Copy of a letter to the Select Committee
from Dr Fiona Randall
At the Select Committee meeting on the afternoon
of 18 January 2005 I gave evidence and would like to submit this
written answer to one of Baroness Hayman's questions as supplementary
evidence. At the time I did respond to this question but have
subsequently considered that I did not give it the detailed response
which it requires and deserves. I would like to rectify that omission
by way of this letter.
I recall that Baroness Hayman noted the apparent
similarity between on the one hand allowing patients to refuse
life-prolonging treatment, such as ventilation, together with
allowing people (unaided) to commit suicide, and on the other
hand providing physician assisted suicide and euthanasia. Baroness
Hayman asked why, if the law respects the patient's autonomy in
the case of refusal of life-prolonging treatment and permitting
(unassisted) suicide, it should not also respect the patient's
autonomy in providing physician assisted suicide (PAS) and euthanasia
when the patient requests it.
In particular, Baroness Hayman explained that
it is difficult to see a difference between a doctor switching
off a ventilator when the patient is refusing that treatment,
and the doctor assisting suicide or giving the patient a lethal
injection. One could argue that if these two acts are morally
indistinguishable, they ought not to be treated differently by
the law.
This is an important argument and could be presented
logically as follows:
Major premise: Morally indistinguishable cases
should not be treated differently by law.
Minor premise: Respecting a patient's refusal
of life-prolonging treatment is morally indistinguishable from
respecting the patient's request for PAS and euthanasia.
Conclusion: The law should not treat a patient's
refusal of life-prolonging treatment differently from a patient's
request for PAS or euthanasia.
The conclusion does follow logically from the
premises. The conclusion would mean that if a patient's autonomous
refusal of life-prolonging treatment such as ventilation was to
be respected and thus the ventilator turned off, then a patient's
autonomous request for PAS and euthanasia should also be respected
and the patient given a lethal prescription or lethal injection.
In both situations it could be said that the patient's autonomous
choice is being respected.
Whilst the conclusion does follow logically
from the premises, I will argue that the minor premise is actually
false and the major premise is seriously flawed. Consequently
the conclusion based on these premises should be rejected. I will
begin by examining the minor premise to explain why it is false.
MINOR PREMISE
The premise states that respecting a patient's
refusal of life-prolonging treatment, and thus withholding or
withdrawing that treatment, is morally indistinguishable from
respecting a patient's request for PAS or euthanasia, and thus
providing a lethal prescription or lethal injection (in the Committee
the legal situation whereby suicide is not a crime was also noted).
I would argue that there are important moral distinctions between
these two acts/decisions, and they are based on the issues of:
1. the cause of the patient's death; and
2. the intention of the doctor.
I will discuss these in turn.
1. The cause of the patient's death
It is sometimes argued that the withholding
or withdrawal of a life-prolonging treatment causes the patient's
death. Thus if artificial hydration and nutrition are withdrawn
or withheld from patients who cannot eat or drink by mouth and
have refused tube feeding and hydration, then since it is overwhelmingly
likely that the patient will die without sustenance, the withholding
or withdrawal of the tube feeding and hydration causes the patient's
death. The same argument applies to the situation Baroness Hayman
mentioned when a patient who is unable to breathe without a ventilator
refuses the ventilation which is then withdrawn, and the patient's
death is overwhelmingly likely to follow. If one agrees with this
view, then one concludes that the withholding or withdrawal of
the treatment should, both legally and morally, be considered
to be the cause of the patient's death.
I would argue that the patient's death is caused
by the underlying failure of essential organ function which renders
the patient incapable of survival without constant life-prolonging
treatment. The fundamental cause of the patient's death is the
patient's condition, not the withholding or withdrawal of the
treatment.
Death would have been caused by the pathological
conditions of inability to take in nourishment or inability to
breathe.
The life-prolonging treatment merely prevents
death from occurring so long as it continues and other causes
of death do not intervene. When the treatment is withheld or withdrawn,
it could be said that "the body's own causality" results
in death.
If my line of reasoning is rejected and instead
it is considered that doctors cause the death of their patient's
when they withhold or withdraw life-prolonging treatment, then
it must follow that in all cases where doctors withhold or withdraw
life-prolonging treatment they have caused the patient's death.
