to perpetuate its inconsistency.
By failing to prohibit the withholding or withdrawal of medical treatment
with intent to kill, the proposals in the Consultation Paper would appear
to accommodate the intentional killing of patients by the deliberate withholding
or withdrawal of treatment on the basis of a judgement that their lives
lack worth and they would be better off dead. There is nothing in the Consultation
Paper to prohibit such judgements. In particular, the proposed concept of
"best interests", although foundational to the entire edifice
of the proposals, lacks substantive content and ignores the fundamental
proposition that it can never be in a patient's best interests to be intentionally
killed. It appears that the patient's "best interests" are, essentially,
whatever he or she thinks (or, even more questionably, would think
if able to do so) is in his or her best interests, and/or whatever "other
people" think he or she thinks and what they think is
in his or her best interests.
Leaving aside questions about how a doctor is to ascertain what an incompetent
patient would have thought (particularly if they have never been
competent), or how a doctor is to resolve disagreements between what the
patient thought (or would have thought) and what other people think, a fundamental
objection to the Consultation Paper's concept of "best interests"
is that, in a rather Alice-in-Wonderland way, it collapses into whatever
people happen to think it is. Such a concept is both erroneous and dangerous.
Erroneous because it is quite possible for competent individuals, when making
decisions for themselves, to be mistaken about what is in their own
best interests, and no less possible for someone acting on behalf of incompetent
individuals to be mistaken about what is in their best interests.
In short, some things (like being fed and kept comfortable) are in an incompetent
patient's best interests and some (like being exhibited as a public spectacle
or being killed) are not, regardless of what the patient, or others, happen
to think.
Not only is the Consultation Paper's proposed definition (or explanation)
of "best interests" erroneous; it is also dangerous. For if the
best interests of incompetent patients are to be determined largely if not
exclusively simply by the "views of other people", then what is
to prevent others judging that the patient would be better off dead and
that his or her life should be intentionally terminated, albeit by the withholding
or withdrawal of treatment?
Similarly, if the determination of the incompetent patient's "best
interests" is to be arrived at on the basis of the patient's past wishes,
and it is thought that the patient's past wish was for his or her life to
be terminated by the withholding or withdrawal of medical treatment in the
situation which has materialised, doctors will be placed in the position
of being legally required to implement such a wish, even if it was an unambiguously
suicidal wish.
5. As we have argued in Section 2, Who Decides? not only undervalues
human life but also exaggerates the importance of individual autonomy. This
exaggeration is evident not only in the unqualified importance accorded
to the patient's present or past "wishes and feelings" in the
quasi-definition of "best interests" (3.23) but also in its proposals
in respect of advance refusals of treatment. The Consultation Paper, like
the Law Commission Report before it, seems to adopt the view that patients
have a virtually unqualified right to refuse medical treatment, even in
advance of incompetence.
Here too, it is instructive to view the proposals in the light of judicial
decisions which have accorded an exaggerated scope and significance to the
patient's right to refuse treatment. It is uncontroversial that competent
patients have a right to refuse treatments which offer no reasonable prospect
of benefit or which they would find excessively burdensome. But
the courts have gone much further than this, holding that competent patients
have an "absolute right" to refuse treatment "notwithstanding
that the reasons for making the choice are rational, irrational, unknown,
or even non-existent ..."19,
and that (provided certain conditions are satisfied) this right can be
exercised in advance of incompetence.20 The courts appear, with respect, to have largely overlooked
the problems of principle and practice that these propositions raise.
One fundamental objection of principle is that recognition of such a sweeping
right to refuse treatment undermines the law against assisted suicide. For
if the right to refuse treatment extends to cases where the patient's intention
(that is, purpose) is to hasten his or her death, then it accommodates suicide. And if doctors
act lawfully when they intentionally assist a refusal of treatment (by,
for example, withdrawing a life-saving treatment), knowing that that refusal
is suicidal in intention and effect, then the law against assisted suicide
has been seriously compromised.21
In short, the court decisions asserting an unqualified
right to refuse treatment have served to outflank the prohibition on assisted
suicide just as the decisions on the withdrawal of treatment have outflanked
the prohibition on homicide. The criminal law's consistent prohibition on
intentional killing and intentional assistance in suicide has been replaced
by a "morally and intellectually" misshapen prohibition on active,
but not passive, killing and assistance in suicide. And it is this
same, misshapen distinction which disfigures the Law Commission's Report
and Who Decides?
