This Submission has been prepared on behalf of The Linacre Centre for Health Care Ethics1, a national Catholic bioethics centre established in 1977 by the Roman Catholic Archbishops of England and Wales, who are its Trustees. The Centre has a record of academic research and publication in the field of health care ethics,2 and an involvement in teaching and in consultancy work both for the Church, nationally and internationally, and for other bodies.
It is not the aim of this submission to make a documented presentation of the teaching of the Roman Catholic Church on the topics which concern the Select Committee.3 A simple statement of position is unlikely greatly to aid the Committee in its deliberations. The Centre has always sought to make intelligible to non-Catholics and non-Christians the Church's moral teaching in its bearings on the practice of medicine. Much of that teaching belongs to what has been called the tradition of common morality, whose central tenets belong to the moral patrimony of civilised societies.
Accordingly, the present submission is devoted to a broad exposition of that framework of moral understanding which has long shaped the traditional ethic of medical practice. Offering such an exposition seemed the most useful exercise we could undertake in relation to the deliberations of the Select Committee. For it is unlikely that the members of the Committee will find themselves disagreeing only about relatively derivative issues. Decisive disagreements are more likely to focus on the most fundamental issues: the value of human life, the moral significance of intention, the ethics of killing, the claims of autonomy, the purpose of medicine and its relation to duties of treatment and duties of care. Fundamental topics such as these are what the present submission seeks to illuminate, in a way accessible to those who do not share the religious faith of its authors.
Part One of this submission (Sections 14) is a sustained exposition which seeks to clear away some of those systematic misunderstandings of traditional moral principles which have obstructed a clear grasp of their continuing relevance to the practice of medicine and their implications for legislation and public policy. Without an accurate understanding of these principles it is not possible to appreciate what a traditional ethic requires of medical practice. Central to that ethic has been the prohibition on intentionally killing patients, a prohibition respect for which has been a necessary foundation of the trust between doctor and patient which is so essential an ingredient of the therapeutic relationship.
Systematic misunderstandings of traditional moral principles, and false inferences from them, are nowadays offered to justify jettisoning a traditional ethic of medicine in the interests of having doctors kill patients. In some cases this change is supposed to be in the interests of patients. But often enough the change seems to be promoted in response to the concerns of those who want patients killed because they are perceived to be an unwelcome burden either to families or to the Health Service.
In Part Two of this Submission (Sections 56) the proper role of the Courts in interpreting the law is discussed along with general and specific proposals for change in the law.
In Part Three (Sections 78) the Submission comments on (a) the changed character of the apologetic for legalising euthanasia which has in part come about in response to the success of the Hospice Movement, and (b) the lessons to be learned from the permissive practice of euthanasia in Holland.4
Lord Justice Hoffmann rightly remarked in Airedale NHS Trust v Bland 5: 'This is not an area in which any difference can be allowed to exist between what is legal and what is morally right.' There cannot be a true determination of what is morally right and legally appropriate if competing moral viewpoints on so fundamental a matter as killing are treated as having equivalent claims, and, in consequence, proposals for legislative change are designed as a pragmatic compromise between these viewpoints.
The moral issues which confront the Select Committee are not radically new in character, though they may have been given new forms by advances in medical technology and clinical practice. Questions about when to withhold or withdraw treatment and whether it can ever be right for doctors to kill patients are questions with a long history. A carefully considered and elaborated set of answers to them has for centuries supported a humane practice of medicine, of which a shining example in our own age has been the development of palliative care in the Hospice Movement. Those carefully considered answers and their relevance to contemporary variations on old challenges deserve the attentive consideration and endorsement of the Select Committee. It is in the hope of promoting those ends that this Submission is respectfully offered.
Central to the concerns of the Select Committee are the questions: What may justify decisions and courses of conduct intended to bring about a person's death?6 and: Can such decisions and conduct be justified by either the wishes or the best interests of the person to be killed? These questions are nowadays apt to give rise to talk of a conflict between respect for the sanctity of human life and respect for autonomy (self-determination). Accordingly, it seems appropriate to begin with a consideration of the significance and grounding of these moral requirements and of their precise implications for certain central issues in medical practice.
