Moral & Philosophical Dilemmas in Death & Dying
MORAL AND PHILOSOPHICAL DILEMMAS IN DEATH AND DYING
Symposium on Death and Dying
by Anthony Fisher, O.P.
Victoria Infirmary, Glasgow, 15.10.94
1. Three views of the difference between killing & letting die
I would like to address this morning some of the moral and philosophical dilemmas concerning death and dying which have been highlighted by a number of recent legal cases and government reports, both here in Britain and more widely in Europe.
Apart from their influence on law and society, these reports illustrate and illuminate much about contemporary attitudes and trends. In particular I will treat some of the recent answers given to the problem of when to treat and when not to treat, when to savem cure and care, and when not to, when to kill and when not to kill.
These are questions which will not go away. Rapid biotechnological advance, especially since the Second World War, has meant more and more can be done by way of diagnosis and treatment. If much more is now possible medically, much more is also now expected. New and better treatments are naturally greeted with enthusiastic demand. The Hippocratic ethic of doing everything possible to help the patient has become in our culture 'hi- tech', 'spare-no-expense' medicine. A good case can be made for the proposition that we expect too much from medicine and from healthcare systems.
At the same time there are pressures to withdraw from the save-cure- care ethic of traditional Hippocratic medicine. The constant upward pressure on health budgets is being resisted not just here in Britain but throughout the Western world. Economic factors and a change in ideology has led to a trend to withdrawal from the commitment of a previous generation to universal health-cover, or at least a redefinition of expectations. Changing views of the value of life, especially of the value of supposedly low-quality lives such as those of the handicapped, elderly, comatose and dying, and a diminishment of taboos against medical killing, have fuelled a growing and vociferous pro-euthanasia lobby. They feed on fears of over- treatment, of people being kept in agony or else unconscious and barely alive on hi-tech life-support when they ought more appropriately to be allowed to die with dignity. It is the moral and philosophical dilemmas raised by these trends which I shall address today.
1.1 The common sense view
Most people, whether they are health professionals or not, say 'boo' to killing and 'hooray', or at least no 'boo', to letting die. But what's the difference, apart from how we feel when we hear the words? I will begin by outlining three views of the difference, which I take to be representative ones, the first which says it makes all the difference in world, the other two which say it makes no difference at all. According to the common sense 'all the difference in the world' view, deliberately killing people is obviously evil, whatever the circumstances, ulterior motives or con- sequences. In a medical environment it conjures up images of healthworkers secretly and possibly involuntarily killing their patients, of handicapped infants and elderly people in institutions being quietly snuffed out, of wicked experimental or eugenics programmes. But even more benevolent killing has, at least until recently, been forbidden according to the common view. 'Letting people die', on the other hand, suggests the much more acceptable practice of 'letting nature take its course', facing up to the limitations of medicine and the fact of impending death, and avoiding heroic measures such as aggressive surgery, drug therapies or intrusive devices. In the end it is not our responsibility to keep everyone alive, nor could we if we tried. And it is a good thing to be allowed to die in peace.
This kind of view is common place in conventional morality, in law, and in medical practice.1 It is presumed in the traditional codes of medical ethics which forbade euthanasia.2 The judges in several recent cases, and the Lords in their recent report, sought to appeal to this tradition by distinguishing between illicitly doing some act which hastens someone's death, and licitly omitting to act to extend life where this is in accord with good medical practice and in the best interests of all concerned. Whether this is an accurate interpretation of the classical tradition will be considered later. What is of interest here is that the weight of the distinction is placed on the difference between -causing-death, which are said to be immoral and illegal, and -causing-death, which are said at least in some situations to be moral and legal.
1.2 The consequentialist view
The consequentialist 'no difference at all' view says that all that matters are consequences. If a person dies because we kill them or just because we sit by and let them die, the result is the same. Any attempt to distinguish the two morally is transparent hypocrisy, designed to appease our queasy consciences and evade our responsibilities. Furthermore, this distinction might well have terrible effects, as when a person who would obviously be better off dead is forced to endure a long period of suffering or undignified existence or expense to self and others, just because no-one is willing to assist her in ending it all.
This view, promoted by some philosophers,3 is gaining currency among sections of the medical profession and healthcare bureaucrats, and increasingly in the popular press. Such a view underlay some of the reasoning in Bland's case,4 and was strongly put by several of those who testified before the House of Lords Committee.
1.3 The vitalist view
The vitalist 'no difference at all' view is that we have an absolute duty to save as many lives as possible for as long as possible. Letting a person die when some intervention might save her is just as wicked, or almost as wicked, as killing her yourself. Any attempt to distinguish the two is (again) a transparent sophistry, designed to cover up a murderous or suicidal activity.
This is the view popularly attributed to the pro-life movement and to its sympathisers such as the mainstream churches, often by those who would like a convenient caricature to criticize,5 but sometimes by members of those groups themselves.
2. My view
I think all these views are wrong. I want to propose instead a qualified form of the (first) common sense view. Properly understood, there an important difference between killing and letting die; and while intentionally killing the innocent is unethical, letting someone die, can be permissible, even required. This requires careful explanation.
