Memorandum by Professor Emily Jackson,
Chair of Medical Law, Queen Mary, University of London
1. INTRODUCTION
The absolute prohibition on euthanasia coexists
with doctors' extensive involvement in shortening their patients'
lives.
Why does the line between lawful and unlawful
life-shortening practices lie where it does?
line only makes sense if we ignore
the perspective of the individual patient.
at odds with patient-centred development
of medical law.
2. REASONS FOR
PROSCRIBING EUTHANASIA
(a) Euthanasia is intrinsically wrong
I Sanctity of Human Life
(i) Religious belief that life is not ours
to dispose of as we please,
BUT this cannot be the basis of public
policy in a secular society.
(ii) Some argue it is illegitimate to make
qualitative judgements about whether a life is worth living
BUT doctors already make this sort of judgement:
doctrine of double effect;
for PVS patients, eg Bland;
R v Cambridge DHA ex p B [1995]
1 WLR 898 Sir Thomas Bingham:
"I have no doubt that in a perfect world
any treatment which a patient, or a patient's family, sought would
be provided if doctors were willing to give it, no matter how
much it cost, particularly when a life was potentially at stake.
It would however, in my view, be shutting one's eyes to the real
world if the court were to proceed on the basis that we do live
in such a world."
(my emphasis.)
II Act/omission distinction
Is killing always worse than letting
die?
Instead of a binary division
between acts and omissions, it makes more sense to think in terms
of a spectrum.
Withdrawing treatment lies in
the middle of the spectrum. Depending on the context, it could
be either an act (eg a malicious interloper) or an omission
(eg Bland).
Morally relevant fact is whether
surrounding circumstances justify treatment withdrawal, not whether
its an act or an omission.
Act/omission distinction adds a redundant
layer of sophistry to moral reasoning:
the competent patient has refused treatment
therefore treatment withdrawal
is an omission,
therefore it is morally
permissible,
the competent patient has refused treatment
therefore treatment withdrawal
is morally permissible.
If withdrawing life support is an
omission, how could there be a conscientious objection to "omitting
to act?" Yet:
Ms B v An NHS Trust [2002] 2 All ER
449. Dame Elizabeth Butler-Sloss P:
"[Dr C] did not feel able to agree
with simply switching off Ms B's ventilation. She would not have
been able to do it. She felt she was being asked to kill Ms B."
(b) Regulatory difficulties
I Ensuring request is voluntary and preventing
abuse
(i) Patients are very ill, judgement may
be distorted by depression.
(ii) No scope for correcting decisions based
upon a mistaken diagnosis of competence or terminal illness.
(iii) Principle of patient confidentiality
makes it difficult to scrutinise oral discussions to ensure requests
were informed and voluntary.
(iv) Patients might be pressurised into requesting
euthanasia because they perceive themselves to be a burden.
BUT we already allow patients to make life and
death decisions, when these considerations may be even more compelling:
Re MB 38 BMLR 175 Butler Sloss LJ:
"A mentally competent patient has an absolute
right to refuse to consent to medical treatment for any reason,
rational or irrational, or for no reason at all, even where that
decision may lead to his or her own death."
Common practices, such as withholding life-prolonging
treatment without consent, pose a greater risk than euthanasia
to vulnerable individuals.
A carefully regulated system would offer
much more effective protection than a blanket ban, which simply
pushes the practice underground.
II Slippery Slope
ie difficult/impossible to draw a line between
acceptable and unacceptable practices.
Empirical claim? BUT seldom proved/refuted
by the evidence.
Blanket ban is not necessarily the
best response to slippery slope concerns, regulatory safeguards
might offer more protection to vulnerable patients.
Risk that a blanket ban drives the
practice underground.
(c) Protecting the medical profession
Intrinsically good for doctors to
cultivate a virtue based upon adherence to a strict ethical code.
Instrumentally good because it fosters
patient trust and confidence.
BUT doctors do routinely shorten our
livespurely symbolic/linguistic resonance of killing?