Since the available array of life-prolonging
treatment is so extensive, and since the precise timing of so
many patients' deaths is now influenced by patients' decisions
to forgo some possible life-prolonging technology, one would have
to conclude that doctors actually cause the death of many of their
terminally ill patients. Such a conclusion is deeply counterintuitive.
Neither patients nor doctors consider that the doctor causes the
death of the patient when the doctor agrees to withhold or withdraw
a treatment which the patient is refusing.
Moreover, if one reached this conclusion then
every death which followed the patient's refusal of life-prolonging
treatment and subsequent withholding/withdrawing of that treatment
would have to be examined legally as a possible case of murder
or manslaughter. This is because one of the conditions for murder
and manslaughter is causing the person's death, and in this case
the doctor would be seen as having caused the patient's death.
This would be completely unmanageable legally and also intuitively
wrong.
Alternatively, it might be argued that patients
refusing a potentially life-prolonging treatment, for example
when they think that for them its harms and risks exceed its expected
benefits, are committing suicide. This conclusion is also deeply
counterintuitive and likely to be offensive to patients who are
competent and have judged that for them the benefit of extended
life is outweighed by the burdens and risks of the ongoing treatment,
especially in the context of terminal illness which is the context
of the current Bill.
In fact, the law does not regard the withholding/withdrawal
of the treatment as the cause of the patient's death in these
situations. I would argue that it does not make sense to regard
it as morally the cause of the patient's death.
Thus I would conclude that the cause of the
patient's death, following the withholding/withdrawal of life-prolonging
treatment which the patient has refused, is the underlying illness.
This conclusion concurs with current practice when writing death
certificates.
In contrast, the cause of death following PAS
or euthanasia is the lethal medication, whether taken by the patient
himself/herself or administered by the doctor.
In respect of the cause of death, the act/decision
of withholding/withdrawing life-prolonging treatment which the
patient refuses is clearly distinguishable both morally and legally
from PAS and euthanasia. These two situations are not morally
the same, and are not currently treated as legally the same.
2. The intention of the doctor
The moral distinction between intending and
foreseeing the death of a patient following withholding or withdrawal
of life-prolonging treatment may appear finely drawn. It can be
argued that a doctor who switches off a ventilator when a competent
patient refuses to remain on it is intending to cause the patient's
death. Those who take this position assert that the doctor must
inevitably intend the patient's death since he or she knows that
it is overwhelmingly likely that death will follow. The contrary
position, which I would support instead, is that the doctor intends
to withhold or withdraw a treatment which the patient is refusing,
and that the doctor foresees but does not intend the patient's
death.
There are two aspects to intention in this case.
The first is to do with what the doctor wants, desires or seeks
as the outcome of the act/decision. Some people who maintain that
the doctor intends the patient's death seem to believe that the
doctor wants, seeks or desires that patient's death. Yet this
is surely not the most accurate representation of the case. The
representation which I think most accurately describes the case
is that the doctor neither desires nor seeks the patient's death,
but rather intends only to withhold or withdraw a treatment which
the patient does not want because its burdens and risks outweigh
its benefits in that patient's view. Similarly, when doctors carry
out a treatment with known harms and risks, even risks of death,
we do not conclude that they intend those harms and risks, but
rather that they foresee them. Nor do we believe that patients
who consent to the treatment intend or choose to undergo those
harms and risks, but rather that they foresee them as adverse
consequences of a treatment which has expected benefits.
The second aspect of intention relates to the
fact that it is intention to cause the death of the patient which
is being considered. Those who believe that the doctor who withdraws
or withholds a life-prolonging treatment intends the patient's
death must believe that the doctor intends to cause the patient's
death. I would argue that since doctors quite reasonably do not
consider that the withholding or withdrawal of life-prolonging
treatment is the fundamental cause of the patient's death, they
cannot logically intend to cause death by withholding and withdrawing
the treatment.
It simply makes no sense to say that doctors
intend to cause death when they do not think that their decision
is the cause of the death. In parallel with this moral reasoning,
the law does not take the line that they intend to cause the patient's
death.
In contrast, when a doctor prescribes a lethal
prescription to provide PAS, or administers a lethal injection
in euthanasia, the doctor knows that the lethal medication will
cause that patient's death and intends that it will cause the
death when taken into the body.
In summary, I would conclude that respecting
a patient's refusal of life-prolonging treatment is morally distinguishable
from respecting the patient's request for PAS and euthanasia,
since the cause of death and the doctor's intention are different.