6. The explanation for the courts' weakening of the prohibition on assistance
in suicide is not entirely clear. It may well at least partly lie in a misunderstanding
of the principle of the inviolability of life. But there is also evidence
in the relevant authorities of the mistaken beliefs, firstly, that suicide
was decriminalised out of respect for self-determination and, secondly,
that suicide cannot be committed by omission.
For example, in the Court
of Appeal in Bland, Hoffmann L.J., referring to the case of a person
who refuses life-saving treatment, observes that the decriminalisation of
suicide "was a recognition that the principle of self-determination
should in that case prevail over the sanctity of life".22 However, as the Parliamentary debates
leading up to the enactment of the Suicide Act 1961 confirm, the
reason for decriminalisation was not respect for self-determination
but rather a belief that the suicidal needed help rather than punishment.
In other words, suicide was decriminalised not to help people to commit
suicide, but to help them not to. The Government strenuously denied any
intention to condone suicide, let alone establish a right to it. Moving
the Suicide Bill's Third Reading, the Joint Under-Secretary of State
for the Home Department issued the following warning:
" Because we have taken the view, as Parliament and the
Government have taken, that the treatment of people who attempt to commit
suicide should no longer be through the criminal courts, it in no way lessens,
nor should it lessen, the respect for the sanctity of human life which
we all share. It must not be thought that because we are changing the method
of treatment for those unfortunate people we seek to depreciate the gravity
of the action of anyone who tries to commit suicide."23
Addressing fears that
decriminalisation might give potential suicides the impression that what
they proposed to do was no longer regarded as wrong, he stated: "I
should like to state as solemnly as I can that that is certainly not the
view of the Government, that we wish to give no encouragement whatever to
suicide ... ",24 adding: "... I hope
that nothing that I have said will give the impression that the act of self-murder,
of self-destruction, is regarded at all lightly by the Home Office or the
Government".25 That
acceptance of a right to commit suicide was not the reason for decriminalisation
is confirmed by the fact that assistance in suicide was not decriminalised
and remains a serious offence.
7. Equally erroneous,
with respect, is any suggestion that suicide cannot be committed by omission.
In Bland, Lord Goff stated that when a patient dies as a result of
refusing life-saving medical treatment "there is no question of the
patient having committed suicide, nor therefore of the doctor having aided
and abetted him in doing so".26
If His Lordship was referring to the refusal of treatment on the ground
that it would be futile or excessively burdensome, the proposition is uncontroversial.
If, however, the proposition extends to the refusal of life-saving treatment
in order to hasten death or, in other words, to commit suicide, it is unsupported
by, and is indeed contrary to, authority and principle. As Stroud's Judicial Dictionary
states, to commit suicide "is for a person voluntarily to do an
act (or, as it is submitted, to refrain from taking bodily sustenance),
for the purpose of destroying his own life".27This
is, moreover, consonant with the general principles of criminal law relating
to homicide. Suicide at common law was regarded as self-murder28 and,
just as there is no doubt that murder can be committed by deliberate omission,
so too can self-murder, that is, suicide. It would indeed be artificial
if it were suicide for a person to throw himself in front of a bus, intending
to be killed, but not suicide to remain in front of an oncoming bus, when
one could easily move out of the way, with precisely the same intent.
In Secretary of State
for the Home Department v Robb, Thorpe J. cited Bland as authority
for the proposition that a patient who refuses life-prolonging treatment,
which results in death, does not commit suicide and that the doctor who
complies with the patient's wishes does not aid or abet suicide.29 Granting a declaration that the
Home Office and medical and nursing staff might lawfully abide by a prisoner's
refusal to take food and water, His Lordship observed "The principle of the sanctity
of human life in this jurisdiction is seen to yield to the principle of
self-determination" adding that, although the state interest in preventing
suicide is recognisable, it had no application to a case such as the present
where the refusal of food and treatment "in the exercise of the right
of self-determination does not constitute an act of suicide".30
If Thorpe J. was of the view that suicide may only
be committed by an act and not by a refusal of food and treatment, then
he advances no argument or authority in support, beyond dicta in
Bland . But this is bootstrap authority: those dicta are themselves
either ambiguous or bereft of authority and the point was simply not at
issue in Bland. Moreover, His Lordship's apparently unqualified proposition
that the right to self-determination takes precedence over the sanctity
of life is clearly irreconcilable with the prohibition on assisted suicide
and murder on request.