Euthanasia's prohibition is principally
directed to preserving this symbolic moral ideal about the proper
limits of medical power.
3. IGNORING THE
PATIENT'S
PERSPECTIVE
Can only distinguish lawful/unlawful life-shortening
practices from the doctor's perspective:
From the patient's perspective, the
line drawn between lawful and unlawful life-shortening practices
makes very little sense.
Clinicians prefer methods of shortening
life that are more like letting die and less like killing. However,
from the patient's perspective, a painful, protracted death is
self-evidently worse than a quick, painless one.
From the patient's perspective, it
seems arbitrary that those on life support can insist upon compliance
with their requests for withdrawal, while those who are terminally
ill but not dependent on machines cannot receive any assistance
to die.
None of the lawful means of ending
patients' lives promote the sort of death that most of us would
prefer (that is, to die at home in the presence of someone we
love).
4. AN ABSOLUTE
PROHIBITION
Unlike other ethical principles (such
as prohibition on sexual contact with patients and duty to respect
confidentiality), there are no exceptions to the prohibition on
doctors helping their patients to die, however compelling the
circumstances.
Better to prevent euthanasia for
vulnerable patients and to allow it for non-vulnerable patients:
We believe that we have the requisite
certainty to draw this line for treatment refusals.
Whether or not we can tell if
a patient is vulnerable does not depend upon whether they want
active or passive assistance with dying.
We can only defend an absolute prohibition
on euthanasia if we ignore the needs of a small sub-set of patients
for whom it may represent the only way to relieve pain or distress.
A refusal to accept that there are circumstances
which would justify making an exception from a general rule against
active euthanasia does not take seriously enough the perspective
of a competent patient for whom life has become unbearable.
Whose Death is it Anyway: Euthanasia and the Medical
Profession
A significant proportion of all deaths are now
preceded by a decision taken by a doctor which, when acted upon,
will end the patient's life. The purpose of this paper is to investigate
why we continue to forbid the medical profession from doing this
in the most humane and painless way, namely by administering a
single lethal injection. I shall argue that the distinction that
the law draws between lawful and unlawful life-shortening practices
ignores the perspective of the individual patient. In doing so,
the current legal position on euthanasia represents an extraordinary
exception to the patient-centred development of medical law over
the past 50 years.
There are several stages to my argument. First
I critically evaluate the conventional justifications for an absolute
prohibition on euthanasia. I argue that euthanasia is not always
intrinsically wrong, and that regulatory difficulties do not necessarily
pose an insuperable obstacle to legalisation. I suggest that we
prohibit euthanasia only in order to protect an abstract idea
about the proper role of the medical profession. Next, I contrast
the lawful and the unlawful ways in which doctors' decisions may
shorten their patients' lives, and argue that these can be differentiated
only if we refuse to take into account the plight of individual
patients. I then consider the absolute quality of the ban on active
euthanasia and suggest that the law's refusal to admit any exceptions
to a general rule against killing reveals its inability to respond
to individual patients' needs.
1. THE REASONS
FOR PROSCRIBING
EUTHANASIA
(a) Arguments from euthanasia's intrinsic
wrongness
(i) The sanctity of human life:
Some commentators have argued that legalisation
of euthanasia/assisted suicide would be incompatible with the
principle that all human life is intrinsically valuable.[113]
There are two strands to this objection to euthanasia. First,
there is the religious belief that life is not ours to dispose
of as we please. Secondly, some people believe euthanasia involves
making a quality of life judgment that is irreconcilable with
the principle that all lives are of equal value.[114]
Neither of these arguments is persuasive. In
a culturally diverse society, there is no justification for using
religion to restrict the choices available to others.[115]
The belief that God alone should decide the moment of an individual's
death cannot be the foundation of public policy. It could also
be argued that God's monopoly on determining the moment of death
has already been substantially undermined by routine practices
such as the withdrawal of life-support.