2.1 Two kinds of euthanasia: active and passive
In medical situations there are lots of opportunities to save life; there are likewise many ways and means to kill people. When killing is done in the course of medical care for the patient's supposed good (i.e. to alleviate suffering, indignity etc.) we call it ; where a health-professional does something to hasten a patient's death in these circumstances it is called ; when a healthworker aims to hasten a patient's death by omitting to do something she should otherwise have done for a patient she did not wish dead, it is called .6
The most celebrated recent case of active euthanasia in this country was that of Dr Nigel Cox. He gave a lethal dose of potassium chloride to a 70-year-old patient who was in severe pain, terminally ill and asked to be killed. He was convicted by the Winchester Crown Court of attempted murder, given a one-year suspended sentence, reprimanded by the General Medical Council, and required to do retraining in palliative care. But in many places there is considerable lobbying for the legalization of this practice, called euphemistically in the US "physician aid-in-dying". Holland is the first European country to have formally legalized voluntary active euthanasia by physician. Earlier this year the House of Lords committee however came out against it. But we have already accepted as commonplace active euthanasia for the handicapped in the womb; and if we were to accept passive euthanasia the pressure to allow a more active, and in some people's view, more compassionate kind of euthanasia would be considerable.
Passive euthanasia--by means of dehydration, starvation, failure to perform appropriate operations or to give appropriate drugs--is far more common in British hospitals than killing in the more active way. Thus I am advised that infants with certain handicaps are less likely to survive hospitalisation today than they were a decade ago, despite the advances in medicine. Two recent cases of what was arguably passive euthanasia of older handicapped persons were those of Tony Bland and S. Tony Bland was left by the Hillsborough football stadium disaster in a 'persistent vegetative state' ('PVS') and it was held by the courts that his continued tube- feeding (and by implication, his continued living) was not in his best interests. Thus all food, water and antibiotics were withdrawn from him and, as expected, he died nine days later. S was a 24 year old man with acute brain damage resulting from a drug overdose. His feeding-tube became dislodged, perhaps accidentally, and the court ruled that it need not be reinserted. There were some differences between the cases. Bland's received a great deal of court time and media attention; S's case was treated hurriedly and received little media comment. Bland's was a clear case of PVS and severe PVS at that; in S's case medical opinion was equivocal and no independent medical opinion was sought.7
Medical killing by neglect or abandonment, rather than by overt action, sanctioned not by statute but by non-prosecution, gradual erosion of the common law by judicial decisions, and gradual change in medical practice, is the most likely way for more widespread euthanasia to be introduced here in Britain. In many places there is considerable lobbying for the legalisation of this practice, called euphemistically in the US 'benign neglect by physician'. Bland's case was the test case in this area.
2.2 Moral equivalence
I believe active and passive euthanasia are morally equivalent. Usually, of course, the distinction between action and omission, intervening and 'letting nature take its course', is morally important, even decisive,8 and much of law and social practice follows this. There are only so many things we reasonably can choose and do, and we are not guilty of failing to choose or do all the other possibilities. We are not morally responsible for the deaths of every person we might conceivably have helped, if we are devoting our time and energies to other morally reasonable purposes, fulfilling our responsibilities.
But it is also the case that we can intend to kill someone but organise or exploit the situation so that this requires no positive act on our own part: only our failure to do something. Obvious examples of this would be where a parent sees her baby drowning in the bath and fails to intervene; or where children fail to feed a starving elderly parent;9 or where ancient Greeks or modern health-professionals abandon handicapped infants. Of course in these situations the agents can say "I didn't do anything": but that is precisely the problem: they should have, and someone died as a result. These situations are morally equivalent to acts of killing.
Whatever the legal situation, from the moral point of view--as the judges in Tony Bland's case openly recognized--it makes no difference whether one uses active or passive means to kill: once you have decided to hasten someone's death (and everyone agreed in both the Cox and Bland cases that that was the intention), whether one uses active or passive means is simply a question of strategy. Thus on 7 March 1994 Judge Geoffrey Grigson in Old Bailey convicted an unnamed man of mansluaghter by omission when his baby son died of neglect. But it seems that the law will allow killing in certain circumstances: for now, only by a strategy of omission or neglect, of failing to do things we would do for patients we wanted alive; for now, the law will only allow this is grave cases such as PVS; for now, our motives must be respectable ones such as the relief of torment to the onlookers and the community; and for now there must be support for the practice in at least some quarters of the medical establishment. But the intention can still be to hasten the patient's death.
My assertion of the moral equivalence of active and passive euthanasia may seem strange, since I said only a few minutes ago that I thought the difference between killing and letting die is important, vitally important. Where, then, would I draw the line between immoral killing (euthanasia, whether active or passive) and morally permissible letting die, and how would I justify the difference? I would suggest that we might consider four basic principles.
3. The sanctity of human life
The first basic principle has traditionally been called 'the sanctity of human life',10 a principle much referred to in the Cox and Bland cases and in the House of Lords report. The principle was said to be deeply embedded in our law and ethics, in Britain and throughout the world, included in international human rights documents, and strongly felt by people of all religions and none. It is basic to our common morality. Human beings are held to be entitled to great and equal respect; their lives are of such intrinsic importance that no choice intentionally to bring about an (innocent11 ) person's death can be right. Thus the principle has traditionally been worded "you shall not kill" or "everyone has (an equal and inalienable) right to life".
The House of Lords concluded:
Society's prohibition of intentional killing...is the cornerstone of law and social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia...Moreover dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole.12
Applied medically the sanctity of life principle excludes medical killing: amongst the ways in which healthworkers may not deal with their patients, killing them is one.
