1 The document has been prepared on behalf of the Centre by Luke Gormally, its Director, by Professor John Finnis FBA, Professor of Law and Legal Philosophy in The University of Oxford and Vice-Chairman of The Board of Governors of the Centre, and by Dr John Keown, Lecturer in Law in The University of Cambridge and a Governor of the Centre. Extensive use has been made in the preparation of the document of material which also appears in the following published writings:
2 Noteworthy here is the Centre's Working Party Report, Euthanasia and Clinical Practice: trends, principles and alternatives first published in 1982. (See Book I of this volume.) [Back]
3 Some documentation may be found in Euthanasia and Clinical Practice, especially chapter 4, 'The Christian Tradition', and in an earlier publication by the Centre: [Luke Gormally] Ordinary and extraordinary means of prolonging life (Linacre Centre Paper 3) London: The Linacre Centre, 1979. [Back]
4 The organisation of topics in this submission follows the listing of topics in section 2 of the Special Report of The Select Committee (9 March 1993). [Back]
5 [1993] 2 Weekly Law Reports 316 at 350. [Back]
6 We shall call such decisions and courses of conduct 'intentional killing', and the phrases 'intentional killing' and 'intentionally kills' are to be understood throughout as having that precise sense (and not just as a way of signifying all non-accidental killing). Like several of the Law Lords in Bland, we use 'course of conduct' to include both 'positive actions' and deliberate 'omissions'. [Back]
7 It was not thought incompatible with human dignity to execute a criminal found guilty of a capital crime insofar as what he received was considered deserved punishment; for the assumption behind the view that someone deserves death is that he knowingly chose to do what he did and so is answerable for it. The belief that human beings are answerable for what they do and can be found to deserve punishment implies a high conception of human dignity; we are not left to be pushed hither and thither by uncontrollable impulse and fate.
Similarly, the intentional killing of unjust aggressors in warfare has been justified on the grounds that they are answerable for actual (or threatened) violent and grave harm to the common good of a society.
Both justifications of capital punishment and of the killing of unjust aggressors in warfare yielded a common formula stating the basic norm in regard to killing: one ought never intentionally to kill the innocent, i.e. those not guilty of crime which it is one's task to punish or of unjustified violence which it is one's office to resist. This is what is identified in the main text as the core of the principle of the sanctity of life.
Failure to recognise the precise character of this principle led Lord Goff in Airedale NHS Trust v Bland to say that it is not absolute: [1993] 2 WLR at 367. Lord Goff's explanations for this observation seem to have in mind two quite distinct 'principles': (i) 'It is unlawful to kill (take another man's life)'; (ii) 'Human life should be preserved if at all possible, by any available means, regardless of circumstances'. Neither is the principle of the sanctity of life as traditionally understood. [Back]
8 Notably by Peter Singer. Singer's position is taken as a starting-point by Grant Gillett in developing his account of the value of human life. See Grant Gillett, Reasonable Care, Bristol: The Bristol Press 1989, p.14. [Back]
9 Mary Warnock, The Uses of Philosophy (chapter 2: 'Man's Duties to his Own Species') Oxford: Blackwell Publishers 1992. at pp.2223. Baroness Warnock holds that we can be justified in killing human beings either for their own sake [about such justifications see 1.2.2, 1.3.2 and 1.3.3 of the main text] if we believe their lives are likely to be full of suffering and to deteriorate in misery, or for the sake of others, when those to be killed do not understand themselves to have lives for which they are responsible and when they are likely to impose what are perceived to be unacceptable burdens. The latter contention is straightforwardly an apologia for killing for the sake of convenience. Discussing the situation in which there is nothing about the prospective quality of life of the unborn child which might be invoked to justify abortion, Warnock considers the situation in which it is simply the case 'that the mother does not want it [the child] to be born ... Are we here justified in preferring to consider the quality of her life rather than that of the foetus?. . . in the case of social abortion, it is the suffering of the mother if this child is born that is the decisive factor. And this... is consistent with the non-adoption of the principle of equal value to all lives.' (ibid., pp.3435)
The general argument that we may justifiably kill those presently unable to think of themselves as responsible for their lives if and when they are perceived as diminishing the quality of life of others is a radical attack on the moral fabric of human solidarity and justice. Neither solidarity nor justice can be maintained by reliance on sentiments of affection uninformed by recognition of duties of care to those who in the course of nature (because of immaturity and decline) are necessarily dependent and without a sense of responsibility for their own lives. The lives of many of us have depended at some stage on others recognising duties of care towards us, a recognition overriding any strong inclination to abandon care for us. [Back]
10 Ronald Dworkin, Life's Dominion London: Harper Collins 1993, p.69. [Back]
11 Dworkin, op.cit., pp.157, 93; Dworkin, 'When can a doctor kill?' The Times (London) 27 April 1993. So, for example: 'Recognising the sanctity of life... means... not frustrating investments in life that have already been made. For that reason liberal opinion cares more about the lives that people are now leading, lives in earnest, than about the possibility of other lives to come'; and the context shows that the lives which Dworkin here treats as mere 'possibilities' are the actual lives of healthy unborn children. See Life's Dominion, 99. [Back]
12 Life's Dominion, p.230. [Back]
13 The claim that the idea of the sanctity of life is shared even by those who favour the most liberal regimes of abortion and euthanasia has three functions in Dworkin's argument.
