Euthanasia, Ethics and the Law

From Conflict to Compromise

Richard Huxtable

• Publisher: Routledge-Cavendish
• Year: 2007
• eBook ISBN: 9781135392437
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Euthanasia, Ethics and the Law argues that the law governing the ending of life in England and Wales is unclear, confused and often contradictory. The book shows that the rules are in competition because the ethical principles underlying the rules are also diverse and conflicting.

In mounting his case Richard Huxtable considers some familiar and topical debates, including assisted suicide and voluntary euthanasia, examining such situations as the Dianne Pretty litigation and Lord Joffe's Assisted Dying for the Terminally Ill Bill. The book also enters some important, but less well-charted areas, looking at the advent of 'death tourism' and the real status of involuntary and passive euthanasia in English law, in addition to clarifying the confusion that surrounds the use of powerful painkillers like morphine. Dealing with both legal and ethical issues, the text concludes that the time has come to more openly adopt a compromise position - one that more honestly recognises and accommodates the competing values, whilst also restoring a measure of coherence to the law.

Chapter 1

Judging the end(ing) of life

Conflict and confusion

The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly.

R (on the application of Pretty) v DPP [2002] 1 FLR 268, per Lord Bingham, para. 2

If self-determination is a fundamental value, then the great variability among people on this question makes it especially important that individuals control the manner, circumstances, and timing of their dying and death.

(Brock 1993: 206)

If competent patients who are terminally ill should be legally able to choose assisted death because they believe that their lives are no longer worth living then should it not be possible for clinicians in partnership with families to make similar decisions on behalf of those who cannot competently choose for themselves?

(Doyal 2006: 66)

The right to refuse treatment should be regarded as a shield not as a sword. The courts should consistently hold that patients have no right to commit suicide by refusing treatment and that, whether or not doctors have a duty to prevent patients from committing suicide thereby, they certainly have a duty not intentionally to assist them.

(Keown 2002b: 239)

In April 2002, Dianne Pretty’s final appeal for a ‘right to die’ foundered before the judges of the European Court of Human Rights in Strasbourg. Mrs Pretty had motor neurone disease, a neuro-degenerative condition that progressively attacks the sufferer’s muscles, for which there is no cure. According to Mrs Pretty, she had ‘fought this disease each step of the way’ (Dyer 2002). She nevertheless knew that the disease would overpower her and she particularly feared the prospect of suffocating in the final stages of her life. Mrs Pretty’s husband, Brian, confirmed that he would be willing to help his wife commit suicide, but only if the legal officials would in turn confirm that he would not be prosecuted. ‘If I am allowed to choose when and how I die I will feel that I have wrested some autonomy back and kept hold of my dignity’, said Mrs Pretty. ‘That is how I want my family to remember me – as someone who respected the law and asked that in turn the law respect my rights.’ (ibid)

The legal officials – ranging from the Director of Public Prosecutions (DPP), to the English Law Lords, to the judges in Strasbourg – denied that Mrs Pretty, or indeed anyone else, had a right to be helped to die. Legal backing did exist for a wide range of personal choices, including the choice to have life-supporting treatment removed, but respect for personal autonomy did not encompass or entail positive assistance in dying. To rule otherwise, thought the judges, would be to signal that life, especially a compromised life, is not intrinsically valuable, and so would undermine the respect and protection due to vulnerable patients. Less than two weeks after hearing that she had lost this battle, Mrs Pretty died.

A decade earlier, however, the Law Lords had not been so resistant to the idea that there might be circumstances in which an early death could be in a patient’s interests. Anthony Bland had been trapped in the horrifying crush at the Hillsborough football stadium in 1989. By 1993 the doctors agreed that he was in what was then termed a persistent (now, a permanent) vegetative state (PVS). Mr Bland’s diagnosis was amongst the most extreme there could be for this condition, since his higher brain had effectively liquefied. He would never again be able to participate in life in any conscious way. However, his brain stem was still functioning. Mr Bland was therefore, in legal terms, still alive, and medical science could ensure that he stayed alive, through, for example, the provision of nutrition and hydration via a nasogastric tube.

