This section simply draws together the relevant distinctions which have already been sufficiently explained in earlier sections.
3.1 It is certainly morally unacceptable to aim or intend to bring about someone's death for a reason or reasons incompatible with recognising the basic worth and dignity of that person as a human being, and incompatible, therefore, with justice. One's intent to bring about someone's death will be equally unacceptable whether it is achieved by
3.2 It can be morally acceptable to withhold or withdraw treatment precisely because it is reasonably judged inefficacious (futile) or excessively burdensome (2.2.3), even if one foresees that in consequence death will occur earlier than it might otherwise have done. One's reason for withholding treatment is not a judgement about the desirability of putting an end to the patient's life but a judgement about the desirability of putting an end to treatment, either because it is inefficacious or because it is imposing excessive burdens on the patient.
3.3 There are few circumstances (they are noted at the end of 2.3.1) in which it is reasonable to withdraw ordinary care, especially feeding, of a patient.
Here, as in previous sections, we consider the moral case for certain broad conceptions of what is desirable rather than the details of legislative proposals.38
(a) Many proposals for advance directive legislation are vitiated by a unilateral emphasis on autonomy in their justification, with little or no recognition that the individual in his or her self-determination may rightly be expected to acknowledge a number of moral norms. Without recognition of norms about the wrongness of suicide and euthanasia (accomplished either by act or omission), apologias for advance directives articulated in terms of the claims of autonomy must seem to justify the inclusion of euthanasia and assistance in suicide within the effective scope of advance directives.39
(b) A strictly unilateral emphasis on autonomy leads to the view that the sole determinant of how one should be treated when incompetent is the anticipatory decision one made when competent. But the consequences of such a position are fairly obviously unacceptable. All advance directive legislation provides that, while competent, makers of declarations may readily revoke them. That provision acknowledges that for a variety of reasons one may come to recognise original directives as mistaken. But why should one's family or friends be prevented by one's present incompetence from making decisions on one's behalf on the basis of one's best interests?
(c) Some defend treating as immutable and effective an unrevoked anticipatory decision about treatment made by a person when competent.40 They often base their defence on the claim that those acting on the now incompetent person's behalf are properly confined to the role of exercising his right to self-determination.
The claim is based on a muddle. There are indeed rights protecting one's fundamental interests and well-being (life, privacy, reputation, bodily integrity, etc.) which can be vindicated and, in that sense, exercised on one's behalf while one is incompetent. But a right which is a right to form one's own intentions and make and execute one's own choices, simply cannot be exercised by the choices of another. Just as the refusal (which may but need not be unjustified) to carry out a dead man's last will and testament frustrates the intentions, purposes and will which he once had but does not and cannot violate his autonomy, so the refusal to carry out a now-incompetent person's unrevoked advance directive that he be killed if permanently incompetent frustrates his earlier intention but does not and cannot violate his autonomy; he no longer has any autonomy to be exercised, though he retains his ineliminable human dignity, and the rights and interests which should be respected in virtue of that dignity.41
(d) The radical incoherence of the notion that the incompetent have autonomy rights (as distinct from dignity and welfare rights) becomes more evident when those incompetent persons who have never made any advance healthcare directive are declared to have an autonomy right exercisable on their behalf, even by an agent or 'guardian' or other 'representative' whose decision is to refuse treatment on the ground that these patients, were they competent and reasonable, would choose to refuse treatment and accept death, perhaps not for their own supposed benefit but at any rate for the benefit of others liable to the costs and burdens of caring for them.
The unbalanced primacy of autonomy is thus tightly connected with the notion of substituted judgement. In turn, the widespread appeal to the 'standard' of substituted judgement, in preference to the alternative standard of the patient's best interests, sets all concerned on a royal road towards decisions to bring about the death of incompetent persons on the plea that if they were reasonable they would choose to seek death, if not by 'active' then by 'passive euthanasia'.