(1) It gives him a premise for his claim (see e.g. Life's Dominion, pp.1645) that for purposes of U.S. constitutional law all questions about abortion and euthanasia are 'religious', so that choices to 'kill' the unborn or to commit or assist in suicide or to carry out euthanasiast killing cannot be prohibited without violating the 'free exercise of religion' guaranteed by the First Amendment to the U.S. Constitution.
(2) It enables him to clothe the aspirations and choices of healthy adults (e.g. healthy pregnant women, and by implication the relatives of the demented) with the aura and the borrowed dignity of a sanctity heretofore reserved for the divinely bestowed being and status of the human subject who is always equal in dignity to his potential killer. The 'sanctity' appropriated by Dworkin is now remarketed as a self-assertive sanctity, bereft of awe, gratitude or humility, and parcelled out so as to ascribe to human beings a radical inequality of dignity. Consciously seeking argumentation 'likely to succeed in the political forum' (ibid., p.29), Dworkin strives to deprive the common morality underlying our law about protection of life of its very vocabulary, press-ganging it into the service of the campaign to overthrow that law, a campaign more frankly and lucidly waged by others in the name of self-determination or autonomy.
(3) It enables him to launch a claim to be the moderate who reconciles two warring positions, while all the time he is siding definitively with the practical conclusions of one of those positions, pervasively misdescribing what the other position holds, and retailing unmeasured denunciations of what it promotes, e.g. nursing care of PVS patients ('the ultimate insult') or laws against assisting suicide or against voluntary euthanasia ('a devastating odious form of tyranny': p.217). [Back]
14 Note that this is not a slippery slope argument, i.e. an argument from the alleged unacceptable consequences (logical or social) of an attempted discrimination between what is to be regarded as morally (or legally) acceptable and what unacceptable. [Some slippery slope arguments are cogent, others not: see Douglas Walton, Slippery Slope Arguments Clarendon Library of Logic and Philosophy, Oxford University Press, 1992] The argument here, however, is that the proposed discrimination under consideration is inherently unreasonable. It is no answer to this point to say that a distinction between the status in law of A and B can be made legally effective, by writing it into law and making it difficult to revise and by effectively policing its application so that departures from it are made difficult. [Back]
15 The radical dynamic capacity for rational life which normally results in the development of rational abilities may, of course, be impeded by failures of organic development, most importantly by failures of brain development. But whatever is conceived with the basic constitution necessary for human development should be recognised as possessing the radical capacity characteristic of human nature. Organic failures, either in development or decline, are failures in respect of the organic vehicles necessary for the exercise of rational abilities. But such failures in the life of a human being are not a reason for saying someone is not a human being, with the basic dignity which belongs to human beings. [Back]
16 'The Right to Death', The New York Review of Books, 31 January, 1991, pp.14-17, at p.17c. [Back]
17 J M Finnis, 'Bland: Crossing the Rubicon?' (1993) 109 Law Quarterly Review 32937. See more fully idem, 'On the "value of Human Life" and "The Right to Death": Reflections on Cruzan and Dworkin' 17 Southern Illinois University Law Journal 1 at 911. [Back]
18 The movement to have irreversible destruction of the neocortex taken as the criterion of death rests on a dualism of biological life/personal life. This movement has clearly influenced official BMA positions (see especially paras. 32 and 34 of the 1988 BMA Working Party Report on Euthanasia). In the diagnosis of human death there is no alternative to employing criteria analogous to the criteria we employ in diagnosing death in other kinds of animals. Living human beings, like other animal organisms, die when they irreversibly lose the capacity for the integrated organic functioning characteristic of organisms. In the days before artificial ventilation, cessation of heart and lung function was an unambiguous indicator of the loss of the capacity for integrated organic functioning. If there is validity in taking 'brain stem death' as an indicator of death, it can only be because a functioning brain stem is a necessary condition of integrated organic functioning. [Back]