The true position is that a refusal of treatment or food may indeed be suicidal
(depending on the patient's intention), and that not only may a doctor be
justified in overriding such a refusal but the doctor may incur liability
for not doing so. As Professor Finnis has observed: "The law firmly and rightly holds that those who have
undertaken to provide treatment or nourishment are not absolved from their
duty by the patient's adamant refusal if that refusal is either incompetent
or unlawful. A refusal which is motivated by suicidal intent is unlawful,
even though suicide itself is not a criminal offence; that is why assistance,
and agreements to assist, in suicide are serious criminal offences." 31
8. Two of the major, principled objections to the
Law Commission's Report and the Government's Consultation Paper can, therefore,
equally be levelled at recent decisions of the courts. But a third objection relates to proposals which clearly
go beyond existing judicial decisions, namely, proposals to carry out procedures
on incompetent adults, such as "elective ventilation", which are
not in their "best interests", even in the elastic sense proposed
in the Consultation Paper. The House of Lords in Re F32 made it clear that it is lawful
to perform medical procedures on an incompetent patient if they are in the
patient's best interests, as improving the patient's health or preventing
a deterioration in the patient's health. But to perform a procedure on an
incompetent adult not in his best interests but in the interests of someone
else, constitutes a battery. The proposals in Who Decides? which
would allow incompetent adults to be used for the benefit of others are
clearly contrary to the principle of bodily integrity protected by the crime
and tort of battery, and expose some of the most vulnerable persons in society
to being used as a means to the ends of others. These disturbing proposals
are hardly consistent with the traditional principles of the common law
and the Consultation Paper's stated aim of ensuring protection for the vulnerable.
4. Observations on Specific Proposals
1. Advance refusals of treatment
1.1 Advance refusals which are suicidally motivated
As we have noted, an advance refusal of treatment may be suicidally motivated.
According to the Law Commission's Mental Incapacity Bill section 9.-(3)
the presumption in favour of life may be overridden by a patient's advance
refusal of treatment. This would enforce, in effect, the compliance of doctors
and other carers with, among other refusals of treatment, those which are
evidently suicidally motivated. We think there are compelling reasons why
doctors and other carers should not comply with refusals of treatment which
are known to be suicidally motivated:
because to do so would be contrary to recognition
of the patient's dignity, and so contrary to the patient's best interests;
because to do so is corrosive of the ethic of
medicine and of the dispositions we require in doctors, which are to be
defined in part by reference to an objective, substantive conception of
the best interests of patients;
because withdrawal of forms of treatment and
care precisely with a view to ending a patient's life is morally indistinguishable
from euthanasia. Since, however, withdrawal of life-sustaining care usually
subjects the patient to a protracted process of dying which is painful
to onlookers if not to the patient, legalization of such conduct can only
be a half-way house to the more straightforward and probably more merciful
practice of active euthanasia.
Hence, we consider that
where it is known that an advance refusal of treatment has been suicidally
motivated, doctors and other carers should be obliged to ignore that refusal
and to act with a view to serving the best interests (including sustaining
the life) of the mentally incapable patient, just as if no such refusal
had been made. We urge (as we did in 1993)33 that there should be legislation 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)."