Neither Bland’s parents nor his doctors felt that such treatment should continue, and their request that it be stopped travelled through the English court system, ultimately arriving at the House of Lords. All of the judges agreed that the nutrition and hydration could be brought to an end and that the doctors would not be committing any crime, such as murder, if they did so. This was not, they claimed, equivalent to euthanasia, and did not demolish the idea that all lives warranted equal respect and defence. It was, however, apparently clear that this treatment was not in Mr Bland’s best interests, and so he should be allowed to die with dignity.

No one familiar with medical law, be it through the specialist journals or the popular press, can have failed to have tracked the debates surrounding the fates of Mrs Pretty and Mr Bland and thereafter to have formed some opinion on the rights (and wrongs) of the two rulings. To some, including our judges, these are radically different cases, requiring radically different responses. To others, the issues at stake are basically the same. What is the value attached to life, especially a life of suffering or inability, in English law? Is life intrinsically valuable, to the extent that it should never intentionally be curtailed? Or is life only instrumentally valuable, for as long as it is a ‘meaningful’ or ‘useful’ life? Or can we perhaps get around these complicated philosophical questions by turning the decision over to the individual: is it, then, for the autonomous person to judge the value of his or her life?

These are, as Lord Bingham noted, ‘questions on which widely differing beliefs and views are held, often strongly’. In this book I will consider how English law has sought to answer these questions and how, in doing so, it has degenerated into confusion and contradiction, as it seeks simultaneously to stress that the value of life is intrinsic, and instrumental, and subjectively determined. This is not to say that English law has arrived at entirely the wrong place. Part of the reason why the law seems to clutch at conflicting concepts is that they all offer some important part of the moral picture of ending life. By the close of Chapter 6, I hope therefore to have demonstrated why the law is right to strive for ethical accommodation but also how it can achieve this in a manner that better realises a – perhaps the – fundamental goal of law, that is, issuing rules that can guide those to whom they apply (see Fuller 1969; Brownsword 1993; 1996).

Chapters 2 to 5 nevertheless combine to suggest that the messages sent by current legal rules and processes are rarely capable of achieving law’s basic purpose: the relevant authorities are replete with conflicting and sometimes blatantly contradictory edicts, which can guide nobody. However, the philosophical debates appear to fare little better: there too, conflict is everywhere, not only over the values at stake but also over the very words used to describe the practices under examination. It is to this latter problem I will turn first in this chapter, before moving on to consider what is right but particularly what is wrong with much of our current thinking about the values brought to bear on the end(ing) of life.

1 Conceptual rights and conceptual wrongs: defining ‘euthanasia’

What is ‘euthanasia’? This looks like the most obvious place to start in any examination of the morality of ending lives blighted by suffering, but it has been relatively neglected in recent debates (Beauchamp and Davidson 1979; Wreen 1988). Yet, this neglect might not be surprising given the disagreements that exist even over this seemingly simple issue. Theorists appear to have a tendency either to assume that we know what we are discussing or to stipulate meanings that are contestable and that rest on a particular moral position that is itself contestable. Both approaches have their risks: either the discussants will talk past one another or else a battle of values will immediately commence.

I will not try here to find a shared moral language that might help us to overcome these difficulties, although I will stipulate definitions of some of the central terms that should enable debate to occur without begging the key moral questions. However, my main aim is to show how conflict exists even at this basic level.