What is characteristically missing in much modern discussion of autonomy and self-determination is any strong sense that the most fundamental expression of respect for the dignity of human beings is not respect for autonomy but respect for the good of human beings. When persons have exercisable capacities for self-determination then respect for their self-determination is integral to respect for their good as persons: for it is in and through choice that they have the possibility of shaping their characters for good (or ill). But when persons do not yet, or no longer, possess presently exercisable capacities for self-determination, self-determination cannot be an essential ingredient, so to speak, in what one respects in respecting their good. Any exercise of self-determination which seeks to determine what should (or should not) happen to one, if and when one comes to be incompetent, should be respected only to the extent that doing so in consistent with respecting the good of the now incompetent patient.
It is certainly consistent with respecting the good of an incompetent patient to take account of the likely burdensome consequences of a course of treatment when considering it. [See 2.2.3(ii)] Now, whether certain consequences will amount to an undue burden of, say, pain or psychological stress for a patient will often depend upon the individual dispositions and circumstances of that patient. So there certainly is a role for advance declarations (rather than directives) in which a person, while competent, offers written advice on the sorts of consequence of treatment which he anticipates he would find oppressively hard to bear. That advice should then be taken carefully into account when doctors and others are deciding whether or not to proceed with a particular course of treatment which is likely to have significantly burdensome consequences.
However, the evidence supplied by the kind of advance declaration envisaged here could never be the sole determinant of the treatment decisions made. For in deciding treatment for the incompetent one would always have to make a judgement about whether it would be in the interests of the patient to bear with certain significant burdens in order to secure the benefits which treatment offered - benefits one could envisage the patient appreciating.
Some patients who make advance directives, stipulating withdrawal of tubefeeding in certain conditions, do so for suicidal reasons, believing that life in the anticipated conditions would not be worthwhile and choosing (prospectively) the withdrawal of tubefeeding precisely as a means of terminating their life. When it is plain to a doctor that the intentions of a patient who has made such a directive are of this sort, the doctor should certainly not put the directive into effect, for to do so would be to aid in the carrying out of a suicidal intention.
However, it should also be recognised that an advance directive stipulating that in certain circumstances one would not want the continued provision of significantly expensive care, including tubefeeding, need not be suicidal. Persons making such directives may have in mind that even tube-feeding and nursing care, while not burdensome to them, could prove financially very burdensome to others. They might trulywish that the resources be used to meet other needs. This reason for rejecting such care is, then, not a false valuation of what their life might be at some future time. Rather it is a desire not to take up resources which they think disproportionate, to the detriment of others. That desire shows a sensitivity to the needs of others, and one would not be acting in a way contrary to a person's dignity it one honoured a directive which was prompted by what is generally agreed to be an admirable desire and involved an acceptance of death rather than the choice of death as a means or an end.42
Many patients (perhaps a majority) who stipulate that in certain circumstances they should not receive tubefeeding will do so in terms which leave it unclear whether their intentions are suicidal or not. It seems to us that someone who has made an advance directive seeking to limit not care (or expensive care) in general but quite specifically the provision of nourishment probably has in mind that doctors should aim to bring about his death by means of this omission. And sometimes doctors will have reliable evidence from other sources that a patient's intentions were suicidal. In either kind of case, doctors should not withdraw or withhold tubefeeding. If the law as declared by the House of Lords in Bland is inconsistent with this, and imposes a legal duty to withhold tubefeeding in every case where consent has been withdrawn, the law should be amended by Parliament so as to restore its coherence with the principles of the Suicide Act 1961 concerning complicity in suicide (see further 6.2.2 below).
Sometimes a patient's intention in stipulating discontinuance of care, including tubefeeding, is left unclear not only by the advance directive but also by other available evidence. When that is the case, it seems to us not unreasonable for a doctor to assume that what motivated the stipulation was a desire that others should cease to undertake the burdens and costs of burdensome and costly care, accepting death as an effect of such discontinuance but not choosing it as a means to relieving them of costs and burdens. Making that assumption, the doctor can reasonably respect the patient's declared wishes, treating the patient like the patient whose motives are known to be those of self-sacrifice and whose choice is known not to have been suicidal in intent.43
There is so much scope for doubt and conflict about whether the wording of an anticipatory decision is 'applicable in the circumstances' that it would be extremely imprudent to make advance directives enforceable by legislation. The proposal that doubt and conflict, where they arise, may be resolved by referring cases to a judicial forum44 promises to introduce a degree of complexity to the decision-making process which will frequently be at odds with securing the interests of patients.
