Doctors are skilled practitioners of the art of medicine. The generic skills of diagnosis, prognosis and treatment draw on a basis of scientific knowledge, itself based on research.
It is of the first importance in seeking to define the duties of doctors in respect of treatment to be clear about the purpose of medicine. The purpose of medicine is the restoration and maintenance of health (or of some approximation to health) or the palliation of symptoms. Traditionally, health has been understood as that condition of the body in virtue of which it functions well as an organic whole, so that the individual both enjoys physical vitality in itself and is well-placed to achieve some of the other goods intrinsic to human well-being.26 Health is valued as inseparably an intrinsic and an instrumental good. The palliation of symptoms (when cure is not achievable) aims precisely to control those impediments to participation in other human goods which arise from organic malfunctioning; in other words, given that not even an approximation to health can be achieved, one aims to secure as tolerable a state of the organism as possible so that conscious living (with family and friends and others) may continue. Thus, palliative medicine, in deploying techniques of pain control, is focused, just like other forms of medicine, on the organic component of our aptitude to share in other human goods.27
The prolongation of life has not traditionally been understood as an independent goal of medicine, without reference to the good of health. It has been considered a justifiable aim only in so far as a patient has had some continuing capacity for organic well-functioning sufficient to allow him to share in some of the goods of human life (e.g. contemplation, the exercise of choice, communication, or - and these are particularly relevant to babies - some form of play, the affection of others, the enjoyment of one's own vitality).
The recognition that prolongation of life has not been considered as per se an objective of medical practice should help to dispose of a radical misunderstanding of the requirements of respect for the sanctity of life which has been encouraged in recent years by those who wish to subvert the core requirement (that one ought never to kill the innocent intentionally). The misunderstanding has been to the effect that those who claim that a life has worth or value must mean that one should seek to prolong that life.28
Section 1 has shown that recognition of human dignity would require that a doctor should never intentionally kill a patient. The fundamental worth and dignity of every human life has its source in the human nature each of us shares precisely in existing as a human being. A proposal to kill a patient is a proposal to put an end to that person's existence. But such a proposal cannot be justified for a reason compatible with recognising the worth and dignity of his very existence.
It is in the nature of human beings that they die. There is nothing that we have come to know in recent years which suggests that medicine should revise its traditional goals and seek to defy the inevitability of death. A doctor's decision not to seek to prolong a patient's life need not find its justification in reasons entailing any denial of the fundamental worth or dignity of that patient's life. There may be sound reasons for such a decision, compatible with respect for the fundamental dignity of the patient; these reasons are discussed in the next section.
It follows from the nature of the purpose which the institution of medicine exists to serve that the central duty of a doctor to an ill patient is that of competently employing those medical skills relevant either to aiding and abetting whatever capacity the patient may have for a return to health or to palliating those symptoms arising from disease or disability which impede a patient's remaining capacity to live well.
Two statements by Pope Pius XII may usefully introduce the topic of patient consent in relation to a doctor's duties of treatment. In 1952 he said:
'First of all, one must suppose that the doctor, as a private person, cannot take any measure or try any intervention without the consent of the patient. The doctor has only that power over the patient which the latter gives him, be it explicitly, or implicitly and tacitly. The patient for his part cannot confer rights which he does not possess'29
And in 1957 he made the same point in connection with restating the traditional norms on 'ordinary and extraordinary treatment':
'The rights and duties of the doctor are correlative to those of the patient. The doctor, in fact, has no separate or independent right where the patient is concerned. In general he can take action only if the patient explicitly or implicitly, directly or indirectly, gives him permission.'30
These statements reflect a centuries-long tradition of theological thinking on the doctor-patient relationship, which offers no support for the unbridled paternalism which is sometimes said to have been accommodated by a traditional ethic of medical practice.
It is important to understand the underlying reasons for the place given to patient consent in the traditional thinking articulated by Pope Pius XII.