Thus classical medical ethics has held that physicians might not be called upon to act as public executioners.13 Likewise it has traditionally excluded both active and passive euthanasia. Thus the court and the GMC held that Dr Cox had acted contrary to his duty as a doctor when he killed a patient even though she was in severe pain and had asked to be killed.
Most people regard killing someone simply for advantage or convenience of others as inconsistent with recognition of that person's dignity, and immoral. But dilemmas arise both for health-professionals and for others when a patient keeps asking to be killed, or is in excruciating pain, or is very dependent, or is a great strain on the financial and personal resources of others, or is living in a state of permanent unconsciousness. Then we will certainly sympathise with the person who feels permitted, even driven, to killing. Most people, for instance, would have agreed with or at least understood the hope of Mr Bland's family and S's mother and their medical care teams that the young men would die sooner rather than later. True, neither were on any life support machines, despite the press talk of switching their life support off: they were only receiving tube-feeding and the ordinary nursing care which thousands of temporarily or permanently disabled people receive all the time in Britain. But they were unlikely ever to regain consciousness and were a significant burden on others. The question was: should we hurry up their deaths?
I think we must face up to the fact that we cannot do so and at the same time give full force to the sanctity of life principle. Thus proponents of active and passive euthanasia must deny the principle in some way.14 Some for instance argue that there is nothing about human beings which is especially or equally valuable or deserving of respect. Some would hold that only human beings with certain qualifications are entitled to such respect: consciousness was the crucial qualification in the mind of the judges in Bland's case, so much so that they were sometimes unclear about whether he was really a living human being.15 Again, some would argue that some human beings, such as Tony Bland, are simply 'better off dead': their value is overridden by their suffering or degradation.16
There are also those who would respect every person's right to life in principle, but hold that in some situations it might legitimately be compromised to serve other important values. When we talk, for instance, of "putting granny out of her misery", what we often mean is "putting granny out of our misery". Lord Mustill, who approved the decision to discontinue Tony Bland's tube-feeding, confessed the hollowness of the claim that this was in Mr Bland's 'best interests'. (The same language was used in S's case.) He suggested that the interests of the family, the medical staff, and the paying community were decisive here. He concluded that "the distressing truth which must not be shirked is that the proposed conduct is not in the best interests of Tony Bland". His life would be compromised to serve other interests or values.
The underlying premise of all these approaches--that our mere existence as human beings has no value as such, or that it can be discounted by some countervailing disvalue -- is clearly inconsistent with the traditional doctrine of the dignity and inalienability of every human being, whatever his or her condition. However benignly, it ultimately assesses some people as being of negative value. This in turn highlights the fact that essential to the killing / letting die distinction is a high view of human dignity and equality, and of our moral responsibilities in acting and forbearing to act with respect to it.
4. Care for the sick
A second basic principle in this area is the duty to care for others. Negatively this means we may not harm people or treat them negligently or with disrespect. Positively it refers to 'Good Samaritan' duties to show kindness to others, especially the most needy, and to our special responsibilities towards dependant persons in our particular care. These duties are again supported by beliefs and documents ranging from the Bible and Koran to the International Covenant on Economic, Social and Cultural Rights. Thus certain basic measures such as food, water, shelter, clothing, sanitary and nursing care must be maintained out of respect for the human dignity of every person; anything less is unjust discrimination.17
In addition to these common humanitarian duties we have towards each other, there are the special duties of care peculiar to healthworkers. Because of the special vulnerability of patients, it is important that health-professionals have a clear sense of what is owing to their patients by way of action and restraint. The western medical tradition has developed an ethic of ('medical beneficence and non- maleficence'), i.e. that a healthworker will do no harm to, nor take any undue risks with, her patients, but will, rather, seek to promote the patient's good health. The principle of medicine as therapy excludes the use of medicine for other purposes such as social engineering, exploitative experimentation, profit maximisation etc. And it has traditionally excluded euthanasia: killing cures no one, is not nursing care, not therapy. Thus when Dr Cox injected his patient with a lethal drug that had no possible curative or alleviative potential, he was, in the words of the General Medical Council reprimand, acting "wholly outside his duty".19
5. Respect for patient autonomy
That the dignity of human beings requires respect for their free will, autonomy or right of self-determination is a third basic bioethical and medico-legal principle. 'Autonomy' has become an umbrella-term for a range of ideas which might be summarized as follows. The dignity of human beings requires that we give absolute respect to their free choices. In law and ethics health-professionals only have as much authority as they are given by their patients: this is the basis of the doctrine of consent in healthcare and the right (contrary to traditional paternalism) to refuse medical treatment. It underlies much of the recent talk of patient empowerment, advocates and charters. And some claim that it means healthworkers must respect the directions of their patients . People's views of what matters in life and what is a meaningful death differ: some would want to hold onto life to the bitter end whatever their quality of life (though this might be rather irrational and selfish); others would rather die while they are in full control, their quality of life is still high, and they are happy; others would want to die somewhere in between, when for instance their powers are failing, their quality of life is falling, and they are unhappy. Given the variety of people's preferences, so the argument goes, the important thing is to leave it up to each individual to decide for herself rather than imposing someone else's standards.20
All this sounds very reasonable in our individualistic, consumer culture, and was a powerful theme in the Bland case and in much of the evidence given to the House of Lords Committee by groups such as the Department of Health, the BMA and some philosophers. But it is a very partial view of human dignity and freedom. First, because few sick people fit the bill of the idealized freely choosing agent. As the BMA itself recognized "even apparently clear patient requests for cessation of treatment sometimes stem from ambivalence or may be affected by an undiagnosed depressive illness which, if successfully treated might affect the patient's attitude".21
And the Lords opposed euthanasia because "vulnerable people--the elderly, lonely, sick or distressed--would feel pressure, whether real or imagined".22
The second problem with much autonomy talk is that it fails to situate human freedom within the range of opportunities and values which are the context of human choice. Human beings are certainly free and equal; but this means not only that they have an inalienable right to make free decisions but that they have an inalienable duty to make responsible decisions. So the flip-side of patient consent is that patients, for their part, must exercise this freedom properly, in pursuit of their own good health and respect for the good of persons in community. Free will or autonomy is not mere whimsy: we are not free to do 'whatever we choose'. We have to take into account the intrinsic morality of our choices and their self-constitutive effects, what they do to us, what they make us and say about us.