It would better accord with those interests and with sound doctor-patient relations if doctors were educated in a clear sense of those choices which are inconsistent with recognition of the dignity of patients, together with a clear sense of their obligations to try to secure medical benefits for their patients while remaining sensitive to the burdensome costs which sometimes make a treatment option undesirable.
The spurious conception of the role of the proxy decision-maker as consisting in the exercise of the incompetent patient's right to self-determination was noted in section 4.1.1.
In considering the burdensome consequences of treatment, the proxy decision-maker does have a duty to consider available knowledge about the distinctive sensibility and circumstances of the patient whose interests he represents (2.2.3/ii; 4.1.2). What is involved in doing so is something of an exercise in trying to see through the patient's own eyes. But this limited exercise of imaginative identification with the patient is justified by the unavoidably subjective element in what is to count as unduly burdensome for a given patient. An exclusive invocation of the 'claims of autonomy', however, affords no general justification for giving or withholding treatment on the basis of substituted judgement (4.1.1/d).
A substitute decision-maker who represents the interests of a patient will be concerned to act as a friend intent at least on securing justice for the patient. Friends desire the good of the person whose friends they are. What is just to a patient and what is good for a patient can in fundamental respects be determined objectively. The traditional framework for making that determination is the framework outlined and defended in this Submission.
The responsibility for ensuring that every person within the jurisdiction is treated with fundamental justice belongs in a unique way (though not exclusively) to the courts. It is the courts that, on their own initiative, developed and upheld habeas corpus to prevent the injustice of false imprisonment. It is the courts that have defined and enforced the law against homicide, which underwrites justice's primary demand that one person must never impose on another innocent person the radical injustice of extinction. Even today the activities of the legislature have in no way superseded the role of the courts in identifying and upholding the demands of right.
The decision of the House of Lords in Bland involves an abdication of the courts' responsibility. This abdication is illustrated most vividly, but not unrepresentatively, in the following passage from the judgement of the senior Law Lord, Lord Keith of Kinkel:
'...a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not a benefit, and that, if not unarguably correct, at least forms a proper basis for the decision to discontinue treatment and care: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
'Given that existence in the persistent vegetative state is not a benefit to the patient, it remains to consider whether the principle of sanctity of life, which it is the concern of the state, and the judiciary as one of the arms of the state, to maintain, requires this House to hold that the judgement of the Court of Appeal was incorrect.' [1993] 2 WLR at 362
The significance of this judicial surrender of a vital premise (about the value of human existence) to the opinion of part of the medical profession is masked, in Bland itself, by the fact that the judges there seem likely to have reached the same decision even if they had not embraced the 'Bolam principle' of deference to 'a body of responsible medical opinion'. But that principle of deference is unsound, as is stated plainly by Hoffmann L. J.45 and noncommittally by Lord Mustill.46
Even in the area of medical negligence, there is reason to doubt the soundness of a legal rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion (even though other doctors adopt a different practice). That rule was disapproved by Lord Scarman, dissenting in Sidaway v Governors of Bethlem Hospital [1985] A. C. 871 at 876, where the issue was not one of competence in diagnostic or therapeutic procedures but involved the patient's right to be informed. In a case involving similar facts, the High Court of Australia has now unanimously disapproved the entire Bolam principle of determining the standard of medical care by deference to the standards of 'a responsible body of medical opinion': Rogers v. Whitaker (1992)67 A. L. J, R. 47 at 50-51, a decision reached, ironically, on the same day as the President of the Family Division gave judgement in Bland. Where a medical decision involves a right even more fundamental than the patient's right to be informed, the right not to be intentionally killed, it cannot be appropriate for the courts to proceed on the basis that a death-dealing course of conduct (deliberate omissions) is lawful simply because a responsible and informed body of medical opinion judges that life is no benefit to this patient, and/or that death and/or a course of conduct intended to terminate life is in this patient's best interests, and/or that tube-feeding is a medical treatment or form of 'medical care' and therefore may be terminated like any other medical treatment (as if it were not also an ordinary form of non-medical care). Each of these judgements is one which, though relating to the art of medicine, goes clearly beyond the expertise intrinsic and proper to that art. Each assumes a stance on the nature and meaning of human existence, the demands of justice, and/or the proper forms and limits of relationships between dependent people and those upon whom they depend.