1.1 Humpty Dumpty at the end of life

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more or less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

(Carroll 1982: 184)

It has not escaped notice that there are more Humpty Dumptys than Alices populating end-of-life discussions (Morgan 2001: 205; Cohen-Almagor 2000; Derse 2000). A wide variety of words are used, ranging from ‘euthanasia’, ‘aid-in-dying’ and ‘(physician) assisted suicide’ in the academic press, to more popular phrases and political rallying cries like ‘mercy killing’, the ‘right to die’ and ‘death with dignity’. Medicine and euthanasia meet in the term ‘medicide’, coined by America’s recently incarcerated ‘Dr Death’, Jack Kevorkian (1991; see also Keown 2002a: 31). They may sometimes be used interchangeably (e.g. Dworkin 1993a: 3–4, 184–186) but the predicament, according to one opponent of the practice, is that none of these expressions, even ‘euthanasia’ itself, has any ‘accepted and philosophically warranted core of meaning’ (Finnis 1997a: 23).

Etymologically, ‘euthanasia’, derived from the Greek eu and thanatos, translates as ‘good death’ or ‘dying well’. Unfortunately, these translations immediately threaten to beg the moral question: if euthanasia is, by definition, about achieving a ‘good death’, then how can the practice be ‘bad’? The question can also be begged in the opposite direction. Some opponents of euthanasia emphasise that the word was used to describe the Nazi policies of the 1930s, when the preservation of Aryan purity led to the killing of ‘undesirable’ individuals and groups (see Davies 1997: 84). Used in this way, ‘euthanasia’ clearly conveys an evil practice (cf. Finnis 1997b: 53; Harris 1997c: 56).

Even if we restrict ourselves to the idea of ‘dying well’, this does little to clarify what we are specifically interested in examining, since one can die well from entirely natural causes without there having been any human intervention. Moreover, euthanasia is nowadays most often seen as the preserve of patients and, in particular, those suffering unbearably from disease and decline. Indeed, William Lecky is thought to be the first to use the word in this modern sense, in his History of European Morals, first published in 1869 (Lecky 1924: 93). Lecky was discussing those instances of suicide intended ‘as an euthanasia, an abridgement of the pangs of disease, and a guarantee against the dotage of old age’ (ibid). As VanDeVeer (1986: 226) points out, a basic etymological definition encompasses more than this: we might, for example, describe certain killings in self-defence or war as ‘good’ (justifiable) deaths. He similarly notes that the label can be applied to painful, rather than painless, killings; a common example involves the fatal shooting of a wounded soldier (see also Harris 2003: 14–15).

Perhaps mindful of the many pitfalls, modern thinkers tend instead to direct their attention to the types of behaviour that might be classed as euthanasia. This, of course, does not get round the central problem of defining the word, to which I shall return. Presently, however, it is worth noting how the debate currently focuses on a variety of categories and distinctions that have been introduced, gravitating primarily around, first, the wishes and mental competence of the person receiving euthanasia and, second, the ways in which it might be practised (e.g. Glover 1977: 182, 185, 197–199; Kuhse 1991: 296; Keown 2002a: 8–17).

The first distinction in this nomenclature centres upon the person whose life or death is at stake. She or he might want help in dying, not want help in dying, or be unable (like Anthony Bland, for example) to form or communicate any decision on the matter. These different positions are often labelled as, respectively, voluntary, involuntary and non-voluntary forms of euthanasia. But even here there is some confusion. The Netherlands, for example, has long allowed euthanasia to occur without criminal sanction, provided that certain conditions are met (see e.g. Janssen 2002). A central requirement is that the patient must want to receive help in dying. Defining and delineating the practices then becomes difficult because, to the Dutch, ‘euthanasia’ describes only this situation. This suggests that it is meaningless – or at least very difficult – to talk of involuntary or non-voluntary euthanasia occurring in that jurisdiction, since euthanasia is, by definition, a death that is desired.¹ The same problem has surfaced in other areas of policy-making, including in a document issued by an Ethics Task Force of the European Association for Palliative Care, which adopts a similarly narrow definition of euthanasia (2003; see Campbell and Huxtable 2003: 180–181).