The third problem with the autonomy line is that it is radically asocial, even anti-social: all that matters is that I get my own way. But we are social animals and human freedom is always exercised within a web of relationships. So we have to respect others. We have to consider the implications of our choices for their lives and for the common good. If we want to be 'put out of our misery' someone else must be involved: so someone else's 'autonomy' is unavoidably affected.
The House of Lords grasped part of this when it insisted that decisions about suicide and voluntary euthanasia are never purely personal ones: they always affect others. "Dying," they said, "is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole."23 Furthermore, the Committee said, healthcare is a partnership of the patient and the health-professionals in pursuit of a common good. It is not like someone impulse-buying a chocolate bar.
Thus 'autonomy', 'respect for autonomy' and 'patient empowerment', at least as understood in classical morality, are not just slogans for a range of supposed rights guaranteeing to the individuals that they can pursue their own life and death plans whatever they are. But detached from its richer ethical context autonomy seems to many people to allow, or even require, euthanasia, at least with consent, and by a dubious but common extension, involuntary euthanasia as well.24
6. The sanctity of human death
A fourth principle is what I call the sanctity of human death. The classical moral tradition recognizes that one need not strive relentlessly to preserve the last vestiges of physical life. It is not a survival at any costs ethic, however often it has been portrayed as such. Indeed a survival at any costs approach can well be due to therapeutic obstinacy, a refusal to face up to the limitations of healthcare and human mortality, a product more of despair than respect for life. Death is an evil, but not the greatest evil. For many people it is a merciful release, the natural end to a life-story well-written, and as believers claim, the door to eternal life.
At some point in most people's life death becomes, as it were, 'inevitable' and, if there is an opportunity to do so, it is important to compose oneself to die well, a need which can be frustrated by too strenuous an effort to prolong life. While one should always value the gift of life, one may not be obliged to prolong it with highly intrusive treatments. Care and respect for the dying often requires that kind of specialised help known as palliative and hospice care, and if this is to be applied it will be necessary for people to accept that death is near and that there is little more that human effort can properly do to postpone it.
Thus traditional medical ethics (and Christian faith) counsel against over-treatment and allows that some treatments will be withheld or withdrawn for good therapeutic reasons.25 Their continued use may be futile, i.e. of no therapeutic value. Or they may impose a burden (in terms of pain, indignity, disruption, confinement, risk, cost etc.) which those concerned judge is greater than the benefit gained.26 In Bland's case, for instance, it could well be argued that the surgery and strong antibiotic drugs he received in the year before he died were not required;27 and in S's case that the repeated surgical reinsertion of the tube was overly burdensome. In this situation treatment would traditionally be termed 'extraordinary' and optional. Furthermore, sometimes treatments are properly given or withdrawn for the therapeutic good of the patient even though this risks shortening life though not with this as the object.
Again, , this principle might be thought to allow euthanasia, at least by omission, in some cases. In Bland's case Lord Goff, for instance, highlighted the fact that traditional medical ethics has allowed the removal of ventilators and the administration of pain-relieving drugs to the terminally ill even where it is known that this would abbreviate the patient's life, suggesting that therefore the sanctity of life principle is not absolute.28
7. Reconciling these four principles: when letting die is not the same as killing
How are we to resolve the moral and philosophical dilemmas which these matters present us with? The simple answer is: 29 When healthworkers give a pain-relieving drug, or withhold or withdraw some treatment, and death results earlier than it might otherwise have done, hurrying up death may or may not be why they chose such a course of action. Encouraging death is often no part of the health- professional's reason for such chosen conduct. Death may or may not be foreseen, but it is not intended; it belongs neither to the healthworker's precise purpose, nor is it the means used to achieve that purpose.
On the other hand, a health-professional may give a pain-relieving drug or fail to treat because the healthworker believes the patient would be 'better off dead', or others would be better off were the patient dead, etc. In this case hurrying up the patient's death is certainly part or the whole of the reason for the health-professional's chosen conduct. It is all a question of intention.
