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University of Otago Law Festschrifts |
Last Updated: 31 May 2019
4 DEBATING EUTHANASIA:
A REPLY TO EMILY JACKSON
John Keown*
INTRODUCTION
Whether the criminal law should permit voluntary euthanasia and/or physician-assisted suicide is one of the most important ethical debates in developed nations, from the United States and Canada to Australia and New Zealand. In the United Kingdom, for example, the debate has been both long and deep: the issue has been exhaustively considered by Parliament across more than three quarters of a century. In 1936 the House of Lords rejected a Bill to allow voluntary euthanasia; in 2004 a Select Committee of the House unanimously rejected relaxation of the law, and in 2006 the House defeated a Bill introduced by Lord Joffe, which had prompted yet another Select Committee report, to permit physician-assisted suicide.1 In 2015, a similar Bill introduced by Lord Falconer failed to proceed, and an amended version of the Bill introduced into the Commons by Mr Rob Marris MP was decisively rejected.2 Moreover, the debate on the Falconer and Marris Bills took place in the wake of an important (and – not least in the light of the repeated debates in the House of Lords – surprising) message sent to Parliament by the Supreme Court. In Nicklinson the Court told Parliament that it should address the issue promptly and that, if it did not do so “satisfactorily”, the Court might declare the law’s blanket ban against assisting suicide incompatible with Article 8
John Keown MA DPhil PhD DCL, Rose F Kennedy Professor of Christian Ethics, Kennedy Institute of Ethics, Georgetown University. It is a pleasure to contribute to this volume honouring Professor Peter Skegg, exemplary scholar and teacher. I have had the pleasure of knowing Peter since he supervised the first year of my doctoral research at Oxford. He not only played a foundational role in establishing the discipline of medical law: he set the gold standard for it.
See respectively the Voluntary Euthanasia (Legalisation) Bill (01 December 1936) 103 GBPD HL 465; Select Committee on Medical Ethics Report of the Select Committee on Medical Ethics (HL Paper 21-I, 1993-94); Assisted Dying for the Terminally Ill Bill 2005 (86-I) (select committee report); The Assisted Dying for the Terminally Ill Bill (12 May 2006) 681 GBPD HL 1184.
The Assisted Dying Bill [HL] Committee (2nd day) (16 January 2015) 758 GBPD HL 1001; The Assisted Dying (No.2) Bill (11 September 2015) 559 GBPD HC 656. In 2009 the House of Lords rejected an attempt by Lord Falconer to amend the Coroners and Justice Bill to permit assisting suicide (7 July 2009) 712 GBPD HL 595. The statute updated the crime: see the Coroners and Justice Act 2009, s 59.
of the European Convention on Human Rights, protecting the right to “private and family life...”.3
Another important judicial development in the ongoing international debate occurred in February 2015 when the Supreme Court of Canada held, in Carter, that the Canadian Charter of Rights and Fundamental Freedoms contains a right to voluntary euthanasia and physician-assisted suicide.4 In June 2015, by contrast, the High Court of New Zealand rebuffed a challenge, which invoked the Canadian decision, to its country’s blanket ban.5
The debate, though of immense social, ethical and legal importance is, unfortunately, no stranger to confusion, confusion to which, as Nicklinson and Carter illustrate, even senior judges are not immune. It is to be hoped that a relatively recent book, Debating Euthanasia,6 which several reviews have applauded as a valuable guide to the current debate,7 will help clarify at least some of the confusion. In the first half
3 R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent);
R (on the application of AM)(AP)(Respondent) v The Director of Public Prosecutions (Appellants) [2014] UKSC 38. A minority of four Justices held that Parliament was inherently better qualified than the courts to assess whether the prohibition complied with Article 8 and that, under present circumstances, the courts should respect Parliament’s assessment. Of the remaining five, two, remarkably, went so far as to hold the prohibition incompatible with Article 8. The other three were not prepared to go so far, at least for the present. However, the President of the Court, Lord Neuberger, stated (at [118]) that if the matter was not “satisfactorily addressed” by Parliament “in the near future” there was a “real prospect that a further, and successful, application for a declaration of incompatibility may be made”. For an incisive comment on the case see John Finnis “A British ‘Convention Right’ to Assistance in Suicide?” (2015) 131 LQR 1.