The idea that euthanasia involves unacceptable
qualitative judgments about whether a life is worth living is
unconvincing, since we already allow competent adult patients
to make this sort of judgment by refusing life-sustaining medical
treatment. In some cases, doctors must positively remove the equipment
that keeps the patient alive, and thus are effectively under a
duty to act deliberately to hasten death, even where the patient
is likely to make a complete recovery, and wants to refuse life-prolonging
treatment for illogical reasons, or for no reason at all.[116]
Doctors are allowed to administer potentially
lethal doses of painkilling drugs by virtue of the doctrine of
double effect. According to the doctrine, a doctor who intends
a good consequencerelieving painis not guilty of
murder just because she foresees, but does not intend, a bad consequenceie
death.[117]
But in the context of palliative care, when a doctor foresees
that the dose of analgesic drugs which she is about to give is
going to cause death, she must have reached the conclusion that
death would be an acceptable outcome. Even if we accept that death
is not the principal purpose, she must have decided that the patient's
interest in pain relief now outweighs her interest in continued
life. It is difficult to see how this decision can be made without
taking into account the patient's quality of life.
When life-prolonging treatment is removed from
incompetent patients, the judgment that continued life has ceased
to be a benefit to the patient is generally made by a third party.
The House of Lords decision in Airedale NHS Trust v Bland[118]
confirmed that life support could be withdrawn from patients in
a persistent vegetative state (PVS) because it is not in their
best interests to have their lives prolonged, but once a patient
has irrevocably lost the capacity for consciousness, it is a matter
of complete indifference to him whether treatment is continued
or withdrawn. Such a decision cannot be made without imposing
our judgment about whether a permanently insensate life is
worth living,[119]
and this inescapably involves making a quality of life judgment.
Adherents of the "sanctity of life"
argument should also be troubled decisions of "medical futility".
From the patient's perspective, treatment that has a one in 20
chance of curing them is not necessarily futile, rather it may
represent their only chance of postponing death. Yet the courts
do not condemn doctors who withhold potentially life-saving treatment
from patients who want to go on living for as long as possible.
Such decisions are believed to lie within the proper scope of
medical discretion.
(ii) The act/omission distinction:
One possible justification for distinguishing
between euthanasia and treatment withdrawal is the distinction
between acts and omissions, or between killing and letting die.
Instead of a binary division between acts and omissions, I suggest
that it makes more sense to think in terms of a spectrum. Towards
either end of this continuum might lie cases such as shooting
someone at one end, and failing to give money to charity at the
other; but in the middle, the line between "doing" and
"not doing" becomes much less clear.[120]
Treatment withdrawal, which indubitably involves
doctors doing something, is a good example of conduct which lies
on the boundary between acts and omissions, because it could easily
be described as an action. It is by taking into account the surrounding
circumstances, and not by labelling what the doctor does as an
omission, that we can ascertain whether her conduct is acceptable.
The morally relevant fact is not whether what the doctor does
is an omission or an action, but rather whether the background
against which the decision has been taken justifies the doctor's
conclusion that life, in these circumstances, should not be artificially
prolonged.
Evidence that withdrawing life support might
be inappropriately categorised as an omission comes from consideration
of conscientious objection. Doctors whose consciences prompt them
to refuse to participate in the withdrawal of life-prolonging
treatment are unwilling to act deliberately to cause their
patients' deaths. This was the perspective of the treating clinicians
in Re B (adult: refusal of medical treatment).[121]
Dame Elizabeth Butler-Sloss P explained that clinicians
could not, however, bring themselves to contemplate
that they should be part of bringing Ms B's life to an end by
the dramatic step of turning off the ventilator. (My emphasis).
(b) Arguments from regulatory obstacles
(i) Problems in ensuring the voluntariness
of requests:
For a number of reasons, it has been suggested
that ensuring requests for assisted death are made voluntarily
represents an insuperable obstacle to legalisation. First, because
it would be hard to guarantee that a patient's desire to die was
genuineand not, for example, a symptom of treatable depressionsome
argue that we should not comply with any patient's request for
euthanasia.[122]
Secondly, given the finality of euthanasia, opponents of legalisation
have argued that we could never be sufficiently certain that a
person's request for euthanasia had been both properly informed
and competently made. Finally, the privacy of the doctor/patient
relationship would, it has been argued, make it almost impossible
to ensure that the patient had not been pressurised into requesting
euthanasia.[123]
The obvious response to these arguments is that
we already allow patients to make decisions which will result
in their deaths through refusals of life-prolonging treatment.