Medicine is a body of practices which are given their unity by the varied relations they have to the good of health. But the good of health as it is instantiated in the lives of individuals is an aspect of their personal well-being. Precisely as a personal good each person's health is primarily his responsibility. Once a person has reached that stage of physical development at which he is also able to exercise responsible choice, health is effectively promoted only through the choices and commitments of the person himself. For some the choices at a certain stage of their lives need be no more than moderation and good sense in regard to what they eat and drink; for others the required choices are much more exacting.
The view that there is an intimate connection between health and personal responsibility implies that health cannot be viewed as a commodity which one can acquire by going to a doctor's surgery or to hospital. Health is effectively promoted only when a person takes responsibility for his health. The doctor's responsibility to aid and abet the restoration of health can best be discharged if the basic responsibility of the patient is recognised and respected. This means that the doctor must, within limits, respect the competent patient's choice.
There is a second important reason for insisting on respect for the competent patient's choice. Because health is a personal good it may be more or less intensively realised in one's life. The degree to which it is achieved depends in part upon the place other commitments occupy in one's life and the demands they make on one. What persons devote themselves to is a matter of choice influenced by aptitude, opportunity, inclination and inspiration. Sometimes it is a consequence of a serious and worthy choice of a way of life that health is impaired and one loses the opportunity to recover it. A doctor lacks the competence and so the authority to tell us to abandon the shaping commitments of our lives.
Because health is a personal good, an aspect of the flourishing of persons, it is wrong to neglect health problems simply because of laziness, it is wrong to damage health through self-indulgence, and it is wrong because of cowardice to avoid seeking the treatment one needs. While such behaviour is morally unreasonable, it is rarely the case that a uniform course of action is alone morally reasonable: the place one can give to fostering or restoring the good of health in one's own life will depend upon the responsibilities which arise from one's other basic commitments. So for this reason, too, the choice of the patient must be respected.
Nothing in this way of explaining the significance and importance of patient consent suggests that the rationale for its true significance is the right of patients to construct (and deconstruct) their lives as they will, providing only that they do not damage the legitimate interests of non-consenting parties.
The second line of argument for the importance of patient consent suggests that a doctor has a duty to provide therapeutic or palliative treatment of a kind compatible with the reasonable commitments a person has undertaken, even if the 'compatible' treatment is not, in the doctor's view, the ideal therapy for the patient's condition. That kind of compromise is necessary and reasonable.
But there are patient wishes a doctor cannot justifiably accommodate. One such wish is the demand for euthanasia: the case against accommodating it has been fully explained in Section 1. At this point it would be appropriate to add consideration of the request for aid in suicide.
A request for euthanasia is not, of course, a request for assistance in suicide. A request for euthanasia from a patient to a doctor is a request that the doctor kill the patient. Suicide is the carrying out of a choice directly to kill oneself. One can carry out such a choice either by a positive course of action, e.g. by taking a lethal substance, or by deliberately omitting life sustaining treatment or care (precisely in order to end one's life). Just as willingness to carry out euthanasiast killing rests on a false valuation of the life of another, so willingness to commit deliberately chosen suicide rests on a false valuation of one's own life (to the effect that it is no longer worthwhile). Since that valuation is incompatible with respect for one's own fundamental dignity, it is morally impermissible to aid a person to carry out an act of suicide.31
It is clear what this conclusion excludes when suicide is to be accomplished by an act such as taking a lethal dose of a drug: it excludes providing the necessary quantity of the drug with the intention of enabling the person to commit suicide.
When a competent person proposes to commit suicide by refusing necessary life-prolonging treatment (e.g. insulin for diabetes) or by refusing basic care (e.g. being fed) one does not collaborate by failing to override his proposal. The alternative to respecting the requirement of consent is to take a suicidal proposal as evidence that the person in question is incompetent and to force upon him the treatment or care which is in his best interests. But it is unreasonable to treat suicidal proposals as though they were always evidence of incompetence; that would be to act as if people could never be guilty of suicide.
Consideration will be given in Section 4 (Advance Directives) to what a doctor's moral responsibilities are towards an incompetent patient who while competent had left suicidally motivated instructions for his medical treatment in specified circumstances.