1.2 Advance refusals and pregnancy
Advance refusals of procedures such as Caesarean section may endanger not
only the life of the pregnant woman but also the life of her child. Where
that turns out to be the case we believe that the refusal of such procedures
should not be respected at the expense of the woman's own life or that of
her child. No difference should be made to this rule by the fact that the
woman anticipated death as a possible consequence of her refusal. [See Who
Decides? 4.28-4.29]
1.3 Advance refusals and the definition of basic
care
The Law Commission recommended [LawCom231: 5.34] that an advance refusal
of treatment should not preclude provision of `basic care' defined as "care
to maintain bodily cleanliness and to alleviate severe pain, as well as
the provision of direct oral nutrition and hydration". We believe this definition is
too narrow; in particular, we would consider that once a tube has been established
to deliver nutrition and hydration, the actual delivery of food and fluids
by such means should be counted a part of basic care. For what is secured
is not some special form of medical treatment34 but simply the delivery of what is necessary in the way
of nourishment to sustain life. And the supply of what is required in the
way of nourishment simply to sustain a person's life belongs to the basic
care of that person.
The definition of `basic care' proposed by the Law Commission embodies an
odd inversion of values, according as it does a greater importance to comfort
and hygiene than to sustaining life.
It should not be ordinarily possible for advance refusals of treatment to
exclude provision of basic care defined, as we propose, to include provision
of food and fluids by tube. [See 4.35-4.37]
1.4 The general proposal to make advance refusals of treatment binding in
statute law.
Much of the preoccupation with making advance refusals of treatment binding
by statute seems to be motivated by the false valuation of human autonomy
to which we have already referred (see Section 2 at 4 and 5, and Section
3 at 3). Apart from the reasons of principle we have already adduced for
thinking certain types of advance refusal of treatment to be ethically and
legally unacceptable, we believe there are many prudential and policy reasons
for not making advance refusals of medical treatment binding by statute
law in the way proposed by Who Decides? following LawCom231:
the proposal that an advance refusal of treatment
may be made orally (4.12) seems to leave no basis for identifying false
claims by interested parties that a patient made an advance refusal of
treatment.
advance directives deal with hypothetical future
scenarios not present specific ones. In consequence many will raise questions
about their applicability which can only be resolved by applications to
the courts (4.38). The courts in consequence may well have to handle an
inordinate amount of litigation, thereby consuming scarce health service
resources.
the proposed legislation contains no provision
that makers of advance declarations should take relevant medical advice.
If ill-informed, in what sense is an advance refusal of treatment a genuine
exercise of autonomy?
advance directives may have the effect of excluding
new methods of treatment which one did not envisage at the time of making
the declaration.
the `incompetence' which may make an advance
directive operative may be only transitory but may, in depriving one of
appropriate treatment, have the effect of leaving one permanently impaired.
In general, in depriving people of appropriate medical care advance refusals
are likely to leave many patients alive but in a worse condition than they
might otherwise be (e.g. bedridden instead of mobile).
legally enforceable advance directives are all
too likely to impose profoundly demoralizing limits on doctors and nurses:
they may be obliged to act in ways which they know to be clearly contrary
to the best interests of patients. The State itself has an interest in
maintaining conditions supportive of the proper practice of the professions
of medicine and nursing. Furthermore, the litigation which is likely to
be caused in consequence of making advance refusals of treatment binding
by statute may well intensify the already unfortunate tendency to `defensive'
medical practice, since the proposed legislation will create new areas
of liability and hence of litigation.
2. Use
of patients in medical research without consent and in non-therapeutic procedures.
2.1 Participation of mentally impaired adults in
non-therapeutic research/experiments.35
There are influential tendencies in medical and scientific circles to exploit
those without relevant decision-making powers in the interests of research.
We believe that research which involves any level of risk to which
consent cannot be given should not be justified on utilitarian grounds.
If the law is designed to legalise non-therapeutic research on the non-consenting
on utilitarian grounds we fear that there will be increasing social acceptance
of potentially ever more harmful forms of research on the mentally incapacitated.
2.2 The use of mentally impaired adults as
sources of organs/tissue for transplantation.
We believe the justification for organ donation is essentially connected
with the capacity willingly to give ; to speak of `donation' is a
misnomer in the absence of consensual giving. And in the absence of consensual
giving removal of organs will normally amount to exploitation of persons
for ends to which they have no discernible attachment.
Normally, therefore, transplantation inter vivos should not involve
use of those unable to give informed consent to the removal of their tissue.