A patient who is connected to a ventilator may be depressed, and
we may wrongly judge her to be competent, but this inescapable
risk of error does not persuade us that we should prevent patients
from taking life and death decisions. Instead the appropriate
response is a careful assessment of her decision-making capacity.
Nor do we think that the principle of patient confidentiality
represents an insurmountable obstacle to our ability to protect
vulnerable patients from being coerced into agreeing to the withdrawal
of life-prolonging treatment.
(ii) Preventing abuse:
It has been suggested that if euthanasia were
legal, elderly patients would be pressurised into electing a premature
death by unscrupulous relatives. Pressure may also come from the
medical profession, since euthanasia would be cheaper than providing
optimum palliative care, and might appear to be a cost-effective
"treatment" for old age and terminal illness.[124]
It is also common for elderly people to perceive themselves to
be a burden to their families, and there is a danger that they
might request euthanasia despite their desire to go on living.
The legalisation of euthanasia would not present
a unique opportunity for the mistreatment of the elderly. Common
practices, such as withholding or withdrawing life-prolonging
treatment without the patient's consent, may pose an even
greater risk to vulnerable individuals. Do Not Resuscitate orders,
for example, are often made without consulting the person whose
life is at stake. Life-prolonging treatments are commonly withheld
from competent patients because the doctor judges treatment to
be futile, even if the patient herself would prefer to live on.
And if we are concerned to protect vulnerable patients from electing
a premature death against their wishes, we should probably be
more concerned about refusals of life-prolonging treatment,
where the patient's decision must be respected even if it is wholly
irrational.
A carefully regulated system would offer much
more effective protection than a blanket ban which simply pushes
the practice underground and magnifies the risk of abuse. An analogy
could be drawn with arguments made prior to the partial decriminalisation
of abortion: advocates of legalisation argued that abortion's
continued illegality ensured that pregnancies were terminated
in unsanitary conditions, without the safeguards and control that
would be possible if doctors were allowed to provide women with
safe, legal abortions.[125]
(iii) A slippery slope?
The slippery slope claim is that even if we
accept that euthanasia might sometimes be reasonable, we should
nevertheless prohibit it because sanctioning some compassionate
acts of killing would make it difficult to prevent doctors with
less benevolent motives from ending their patients' lives.[126]
The argument suggests that although we might be able to distinguish
paradigm cases at the top of the moral slope from those at the
bottom, it would be very difficult to locate or police the line
between acceptable and unacceptable practices towards the middle
of the slope. Yet this "grey area" problem exists whenever
we attempt to regulate anything.
Would legalising euthanasia make involuntary
killing more likely? We might answer this question by examining
statistics from countries which have legalised euthanasia, but
there are different and contradictory interpretations of the available
data. Despite their essentially empirical character, slippery
slope arguments are seldom decisively proved or refuted by the
available evidence, because the evidence will inevitably be interpreted
through the partisan lens of the opponent or the supporter of
legalisation.
A blanket ban seems a peculiarly blunt approach
to regulation, especially since the consequence for patients who
do clearly merit access to euthanasia will be a painful or otherwise
intolerable death. It would be more logical to advocate regulations
which confine access to euthanasia to patients whose circumstances
lie at the top of the moral slope (whatever those might be), and
prohibit it in all other cases. Hypothetical speculation about
an as yet unwritten law's possible future inefficacy does not
offer adequate justification for a refusal to contemplate even
thinking about regulation.
