Medical Ethics
Submission to the Select Committee of the House of Lords

6.2 Proposals which should be adopted

6.2.1 The Bland ruling on lawful intention to terminate life should be overturned

By far the most serious of the immediate legal implications of the Bland case is, we think, the ruling by a majority of the House of Lords (neither followed nor challenged by Lords Keith and Goff) that, provided it is not 'positive action' and is adopted because, in accordance with a body of responsible medical opinion, it is considered to be in the best interests of the person whose life it terminates, it is lawful (and indeed may be legally required) to adopt a 'course of conduct' deliberately and precisely with the intention, aim and purpose of terminating life.

The basis on which Lords Lowry, Browne-Wilkinson and Mustill assumed such an intention in relation to Anthony Bland is legally obscure.49 Be that as it may, there certainly are circumstances in which someone might decide to cease providing life support yet have no intention to terminate the life of the patient (though foreseeing and accepting that the death of the patient would be highly probable or even certain to follow in consequence of the cessation). For there can be circumstances in which those providing the support should or at least can give a higher priority to other responsibilities (e.g. to patients who can benefit more from the limited resources available).

But the tail must not be allowed to wag the dog. The fundamental and momentous issue whether intentional killing is to be allowed, ratified and indeed commanded in our society must not be determined by the topsy turvey process of first deciding against continued life support in hard cases such as Bland, then deciding that that solution involves an intent to terminate life, and accordingly abandoning the hitherto central principle of our common morality and our law: no intentional killing of the innocent.

We do not dispute the finding of all the judges in Bland that what was involved was legally an 'omission'. Nor do we question the general stance of English law that omissions are unlawful only if they involve the violation of a duty of care. We do not question even the more stringent position of English law, that X's omission (e.g. to warn Y of imminent danger) deliberately chosen with malicious intent to harm Y (e.g. so as to enjoy Y's suffering or death) is not unlawful if, independently of the intent, X owed no duty to protect Y from such harm or death. But the ruling of the majority in the House of Lords in Bland goes far beyond these positions. For it treats as lawful the omissions of persons who admittedly had a duty to care for Anthony Bland, and who were ready and willing to continue an extensive medical, nursing and general care for him right up to the moment of his death. It treats as lawful (and sometimes, indeed, compulsory) the proposal that terminating someone's life, i.e. the bringing about of his death (by deliberate omissions), be a part of carrying out their duty of care.

The judges in question all admit that the distinction they draw is morally indefensible and leaves the law 'misshapen' or 'almost irrational'.50 They were right to do so. The law will indeed be misshapen and indefensible for so long as it treats as criminal a harmful 'act' while treating as lawful (and indeed compulsory) an 'omission', with the very same intent, by one who has a duty to care for the person whose life is thereby terminated. There is nothing misshapen about a law treating acts and omissions alike when deliberately adopted with the same intention. And the settled legal (not moral) doctrine that harmful intent by itself does not make an omission criminal should not govern when the omission is by one who admittedly has a legal duty to protect the party harmed against that type of harm.

Neither in the judgements in Bland nor in any other legal source can we discover any reason for thinking that English law has ever, until 4 February 1993, accepted that someone who has a duty of care can carry it out by intending to terminate the life of the person in his care. We think that English law has in fact always rejected any such notion. We are surprised to note that the decided cases51 in which English law manifested its rejection of this notion were not even cited to the judge of first instance in Bland, went completely unmentioned in the oral argument and the judgements in the Court of Appeal, and received mention in only two of the judgements in the House of Lords. We accept that those previous cases did not concern doctors and did not have to confront the arguments raised in favour of terminating Anthony Bland's life. But we think that the rule articulated in those cases sets out a legal position of principle which could and should have been reaffirmed and developed by the judges in response to those arguments. The fundamental argument, which in fact the judges accepted, was that the doctors et al. owed no duty to Bland to keep him alive. The fundamental answer to that argument, an answer which the judges seem never to have clearly envisaged, is that whatever the scope of the duty of care of those caring for Anthony Bland, they had a moral and legal duty not to exercise their care for him with intent to terminate his life.

In any event, it is now most urgently necessary, we suggest, to restore the integrity of the English law of homicide by rejecting the misshapen, almost irrational and wholly unnecessary rule or position adopted by the majority of the Lords in Bland. The necessary statute would not solve the problem of deciding whether and when life support can be withdrawn from incompetent patients. But it would restore one vital parameter or principle for any acceptable solution to that problem.

We respectfully ask the Select Committee to recommend the early enactment of a Bill along the following lines:

No person may in or in connection with providing to another person medical, nursing or other treatment, services or care do or omit anything with the intention52 of terminating that other person's life. A person who by any such act or omission with such intention causes the other's death shall be guilty of murder.