The wording of this Bill confirms what one would expect from a bill promoted by the Voluntary Euthanasia Society.
First, it must be observed that the form of advance directive scheduled to the Bill is purely optional (clause 1(3)) and cannot restrict the import of the Bill's own provisions for giving effect to advance directives of many kinds.
Secondly, it is clear from clause 9 of the Bill that it seeks to authorise conduct on the part of doctors intended to bring about the death of patients, the permissible conduct being limited to what is termed 'permitting the process of dying to take its course'.
Thirdly, vagueness about the definition of 'terminal condition' (clause 10) and, therefore, about 'the process of dying', means that the advanced directives which the Bill would authorise and make binding on doctors would be effective in regard to a far wider range of patients than those in the terminal phase of dying. Indeed they would be effective in regard to patients who are not, in the normal sense of the term, dying. For 'terminal condition' is defined as 'an incurable or irreversible condition which, without the use of life-sustaining treatment, will ... soon result in death.' Diabetes, for example, seems to fall within the scope of this definition of a terminal condition: it is an incurable condition, for which insulin treatment is life-sustaining and without the insulin certain patients with diabetes will soon die.
Fourthly, 'life sustaining treatment' is defined (clause 10) to mean 'any medical procedure or intervention which, when administered to a qualified patient, has the effect only of prolonging the process of dying'. Because of the definition of 'terminal condition', the notion of prolonging the process of dying is made indistinguishable from the notion of 'delaying the moment of death'. (The word 'only' in the phrase 'effect only of prolonging' is so vague and elusive that it cannot provide any effective control on the meaning of the clause.) Since treatment for any life-threatening condition delays the moment of death (perhaps for decades!), a substitute (or proxy) decision-maker may, under clause 4(1) withhold any life-sustaining treatment, whatever its prospective benefits, providing only that the patient who appointed him is 'comatose, incompetent or otherwise mentally or physically incapable of communication'. This is a charter for the extensive practice of non-voluntary euthanasia.
Fifthly, the provision in clause 5(2) is designed to exempt doctors from prosecution for aiding and abetting suicide in circumstances in which the natural interpretation of their behaviour would be that they were doing precisely that. For it is certain that sometimes a patient aims to bring about his own death at some time in the future by a course of planned omissions to be carried out by others on his authority, and makes it clear that that is his intention; the implementation of such a course of planned omissions on the basis of that prior authorisation and in the knowledge of that intention is, morally speaking, aiding and abetting suicide.
Sixthly, clause 4(2), read in conjunction with direction 2 in the Schedule to the Bill, makes it clear both that provision of food and fluids may be classified as 'life-sustaining treatment' in relation to a broad range of conditions, and that withdrawing food and fluid is sanctioned whatever the intention of the patient may have been, or the intention of a substitute decision-maker is, in authorising such withdrawal.
We respectfully urge the Select Committee to recommend that the Medical Treatment (Advance Directives) Bill be rejected since it would very clearly legalise (and is no doubt intended to legalise) assisted suicide and non-voluntary euthanasia.
The Bill is simply a charter for non-voluntary euthanasia (clause 2) of the incompetent (clause 1a) and assisted suicide (clause 3) of the competent (clause 1b) by the withdrawal of medical treatment or food and fluids. Its brevity has the merit of making its purpose eminently transparent. There is no need for legislation to cover the withdrawal of treatment on the grounds that it is medically otiose or unduly burdensome in its consequences.
We respectfully urge the Select Committee to recommend that any such Bill be rejected.