From what I have said so far it should be clear that in healthcare contexts, as elsewhere in live, the negative norm "do not kill" is the same as the positive norm "preserve life in all circumstances and at all costs". Obviously whether or not a medical treatment will prove disproportionately burdensome will depend upon the circumstances and condition of the patient and others: one cannot simply list ordinary and extraordinary treatments as such. But the judgment that a treatment is too burdensome is the same as a judgment that a life is too burdensome. It does involve any arbitrary quality-of-life judgment that a person lacks overall value and so for that reason may justifiably be ended. If a healthworker discontinues a treatment in order to avoid imposing disproportionate burdens on a patient, even if in consequence death is likely to result earlier than it otherwise would have done, killing is neither her purpose in making that decision nor her chosen means to avoid the burdens.
In Bland's case, however, the judges have made a radical departure from this traditional ethic and law, allowing that tube-feeding be withdrawn not because of the futility or burdensomeness of the so-called treatment, but because Tony Bland's continued life was a source of indignity and humiliation to him, a violation of how he would want to be remembered, and an ordeal for others.
Lords Browne-Wilkinson and Mustill--the two who were most openly uneasy about the decision--recognized how subjective such 'quality of life' judgments really are; in the end they reduce to "a matter of personal choice, dictated by background, upbringing, education, convictions and temperament". Lord Mustill also noted that these quality of life judgments are not ones that doctors and jurists have any special skill or expertise to make.
This, then, is where the difference between killing and letting die lies: in the difference between acting and omitting to act (the route the Lords in Bland's case and the Select Committee Report tried to go); in whether a person's life is of good enough quality or burdensome to them or others (again important in the Bland decision); in whether the agent is well-meaning (which the doctors probably were in both the Cox and Bland cases). The distinction lies crucially in the difference between intentionally bringing about a person's death--which is always a harm to the victim, the killer and the common good--and taking a course of action possibly foreseeing but not intending a person's death--which may harm no- one directly.
There is room for a considerable range of opinion even within classical medical ethics (and Christian faith) about what care is appropriate for the permanently comatose, the elderly, the handicapped and the dying. Tube- feeding is one such controversial question. A sound case could conceivably be made for discontinuing Tony Bland's tube-feeding (though I think only with difficulty30 ) and can more easily be made for not reinserting S's tube. The problem with these cases is not so much their outcomes as behind the decisions, what this reveals about trends in law and practice, and what this kind of thinking is likely to allow in the near future. For, at least in the Bland case, we are confronted with what seems to have been a case of intentional killing.
The importance of intentions lies in getting to the heart of who we are and what we are about, our real purposes. The difference between intending- and-causing and foreseeing-and-causing is not always simple, and people's intentions are often as confused as their motives are mixed. But for the most part what is intentional is not in doubt, and various questions and what-if tests can be used to clarify intentions.
8. Some concluding reflections
8.1 Hard cases
We should have great concern for patients such as those in the Cox, Bland and S cases, and seek by whatever means are morally and practically available to ease their suffering and respect their dignity. We should have tremendous sympathy for the family and health-professionals surrounding such patients: when people take a long time to die, those who must accompany them often suffer the most. Perhaps we could do a lot more to support them. In hard cases like these sympathy and compassion also tempt us to compromise our basic norms and to fudge our laws. The temptation, one we all know in our moral lives, is to think that we can allow just one, or a few, exceptions; we can still hold the line 'as a general rule'. But rational reflection--and human experience--suggest that the implications of such exceptions go far wider than the relief of hard cases.
Apart from the intrinsic evil of killing people, medical killing changes us individually, as healthcare professions and as a society. Even discounting the person killed, euthanasia is not victimless because the person who does it is also significantly harmed in the process and so almost inevitably is the community. The healthworker's character will be very significantly shaped by killing a patient, however noble the motivation. It will change her attitudes, habits, dispositions, taboos. A health-professional disposed to think that some patients lack inherent worth or may be killed has, however well-meaningly, seriously undermined a disposition indispensable to the practice of medicine: a willingness to give what is due to patients just in virtue of their possession of basic human dignity. And the absence of that willingness is likely to be fateful for other patients. Ethically, psychologically and sociologically, euthanasia invites further extension of 'therapeutic killing', whether by the same healthworker or others. It also discourages alternative approaches to suffering, such as research into cures and the provision of good palliative care and pain management.31
8.3 Other problems with euthanasia
There are other problems with the euthanasia answer which I have no time to explore here. So I might just flag a few. There are problems of interpreting the plea of patient or by-standers for euthanasia: is it perhaps really a plea for better pain-relief, better support, comfort and love? There is the problem of the pressures, subtle and overt, conscious and unconscious, on patients, families and health-professionals to seek or co-operate in euthanasia once it is permitted: pressure all the harder to resist when one is very vulnerable, one's freedom very limited, one's self- esteem very low.32 Licence for euthanasia would quickly become a duty to take part in it, and there may be little respect for individual conscience in all that. There is the problem of the effects on the doctor-patient relationship, and family relationships, poisoning the atmosphere with suspicion and guilt. The BMA told the Lords that "if doctors are authorized to kill or help kill, however carefully circumscribed the situation, they acquire an additional role, alien to the traditional one of healer. Their relationship with all their patients is perceived as having changed and as a result some may come to fear the doctor's visit."33 Medical ethics and wider societal respect for human life would be further eroded.