5 Seales v Attorney-General [2015] NZHC 1239 (Collins J).
6 Emily Jackson and John Keown Debating Euthanasia (Hart Publishing, Oxford, 2012)
[Hereafter “DE”].
of the book, Professor Emily Jackson mounts a case against the legal prohibition on euthanasia and physician-assisted suicide; in the second half I argue in favour of the prohibition. Our essays were written blind, and mine mentioned8 that I would be drafting a reply to her contribution after I had read it. This essay is that reply.9
I will suggest that the case Professor Jackson makes in Debating Euthanasia is vulnerable to at least six major criticisms. In particular, it fails:
(1) to advance a clear or consistent ethical case in principle for voluntary euthanasia and physician-assisted suicide;
(1) to controvert the core philosophical principle supporting the legal prohibition on intentionally killing patients or helping them to kill themselves: the ‘inviolability of human life’;
(1) to controvert the key moral and legal distinction between intention and foresight (instead conflating intention and foresight);
(1) to rebut the logical ‘slippery slope’ argument;
(1) to rebut the empirical ‘slippery slope’ argument, particularly in the light of the disturbing evidence generated by the Dutch and the Belgians showing the widespread breach, with virtual impunity, of their respective legal safeguards; and
(1) to articulate and defend a concrete proposal for relaxation of the law. I shall address these weaknesses seriatim.
SIX CRITICISMS
1.1 Ethical Vagueness
Professor Jackson argues that the law should permit physicians intentionally to end the lives of certain patients by lethal injection with their consent (voluntary, active euthanasia or VAE) and intentionally to provide certain patients who request them with lethal drugs to commit suicide (physician-assisted suicide or PAS). Her opening paragraph helpfully summarizes the core of her argument: “we owe it to people who experience permanent and irreversible suffering, and
Debate that’s Being Done to Death” (2013) 33 OJLS 401. I shall comment briefly on the reviews in Section 2 of this essay.
DE, above n 6, at 84 note 1.
This reply should be read in conjunction with Part IV of my essay in DE (“Professor Jackson’s Arguments”) in which I reply to her three previously-published pieces in favour of decriminalization (listed in DE, above n 6, at 84 note 1).
to those who justifiably worry that this lies ahead of them, to do all that we can to alleviate their distress”.10 She adds that in a “very small” number of cases “this may entail allowing people who cannot be helped in any other way, and who believe that death offers the only possible release from their suffering, to have their lives ended quickly and painlessly”.11 She claims that “in the absence of evidence that an effective assisted dying law is actually infeasible”12 the law should be relaxed. Decisions about how we die are, she continues, “significant and deeply personal issues of conscience....”13 She quotes ‘The Philosophers’ Brief’ to the US Supreme Court in Washington v Glucksberg14 which urged that certain decisions are momentous in their impact on the character of a person’s life; that in a free society individuals must be allowed to make those decisions for themselves; that most of us see death as the final act of life’s drama and that we want that last act to reflect our own convictions, not those of others forced on us in our most vulnerable moment.15
What, then, is the ethical basis of Professor Jackson’s case? Is it respect for autonomy, in the sense that we should respect “significant and deeply personal issues of conscience” about how people want to die, decisions which reflect their personal convictions? If so, why should suffering (let alone “permanent and irreversible” suffering which cannot be otherwise alleviated) be a requirement for euthanasia? Such suffering may of course explain a person’s wish for euthanasia, but it need not. People may want to die for reasons unconnected with such suffering. If, as seems to be the case, Jackson supports a requirement of “unbearable suffering”, why doesn’t this amount to the imposition of her convictions on people who are not suffering unbearably but nevertheless wish to end their lives?