There are two quite general grounds for limiting treatment: (i) one is that a particular treatment is failing to achieve its therapeutic or palliative goal (i.e. it is inefficacious treatment); (ii) the other is that it involves burdensome consequences which it is not reasonable to expect a patient to bear. When the patient is competent his own judgement of what is a tolerable burden must be decisive.
Since prolongation of life is not an independent goal of medicine, the possibility of continuing to prolong life does not independently create an obligation to continue to provide life prolonging treatment. If a patient is in the terminal phase of dying it will normally be the case that it is clearly inappropriate to persist with life-prolonging treatment unless that treatment has distinct palliative benefits.
More broadly, therapeutic treatment is to be judged inefficacious if the condition of the patient is such that it would be impossible to secure even an approximation to health in that patient, i.e. some desirable degree of well-functioning of the organism as a whole. It is on precisely this ground that it would be reasonable to withdraw specifically therapeutic treatment from a patient who has been securely diagnosed as irreversibly in a persistent vegetative state (PVS). For the organic condition of the patient has been rendered so seriously defective that it is impossible to achieve a desirable approximation to health (viz, the well-functioning of the organism as a whole).
To say that it may be reasonable to withdraw therapeutic treatment (including, for example, antibiotics for recurrent infection) from PVS patients is not to say that it is reasonable to withdraw ordinary care from them. (For a discussion of what is required in this respect see 2.3.1 below.)
Doctors do not have a duty to provide inefficacious treatment, and patients (and families of patients) cannot reasonably require such treatment of doctors. But it is very important that in answering a question about the worthwhileness of a given treatment a doctor should focus very firmly on whether the treatment can deliver medical benefits (cure, mitigation of disability, palliation of symptoms) and should not allow the basis of his answer to shift to a judgement on the worthwhileness of the patient's life, so that the question he comes to answer is whether the patient is worth benefiting. For a negative answer to that question would seem to justify not merely withholding a particular medical treatment but withholding all medical treatment and all basic care in order to end what is judged a worthless life.
Doctors do not have a duty to provide treatment which a competent patient would reasonably reject on the ground that it was in some respect excessively burdensome in its consequences. Typically treatment will hold out some prospects of benefit (specifically for prolonging a life) but will also involve burdensome consequences. There is no single right answer to the question of when those burdens become sufficientlyburdensome to justify discontinuing a treatment. Providing a patient has discharged serious duties which he may have, such as duties to family, and providing he is not motivated by suicidal intentions, it may be reasonable for him to reject life-prolonging treatment because the burdens consequent upon it are more than he is disposed to put up with. Burdens may take the following forms:
These six categories of burden [a-f] are burdens consequent upon treatment.
They provide a fairly clear way of analysing the elements that can make for an acceptable or unacceptable quality of life when that phrase is used in a justifiable fashion to refer to the predictable consequences of treatment.32
A competent patient who rejects treatment because of its excessively burdensome consequences rejects it because of a judgement on the treatment not because of a judgement on the fundamental worth of his own continued existence. Such rejections may at times be faulted because they display a lack of prudence or courage, but they should not be faulted as euthanasiast.
Clearly doctors should not give inefficacious medical treatment to the incompetent. In this context a standard synonym for 'inefficacious' is 'futile'. Some judge treatment futile when they are inclined to think the life of the patient 'futile' (meaning 'no longer worthwhile'), and they think this judgement particularly well-founded if there is evidence for thinking that, in anticipation of his present condition, an incompetent patient took such a view of it while still competent. But any such judgement (and especially one invoked to justify the withholding of treatment with a view to ending the patient's life) is, for reasons already explained (see 1.3), an unacceptable basis for treatment decisions.
A doctor would be justified in withholding or withdrawing medical treatment the consequences of which a proxy decision-maker reasonably judged to be excessively burdensome. A proxy's decision would generally be reasonable if it was clear that a competent patient in similar circumstances would have good reason for refusing treatment. However, in assessing burdens a proxy needs to take account of the difference that incompetence itself may make to the burdensome character of treatment. Sometimes, sheer inability to understand what doctors are attempting and the painful, even though temporary, effects of treatment, may create considerable fear and repugnance, so that treatment which would not be excessively burdensome for the competent may become so for the incompetent. Incomprehension can also limit the ability to cooperate with certain forms of treatment.