A provision of this kind would not purport to settle the debate about whether withdrawal of life support from PVS patients causes their death. It would not purport to settle the debate about the extent of the duty to maintain such support. It would simply restore the integrity of the fundamental principle of the law of murder, gravely impaired by the decision in Bland. That principle of the law of murder is an indispensable element in the recognition and protection of the basic rights of all members of our community, and an integral part of the state's fundamental duty of justice.

6.2.2 Unacceptable kinds of advance directive should be deprived of all legal effect

A majority at least of the House of Lords in Bland went out of their way to give a blanket and indeed indiscriminate approval to the idea that advance directives to discontinue treatment or care are of binding legal effect: see Lord Goff (Lords Keith and Lowry agreeing), [1993] 2 WLR at 367H. Quite mystifyingly, Lord Goff stated, in this connection, that 'in cases of this kind, there is no question of the patient having committed suicide ...' (p.367H). Unless he meant this, despite the syntax, to be a qualification on his ratification of advance directives, one must ask: Why is there 'no question' of suicide? Can it really be by sheer judicial fiat or stipulative definition? Suppose everyone knows that the patient's directive that on a certain date insulin (or food and water) be withdrawn was motivated simply by his intention of dying before the expiry of a term life insurance policy. On what legal principle is this not suicide?

What should be Parliament's response to this remarkable and evidently unsolicited judicial development of the law? We think it should be to legislate at an early date so as to provide that

where a patient is incompetent to give or withhold consent to medical treatment or care, the existence of a declaration made by that patient at some earlier time purporting to give directions for the withdrawal of treatment or care (or of any specified form of treatment or care) shall not be taken to require those responsible for his treatment or care to follow any course of conduct (including omission) otherwise than in accordance with their judgement as to the best interests of the patient, and shall not be taken to require or authorise any person to give any assistance in suicide (including suicide by omission).

7. The Hospice Movement and Advances in Palliative Care

For many ordinary people the pain associated with terminal conditions still appears the most pressing reason for allowing euthanasia in certain types of case (witness expressions of sympathy for Dr. Cox). Those actively engaged in hospice care have documented its role in controlling the pain which is associated with a number of fatal conditions, and certain carcinomas in particular. In this connection, the very success of the development of palliative medicine within the context of hospice care has had a paradoxical effect. It is this paradoxical effect that is worth remarking on here.

In so far as satisfactory control of pain is achievable with the vast majority of patients53, the common case for euthanasia would seem to have lost its force. Investment in extending the benefits of palliative care would seem a far more rational response to the incidence of severe pain than legalisation of euthanasia. And in so far as people come to know of the successes of contemporary palliative care they generally acknowledge this truth.

The response of proponents of the legalisation of euthanasia, however, has been to shift from emphasising the problem of intractable pain to emphasising the problem of 'intractable suffering'. Intractable suffering, as we have already remarked, is a much more wide-ranging reason for killing patients, and covers experience that is not amenable to medical management in the way that pain has been.

It is worth remarking here on just how elastic the concept of 'intractable suffering' can be in rationalising the practice of euthanasia. An instructive case in point (referred to again in the following section) is provided by recent research on the practice of euthanasia in The Netherlands. One informant, a leading practitioner of euthanasia, said he would be put in a very difficult position if a patient told him that he really felt a nuisance to his relatives because they wanted to enjoy his estate. Asked whether he would rule out euthanasia in such a case, [he] replied: 'I think in the end I wouldn't, because that kind of influence - these children wanting the money now - is the same kind of power from the past that.., shaped us all. The same thing goes for religion ... education ... the kind of family he was raised in, all kinds of influences from the past that we can't put aside.'54 If the misery provoked by the knowledge that one's children want one's estate is to count as a reason for euthanasia, then there will be an open invitation to children to make the lives of their dependent parents such a misery that the 'burdensome' parents will be queuing up for euthanasia. If this were to happen then euthanasia by request would have become a facade covering a reality much closer to involuntary euthanasia.

In summary: one paradoxical consequence of the hospice movement's success in managing pain and making it seem a less pressing reason for euthanasia is that apologists for euthanasia's legalization have shifted to emphasising intractable suffering. And intractable suffering as a reason for euthanasia nominates a far wider range of candidates for euthanasia (voluntary and nonvoluntary) than intractable pain ever did.