As the Lords pointed out: "To create an exception to the general prohibition on intentional killing would inevitably open the way to its further erosion whether by design, by inadvertence, or by the human tendency to test the limits of any regulation."34 Licence for euthanasia would quickly become a duty to take part in it; and it would not be possible to stop the slide from voluntary to non-voluntary euthanasia.35 And there is the spectre of the economic argument, in a rapidly-aging society in which healthcare costs are escalating, to keep extending the occasions for medical killing as a cost-cutting measure. The Lords were right to conclude that "these dangers are such that we believe any decriminalization of voluntary euthanasia would give rise to more, and more grave, problems than those it sought to address."36
The conduct of the Bland case raises many more questions. Why, for instance, were counsel for the Attorney-General and the judges so eager to rule that 'advance directives' or 'living wills' are legal, when this issue had no bearing on the case?37 Counsel for the Attorney-General appeared with the self-styled brief to be an 'independent and impartial' friend of the court: why was he the strongest proponent of withdrawing Tony Bland's tube-feeding and legalizing this kind of passive euthanasia? Why was the common law on homicide by omission and the medical ethics of ordinary and extraordinary means not raised by counsel or considered by the judges? Having been brought (in my view improperly) to the courts, S's case was treated hurriedly and thus received little public scrutiny, the parents were not agreed as to what should be done, and there was considerable doubt about the patient's medical status and prognosis. Given this--and all the appeals for caution in Bland's case--one might have expected the judges to require that S be fed intravenously at least until such time as they could have full and fair hearings. S's counsel was right to claim that he had been denied due process by the urgency with which the court treated the matter. What was the urgency? The only 'emergency' seems to have been that if the declaration were not granted promptly, S's tube might be reinserted by someone and he would live!
Did cost-cutting play a part in the attitude of the Government and courts? Press estimates put the total cost of caring for PVS patients at somewhere between 40 pounds to 150 pounds million a year; were some or all of them 'allowed to die with dignity', there would be significant savings. The parties to the cases were unwilling to raise the money matter; but counsel for the Attorney-General in Bland's case did so, and the judges followed the lead. But how can a society as affluent as Britain, even in recession, justify abandoning the severely handicapped on financial grounds.
And who, we might ask, will be the next listed as too expensive to treat: the semi-conscious, the Alzheimer's patients, the handicapped, everyone over a certain age? Will the burden of caring for such people be gradually shifted from the community to families? Will we invent a new kind of abandonment called 'care in the community' for the comatose and senile?
8.4 Compassionate and merciful?
But finally, we might question just how caring, compassionate and merciful euthanasia really is. Euthanasia is so often presented as the 'merciful' or 'compassionate' way to treat those in severe pain or incurable incompetence. But compassion is not the same as giving people whatever they want, or say they want, or we think they want. Nor is mercy the strategy of curing misery by killing the miserable. No one thinks the merciful answer to the starving millions is to poison them. Compassion is wanting the best for the other, and having empathy with them in their suffering.39 Mercy entails staying by their side, offering good therapeutic and palliative care, and through friendship helping them to recover hope, meaning, and a sense of being loved.40
The Bland and S cases confront us with to the question of why it is that we care for people with PVS, permanent coma, profound intellectual handicap, Alzheimer's Disease, the elderly and the dying. For some of them we may hope that they might regain consciousness and some greater measure of health and independence. But many will not.41 By supporting them we affirm that bodily life is not merely an instrumental good in some way distinct from the human person, but basic to humanity so that death is always a harm. We conform with our basic duty of respect for every human life however wounded or handicapped. And we express our respect for that patient and each person's humanity, express our love for them, maintain our human solidarity or communion with them, and hunbly confess our awe and ultimate impotence before the mysteries of suffering and death. This is a kind of respecting and loving which no one should pretend is easy.
But for all the polemics about 'dignified death' used by the euthanasia movement and now by the courts, we can forget that dignity is not recognised by telling the old, infirm or comatose how undignified their condition is, or how they would be better off dead--as when judges called Tony Bland 'grotesquely alive', 'an object of pity', 'the living dead', and called S a mere body for whom starving to death would be 'no ill effect', or when the judge in a similar case called some handicapped children 'cabbages'. It is not recognised by abandonment. It is certainly not recognized by standing by and watching someone die of thirst and hunger. The 'mercy' killer adds the final rejection to the many already heaped upon the sick, invalid and dying by our community. Dignity in old age, handicap, unconsciousness, and suffering are above all a matter of knowing you are respected and loved. Surely we can find more creative ways of demonstrating love and respect than by killing.
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1 I will rely here on or morality: the mainstream Judeo-Christian and Graeco-Roman ethics, as developed over the past two thousand years, including secular moral philosophy at least until Kant and often beyond. This morality can be formulated in terms favourable to natural reason without theological foundations being necessary, although it will be compatible with them. And it is a morality which has informed much of Western medical ethics, law and practice at least until recent times.
2 Thus in 1988 the World Medical Association proposed: "Euthanasia, that is the act of deliberately ending the life of a patient either at his own request or at the request of his close relative, is unethical. This does not prevent the physician from respecting the will of a patient to allow the natural process of death to follow its course in the terminal phase of sickness." Likewise the British Medical Association declared in 1988: "The law should not be changed and the deliberate taking of a human life should remain a crime. This rejection of a change in the law to permit doctors to intervene to end a person's life is not just a subordination of individual well-being to social policy. It is, instead, an affirmation of the supreme value of the individual, no matter how worthless and hopeless that individual may feel."