The carefully circumscribed exception to this should be for cases in which
the `donor', although unable to give informed consent, has some discernible
attachment to the good of the potential `recipient' as someone perceived
to be integral to the good of his or her own existence. This sort of exception
should not in practice be thought to exist outside the context of close
family relationships. It should be a further condition of `donation' in
these circumstances that it involves no risk of significant harm to the
`donor'.
It should never be permissible even within the limits of this exception
to arrange for the removal of sperm or ova for reproductive purposes or
of ovarian tissue for transplantation. To do so would be contrary to the
integrity of the marital relationship and to the good of children which
the law should protect.
Where what is envisaged
is cadaveric transplantation, it ought to be the case that organs may be
removed only if (i) the person whose organs they were has made an advance
statement when competent of willingness to donate organs, and (ii) the patient
has been certified as certainly dead.36
For reasons noted in Section 3 (at 8) we believe "elective
ventilation" should remain illegal. The Law Commission's readiness
to recommend otherwise (LawCom231: 6.26) well illustrates the inadequacy
of their concept of `best interests' as a basis for the protection of patients.
3. The authorization
of medical procedures to be carried out on the incompetent.
The circumstances are extremely rare in which a pregnancy
threatens the life of a mother. It is only in such circumstances that one
might expect the law to take the view that the killing of the unborn child
is a `proportionate' means of avoiding harm -- in this case lethal harm
-- to the mother.
The view that abortion is justified by the mere incompetence of the mother
is cruel and callous, showing not merely an indifference to the moral claims
of the unborn child but also to what may well be the deeply traumatising
effects on the mother of an abortion.
Since abortion is an even graver procedure than sterilization intended to
render a person permanently infertile, we believe it too should require
court authorization. The second opinion procedure does not provide adequate
safeguards.
Procedures which result in permanent sterility and
which are undertaken "to relieve an existing detrimental effect of
menstruation" should require a second doctor's certificate. This is
because there is a tendency too readily to have recourse to hysterectomy
when a more conservative approach might solve the problem. The doctor responsible
for giving a second opinion should be expected to consider whether a more
conservative approach would be adequate.
In the care of women who
are reasonably believed to have no prospect of consenting to intercourse
with any adequate sense of its significance 39, sterilization as such (i.e. sterilization to prevent
conception) should not be considered other than a measure of last resort.
It should be a measure of last resort not least because the effects of carrying
it out are both to make girls and women more readily exploitable and for
less care to be devoted to their proper protection. All proposed sterilizations
for contraceptive purposes should require court authorization.
For reasons outlined under 2.2 of this Section we
believe the grounds for authorizing transplantation of tissue or bone marrow
from a mentally incapacitated adult are extremely limited. It should be
for the court to determine whether it is authorized, having regard to the
grounds on which we think transplantation might be acceptable.
3.4 Discontinuing artificial
nutrition and hydration 41
Artificial nutrition and hydration should not be regarded
as discontinuable for a defined category42 of patient [5.24, 5.25 and Q.42] but should be withdrawn
only if in a particular case it is found to be ineffective in delivering
nourishment, or if the mode of delivery proves to be truly burdensome, or
if the patient in question is in the final phase of dying and withdrawal
will not itself significantly affect the time of death or make dying a more
distressing process. Whether these grounds for withdrawing nutrition and
hydration hold good in a particular case may reasonably be decided by the
clinicians responsible for the care of the patient in question. [QQ. 44a-45]
It should be reserved to the courts to determine whether withdrawal of nutrition
and hydration from a particular patient on other grounds should be authorized.
In making its judgement the court should proceed on the general assumption
that once artificial feeding is established it should be maintained as an
expression of care for and solidarity with a fellow human being in an extremely
deprived condition. It is never acceptable to withdraw tube-feeding on the
grounds that feeding is futile because the patient's life is itself not
worthwhile, or he cannot be benefited or harmed, or he has no interests,
since he is permanently unconscious. No human being's life may be characterised
in those terms (see Part 2 at 1).
Legislation to create a power of attorney extending
to health care and personal welfare matters is to be welcomed only if the
power is exercised by reference to the best interests of an incompetent
person and `best interests' is understood by reference to a substantive
conception of the good of the person along the lines indicated at 11 of
Section 2 above.