The two situations are definitely not the same. Indeed the differences
are so significant as to make the two situations not even similar.
MAJOR PREMISE
I will turn now to the major premise, that morally
indistinguishable cases should not be treated differently by the
law. In this particular case it is being argued that if patients'
autonomy is being respected in one case, it should be respected
in the other case (if that case is regarded as substantially the
same). This premise raises issues about the function of the law
and its relationship to morality. Three essential points should
be considered.
Firstly, it is a central function of the law
to safeguard the interests of everyone in the community, and not
just the interests of a minority or an individual, however deserving,
against those of the majority. For example, patients cannot legally
require provision of a particular treatment which is not available
on the NHS due to nationally agreed criteria based on a just distribution
of scarce resources. It is relevant that in the case of PAS and
euthanasia it is believed that only a small minority of terminally
ill patients would choose these measures, whilst all terminally
ill patients would be faced with this difficult choice as a medical
treatment option.
Secondly, morality is much more complicated
that the law could ever be. An enforceable, consistent, and comprehensible
law is necessarily a "blunt instrument" compared with
the great complexity of moral judgements. Yet the law is the blunt
instrument which must uphold the good of the community. So the
law has to make distinctions which are unambiguous and comprehensible
to ordinary folk, and it cannot possibly follow all the intricacies
and nuances of thought and feeling which exist in morality, and
which judges can take into account when applying the law in individual
cases.
Thirdly, in treating cases of respecting refusal
of treatment differently from requests for PAS and euthanasia,
the law does not say that there is always a clear moral difference
between the two. It is saying only that for legal purposes, based
on the best outcome for the whole community, it is necessary the
make this distinction. It is not the purpose of the law to dictate
which particular acts are, or are not, morally indistinguishable.
Although it might be possible to imagine a scenario where respecting
a patient's refusal of treatment appears morally indistinguishable
from PAS and euthanasia (I have tried and failed to do this),
it does not follow that the law should treat them as though they
are indistinguishable, particularly as in the vast majority of
cases there will be obvious and significant moral differences.
I have argued that the minor premise is false,
and that the major premise is simplistic and seriously flawed.
Therefore the conclusion which follows from them should be rejected.
Thus it is not necessarily unreasonable, and not illogical, for
the law to treat a patient's refusal of life-prolonging treatment
differently from a patient's request for PAS or euthanasia. The
law currently does this by dictating that the patient's choice
to refuse treatment must be respected by withholding or withdrawing
the treatment, whilst the patient's request for PAS or euthanasia
should not be granted by provision of these procedures. So it
is not necessarily unreasonable or illogical legally to require
doctors to withhold or withdraw a life-prolonging treatment which
a competent patient is refusing, and thus respect the patient's
autonomous choice, whilst at the same time refusing to provide
PAS and euthanasia which the patient is requesting.
Those of us who gave evidence on the afternoon
of 18 January 2005, and argued against the legalisation of PAS
and euthanasia both in general and in particular via this Bill,
were arguing that the law would best serve the interests of the
majority of terminally ill patients if it continued to prohibit
assisted suicide and euthanasia, especially by doctors. It is
clearly the function of the law to say that people cannot have
some of the things that they would autonomously choose, on the
grounds that the availability of that choice, or the exercise
of that choice, would harm the interests of others. As a group
we were arguing that making PAS and euthanasia available, especially
as a medical treatment option (as proposed in the Bill), would
harm the interests of patients overall more than it would benefit
them. In terms of autonomy, we were arguing that the range of
autonomous choice available to patients must be limited in order
to safeguard the welfare of all in the community, in the same
way that the law restricts so many potential choices to safeguard
the welfare of others. We were arguing that it is morally preferable
and justifiable, and the best legal policy, to avoid making PAS
and euthanasia available to the minority of patients who would
choose it, in order to safeguard the welfare of the majority of
patients and the underlying values of the community in which we
all live.
There is no short and simple answer to the question
which Baroness Hayman raised in the Committee. It is a question
of such importance that I am grateful to Baroness Hayman for having
raised it. I hope you will forgive such a lengthy explanation
and that it may be helpful to the Committee. I contacted Judy
Phillips who advised me that I should submit this supplementary
evidence to yourself so that it is available to the Committee.
21 January 2005
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