Debating Euthanasia

Emily Jackson, John Keown

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847317711
• Edition: 1
• Topic: Law
• Subtopic: Medical Law
• Index: Law

In this new addition to the 'Debating Law' series, Emily Jackson and John Keown re-examine the legal and ethical aspects of the euthanasia debate. Emily Jackson argues that we owe it to everyone in society to do all that we can to ensure that they experience a 'good death'. For a small minority of patients who experience intolerable and unrelievable suffering, this may mean helping them to have an assisted death. In a liberal society, where people's moral views differ, we should not force individuals to experience deaths they find intolerable. This is not an argument in favour of dying. On the contrary, Jackson argues that legalisation could extend and enhance the lives of people whose present fear of the dying process causes them overwhelming distress. John Keown argues that voluntary euthanasia and physician-assisted suicide are gravely unethical and he defends their continued prohibition by law. He analyses the main arguments for relaxation of the law - including those which invoke the experience of jurisdictions which permit these practices - and finds them wanting. Relaxing the law would, he concludes, be both wrong in principle and dangerous in practice, not least for the dying, the disabled and the disadvantaged.

Against Decriminalising Euthanasia; For Improving Care

John Keown

I. INTRODUCTION

SHOULD THE law allow doctors intentionally to kill their patients? When the euphemisms of ‘doctor-assisted death’ and ‘assisted dying’ are stripped away, this is the stark question at the heart of the euthanasia debate. The debate is not about whether doctors should be allowed to ‘help people die’. That is what good doctors do, and have always done, by their skilful use of palliative medicine. It is what good nurses do, and have always done, by their dedicated care of dying patients. The euthanasia debate is not about killing pain; it is about killing patients. It has always been against our law and against professional medical and nursing ethics intentionally to kill patients or intentionally to help patients kill themselves. So, I will contend, it should remain.

I welcome the opportunity to deploy the case in favour of the current law and professional ethics. While the case for decriminalisation is repeatedly aired by a predominantly partisan mass media, the case against often struggles to get a fair hearing. Moreover, my opponent in this debate, Professor Emily Jackson, is a leading academic proponent of euthanasia. If, as I hope to show, the arguments she and others advance are unpersuasive, it will not be for want of an informed and enthusiastic advocate. Under our rules of engagement she and I have written our contributions blind, so I have not seen which arguments she has chosen to deploy. I shall, therefore, after a short introduction (section I) and a word about definitions (section II) reply (in section III) to a range of arguments, 10 in all, which are typically advanced in favour of decriminalisation. To give the reader a better sense of the debate as it has recently unfolded in the UK, I shall then (in section IV) evaluate the significant contribution to that debate made by Professor Jackson in the form of two articles and a book chapter,¹ and (in section V) briefly analyse Lord Joffe’s Assisted Dying for the Terminally Ill Bill, which was considered by the House of Lords in 2006. Finally, I shall (in section VI) offer some brief conclusions.

The title of this book is Debating Euthanasia. The debate is not new: it has rumbled on in the UK and the US for decades. In recent years, however, the tactics of euthanasia campaigners have switched. Whereas they used to agitate for the decriminalisation of voluntary, active euthanasia (VAE) they now tend to limit their demands to ‘physician-assisted suicide’ (PAS). The ‘Voluntary Euthanasia Society’ has accordingly rebranded itself ‘Dignity in Dying’. To respond to this change of tactics, I have widened my brief to rebut those who campaign solely for PAS and I shall therefore refer throughout to VAE/PAS’: ‘voluntary, active euthanasia and/or physician-assisted suicide’. As I will argue, the attempt to distinguish PAS from VAE fails: they are joined at the hip.