8. The Dutch Experience55

8.1 The Law

The intentional killing of a person at his 'express and serious' request is an offence contrary to Article 293 of the Dutch Penal Code, and assisting suicide is prohibited by the following Article. However, in a line of cases over the past twenty years, Dutch courts have held that a doctor charged with either offence can successfully avail himself of the defence of necessity (contained in Article 40) if he acted in accordance with 'responsible medical opinion' measured by the 'prevailing standards of medical ethics'.56

When, according to 'responsible medical opinion', is it considered proper for a doctor to carry our euthanasia?

8.2 Medical Guidelines

In 1984 the Royal Dutch Medical Association published a report setting out conditions in which 'euthanasia' (a word which is used in Holland to mean 'voluntary euthanasia') accorded with medical ethics. It specified five:

  1. The request must be made of the patient's free will, and not result from pressure by others.
  2. The request must be 'well-considered', and not be based on a misunderstanding of diagnosis or prognosis.
  3. The request must be 'durable', and not arise from impulse or temporary depression.
  4. The patient must be experiencing 'unacceptable suffering'; he must feel the suffering to be 'persistent, unbearable and hopeless'.
  5. The doctor must consult with a colleague before performing euthanasia, and report it to the legal authorities afterwards as a non-natural death.57

A number of highly misleading claims have been made by proponents of legalised euthanasia about the Dutch experience. It has, for example, been asserted (by the Director of the Dutch Health Council) that the guidelines are 'precisely defined' and 'strict'.

First, it is not even possible to be confident about what the guidelines are: the above five have been laid down by the Dutch Medical Association, not the courts. As Professor Leenen, a leading Dutch health lawyer (and supporter of euthanasia) has observed, different courts have listed different criteria, which has created 'much uncertainty'. It has been held by the Supreme Court, for example, that consultation is not essential for euthanasia to be lawful.

Secondly, even the five listed above are far from precise. What, for example, is meant by a 'free' request? Does it include a request made in response to a strong recommendation by a doctor or relatives? One of Holland's leading (and widely respected) practitioners of euthanasia was asked whether he would rule out euthanasia in the (hypothetical) case of a patient who asked for euthanasia because he felt a nuisance to his children who wanted him dead so that they could enjoy his estate. The doctor replied:

'I ... think in the end I wouldn't, because that kind of influence - these children wanting the money now - is the same kind of power from the past that ... shaped us all.'58

This illustrates how subjective, elastic and inherently vague are the guidelines requiring a 'free' request and 'unbearable suffering'.

Thirdly, far from being 'strict', the guidelines could hardly be more lax. They assume rather than ensure the expertise and good faith of the individual doctor and are quite unenforceable.59

8.3 Euthanasia in Practice

It comes as no surprise, therefore, that there is disturbing evidence not only of a high incidence of euthanasia in Holland but also of widespread breach of the guidelines.

In 1991 a Government Commission on Euthanasia, chaired by Attorney-General Remmelink, published its report60 and the results of a survey it had commissioned into the practice of euthanasia.61

The Survey shows that for the calendar year 1990, there were 2,300 cases of (voluntary) euthanasia and 400 cases of assisted suicide.62 There were, moreover, over 8,000 cases in which doctors administered morphine63, and almost 8,000 cases in which they withheld or withdrewtreatment64 'explicitly' or 'partly' with intent to shorten life.65 Finally, the Survey revealed over 1,000 cases in which doctors stated that they had terminated life without the explicit request of the patient.66 In short, the Survey, in its own terms, makes out that doctors admitted that it was their purpose to shorten their patients' lives in almost 20,000 cases.

Bearing in mind that there were only 49,000 deaths in 1990 in which a doctor's decision influenced the time of a patient's death67 the finding that in over 40% the doctor purposely sought to shorten the patient's life suggests that intentional killing has become a regular feature of Dutch medical practice.

Moreover, in almost three-quarters of these cases the doctor is reported as having sought to hasten death without the explicit request of the patient.68 The 1,000 cases in which doctors administered a lethal drug without explicit request provide particularly stark evidence of the widespread breach of the first three guidelines.

The fourth guideline, requiring that euthanasia be performed only when it is necessary, as a last resort, to end 'unbearable suffering', is also, as the remarkably high incidence itself indicates, widely ignored. Even 40% of the doctors surveyed agreed with the proposition that 'Adequate alleviation of pain and/or symptoms and personal care of the dying patient make euthanasia unnecessary'.69 The inference from all the evidence that euthanasia is being used as an alternative to good palliative care is compelling.