19 R. v. Gibbins and Proctor (1918) 13 Criminal Appeal Reports 134. [Back]
20 The Working Party of the British Medical Association which produced the 1988 Report on Euthanasia relies heavily on the distinction at crucial points throughout that document. (See below pp. 184-185.) Since the Report represents official BMA policy, this reliance on the distinction, together with unclarity about the scope of intention, influences the September 1992 Discussion Paper on Treatment of Patients in Persistent Vegetative State produced by the Medical Ethics Committee of the BMA. Even more regrettably, the Law Lords in Bland, following the lead of the doctors, also rely on the distinction, though clearly aware that it is untenable: see 6.2.1 below. [Back]
21 Philippa Foot, 'Euthanasia', in her Virtues and Vices, Oxford: Basil Blackwell, 1978, pp.3361, at p.34. [Back]
23 James Rachels, 'Euthanasia' in T. Regan (ed) Matters of Life and Death, New York: Random House, 1980, pp.2866, at p.46. [Back]
24 See para.2 of the Special Report (9 March 1993) from the Select Committee of The House of Lords on Medical Ethics, echoing observations in the judgements in Bland. [Back]
25 For example by Ronald Dworkin, 'The Right to Death' at pp.1516; Life's Dominion, ch.7. [Back]
26 A clear exposition of this understanding may be found, for instance, in Leon R Kass, M. D., Toward A More Natural Science. Biology and Human Affairs (New York: The Free Press 1985), especially Chapter 6: 'The End of Medicine and the Pursuit of Health', pp.157186. [Back]
27 This is what symptom control is aiming for, except in the extreme situation - now, in principle, rare - in which acute pain is so intractable that the patient has to be rendered unconscious. What justifies doing that, given the rationale for palliative medicine offered in the text? It is the belief that for this patient conscious participation in other human goods has been rendered impossible by overwhelming pain so that there is nothing further to be achieved by maintaining a state of consciousness which is nothing other than consciousness of pain. But that understanding of the patient's situation does not amount to judging that the very existence of this patient is without value. [Back]
28 The misunderstanding features prominently in the writings of Helga Kuhse and Peter Singer. Its influence on the writings of Mary Warnock is also evident. [Back]
29 Pope Pius XII. Address to the First International Congress of Histopathology, September 13, 1952. Acta Apostolicae Sedis 44 (1952), pp.779-89. [Back]
30 Pope Pius XII, Address to Gregor Mendel Genetic Institute, November 24, 1957; Acta Apostolicae Sedis 49 (1957), pp.1027-1033. [Back]
31 The Voluntary Euthanasia Society falsely imply that the decriminalisation of suicide in 1961 involved recognition of 'the right of individuals to determine when their own life was insupportable' [ The Last Right. The Need for Voluntary Euthanasia revised edition, London: The VES, 1989, p.4] Suicide was decriminalised because it was felt that prosecution of those who had attempted it could only make more difficult any attempt to help them retrieve a true sense of their worth and dignity. It remains that suicidal intentions rest on what the law must regard as a false valuation of one's own life (as of any other human life). And that is why aiding and abetting suicide rightly remains a crime. It is not perhaps surprising that an organisation such as the VES should misrepresent the implications of the decriminalisation of suicide, but it is surprising to find Hoffmann LJ and Lord Goff claim (in Bland[1993] 2 WLR at 351-2, 367) that decriminalisation of suicide 'was a recognition that the principle of self-determination should in that case [suicide] prevail over the sanctity of life'. The parliamentary debates on the Suicide Bill (see e.g. House of Commons Debates, 19 July 1961, col. 1425-6) make it clear that the Act's decriminalising of the act of the suicide himself had nothing to do with a 'principle of self-determination' which is in any case incompatible with the Act's prohibition of all forms of assistance in suicide. [Back]
32 The phrase is frequently used with unacceptably euthanasiast implications to refer to the very worthwhileness of a life. [Back]