If opinion polls are to be believed, the majority of people reading this book may well support VAE/PAS. That would not be surprising. The case for reform, with its slogans of ‘the right to choose’ and ‘dying with dignity’, has an obvious allure, particularly in secular, pluralistic societies. And who could fail to be moved by the plight of those (like Dianne Pretty) with motor neurone disease or (like Debbie Purdy) with multiple sclerosis who have spearheaded the media campaign for relaxation of the law? Don’t we have a duty, in compassion, to ‘help them die’? And aren’t many doctors ‘doing it’ anyway, when they administer palliative drugs or switch off life-support machines at the patient’s request, foreseeing that the patient’s death will be hastened?

Some people who support VAE/PAS do so because they have seen loved ones die in distress, or because of their own fears about dying in distress. This is entirely understandable. There are urgent, grave questions about the limited availability of quality end-of-life care and about the ‘medicalisation’ of dying. Death and dying, once part of the fabric of everyday life, are now largely confined to institutions, and have become much less familiar to many of us. Many people fear that they will die in pain or will have their dying prolonged by ‘meddlesome medicine’. We must, however, be careful before jumping to the conclusion that the answer to deficiencies in end-of-life care, including both under-treatment and over-treatment, is VAE/PAS. Whether the law should accommodate euthanasia is a question which calls for careful reflection, not misguided emotion, simplistic slogans or media sound-bites. We are debating changing the law for the whole of society, not just the ethics of individual cases. Very hard cases can indeed make very bad law. We are fortunate that few issues have been the subject of more comprehensive and informed expert debate. The case for VAE/PAS has been repeatedly aired and, with few exceptions, roundly rejected by legislatures and expert bodies worldwide, not least by the House of Lords, which has debated the matter across three-quarters of a century. Only last year it was rejected after careful consideration by the Scottish Parliament. This repeated rejection should give supporters of decriminalisation pause, especially if they have not consulted those legislative debates and expert reports. If the case for VAE/PAS is so strong, why has it repeatedly failed to persuade expert bodies which have examined it?

My contribution to this book will add its voice to the international chorus of rejection by making three central points. First, that decriminalising VAE/PAS would be wrong in principle. It would breach a basic human right: the ‘right to life’, the right not to be intentionally killed. Second, that the case for euthanasia on request is also, logically, a case for euthanasia without request. Professor Jackson’s previous publications will help me make this point, for they openly support both. Third, that even if VAE/PAS were not wrong in principle in certain ‘hard cases’ (as when requested by a competent, suffering, terminally-ill patient), decriminalisation would pose grave risks to the vulnerable, especially the dying, the disabled and the disadvantaged. In particular, it would expose the competent but vulnerable to pressure to request an earlier death, and the incompetent to death without request.

II. DEFINITIONS

For the purpose of rebutting the current campaign for VAE/PAS I am content to adopt the definitions of ‘euthanasia’ and ‘physician-assisted suicide’ employed by the House of Lords Select Committee on Medical Ethics, chaired by Lord Walton, which reported in 1994. The Walton Committee defined ‘PAS’ as the provision of help by a doctor to a competent patient who had formed a desire to end his or her life. It defined ‘euthanasia’ as ‘a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering’ (a definition which should be extended to include any reason that death is thought to benefit the patient). My focus is, therefore, actions rather than omissions which shorten life. This focus does not (as will become clear) deny the possibility of intentional killing or assisting suicide by omission, but simply reflects the current debate. Campaigners for decriminalisation are pressing for doctors to be allowed to administer lethal injections, currently prohibited by the law of murder, and/or to prescribe lethal prescriptions, currently prohibited by the law against assisting suicide. Other Committee definitions I shall adopt concern the presence or absence of a request by the patient. ‘Euthanasia’ is:

– ‘Voluntary’ when carried out at the patient’s request (which I shall refer to as ‘VAE’: voluntary, active euthanasia);

– ‘non-voluntary’ when the patient does not have the capacity to make a request (‘NVAE’: non-voluntary, active euthanasia), and

– ‘involuntary’ when the patient is competent to make a request but does not do so (‘IVAE’: involuntary, active euthanasia).²

III. TEN ARGUMENTS FOR DECRIMINALISATION

Let us now consider 10 arguments which have been advanced in favour of decriminalising VAE/PAS. Each argument will be briefly stated and then followed by counter-arguments. First, respect for autonomy.