In the Christian tradition the idea of the sanctity of life was employed exclusively of human life, to assert its inviolability, i.e. the entitlement of any human being to protection from unjust attack. So employed the idea con notes the specific grounds for such inviolability, namely that human life possesses an intrinsic dignity and value because created by God in his own image (Genesis 1:26) for the distinctive destiny of sharing in God's own life. A significant body of theological reflection on this revealed doctrine analysed the meaning of the image of God (imago Dei) in terms of the distinctive capacity for rational existence inherent in man's nature. It is in the nature of human beings to possess the capacity to develop both the ability to understand what is truly good and the ability to be moved by the desire for what is good. The authentic development of these abilities can lead us into a life of self-giving love which mirrors the very life of God: being made in the image (imago) of God, we are able to acquire his likeness (similitudo), an achievement which is the proper fulfilment of a human life.
Traditional understanding of the sanctity of human life, set in its original theological context, may be summarised in three points:
In modern Western societies the theological understanding of human dignity has been transformed into secularised doctrines of the equal dignity of all citizens, doctrines which are the basis of what is sometimes called the 'politics of universalism', which insists on the equal basic rights and entitlements of citizens. Secularised doctrines of human dignity need to provide (a) some account of what underpins the claim that human beings possess dignity, and (b) some account of what is required if choice and action are to be consistent with human dignity. In what follows some of the accounts which are on offer in our society will be assessed with particular reference to the adequacy 01 the answers they otter to the question 01 when Killing is justified. A correct answer to this question is clearly fundamental to an understanding of justice in society, and to the criminal law, since protection from being unjustifiably killedis a precondition of enjoying whatever rights an individual may have.
The traditional belief in equal human dignity, both in its religious and secularised versions, is denied by a number of influential voices in our society. The understandings they offer of the basis for attributions of human dignity entail that dignity does not belong to all human beings. Broadly speaking, possession of human dignity is said by these thinkers to depend on two requirements: (a) on a human being having developed presently exercisable psychological abilities for understanding, choice and rational communication; and (b) on a human being actually exercising such abilities in the enjoyment of an acceptable quality of life. The precise relevance of the first requirement is variously explained.
A number of thinkers begin from the assertion that human beings are not equal in possessing basic dignity (and the value such dignity imports); they regard belief in the equal and distinctive dignity of human beings as a manifestation of an irrational prejudice (sometimes labelled 'speciesism'8). Rather, they say, a human life has value only in so far as the person whose life it is is in a position to value things and projects and activities and does value them. This means that if one does not possess the developed mental abilities to make it possible for things to seem valuable to one then there is no account one can give of one's life having value. Human beings who do not possess the mental capacities to make things matter to them do not in themselves matter.
On this account a human being can give worth and dignity to his life in so far as he is able to maintain a sense of things and projects being worthwhile and valuable. The corollary of this account of what it is for a human life to have value is that those lacking the mental abilities to confer value on their own lives must depend on others to attach value to their lives. This means, for example, that if those one would normally expect to value the life of an unborn child (the child's parents) or the life of a senile parent (his or her children) do not themselves account that life valuable, then not only is there unlikely to be a social basis for treating that life as valuable, but there is no account to be given of its value.
The requirement that a human being possess presently exercisable abilities in order to possess dignity or distinctive value underlies the distinction Mary Warnock makes between 'simply being alive' and 'the specifically human consciousness of having a life to lead'. Only those enjoying such consciousness, and having the abilities responsibly to lead their lives, possess a distinctive value; and it is only the possession of that consciousness which explains the gravity of killing certain human beings. For humans with some idea of having lives of their own to live, for which they are responsible, 'dying, or being killed, is a different matter from the mere cessation of life'. Those, on the other hand, who are 'simply alive', who have merely 'biological life', cannot have lives with distinctive significance, value or dignity.9 Despite immediate appearances, a similar distinction and a similar conclusion are also basic to Ronald Dworkin's more complex reflections on human worth and dignity and his explanation of why there should be extensive liberty for medicalised killing of innocent human beings. Professor Dworkin claims that almost all citizens have a shared ideal of wishing to honour the conviction that human life is sacred. He himself speaks of human life being intrinsically valuable and sacred, and formally rejects the view that nothing is valuable unless someone wants it or needs it to get what he wants.10 But he also considers that one reasonable 'interpretation' of this value and sacredness of human life is the 'liberal' view that 'life's inherent value ... depends on the intrinsic importance of human creative investment' in it; that is, on what people 'make of their own lives', so that the life which is sacred and inviolable is not 'biological life' but the 'human life ... created ... by personal choice, training, commitment and decision'.11 So Dworkin's own (liberal) view is that a person suffering from Alzheimer's dementia
'is no longer capable of the acts or attachments that can give it [life] value. Value cannot be poured into a life from the outside; it must be generated by the person whose life it is, and this is no longer possible for him.'12
On Dworkin's view, while some locate the 'transcendentally important source of ... sacred value' in 'biological life', others (like himself) think the source of that value lies in the exercisable abilities, especially for rational control of one's life, in virtue of which people can give the shape and significance they wish to their lives.