Both a proxy decision-maker for an incompetent patient and the doctor responsible for the care of that patient owe it to the patient to secure justice in his treatment. This means in summary that -
When a patient is admitted to hospital for treatment, responsibility is assumed not merely for providing him with beneficial medical treatment but also for providing him with what is ordinarily needed if the patient is to continue living: nourishment, shelter, warmth, hygiene. Dependence on a doctor in respect of such needs cannot be repudiated simply because distinctively medical goals are not achievable. No one would ordinarily doubt this. It is against this background that we should consider the question of tube-feeding of those diagnosed as irreversibly in a 'persistent vegetative state'.
In considering what a doctor's duties of ordinary care are towards a PVS patient certain propositions should not be in doubt:
Given the exposition of the limited goals of medical treatment presented in this submission, one might argue that enteral feeding of a PVS patient (i.e.feeding by nasogastric tube or gastrostomy) is medical treatment, and since the limited goals of medical treatment are not achievable in a PVS patient (see 2.2.3 above) there can be no continuing obligation to supply enteral feeding once the irreversibility of the persistent vegetative state has been confirmed. Hence if one were to discontinue enteral feeding one might do so simply because there is no obligation to continue, and without entertaining any intention to cause the patient's death, even though foreseeing that discontinuance of feeding will cause his death.
The objection to this view is the weakness of the case for saying that enteral feeding is medical treatment rather than ordinary care. The definition of medical treatment should include some reference to the distinctive goals of medicine (the restoration and maintenance of health, or of some approximation to health, and the palliation of symptoms), so that medical treatment will have some identifiable therapeutic or palliative function. Enteral feeding serves neither such function but the ordinary function of nourishing the patient.
It can hardly be that just anything done by a doctor in the course of caring for patients is to count as medical treatment; if it were, then the distinction between medical treatment and ordinary care would collapse. Nor will it do to say that the intrusive or 'invasive' character of what is done to the patient makes it medical treatment.34 Any adult finding a choking child might reach to the back of the child's mouth to pull his tongue forward. Nor is it very convincing to suggest35 that what makes enteral feeding medical treatment in the case of PVS patients is the fact that it substitutes for an ordinary bodily function. Many PVS patients retain some degree of swallowing reflex, and they standardly possess a capacity to digest food in the normal way. Enteral feeding is an expeditious way of delivering to the PVS patient the food any human being needs, and it serves the same purpose that eating and drinking do.
It is true that it normally requires a doctor's decision to first establish enteral feeding, though it will often not require specifically medical skills to maintain feeding by nasogastric tube. It is also true that the doctor's purpose in making such a decision will normally be to sustain the patient while diagnostic investigations are carried out and an attempt is made to establish an appropriate therapeutic regimen. But the tube feeding itself is not therapy and is not reasonably discontinued on the grounds that therapeutic efforts have proved futile.36
In Bland what the Law Lords approved was discontinuing tubefeeding on the basis of a medical judgement that tubefeeding had become futile because continued existence in Tony Bland's condition was not a benefit; in other words, Tony Bland's existence was without worth or value. In consequence, as Lord Browne-Wilkinson observed:
'What is proposed in the present case is to adopt a course with the intention of bringing about Anthony Bland's death. As to the element of intention or mens rea, in my judgement there can be no real doubt that it is present in this case: the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland."37
There can certainly be a sound case for stopping tubefeeding if a patient is in the final phase of dying or if tubefeeding involves gross burdens for a patient (though the latter reason hardly applies to PVS patients who are supposed to be insensate). And in certain situations of extreme scarcity or disorder (which do not obtain in our society) doctors and nurses might reasonably neglect the permanently unconscious and other severely damaged patients because of overriding duties to others.
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3. Withdrawing Treatment and Intentional Killing
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