33 A majority of the Law Lords in Bland accepted the proposition that those who have the care of patients in a condition such as the judges described in the case of Tony Bland may rightly adopt a pattern of care with the intention, purpose or aim of terminating the lives or bringing about the deaths of those patients. See: 'the proposed conduct has the aim . . . of terminating the life of Anthony Bland;. . . the conduct will be, as it is intended to be, the cause of death' (Lord Mustill, [1993] 2 WLR at 388, 397); 'the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland' (Lord BrowneWilkinson at 383); 'the intention to bring about the patient's death is there' (Lord Lowry at 379). [Back]
34 No member of the House of Lords in Bland questioned Lord Justice Butler-Sloss's remark that it is 'uncomfortable' to 'attempt to draw a line between different forms of feeding such as spoon-feeding a helpless patient or inserting a tube ...' ([1993] 2 WLR at 343). [Back]
35 As Professor Jennett did as an expert witness before the Court in Bland (see [1993] 2 WLR at 325). Dr. Keith Andrews, who has very extensive experience in the management of PVS patients, maintained before the Court that enteral feeding is a part of ordinary care. His reason for doing so related to the function of enteral feeding. [Back]
36 If it is morally acceptable to withdraw artificial ventilation from an irreversibly comatose patient why should it not be morally acceptable to withdraw artificial feeding? Artificial ventilation appears no more a therapeutic activity than artificial feeding. There is, however, a significant difference between the two activities relevant to determining whether they are properly classified as ordinary care.
Feeding people (in a variety of ways, from setting dishes before them to spoonfeeding them) is part of our ordinary care of them. At various times in our lives, either because of underdevelopment or decline or accident, we can be helpless in regard to obtaining or ingesting food. If a mother fails to set dishes before her young children she will starve them. If she had failed to spoonfeed them when they were still younger she would have starved them. Tubefeeding (once one has embarked upon it) is most naturally understood as the extension of an ordinary pattern of care, and as owed to someone in the way of such care.
By Contrast, 'making people breathe' is not a part of our ordinary care of people; 'oxygenating' others is not a standard part of what we do for each other. And the reason is obvious: at any normal stage of extra-uterine life we can spontaneously breathe and the air is there to be inhaled. Consequently, supplying for the inability to breathe is not an extension of an activity of ordinary care. It is an intervention which is more reasonably interpreted as having its justification in the achievability of properly medical goals (the restoration of health, or of some approximation to health, or the palliation of symptoms). But if those goals are not achievable there can be no obligation to continue ventilation. [Back]
37 [1993] 2 WLR at 383. [Back]
38 Some parts of this section draw verbatim on John Finnis, 'Living Will Legislation', other parts draw on Luke Gormally, 'The Living Will: the ethical framework of a recent Report' (for references see footnote l). [Back]
39 It cannot be true to say in general, as Lord Goff does say in Airedale NHS Trust v Bland[1993] 2 WLR at 367-8, that in the implementation of anticipatory refusals of life-prolonging treatment 'there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so'. [Back]
40 For example, Dworkin, Life's Dominion, pp. 226-229. Dworkin believes a doctor would violate the autonomy of a manifestly happy patient with Alzheimer's disease if he refused to act on an advance directive made by the patient requiring that he be killed if he were to suffer Alzheimer's. Dworkin acknowledges, p.228, the shocking character of the conclusion towards which his argument drives him, but persists in his fictitious construct, so-called 'precedent autonomy', which (in tandem with the unbalanced primacy he here attributes to autonomy) impels him towards these conclusions. [Back]
41 Writers who place a one-sided emphasis on autonomy in defending the claim that all advance directives should be respected will standardly admit, as does Dworkin, that even the (real) autonomy of the competent is often rightly overridden (see Life's Dominion pp. 192-3, 229-30). Dworkin, however, makes little or no effort to articulate a coherent account of when 'paternalism' is justified and when unjustified. [Back]