3 The classic examples are Glover (1977) and Rachels (1980).
4 A much fuller analysis of the reasoning in this case is given in Fisher (1993a), (1993b), (1993c), and (1993d).
5 e.g. Kelly (1993).
6 The House of Lords (1994) at #21 dismissed this distinction because 'passive euthanasia' is commonly confused with therapeutically warranted withholding or withdrawal of treatment (what I call in this lecture 'letting die'). Unfortunately the Lords failed to provide any alternative language for withholding or withdrawal of treatment with euthanasist intent (e.g. 'euthanasia by omission'), and failed to provide any serious analysis of this practice.
7 In fact S was noisy, restless, threw himself around and pulled on his tube. As a result he was very heavily sedated--over-sedated in the opinion of one of the consultants. The nurses (and perhaps some of the doctors) were convinced that S could experience pain. He might even have experienced the thirst that presumably killed him.
8 See Finnis (1980), pp. 176-77,195 contra Glover (1977).
9 This kind of consideration seems to be behind Gratian's maxim: "Feed the man dying of hunger, because if you do not feed him you are killing him." ( (c.1140), c. 21, #86; adopted by Vatican Council II, (1965), #69).
10 See Boyle (1989), Clouser (1973) and Donagan (1977).
11 I qualify the prohibition on intentionally killing with `innocent' here in line with the Western moral tradition, which allowed intentional killing in the two cases on capital punishment and the killing of unjust aggressors in self-defence, especially in war. On no reading of the Cox and Bland cases could the patients be seen as unjust aggressors against whom proportionate force was used in defence of another person's life etc. On the justification for the 'exceptions' see Fisher (1993d) and sources therein. Hereafter I use the term person and victim presuming (or at least allowing) the traditional qualification 'innocent'.
12 House of Lords (1994) at #237.
13 See Emanuel (1991) at 19-20.
14 Much of this section relies on the work of Gormally (1993) and (1994) and the Linacre Centre (1982).
15 This is the reasoning of Warnock (1992) and Dworkin (1993) so effectively rebutted by the Linacre Centre in Gormally (1994).
16 This is ultimately the reasoning of Kelly (1993).
17 To deny food and water to medically stable but severely mentally handicapped patients--as occurred in Bland's case--is discriminatory because they can enjoy the same substantial benefits of food and water as anyone with no neurological impairments.
18 This derives from the notions such as: human dignity and its individual bearers are deserving of special respect; healthcare professionals and patients are moral equals; we may not choose to harm an innocent; we each have a duty to maintain our own life and health, and to seek appropriate care from others; this is a duty which we share with those who care for us; we each have responsibilities to care for the weak, sick and suffering; and healthcare professionals have special duties in this respect. In addition to these ethical grounds, there are good sociological and psychological reasons for promoting an ethic of beneficence among healthcare professionals. Such an ethic encourages high medical standards and a good doctor-patient relationship.
19 The council's judgment was that "The public rightly needs reassurance that doctors will do their utmost to make a patient's death bearable and dignified by easing pain and suffering. But it is wholly outside that duty to shorten life to relieve suffering."
20 e.g. Dworkin (1993).
21 House of Lords (1994) at #45.
22 House of Lords (1994) at #239.
23 House of Lords (1994) at #237.
24 Thus it is argued that if conscious adult patients can refuse treatments not burdensome in themselves, in order to allow self-determined liberation from 'a life not worth living', it would be inconsistent or discriminatory not to give the same 'right' to the permanently unconscious. Emanuel (1991) demonstrates the emptiness of this notion when the patient concerned is by definition in no position to exercise such a right.
25 House of Lords (1994) at #240. "Some of those who advocated voluntary euthanasia did so because they feared that lives were being prolonged by aggressive medical treatment beyond the point at which the individual felt that continued life was no longer a benefit but a burden. But, in the light of the consensus which is steadily emerging over the circumstances in which life-prolonging treatment may be withdrawn or not initiated, we consider that such fears may increasingly be allayed." At ##252-253: "Obviously it is inappropriate to give treatment which is futile in the sense that it fails to achieve the hoped-for physical result...In other cases, a decision to limit treatment may depend on the balance between the burdens which the treatment will impose and the benefits which it is likely to produce...".
26 Finnis & Fisher (1993); Gormally (1993); Linacre Centre (1982).
27 The House of Lords (1994) at #257 make this point, but unfortunately come to this result by a potentially misleading formula: that recovery of a PVS patient from infection "could add nothing to his well-being as a person". The implication seems to be that there is some difference between 'merely physical' and 'fully personal' life. 'Well-being' is code in contemporary philosophy for 'quality of life'. See e.g. Griffin (1986).
28 See Fisher (1993c) & (1993d) on the question of pain-relieving drugs which shorten life and the removal of ventilators.
29 'Intentional' here is a term of ethical art. It refers to what one does, identified by reference to one's chosen purpose in acting and the means which are chosen precisely because of their relevance to that project. When death is foreseen but not intended, its causation does not feature among the reasons one has for acting; it is unintended, even regretted; it is not contrary to respect for human dignity. Some people treat intentional and foreseen-but- unintended causation as morally equivalent. But were intentional and only foreseen causation of death morally equivalent, one could never build roads, engage in high-risk sports, perform risky surgery, give analgesics for pain control which might reduce life span, withhold treatment, and so on, while being opposed to killing. For a fairly good untechnical presentation see: House of Lords (1994) at ##242-244.