No holder of a power of attorney should have the power to consent to the
withdrawal of nutrition and hydration; see 3.4 of this Section.
5. Court-appointed Managers
We believe that court-appointed managers should not have power to refuse
consent to particular forms of healthcare which are reasonably held by doctors
to be in the best interests of patients. (7.25-7.26, and Q.78)
For reasons already explained, managers should certainly not be able to
consent to non-therapeutic research procedures. (7.29-7.30, and Q.79)
Managers of residential care establishments should never be appointed managers
with the power to make decisions regarding the healthcare of residents of
their own or of associated establishments. Such a relationship is too likely
to be affected by conflicts of interest which may be seriously harmful to
the mentally incapacitated patient.
Notes
1 Who
Decides? Making Decisions on behalf of Mentally Incapacitated Adults. A Consultation Paper issued by The Lord Chancellor's Department,
December 1997. Numbers in the main text refer to paragraphs in Who Decides?
back to text
2 The
Law Commission (Law Com No 231) Mental Incapacity , London: HMSO,
1995. References to the Report internal to the main text take the form LawCom231,
followed by the number of the paragraph of the Report. References to the
Bill drafted by the Law Commission take the form LawCom231Bill, followed
by the number of the clause of the Bill. back
to text
3 This
proposal seems particularly sinister in its implications if one considers
that LawCom231 takes up [at 6.17] Lord Mustill's suggestion in Bland
that the permanently unconscious may be reckoned no longer to have "interests".
If they are to be so regarded then it may be deemed impossible to "cause
[them] significant harm" , and so it may be judged acceptable to remove
vital organs from them for the benefit of others, thereby killing the permanently
unconscious. back to text
4
i.e. the intentional termination of the lives of those who, because of incompetence,
are incapable of asking to be killed. back
to text
5 See
Luke Gormally, "Walton, Davies, Boyd and the legalization of euthanasia",
in John Keown (ed) Euthanasia Examined. Ethical, clinical and legal perspectives,
Cambridge: Cambridge University Press 1995, pp.113-40, esp. p.124. back to text
6 Submission
to the Select Committee of the House of Lords on Medical Ethics by The Linacre
Centre for Health Care Ethics, June 1993.
[Henceforth: Linacre Submission to the Select Committee ] In House
of Lords, Session 1993-94. Select Committee on Medical Ethics. Volume III
- Written Evidence (HL Paper 21-III), London: HMSO, pp.155-82, at p.174.
Reprinted in Luke Gormally (ed) Euthanasia, Clinical Practice and the
Law, London: The Linacre Centre 1994, pp.111-165, at p.158. Subsequent
references to the Submission are to its reprint in this volume followed
by, in brackets, the reference in HL Paper 21-III. back to text
7 For
a fuller explanation see Linacre Submission to the Select Committee,
esp.pp.118-126. [HL Paper 21-III, p.156] back to text
8 If
a person is killed because he is found guilty of some grave crime the reason
for killing him is not inconsistent with recognition of his worth and dignity. back to text
9 The
principle of the sanctity (or inviolability) of life therefore imposes an
absolute negative duty, not a positive duty to prolong life whatever
the circumstances. Failure to recognise its true character, on the part
of some judges in recent cases (e.g. Lord Goff in Bland ), partly
explains the false dicta about autonomy overriding the principle
of the sanctity of life. See Linacre Submission to the Select Committee,
at p.119, esp. footnote 2. [HL Paper 21-III, p.156, and footnote 7 on pp.177-8.]