This is not the only complexity that can arise with these three categories, particularly when some writers term a practise ‘non-voluntary’ euthanasia that others would classify as ‘involuntary’ (e.g. Gordon 1966: 149). Indeed, VanDemeer points out that more than one of the labels can sometimes be applied to the same case (1986: 227; cf. Foot 1977: 105). If, for example, Anthony Bland had been lethally injected, this might look like non-voluntary euthanasia. However, if he had previously held the view that life is sacred and that he would never want to have his life ended in such a way, then this would also be an instance of involuntary euthanasia.

The problems are even more pronounced in the second set of categories that are conventionally introduced. This time a distinction is drawn between (positive) acts (active euthanasia) and (negative) omissions (passive euthanasia). The clearest examples of each are the act of lethally injecting the patient, and, on the ‘passive’ (negative) side, failing to provide the patient with something necessary to sustain his or her life. Beyond this, matters become murkier, particularly around the description (and then evaluation) of an omission. No longer supplying nutrients down Mr Bland’s feeding tube looks like an omission. But what about pulling out the feeding tube? This has the same effect, but starts to look much more active (e.g. Kuhse 1991: 296; Otlowski 1997: 5–7; Huxtable 2005b). So is it an act or an omission, and should the classification even matter? Some argue on moral grounds that it certainly does matter, but disputes also occur at the level of definition, as others deny that ‘passive euthanasia’ can even exist as a category (e.g. Gay-Williams 1979: 100). Beyond this, references to ‘selective non-treatment’ or ‘withdrawing treatment’ (e.g. Mason and Laurie 2006: 543) might be more appealing to clinicians and patients, but they do not necessarily prevent the situation from being described as one of ‘passive euthanasia’.

Categorisation can be difficult but the problem with the contemporary focus on which categories of euthanasia (if any) exist and can be defended is that it downplays the importance of first agreeing upon that which is being categorised, that is, how we should understand ‘euthanasia’. Unfortunately, even the most sophisticated attempts to define the term rest on concepts that can be understood in different ways. Consider, for example, the following from Wreen:

Person A committed euthanasia if and only if:

(1) A killed B or let her die.

(2) A intended to kill B.

(3) The intention specified in (2) was at least partial cause of the action specified in (1).

(4) The causal journey from the intention specified in (2) to the action specified in (1) is more or less in accordance with A’s plan of action.

(5) A’s killing of B is a voluntary action.

(6) The motive for the action specified in (1), the motive standing behind the intention specified in (2), is the good of the person killed.

(1988: 637–640)

Although somewhat daunting to the non-philosopher, Wreen’s description undeniably captures some of the key elements of euthanasia, but it still invites conflicting interpretations.

From the outset, the differentiation between ‘killing’ or ‘letting die’ is, of course, hotly disputed. Yet, a more fundamental question might be asked: what is ‘death’? Many nowadays accept, at least in the developed world, that death is the loss of brain stem function (Capron 2001; Randell 2004). A ‘brain dead’ body can nevertheless be sustained through, for example, the use of a mechanical ventilator. Some will still argue that stopping the machine means ‘killing’ the patient (see Appel 2005; Dubler 2005: s22). Others, including Peter Singer (1994), argue that life is only valuable, and perhaps might only be described as a life, when the higher brain is functioning (contrast Fisher 1999). Could we then claim that it is better to class someone like Mr Bland as dead, such that any removal of life support from his body is not an instance of ‘killing’ or ‘letting die’?

Second, the meaning of ‘intentional’ conduct needs clarification. Am I only performing euthanasia when I directly aim at causing a patient’s death? What if, for example, I do not deliberately want to bring about death but I do foresee that death will almost certainly (or even inevitably) follow from my removing a ventilator? Confusingly, some commentators would describe this as ‘indirect euthanasia’ (e.g. Otlowski 1997: 8), which prompts the question: what does the word ‘direct’ add to the requirement that a straightforward case of euthanasia will be ‘intentional’?