Or, is the basis of her case beneficence, the duty to benefit others, which duty is thought to be discharged by ending their “permanent and irreversible suffering” that cannot be otherwise alleviated? If so, what type of suffering would qualify, and to what degree? Jackson relates the moving testimonies of several patients with seriously disabling conditions, such as motor neurone disease and ‘locked-in’ syndrome, who wanted accelerated death.16 It is, however, far from clear that
10 DE, above n 6, at 1.
11 At 1.
12 At 4. Original emphasis.
13 At 5.
14 Washington v Glucksberg [1997] USSC 75; 521 US 702 (1997).
15 DE, above n 6, at 5-6.
16 See for example DE, above n 6, at 3-4. She claims (DE, above n 6, at 41), citing a paper of mine in the Journal of Medical Ethics, that I assume that a person’s judgment that their life is no longer worth living is the product of “depression or pain or loneliness”. The relevant passage
her arguments would limit eligibility for VAE/PAS to such severe conditions. She notes empirical evidence from Oregon, which allows PAS, indicating that the main motivations for seeking it have been, first, “loss of autonomy” and, close behind, a “decreasing ability to participate in activities that made life enjoyable”.17 She nowhere criticizes these as insufficient reasons. If she regards them as sufficient, they are quite some distance from the stories of gravely disabled patients she uses to front her case.
It is, moreover, far from clear that her criterion of suffering would exclude cases of so-called ‘existential’ suffering, such as that of the healthy elderly person whose friends have died and who feels desperately lonely. Though this has hitherto been rejected by the Dutch Supreme Court as a sufficient legal justification for VAE/ PAS, such suffering is thought by many in the Netherlands, including the former Minister of Health, an architect of the Dutch euthanasia regime, to be a sufficient moral justification.18 Jackson writes that even if inadequate pain management should be a thing of the past, it is much less clear that palliative care can alleviate “the psychosocial consequences of bodily decline”.19 She adds that “extreme dependency” may also prompt requests for death.20 But many patients, especially elderly patients, may suffer the psychosocial consequences of bodily decline or be extremely dependent on others. Does she think either a sufficient ground for VAE/PAS?
Questions arise not only as to the type of suffering Jackson thinks justifies VAE/ PAS, but also as to the degree. Suffering which is “permanent and irreversible”
in my paper does not, however, claim that the judgment is always the result of depression, pain or loneliness. It reads: “The fact that, through depression or pain or loneliness, some patients may lose sight of their worth is no argument for endorsing their misguided judgement that their life is no longer worth living”: John Keown “Mr Marty’s Muddle” (2006) 32 J Med Ethics 29 at 31.
17 DE, above n 6, at 9.
18 “Dutch Minister Favours Suicide Pill” CNN.com/world (14 April 2001) <http://edition.cnn . com/2001/WORLD/europe/04/14/netherlands.suicide/> . The Brongersma case, in which the Dutch Supreme Court rejected ‘existential’ suffering as a sufficient ground, is discussed in John Griffiths and others Euthanasia and Law in Europe (Hart Publishing, Oxford, 2008) at 35-39. Griffiths and others report that around 45% of the public take a different view, and that about 75% of doctors stated that they could conceive of hastening death on this ground; at 38. A more recent survey concluded that a “substantial minority” of the Dutch public support euthanasia on this ground for older people, and that support rises to over a third for the “oldest old”. Natasja Raijmakers and others “Assistance in Dying for Older People Without a Serious Medical Condition Who Wish to Die: A National Cross-Sectional Survey” (2015) 41 J Med Ethics 145 at 148.
19 DE, above n 6, at 11.
20 At 12.
may well vary in degree. Occasionally, the words “intolerable” or “unbearable” and “horrible” appear in her discourse,21 but it is unclear if she intends these as requirements and, if she does, what she means by them. And how is “unbearability” to be determined? Is it not an essentially subjective notion and, if so, what limit does it place on the availability of euthanasia? Jackson writes:22
... I would maintain that the ‘true expert’ in relation to the existence, or otherwise, of unbearable suffering is the patient herself. There is now a wealth of empirical evidence concerning the motivations of patients who express an interest in assisted dying, and it is clear that they often believe that their life has ceased to be any sort of life to them.