A. Autonomy

The decriminalisation of VAE/PAS is required out of respect for individual autonomy. Patients have a right to make their own decisions about the time and manner of their death. Whose life is it anyway?

i. Autonomy vs the Inviolability of Life

The principle of ‘respect for autonomy’ has in recent years become for many a core if not dominant principle of biomedical ethics. It is not, however, unproblematic. Its advocates often fail to agree on precisely what constitutes an ‘autonomous’ choice or to offer any convincing account of why respect for someone else’s choice as such should be regarded as a moral principle, let alone a core or dominant moral principle. Our capacity for choice is undoubtedly important, for it is through our choices that we shape our lives and influence the lives of those around us, for good or for ill. But we should exercise that capacity responsibly by choosing for good, not ill. The advice ‘Be careful what you wish for because you might get it’ is not bereft of wisdom: consider King Midas. As Professor Gormally and I have put it:

Autonomy itself as a capacity is to be valued precisely in so far as its exercise makes for the well-being and flourishing of the human beings who possess it. But it is plain that many exercises of the capacity, that is, many self-determining choices, are destructive of human well-being – both in the life of the chooser and in the lives of others affected by his or her choices. The mere fact that someone has chosen to act or to be treated in a certain way establishes no title to moral respect for what has been chosen. The character of the choice must satisfy certain criteria in order to warrant our respect. The most basic criterion is that a choice should be consistent with respect for the fundamental dignity both of the chooser and of others.³

Neither Anglo-American law nor professional medical ethics have ever held that the mere fact that I have chosen justifies what I have chosen. English law refuses to respect various choices, however autonomous. It disallows choices to be owned, eaten or executed, to buy illicit drugs or to drive while not wearing a seatbelt. In the medical context patients have no right to demand whatever treatments or drugs they may want. A doctor may not amputate a healthy limb, even on request. Female genital mutilation (FGM) is prohibited by the Female Genital Mutilation Act 2003, regardless of the woman’s consent. The Mental Health Act 1983 allows treatment for mental disorder to be imposed on a competent patient who chooses against it. None of these autonomous choices need involve a risk of harm to anyone except the person making them, but they are nevertheless disallowed by the law. Other autonomous choices do involve a risk of harm to others, which helps explain why they too are rejected by the law even when, as with duelling, the risk of harm may be entirely consensual. Simply to claim, therefore, that patients have a ‘right to choose’ VAE/PAS because it is ‘their life’ begs the moral question. The focus of our moral enquiry should not be some question-begging ‘right to choose’ but on what it is right to choose, on which choices merit, or do not merit, respect. Choices which undermine human flourishing, such as choices to kill or mutilate (whether oneself or another) simply lack moral justification. Further, given that our capacity for autonomy is so valuable, how can it be right deliberately to extinguish it by deliberately extinguishing its bearer? Must liberty not at least sometimes be limited in order to be possessed?

One limit is the cardinal ethical principle of the inviolability of life. (It is often referred to as the ‘sanctity’ of life, but ‘sanctity’ has distracting religious overtones: as we shall see, the principle can stand on solely philosophical grounds.) This historic principle, foundational to Western criminal law and professional medical ethics, holds that it is wrong intentionally to kill other people (at least if they are, like patients, not involved in unjust aggression). The principle is grounded in the recognition of the inherent dignity of each human being. The Preamble to the Universal Declaration of Human Rights (1948) proclaims that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. The Preamble has it right. Each of us shares an ‘inherent dignity’ and enjoys ‘equal and inalienable rights’ in virtue of our common membership of the human family. Human life is, like friendship and knowledge, a self-evident good and is, like them, a basic rather than an instrumental good. It is a basic element of human well-being, not merely a vehicle for a life of sufficient ‘quality’ or ‘worth’. We all share a fundamental equality-in-dignity, regardless of our abilities or disabilities. There is no one whose life is ‘not worth living’, no one who would be ‘better off dead’, there are no ‘second class’ patients. The lives of all patients are worthwhile, even if some patients lose sight of their worth.