Finally, the Survey also showed that of the 2,700 cases classified by the Survey as 'euthanasia' and assisted suicide, doctors certified death by natural causes in over 7 out of 10, thereby breaching the fifth guideline and committing the criminal offence of falsifying a death certificate.70

In addition to the Survey, two independent academic studies of Dutch euthanasia have also served to establish the comprehensive failure of the guidelines. The first by Dr. Carlos Gomez, an American physician71, concludes that the Dutch attempt to control euthanasia and to provide for public accountability has failed and that attempts to protect vulnerable patients have proved 'half-hearted and ineffective at best'. The second by Dr. John Keown, lecturer in law in the University of Cambridge, concludes not only that the guidelines have been widely ignored, but that killing even without request now enjoys official approval. The evidence for this is to be found in recent publications of the Dutch Medical Association which approve in certain circumstances the killing of handicapped neonates and patients in coma, and, most recently72, those with severe dementia. Moreover, not only did the Remmelink survey find that over half of the doctors interviewed had either performed euthanasia without an explicit request or would be prepared to do so73 but the Remmelink Commission condoned the vast majority of the 1,000 killings without explicit request.74

Two main conclusions can be drawn from the Dutch experience. First, it vividly demonstrates how, when euthanasia is tolerated, it becomes practically impossible to keep it within defined limits. There is now overwhelming evidence, which has nowhere been seriously controverted, that the guidelines have proved wholly incapable of ensuring that euthanasia is confined to those who make a 'free, well-considered and durable request' and who are experiencing 'unbearable suffering'. Indeed, even Professor Leenen has observed that there is an 'almost total lack of control on the administration of euthanasia' in his country.75

Some twenty years ago, the then Lord Bishop of Durham, The Right Reverend J S Habgood, cautioned that the consequences of legislation to permit euthanasia would, in the long run, be 'incalculable', not least because of the likely failure of any safeguards to prevent abuse.76 The Dutch experience confirms the prescience of this warning and reveals the baleful effects, even in the short term, of tolerating euthanasia.

Secondly, the Dutch experience lends support to the argument developed in 1.2.2 and 1.3.2 above that the case for euthanasia rests fundamentally not on respect for autonomy but on a judgement that certain lives are not worth living and that it is right to terminate them. The Dutch, who only a few years ago were seeking to justify euthanasiast killing in terms of the claims of autonomy, now accept that the absence of the ability to choose provides no reason against killing. The 1,000 cases of killing without explicit request; the approval of these killings by the Remmelink Commission, and the growing categories of incompetent patients whose lives the Dutch Medical Association now regards it as permissible to terminate, lend empirical support to the proposition that the case for euthanasia rests not on respect for autonomy but on the acceptance of the concept of 'lives not worth living'. The potential of that concept both for rationalising grave injustice to patients and for corrupting the practice of medicine was sufficiently demonstrated in mid-century in Western Europe. Only the deepest complacency, hard to distinguish from a measure of sheer decadence, could willingly tolerate again medicalized killing, rationalised in terms fundamentally incompatible with justice, or contemplate accepting the grave damage that would be done to medicine by its involvement in such killing.77

Concluding Observations

In conclusion, we respectfully submit that the recommendations of the Select Committee should be governed by two broad considerations.

First, the legalisation of medicalized killing, which some want the Select Committee to recommend, would necessarily find its justification in terms which are radically incompatible with recognising the equality-in-dignity of all human beings. Such killing could not be accommodated within a legal framework which recognised the basic requirements of justice. There is an urgent need, indeed, in consequence of certain judicial decisions, to introduce legislation which will restore the integrity of the law in regard to homicide (see 6.2.1 and 6.2.2).

Secondly, the traditional ethic of medicine, correctly understood, leaves very great scope for patients to refuse treatment which is likely to be found unduly burdensome, and scope for doctors to withdraw treatment on those grounds. Moreover, doctors have no moral duty to persist with medical treatment which is inefficacious in achieving the distinctive goals of medicine. On the other hand, a failure to achieve the therapeutic or palliative goals of medicine does not absolve doctors from the duties of ordinary care of patients.

What is to count as sound medical practice in regard to withholding and withdrawing treatment could never be exhaustively settled by legislation. But the citizens of our society, all of whom are potentially patients, do need to know that in making such decisions doctors are constrained by a framework of law which makes absolutely impermissible both intentional killing (by action or omission) and deliberate assistance in suicide (by action or omission). Within such a framework doctors can continue to seek to act in patients' best interests while being responsive to the reasonable desires of patients to avoid unduly burdensome treatment and respectful of the primacy of the competent patient's own responsibility for his or her health. To seek to make enforceable some wider conception of the claims of patient autonomy would be both unreasonable in itself and ultimately destructive of good doctor-patient relationships.

Next Page: Endnotes:
1, 2, 3, 4, 5, 6