42 It should be noted that withholding tubefeeding in the circumstances envisaged in this paragraph is consistent not only with respect for human dignity but also with human solidarity with the deprived and the vulnerable. That is so because the reason for withholding tubefeeding is the patient's own choice that this be an expression of solidarity - of respect for the needs of others. But withholding tubefeeding can have this character only when the choice of the person who suffers deprivation of tubefeeding gives it this character; what is involved is essentially an act of self-sacrifice. And that is the reason why withholding tubefeeding from those who have never made such a choice cannot be turned into an expression of human solidarity by the device of substituted judgement; we cannot make acts of self-sacrifice on behalf of others, and the pretension that we are doing so merely masks the reality that we are engaged in sacrificing them. In the absence of a prior choice of self-sacrifice on the part of a patient while competent, withdrawal of tubefeeding from that patient when incompetent must normally be accounted an offence against the requirements of human solidarity. [Back]
43 Some may think a benign interpretation of a patient's intentions when those intentions are opaque is not warranted. But the fact that there is a widespread tendency in our society to view the lives of many incompetent patients as without value should not be allowed to obscure the fact that many people have independent reasons for desiring to relieve others of burdens. [Back]
44 The Law Commission, Consultation Paper No.129: Mentally Incapacitated Adults and Decision Making. Medical Treatment and Research London: HMSO, 1993, pp.41-42 (3.27-3.29). [Back]
45 '[1993] 2 WLR 316 at 358-9: '... the medical profession can tell the court about the patient's condition and prognosis and about the probable consequences of giving or not giving certain kinds of treatment or care, including the provision of artificial feeding. But whether in those circumstances it would be lawful to provide or withhold the treatment or care is a matter for the law, and must be decided with regard to the general moral considerations of which I have spoken. As to these matters, the medical profession will no doubt have views which are entitled to great respect, but I would expect medical ethics to be formed by the law rather than the reverse. ... the plaintiff hospital trust ... has invited the court to decide whether, on medical facts which are not in dispute, the termination of life-support would be justified as being in the best interests of the patient. This is a purely legal (or moral) decision which does not require any medical expertise and is therefore appropriately made by the court.' This is a sound statement of principle.
Hoffmann L. J. also, however, made an unexplained and highly questionable concession that 'the fact that the doctor has acted in accordance with responsible medical opinion would usually be determinative'if the question related to 'some past act on the part of the doctor' and 'whether such an act had given rise to civil or criminal liability' (emphases added). As Lord Mustill implicitly indicates at p.391 H, there was no basis in the context of Bland for this distinction between a declaration of law in relation to prospective conduct and an application of the very same law to the same facts when they lie not in the future but in the past. [Back]
46 [1993] 2 WLR 316 at 399. [Back]
47 In relation to the withholding of treatment, Butler-Sloss LJ and Lord Goff both indicate that what is available as a benefit to the competent with their consent must be made available to the incompetent who cannot consent: Bland [1993] 2 WLR at 3470, 368D. [Back]
48 Quoted in Yale Kamisar, 'Some Non-Religious views against "Mercy-Killing" Legislation', Minnesota Law Review 42 (1958), 9691042, at 1037. [Back]
49 See J M Finnis, 'Bland: Crossing the Rubicon?' in Law Quarterly Review 109 (1993), 329-37. [Back]
50 Lord Mustill, at [1993] 2 WLR pp.388-9: 'the distortions of a legal structure which is already both morally and intellectually misshapen'; 'the morally and intellectually dubious distinction between acts and omissions' (p.399); Lord Browne-Wilkinson at p.387: the conclusion I have reached will appear to some to be almost irrational. . . .I find it difficult to find a moral answer . . .' ;Lord Lowry at p.379: '. . . a distinction without a difference...' [Back]
51 R. v. Bubb (1850) 4 Cox C.C. and R. v. Gibbins and Proctor (1918) 13 Cr. App. R. 134. [Back]