back to text
10 A
view entertained by Who Decides? at 5.24, following LawCom231: 6.17,
following Lord Mustill in Bland . back
to text
11 The
character of a suicidal type of refusal of treatment is well described by
Mrs Justice Hale in her 1995 Hamlyn Lectures: "A person who is able
to make his own decisions may be horrified at the prospect of losing that
capacity and so refuse quite ordinary treatments on the ground that he would
be better off dead." (The Hon Mrs Justice Hale, From the Test Tube
to the Coffin. Choice and Regulation in Private Life . London: Sweet
& Maxwell, 1996, p.116. Emphasis added.) Believing that life in such-and-such
a condition would no longer be worthwhile, a person deems he would in the
circumstances envisaged be better off dead, and for that reason (i.e. to
hasten death) refuses treatment. Mrs Justice Hale (as Professor Brenda Hoggett)
chaired the Committee of the Law Commission responsible for its work on
mental incapacity. As the suicidal nature of certain refusals of treatment
was resolutely refused recognition by the Law Commission it is unsurprising
that it does not receive recognition in the 1995 Hamlyn Lectures. back to text
12 We
would again urge, as we urged in 1993, the 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, service or care,
do or omit anything with the intention 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."
See Linacre Submission to the Select Committee
, p.157. [HL Paper 21-III, p.174.] back
to text
13 See
the statement by Lord Brandon in Re F (Mental Patient: Sterilisation)
[1990] 2 AC 1: "The operation or other treatment will be in their
best interests if, but only if, it is carried out in order either to save
their lives, or to ensure improvement or prevent deterioration in their
physical or mental health." back
to text
14 The
four factors listed in 3.23 as "guidance for determining what is in
a person's `best interests'" all relate to the person's subjectivity
as someone with wishes , ability to participate in decision-making,
and freedom of action . They are:
" the ascertainable past and present wishes
and feelings of the person concerned and the factors the person would consider
if able to do so;
" the need to permit and encourage the person
to participate or improve his or her ability to participate as fully as
possible in anything done for and any decision affecting him or her;
" the views of other people whom it is appropriate
and practical to consult about the person's wishes and feelings and what
would be in his or her best interests; and
" whether the purpose for which any action
or decision is required can be as effectively achieved in a manner less
restrictive of the person's freedom of action."
[For further critique see Section 3 at 4. below] back to text
15 For
one limited type of circumstance which provides an exception to this requirement
for organ donation see Section 4 at 2.2 below. back to text
16 For
a fuller discussion see John Keown, "Restoring Moral and Intellectual
Shape to the Law after Bland" (1997) 113 Law Quarterly Review
481; John Finnis, "Living Will Legislation" in Luke Gormally (ed)
Euthanasia, Clinical Practice and the Law (London: The Linacre Centre,
1994) 167; Stuart Hornett, "Advance Directives: A Legal and Ethical
Analysis" in John Keown (ed) Euthanasia Examined (Cambridge:
Cambridge University Press, 1995) 297. back
to text
19 See
Re T [1992] 3WLR 782 at 786, per Lord Donaldson M.R. (Emphasis
added.) back to text
20 Ibid at 787; see also Re C [1994] 1 All ER 849; Airedale
NHS Trust v. Bland [1993] AC 789 at 864 (per Lord Goff). back to text
21 We
do not say that the sweeping legal right to refuse treatment entails
abandoning the distinction between such refusal and assisting in suicide-by-omission.
The judgement of the Supreme Court of the United States in Vacco v. Quill
(1997) 65 United States Law Week 4695 gives powerful reasons (see 4697)
for thinking that, where law-makers, courts and other relevant bodies have
a clear grasp of the way in which differences in intention really
and authentically differentiate kinds of conduct, it is possible to give
legal force to such refusal (as recent New York legislation does) while
maintaining the law's prohibition on assisting in suicide including suicide-by-omission.
In such a situation, the breadth of the legal right of refusal will have
the result (foreseen but in no way intended by the clear-headed legislator)
that -- just as allowing doctors to use pain-killers facilitates some covert
voluntary euthanasia (murder) under the guise of palliative care -- sometimes
a patient will exploit his right of refusal to commit covert suicide-by-omission.
Where such a patient is still competent, the Supreme Court suggests (4697)
that "a physician who withdraws, or honors a patient's refusal to begin,
life-sustaining medical treatment purposefully intends, or may so intend,
only to respect his patient's wishes ... " (and not to kill or assist
in suicide). This analysis clearly covers the usual case, where the doctor
has no real knowledge of his patient's motives for refusing treatment; in
other cases, where he is morally sure that refusal of treatment or care
is motivated by a suicidal purpose (intention of terminating life), the
doctor has to respect not only the statutory prohibition of imposing medical
treatment on unwilling patients but also the law's prohibition of assisting
in suicide (including suicide-by-omission). Legislative guarantees of patient
autonomy have their proper limit at the point where the patient demands
assistance in his autonomous purpose of self-destruction (including suicide-by-omission),
and the Supreme Court's judgement makes it clear that the law is coherent
in drawing such a line.