(c) Protecting the Medical Profession
The British Medical Association has consistently
opposed the legalisation of euthanasia on the grounds that for
the medical profession to "acquire an additional role alien
to the traditional one of healer" would be "in tension
with the fundamental role of doctors".[127]If
doctors had to learn how to kill, the medical profession's image
of itself as a healing profession would be fatally undermined.[128]
It might be argued that it is intrinsically
good for doctors to cultivate adherence to a rigorous ethical
code which absolutely forbids killing, or that the complete prohibition
of medicalised killing promotes optimum patient care by fostering
a relationship of trust and confidence. Patients are able to trust
their doctors, it is argued, precisely because they belong to
an honourable profession with its own strict ethical codes. But
of course, we already know that doctors routinely make decisions
which shorten their patients' lives, although none of the lawful
ways in which doctors routinely cause their patients' deaths have
the brutal linguistic resonance of "direct killing":
withdrawing treatment "lets nature take its course";
a life-threatening dose of analgesics is simply intended to relieve
pain. I would argue that euthanasia's continued illegality is
principally directed towards preserving this symbolic moral ideal
about the proper limits of medical power.
2. CONTRASTING UNLAWFUL
AND LAWFUL
WAYS TO
SHORTEN PATIENTS'
LIVES
From the patient's perspective, the line the
law draws between lawful and unlawful life-shortening practices
makes very little sense. If we allow doctors to engage in some
practices which will end their patients' lives, why not permit
doctors to accomplish exactly the same end more swiftly and painlessly?
Lawful and unlawful life-shortening practices
can be distinguished only by adopting the medical practitioner's
perspective. For example, the practice of terminal sedation, whereby
a patient is lawfully sedated into a coma, and then removed from
the artificial ventilator which is keeping her alive, is functionally
indistinguishable, from the patient's point of view, from active
euthanasia.[129]
For the dying patient, it is difficult to see why terminal sedation
should be treated so differently from euthanasia.
In Re B (adult: refusal of medical treatment),[130]
the clinicians involved in Ms B's care did not want to withdraw
artificial ventilation, but were prepared to adopt a "one-way
weaning" programme, gradually reducing the breaths supplied
by the ventilator, even though death would take several weeks.
From the doctors' perspective, one-way weaning was preferable
to complete withdrawal because it would be more like "letting
die", and less like killing. It would be easier for them
to live with. But however difficult it might be for the doctors,
from the patient's perspective, a protracted and perhaps painful
death is self-evidently and emphatically worse than a quick, painless
one.
In the same year the English courts heard Mrs
Pretty's request for assistance in dying. Mrs Pretty was not connected
to artificial life-support, and hence needed more active assistance
in order to end her life. But while Ms B could insist upon compliance
with her wish that her life be brought to a quick and painless
end, Mrs Pretty had to endure a distressing and frightening death.[131]
From the patient's perspective, it makes little sense that access
to a "good" death should depend upon something as apparently
arbitrary as whether or not one is able to breathe unaided. It
also seems strange that doctors can end the lives of patients
(like Tony Bland) who have many years of pain-free existence ahead
of them, while no assistance can be provided to competent adult
patients (such as Dianne Pretty) whose final few days have become
unbearable.[132]
Most of us would prefer to die quickly and at
home, in the presence of someone we love, yet none of the lawful
means of ending patient's lives promote this sort of death. Withdrawal
of life-sustaining treatment invariably takes place in hospital,
and when artificial nutrition and hydration is withdrawn, the
patient will slowly starve to death. The moment of death is unpredictable,
and the patient's family may not be present. Voluntary euthanasia,
on the other hand, could be given to a patient in her home in
the presence of friends or relatives. Evidence from the Netherlands
indicates that the relatives of patients who die as a result of
euthanasia cope better with bereavement than the relatives of
patients who die naturally, because they have the opportunity
to talk openly about dying and say goodbye, and are prepared for
the time and manner of the death.[133]
3. CONCLUSION
Competent adult patients seeking to end their
lives will generally fall into one of three groups. First, there
are those who are able-bodied enough to take their own lives.
Suicide is not a criminal offence;[134]
therefore it is lawful and relatively straightforward for patients
in this group to end their suffering by taking their own lives.