52 The concept of intention is central to the existing law of murder. A series of recent judicial decisions of the highest authority establish (in conformity with a sound philosophical understanding of intention) that there can be murder only if there is intention to kill (or cause grievous bodily harm); that there can be intention to kill without 'desire' to kill; and that one who foresees that his act will probably or even certainly cause death may, but need not, have the intention of killing. With these clarifications, the concept is to be left to the good sense of juries. See Lord Goff of Chieveley, 'The Mental Element in the Crime of Murder' (1988) 104 Law Quarterly Review 30. [Back]
53 A repeated figure for satisfactory pain control is in 97% of cases in the hospice setting and in 90% of cases in domicilIary care. [Back]
54 J Keown, 'Some reflections on euthanasia in The Netherlands' in Luke Gormally (ed) The Dependent Elderly. Autonomy, Justice and Quality of Care Cambridge: Cambridge University Press 1992, 70100, at 79. See Chapter 4 below, p.203. [Back]
55 This section draws on I J Keown, 'The Law and Practice of Euthanasia in The Netherlands' Law Quarterly Review 108 (1992), pp.51-78. [Back]
59 See Carlos F Gomez MD, Regulating Death: Euthanasia and the Case of The Netherlands New York:Free Press 1991, p.122. [Back]
60 Medische beslissingen rond het levenseinde. Rapport van de Commissie onderzoek medische praktijk inzake euthanasie. ('s-Gravenhage: Sdu Uitgeverij Plantijnstraat, 1991). [Back]
61 Medische beslissingen rond het levenseinde. Het onderzoek voor de commissie onderzoek medische prakujk inzake euthanasie. ('s-Gravenhage: Sdu Uitgeverij Plantijnstraat, 1991). An English translation has been published as P J van der Maas et al., Euthanasia and other Medical Decisions at the End of Life (Elsevier 1992); also published in Health Policy 22/1-2 (1992). (Hereafter, 'Survey') [Back]
63 Ibid., 183. See generally chapter 7. [Back]
64 Ibid., 184. See generally chapter 8. [Back]
65 It should be noted that these cases are explicitly distinguished in the Report from cases in which morphine is administered or treatment withheld for reasons other than that of bringing about death while foreseeing that death may result from the decision. The latter kind of case does fall within the bounds of acceptable medical practice. But it is misleading of VES representatives to suggest that the 16,000 cases in which, in the terms of the Survey (see footnote 9 above), there was some 'intention' to shorten life (by administering opiates or withdrawing treatment) also fall within the bounds of acceptable medical practice. It is true that about 11,000 of these cases are described by the Survey as falling within the class of choices carried out 'partly with the intention to shorten life'. It seems not unlikely that that is an accurate description of a majority of those cases, though it should be recognised that the researchers made use of that description to cover certain cases for which it is inapplicable; namely, cases in which the only ground (mistakenly invoked) for attributing intention is that the hastening of death (resulting from the clinician's course of conduct) is regarded as 'not unwelcome' by the clinician. [Back]
66 Ibid., 182. See generally chapter 6. [Back]
68 John Keown, 'On Regulating Death', Hastings Centre Report 22/2 (1992), pp.39,42. [Back]
69 Survey, p.102, Table 9.7. [Back]
70 Ibid., 49, Table 5. 14. [Back]
71 Op.cit., p.161, n.7 above. [Back]
72 See 'Dutch doctors support life termination in dementia', British Medical Journal 306(1993), p.1364. [Back]
73 Survey p.58, Table 6.1. [Back]
74 Op.cit., p.161, n.8 above: p.15. [Back]
75 Quoted in I J Keown, op.cit., p.160, n.3 above: p.78. [Back]
76 J S Habgood, 'Euthanasia - A Christian View', Journal of the Royal Society of Health 3(1974)124,126. [Back]
77 It is frequently said by contemporary proponents of euthanasia that what they seek to have legalised bears no comparison with medical involvement in euthanasia under the Nazis. The reasons advanced for the contention are weak. Some say that what they want legalised is killing justified in terms of the claims of autonomy. But no such simple justification is available (see 1.3.2). Others say that what they want justified would have a different 'motive' from medical euthanasia under the Nazis. But it is a commonplace observation, in law as in morals, that ostensibly worthy motives cannot independently render acceptable chosen behaviour which in its intentional character is objectionable. [Back]