Then there is the quandary of causation. When I remove the ventilator, death follows because the patient is unable to breathe unaided: it is their underlying medical condition that leads to their death. So, to borrow a phrase from elsewhere in Wreen’s definition, is it enough for my conduct to be only ‘a partial cause’ of death? If so, how big a part must I play before I can be said to have practised euthanasia?

And when does euthanasia transform into assisting in suicide? There, the suicidal person enlists my help in dying, so I clearly play a causal role in their death, but – at least according to many current definitions – it is that person him or herself who performs the final, fatal act (see e.g. Kamisar 1997: 228–229). I have played a part, maybe by purchasing the pills that they then consumed. Is this ‘only’ assisting a suicide or is it instead, or even also, a case of euthanasia? And where, if anywhere, are the boundaries between the two, especially between assisted suicide and voluntary euthanasia? To these questions many more can be added, since it is also not clear whether one can be a passive assistant in suicide, a problem which again rests on the difficulty of differentiating an act from an omission (e.g. Kamm 1998: 29–30).

The final dilemma to note here concerns the motive of the person practising euthanasia, which is what gives them their reason for acting (or omitting). Wreen tells us that this arises from an urge to serve ‘the good of the person killed’. The sort of ‘good’ that is usually envisaged involves freeing a person from such suffering as is frequently associated with some terminal or perhaps chronic illness. Dianne Pretty, for example, wanted to avoid the distressing symptoms that motor neurone disease can inflict. Ending her life would certainly seem to qualify as euthanasia, but what about ending the life of Anthony Bland, who was apparently permanently and irreversibly insensate? He, it seems, would not be able to experience any suffering, so if he had been deliberately lethally injected, one might question whether this action would more accurately be described as simply a case of murder.

More generally, clarification is required as to the sort of ‘suffering’ that will suffice before the killing (or letting die) can amount to euthanasia. Is a head cold sufficient? It may well make the killing look extremely morally questionable but does it prevent the label even being applied? Consider also the decision made by the British General Practitioner (GP) Dr Anne Turner, who sought – and received – assisted suicide in Switzerland. Dr Turner had the incurable condition progressive supranuclear palsy and she wished to end her life with assistance while she still could. She feared that her condition would deteriorate to the point at which she could no longer swallow the solution of barbiturates (Boseley and Dyer 2006). So Dr Turner was, in a sense, seeking pre-emptive euthanasia: is that a valid label? Indeed, is it necessarily the case that the suffering must have arisen from some disease or injury? Will old age or loneliness suffice (Huxtable and Möller 2007)? Some ‘medical’ problem is usually assumed in these debates, and understandably so, when they typically concentrate on whether or not people working in healthcare should be entitled to practise euthanasia. That, nevertheless, imposes an arbitrary limit on the scope of the terms, since there are occasions when non-doctors might be described as engaging in euthanasia. When such laypersons do so, however, the tendency is to describe the situation as a ‘mercy killing’. Should that label be reserved for non-medical cases, with ‘euthanasia’ only applied to medical killings?

1.2 Towards a working definition of ‘euthanasia’

Theorists, in the main, might want to identify and employ a description of euthanasia that allows the moral debates to flourish (Beauchamp and Davidson 1979: 299, 312), but, as has already been hinted, they all too often rely on concepts that will themselves ‘reflect a particular moral viewpoint’ (Otlowski 1997: 4). This problem is unlikely to be eradicated, so the best I can curr...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Abbreviations
• Introduction
• Chapter 1 Judging the End(ing) of Life
• Chapter 2 Not Pretty
• Chapter 3 Assisted Suicide in ‘the Shadowy area of Mercy Killing’
• Chapter 4 Get Out of Jail Free?
• Chapter 5 Beyond Bland
• Chapter 6 Euthanasia and the Middle Ground
• Bibliography