30 See my articles listed in the bibliography.
31 House of Lords (1994) at #241: "there is good evidence that, through the outstanding achievements of those who work in the field of palliative care, the pain and distress of terminal illness can be adequately relived in the vast majority of cases... within hospices... home-care teams... general practitioners... in hospitals and in the community, although much remains to be done. With the necessary political will such care could be made available to all who could benefit from it. We strongly commend the development and growth of palliative care services.
32 House of Lords (1994) at #239: "We are also concerned that vulnerable people--the elderly, lonely, sick or distressed--would feel pressure, whether real or imagined, to request early death... we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life."
33 House of Lords (1994) at #103.
34 House of Lords (1994) at #238.
35 House of Lords (1994) at #238: "we do not think it possible to set secure limits on voluntary euthanasia... it would not be possible to frame adequate safeguards against non-voluntary euthanasia if voluntary euthanasia were to be legalised. It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law was not abused."
36 House of Lords (1994) at #238.
37 The House of Lords (1994) at #263 commended the development of advance directives, as enabling patients to express their preferences and priorities in advance, stimulating discussion, assisting the healthcare team and other cares in decision-making. The committee sensibly emphasized that these directives should not contain requests for any unlawful intervention or omission; nor could they require treatment to be given which the healthcare team judged clinically inappropriate. Rather than supporting legislative provision in this area, the committee thought that it was already the common law that a doctor who acted in accordance with an advance directive would not be at risk of criminal prosecution or action in tort; they thought that "it could well be impossible to give advance directives in general greater legal force without depriving patients of the benefit of the doctor's professional expertise and of new treatments and procedures which my have become available since the advance directive was signed." (at #264) Various other safeguards might well be included: for instance a prohibition on the abandonment of patients (denial of the reasonable provision of food, water, warmth, shelter, pain relief etc.). One might still argue that such provision as imprudent: it could well be used maliciously and be another step towards euthanasia. On the other hand it might be thought to ensure patient rights and undermine the euthanasia cause by vitiating the fear of people being given overly burdensome treatments against their will and contrary to their dignity. Strangely the committee was opposed to appointment of proxies, a procedure which seems to me to have many of the virtues of an advance directive without drawbacks (such as the problem of the directive not being able to deal with new clinical situations). Most of the committee's objections to proxies (at #270) logically apply at least as well to advance directives.
38 House of Lords (1994) at #260 concluded that the law should not create a new offence of 'mercy killing': "To distinguish between murder and 'mercy killing' would be to cross the line which prohibits any intentional killing, a line which we think it essential to preserve. Nor do we believe that 'mercy killing' could be adequately defined, sine it would involve determining precisely what constituted a compassionate motive." Again, at #262: "We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection."
39 In my view the ultimate question for bioethics today, and especially for the euthanasia debate, is how we face ineradicable suffering. In the end we have to admit in all humility we can only do so much to combat pain, disease and death. The mystery of evil, of innocent suffering, must be faced head-on, against the pervasive temptation to demand an immediate technological, consumer or government 'fix' for every discomfort, and to marginalize those who cannot be quick-fixed so that the rest can withdraw undisturbed. In the face of unfixable suffering our consumer culture stands in gaping incomprehension, or rails like a petulant child demanding immediate satisfaction. The fact is that there are evils we cannot 'solve' in any simple, morally acceptable way, and that call forth much that is most noble in the human spirit: patient endurance, fortitude, even heroism on the part of patients, doctors, families and communities. Sometimes this will be more demanding upon the caring bystanders than the patients themselves.
40 The plea for euthanasia is most often a cry for help, a cry of pain, loneliness, alienation, hopelessness. The answer is surely not despair, seeking some easy way out, sweeping the problem under the carpet. As the American Medical Association concluded in 1991: "There is evidence to suggest that most requests for euthanasia or assisted suicide would be eliminated if patients were guaranteed that their pain and suffering will be eased and their dignity promoted." The hospice movement in Britain, which is the envy of the world, has demonstrated that we can provide a positive and loving environment where the seriously ill and dying patient can end their lives with dignity, with their pain properly managed, and knowing that they are cared for and loved.
41 I have argued in several articles that the court's attitude to Tony Bland as a person was fundamental. In various ways doubts were expressed by several of the judges about whether he was really human, whether he was really alive, and whether he should be dead. The same happened last month in . Bingham MR noted that S had "no cognitive function worth the name" and "no conscious being at all". He quoted with approval the consultant's view that S had "no conscious self" and that if the tube were reinserted and feeding resumed "there is no chance whatever of this being to his benefit". The man's mother "clearly wished his to be allowed to die" and though his father had wanted treatment to continue, keeping "S's body" alive would only delay the father's grieving. Were feeding not recommenced "this would cause death within a limited period but there was absolutely no reason to expect lack of food or fluid to cause suffering or ill effect". The suggestion here, as in , was that the patient and his body are somehow two different entities. His very being is seen to depend upon his having consciousness. Otherwise death by starvation and dehydration is "no ill effect". The House of Lords (1994), which otherwise has much to recommend it, unfortunately has adopted some of this same thinking. At #255 the committee claims that the guiding principle in treating the incompetent is whether the treatment will add to "the patient's well-being as a person".