Secondly, there are patients, such as Ms B, who are connected
to artificial means of life support and have the right to insist
that their doctors do something to bring their lives to a quick
and painless end. Finally, there are patients like Dianne Pretty,
who fall somewhere in between. They are not sufficiently able-bodied
to commit suicide, but neither are they sufficiently disabled
to require artificial life support. This third group of patients
have no option but to endure an unendurable death.
The purpose of this paper has been to show that
we can only defend an absolute prohibition on euthanasia if we
ignore the needs of this small sub-set of patients for whom it
may represent the only way to relieve their pain or distress.
This disregard of the individual patient's perspective is wholly
at odds with the trend towards a patient-centred approach to medical
law and ethics.
What is particularly important about the prohibition
of euthanasia is that it admits absolutely no exceptions. However
compelling an individual patient's reasons for wanting her doctor
to help her to die, and however sympathetic a doctor might be
to her request, euthanasia remains illegal. No other rules of
ethical conduct have this absolute qualityit is always
possible to make an exception if there are sufficiently compelling
reasons. Instead of anticipating the different situations in which
euthanasia might be requested, and attempting to work out which
requests should be honoured, and which refused, the law insists
that all requests, including those from people who are plainly
both competent and suffering truly intolerable distress, must
be turned down. A refusal to accept that there might be circumstances
which would justify making an exception from a general rule against
active euthanasia does not take seriously enough the perspective
of a competent patient for whom life has become unbearable.
113 L Gormally "Euthanasia and Assisted Suicide:
Seven reasons why they should not be legalised" in D Dickenson,
M Johnson, J S Katz (eds) Death, Dying and Bereavement 2nd
ed. (London, Sage, 2000) 286-90. Back
114
J Keown Euthanasia, Ethics and Public Policy: An Argument against
Legalisation, (Cambridge UP, 2002) 244. Back
115
M Otlowski Voluntary Euthanasia and the Common Law (Oxford
UP, 2000) 216. Back
116
See, for example, the statements of all three judges in the Court
of Appeal in Re T (Adult: Refusal of treatment) [1993]
Fam 95, and of Butler Sloss LJ in Re MB (An Adult: Medical
Treatment) [1997] 2 FLR 426. Back
117
For a defence of the doctrine of double effect, see J. Keown supra
n 4, 18-29. Back
118
[1993] AC 789. Back
119
R Dresser "Missing Persons: Legal Perceptions of Incompetent
Patients" (1994) 46 Rutgers Law Review 609, 662. Back
120
A P Simester "Why Omissions are Special" (1995) 1 Legal
Theory 311-35. Back
121
[2002] 1 FLR 1090. Back
122
J D Velleman "A Right of Self-Termination?" (1999) 109
Ethics 606-628, 618. Back
123
D Callahan and M White "The Legalisation of Physician-Assisted
Suicide: Creating a Regulatory Potemkin Village" (1996) 30
University of Richmond Law Review 1. Back
124
L Gormally n 3 above. Back
125
See further S Sheldon "The Abortion Act 1967: A Critical
Perspective" in E Lee (ed) Abortion Law and Politics Today
(London, Macmillan, 1998) 43-58. Back
126
D W Brock "Voluntary Active Euthanasia" (1992) 22 Hastings
Center Report 10-22. Back
127
End of Life Decisions Views of the BMA (London, BMA, 2000). Back
128
L Kass and N Lund, n 36 above. Back
129
See further D. Orentlicher n 7 above, 855-- and M P Battin
n. 43 above, 104-5. Back
130
[2002] 1 FLR 1090. Back
131
Mrs Pretty died precisely the death she feared 12 days after the
ECHR rejected her application. Back
132
M Freeman, n 20 above, 606. Back
133
N B Swarte et al, "Effects of euthanasia on the bereaved
family and friends: a cross sectional study" (2003) 327 British
Medical Journal 189. Back
134
Suicide Act 1961, s 1. Back
|