There are a number of general objections to all proposals for legalising euthanasia:
(1) Precisely in so far as euthanasia is considered beneficent to patients it involves killing on the basis of judgements about the value of their lives which are inconsistent with recognition of the dignity of the patients (1.2.2). Since recognition of the dignity of every human being is fundamental to justice, and, therefore, to the law regulating our conduct towards each other (1.1.4), it would be incompatible with what is basic to the law to allow euthanasiast killing.
(2) Killing the fundamental justification of which is that the patient would be better off dead (because of the disvalue of his continued existence) comprehends non-voluntary euthanasia. As clear-headed advocates of euthanasia recognise, if euthanasia is at all justified, there can be no good reason for denying the 'benefit' of killing to a patient because he is incapable of consent.47 The evidence from the Netherlands is that doctors are aiming to bring about deaths in cases of incompetent patients much more frequently than in the case of competent patients (see Section 8 and references there).
(3) Propaganda for the legalisation of euthanasia in the past heavily emphasised its desirability to deal with intractable terminal pain. But developments in pain control associated with the Hospice Movement have provided a solution, at least in principle, to the large majority of cases of intolerable pain. In consequence, the case for legalising euthanasia has significantly shifted from drawing attention to intractable pain to emphasising 'intractable suffering'. But 'intractable suffering' is a very capacious reason for killing people, one possible effect of invoking which (see Section 7) is to encourage the cruellest pressures on those who are dependent.
(4) In so far as the legalisation of euthanasia made doctors the authorised agents of euthanasiast killing, such legislation would profoundly corrupt the practice of medicine by corrupting the character of doctors.
Quite generally, intentional acts (such as deliberate killing) do not merely bring about effects external to the agent, they also shape his dispositions. If a doctor kills a patient because he judges the patient no longer has a worthwhile life then in doing so he makes himself further disposed to kill patients for that reason (unless he repents of what he did). That is why a certain kind of argument for the legalisation of voluntary euthanasia is radically mistaken about what is at issue. The argument goes roughly as follows: a society should seek to prohibit only those practices which do harm to those who do not consent to the practices. But in voluntary euthanasia no party who has not consented to the practice is harmed. It is a purely private transaction between consenting doctor and consenting patient, the effects of which are contained within the confines of that relationship.
One reason that picture is false is that a doctor's character is very significantly shaped by killing patients on the grounds that their lives are now without value. A doctor disposed to think that some of his patients may lack inherent worth, and that he may therefore be justified in killing them, has seriously undermined in himself a disposition indispensable to the practice of medicine: the willingness to give whatis owing to patients just in virtue of their possession of basic human dignity. The absence of that willingness is likely to be fateful for other patients, including patients who never consented to be killed or to be denied what they are owed in virtue of their basic human dignity.
For the sake of all its citizens, who all at one time or another are likely to become patients, civil society has a basic interest in maintaining a legal framework for the practice of medicine which is conducive to respect on the part of doctors for the basic dignity of all their patients.
(5) Once legalised, euthanasia would become a quick and facile technical 'fix' to dispose of certain difficult patients (whether or not at their own request) in response to the heavy demands they made on care. Medicine would thereby be robbed of the incentive to find genuinely compassionate solutions to the difficulties presented by such patients. The kind of humane impulses which have sustained the development of hospice medicine and care would be undermined, because too many would think euthanasia a cheaper and less personally demanding solution. It is widely recognised that the country in which the practice of euthanasia has become widespread is a country in which palliative care medicine is very inadequately developed.
Those who protest that they advocate no more than the legalisation of voluntary euthanasia are at best naive, though more often, it is to be feared, disingenuous. It is characteristic of certain advocates of legal reform to speak as if they could remain in control of the reform they propose once it is on the statute book. That is an illusion, as legalisation of abortion has shown. What legalisation of voluntary euthanasia would enshrine is the novel principle that one may be justified in killing people because, since they lack worthwhile lives, to do so is to benefit them. In enshrining such a principle in our laws we would have to contend with what Justice Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic'.48
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6.2 Proposals which should be adopted
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