To say that human life is a basic good is not, however, to say that it is the highest good and should be preserved at all costs. That would be ‘vitalism’ and morally indefensible. We all enjoy a ‘right to life’ but that is primarily a right not to be intentionally killed. Applying the well-established ethical principle of ‘double effect’ (of which more later), it is proper for a doctor to administer palliative drugs to ease the pain of the dying, even if the doctor foresees that the drugs will as a side-effect shorten life. It is also permissible to withhold or withdraw treatments which are ‘futile’ (that is, offer no reasonable hope of therapeutic benefit) or which are too burdensome to the patient, even if the doctor foresees that without them the patient will die sooner. If, therefore, a treatment cannot improve a patient’s medical condition or ‘quality of life’, it need not be given, even though it might prolong life. There is nothing necessarily wrong with merely foreseeing the shortening of life, and even with welcoming the natural end to suffering which death may bring. Here an important caveat must be mentioned concerning the term ‘quality of life’. The concept can be used, as we have just used it, to refer to the patient’s medical condition as a baseline for deciding whether a particular treatment is likely to improve that condition. This usage is consistent with inviolability, for it is concerned with judging whether a treatment would be worthwhile. But the words ‘quality of life’ are sometimes used in a way that is inconsistent with inviolability, as a way of judging whether the patient’s life is worthwhile. Take a frail, elderly cancer patient who is only hours from death. It is one thing to say that, given the patient’s ‘quality of life’ (close to death from terminal cancer) life-prolonging treatment (such as cardio-pulmonary resuscitation) would be futile. It is quite another to say that, given the patient’s ‘quality of life’, the patient’s life is futile, that the patient would be ‘better off dead’. To use ‘quality of life’ in the latter sense is to invite euthanasia.

The principle of the inviolability of life has long been instantiated in English law. Accordingly, the law does not require doctors to do everything possible to extend patients’ lives. It recognises that patients have the right to refuse treatments which offer no reasonable hope of benefit or which they would find too burdensome, and that doctors may administer palliative drugs even if they shorten life as an unintended side-effect. But while patient autonomy gives us a right to refuse procedures, it does not give us a right to demand them; it is a shield, not a sword. In particular, the law rightly holds that we have no right to be killed, or to be helped to kill ourselves, whether or not we are dying and whether or not we want to die. Patient autonomy yields to the inviolability of life. Were it otherwise, VAE/PAS would long ago have been lawful. The inviolability of life has also informed instruments on human rights. Article 2(1) of the European Convention on Human Rights (1950) provides: ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally . . .’. In 1999 the Parliamentary Assembly of the Council of Europe passed Recommendation 1418 on the ‘Protection of the human rights and dignity of the terminally ill and the dying’ which called on the Council of Europe to respect and protect the dignity of the terminally ill by upholding the prohibition on intentionally taking their lives, even on request.⁴ The inviolability principle was cited by the Walton Committee as a major reason for its rejection of VAE/PAS. Having evaluated the arguments for decriminalisation, the Committee concluded:

[W]e do not believe that these arguments are sufficient reason to weaken society’s prohibition on intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal.⁵

ii. The Autonomous Few vs The Vulnerable Many

A second counter-argument is that decriminalisation would prejudice the vulnerable, both those who are autonomous and those who are not. Some vulnerable patients, such as the frail elderly, might be pressured into requesting VAE/PAS. Or they might simply be made to feel a burden by their relatives and by society. How we feel about ourselves can, of course, be hugely influenced by how others feel toward us. And the dying, the disabled and the disadvantaged are hardly cherished by modern society.

Concerns about the vulnerable have figured prominently among ...