It is clear, then, that Dworkin's talk about the 'shared ideal of sanctity of life' is practically empty.13 The ideal can guide no one's deliberations until it is given content by 'interpretation'; the interpretations which ground competing claims about right conduct and just law are contradictory; and Dworkin's conclusions coincide with the position favoured by Warnock. The contest which he professed to expel with his talk of consensus about life's sacredness returns with undeniable vigour in the struggle between the thesis (which he dubs 'conservative' but which in many periods and cultures has been recognised as radical and transforming) that human life has dignity even in the most undeveloped human beings or in those severely disabled by disease or decrepitude, and the thesis (which he approvingly dubs 'liberal') which accords to the relatively powerful lethal dominion over the relatively weak. This is a struggle in which the law simply cannot be neutral without abdicating its claim to uphold basic justice, the state's most fundamental duty to protect the lives of innocent citizens against deliberate extinction at the hands of others.
One does not have to rely on religious premises to see that the understanding of human worth advocated by Baroness Warnock and Professor Dworkin, precisely because it is a direct attack on the principle of the basic equality-in-dignity of human beings, is radically subversive of justice. A secularised doctrine of human dignity needs to be consistent with our fundamental intuitions about justice.
What are the implications for justice of the kind of understanding of the worth and dignity of human life proposed by Warnock and Dworkin and similar thinkers who would like to see a radical revision of our homicide laws? Common to their positions is the requirement (explicit or implicit) that human beings possess presently exercisable abilities in order to be counted subjects of justice, and specifically to be counted among those entitled not to be killed intentionally without just reason. For such exercisable abilities are necessary if one is to find value in objects or projects, or to entertain some idea of having a life of one's own for which one is responsible (Warnock), or if one is to be well placed 'to make something' of one's life, thus having a 'life in earnest' whose 'sacredness' might count for something in any competition with the 'investments' which someone else has made in his own life (Dworkin).
The rational abilities necessary to these activities are various, and come in varying degrees in human beings. If actual possession of such abilities is a necessary condition of the claim to be treated justly, questions will have to be faced about precisely which abilities must be possessed, and how developed they must be before one enjoys this claim to be treated justly. And these questions could be answered only by choosing which to count as the relevant abilities and precisely how developed they must be to count. But any such line-drawing exercise is necessarily arbitrary. A distinction between A and B, where A and B fall on either side of a line determining some minimal level of proximate capacity for the exercise of an ability, will not admit of reasoned defence when what is at issue is whether A and B are subjects of justice. If A qualifies for just treatment, B will fail to qualify even though there is very little difference in the degree to which he possesses the relevant abilities.14
Arbitrary choices may be reasonable and unavoidable in determining some entitlements (such as the requirement that one must have been a member of a club for three years in order to enjoy certain benefits). But if one's understanding of human worth and dignity commits one to being arbitrary about who are to be treated justly (i.e. about who are the very subjects of justice) it is clear that one lacks what is recognisable as a framework of justice. For it is incompatible with our fundamental intuitions about justice that we should determine who are the subjects of justice by arbitrary choice. The need for a non-arbitrary understanding of who are the subjects of justice requires us to assume that just treatment is owing to all human beings in virtue of their humanity.
This indispensable assumption is also intrinsically reasonable. It is true that the distinctive dignity and value of human life are manifested in those specific exercises of developed rational abilities in which we achieve some share in such human goods as truth, beauty, justice, friendship and integrity. But the necessary rational abilities are acquired in virtue of an underlying or radical capacity, given with our nature as human beings, for developing precisely such abilities. Yet it should be clear that the dynamic development of this radical natural capacity15 is not directed to the acquisition of rational abilities for them to be exercised in just any fashion. Our abilities to know and choose are not properly exercised by, for example, believing falsehood or choosing to act unjustly, any more than our abilities to see and to walk are properly exercised in double-vision and tripping over obstacles. The nature in virtue of which we come to acquire rational abilities has its proper fulfilment, then, in exercises of rational abilities in which we recognise worth and dignity. But if it is characteristic of the nature of human beings to acquire abilities which are properly exercised in ways which are inherently valuable, then it is reasonable to hold that there is an inherent value or dignity in the nature we share in common, and seriously unreasonable (and radically subversive of justice) to judge that the lives of some human beings lack inherent value because those human beings lack certain presently exercisable psychological abilities.
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1.1.5 Dualism and the false valuation of human life
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