As we have said above (Section 2 at 9), the obligation
not to assist in suicide (including suicide-by-omission) does not
entail an obligatory requirement to override refusals of treatment or even
of care and sustenance. To be sure, the path between the Scylla of assisting
suicide-by-omission and the Charybdis of force-feeding a competent patient
is narrow, and opinions will differ about how precisely to proceed along
it.
But what is quite clear is that where the patient's
suicidal purpose was articulated prior to his incapacity, and he
is now incompetent to make any authentic ratification or withdrawal
of it, the question of respect for his autonomy ceases to be central and
the decisive criteria must be his true best interests including the inviolable
worth of his life. Ronald Dworkin in Life's Dominion [1993] has exposed
fairly clearly (pp.226-9) some of the implications (which Dworkin himself
there rightly describes as "very troublesome" and "shocking")
of thinking that autonomy always trumps other interests and goods, and that
the past wishes (or advance directives) of a now-incompetent person must
be respected on grounds of "precedent autonomy" (unconditional
respect for "past wishes and feelings"). Mrs Justice Hale seems
much less troubled. Speaking of the person who has made an advance refusal
of "quite ordinary treatments" on the grounds that "he would
... be better off dead" than being incompetent, she foresees that such
a person "once he has become demented, ... may be quite content; those
around him who remember how he used to be will suffer much more than he
does. But he will be no longer able to revoke the refusal." On which
she comments: "This, of course, is what advance refusals are all about;
the right to decide while you are able to do so the extent to which you
want to be obliged to stay alive. This will depend on what you think makes
life worth living ... " (From the Test Tube to the Coffin, p.116) back to text
23 (1960-61) 645 Parl. Deb.
H.C. cols. 822-823. Recently, in Kirkham v. Chief Constable of the Greater
Manchester Police , Lloyd L.J. observed: "The court does not condone
suicide." [1990] 3 All ER 246 at 252. back to text
24 (1960-61)
644 Parl. Deb. H.C. 1425-26. back
to text
27 ` Suicide' in Stroud's Judicial Dictionary
5th edition (1986) by John S James (London: Sweet & Maxwell, 1986) vol.5.
p.2674. See also the discussion by M Otlowski, Voluntary Euthanasia and
the Common Law, Oxford: Clarendon Press 1997, pp.65-73. back to text
28 See
Smith & Hogan, Criminal Law, 8th edition (London: Butterworths,
1996), p.391. back to text
31 John
Finnis, "Living Will Legislation", in Luke Gormally (ed) Euthanasia,
Clinical Practice and the Law (London: The Linacre Centre, 1994), p.168, and
see the authorities there cited. back
to text
33 Linacre
Submission to the Select Committee , p.158.
[HL Paper 21-III, p.174.] back
to text 34 Hunger
and thirst are not diseases, and tubefeeding is not directed at treatment. back to text
35 See
Who Decides? 5.35-5.39 and Q.48. back
to text
36 We
do not address in this document the controversial issue of whether the UK
protocol for diagnosis of so-called `brain-stem death' shows the patient
to be actually dead as distinct from irreversibly dying. back to text
39 In
such cases intercourse with the woman is properly speaking a kind of rape
and the prevention of conception can be taken as a measure of protection
against the rape's final effect on the woman's body. If conception does
occur in consequence of rape, the distinct moral claims of a newly conceived
human being then confront one. Since it is incompatible with recognition
of human dignity to kill a human being for reasons other than the requirements
of justice, and since the newly conceived human being is in no way answerable
for what has occurred, the killing of that human being cannot be just. back to text
42 As
it happens, the category of patients from whom Who Decides? suggests
nutrition and hydration may be withdrawn is defined in very ambiguous terms. back to text
43 With
particular reference to Who Decides? 6.9 and 6.17 back to text