Further, one might ask, why limit euthanasia to those who could bear their suffering but would rather not?
Unless we have a pretty clear idea of the type and degree of suffering which are thought to justify euthanasia, how can we conclude, as Jackson does, that the number who would qualify is likely to be “very small”?23 She proposes euthanasia only “in certain limited circumstances”24 but the limits seem ill-defined.
Finally, if beneficence is thought to be the justification for euthanasia, does it not justify ending the lives of those who are suffering but who are incompetent to request death (non-voluntary euthanasia or NVAE), as is now judicially condoned in the Netherlands (in the case of disabled newborns)? Or, is the basis of Professor Jackson’s case a combination of beneficence and respect for autonomy? If so, why insist on a request? Why deny the incompetent relief from suffering merely because they lack autonomy? As we shall see when we consider my fourth criticism of her case, Jackson does make some attempt to refute the logical link between voluntary and non-voluntary euthanasia, but without success.
1.2 Evading the Inviolability of Human Life
Not only is Jackson’s own ethical case vague, but she fails to rebut the core principled moral objection to euthanasia: that it offends the fundamental principle of the inviolability of human life.25 She considers first, and rejects,
21 See DE, above n G, at 10; 79.
22 At 10. Original emphasis. See also 39-40.
23 See text above n 11.
24 DE, above n G, at G; 77.
25 See generally John Keown The Law and Ethics of Medicine (Oxford University Press, Oxford, 2012) ch 1.
the theological version of the objection.26 But what of the more important philosophical objection, that the prohibition on intentional killing, of the sort instantiated in the law against homicide, as well as in human rights documents, such as Article 2 of the European Convention on Human Rights, is grounded in respect for the intrinsic and ineliminable dignity enjoyed by everyone, including the sick, the disabled and the dying? What of the argument that the prohibition on intentional killing, including VAE, is, to quote the Report of the House of Lords Select Committee on Medical Ethics in 1994, the “cornerstone of law and of social relationships” which “protects each one of us impartially, embodying the belief that all are equal”?27
Jackson’s response to this principle is brief and oblique.28 She argues that the idea that “assisted dying” must be prohibited in order to avoid making qualitative judgments about whether a patient’s life is worth living is “ultimately unconvincing”.29 (Given that her entire case seems to rest on the feasibility of, and justification for, making precisely this judgment, her argument is puzzling.) She writes:30
... accepting that someone’s life has ceased to benefit them is not the same as saying they have no worth. The children and partners who have accompanied people they love to Switzerland for their assisted suicides have not done so because they believed that their parent or spouse has ceased to be a valuable human being. On the contrary, the desire to be there when someone we love dies and to be able to comfort them in their final days and hours, is prompted by love and compassion, and does not entail subscribing to the view that the person’s life has become worthless.
This does not, however, get us very far. The important question is not whether relatives think that the patient’s life is worth living (they may or they may not), but whether euthanasia is predicated on that judgment, and whether such a judgment is ethically defensible.
26 DE, above n 6, at 6; 37-38.
27 Select Committee on Medical Ethics Report of the Select Committee on Medical Ethics (HL Paper 21-I of 1993-94) at [237].
28 MacLeod (above n 7) notes that Jackson fails to confront the argument that human beings have intrinsic and equal worth. Coggon observes (above n 7, at 5) that she gives “too short shrift” to the principled case against euthanasia.
29 DE, above n 6, at 38.
30 At 39.
Jackson continues that “not everyone experiences the loss of control that prompts some patients’ requests for assisted dying as undignified and degrading”.31 She adds that some gain meaning and value from their lives, and what is tolerable for one may not be tolerable to another. The patient is the expert, and the fact that disabled and sick people have different views about what it means to meet some minimum threshold of tolerability is a reason to respect this diversity.32 While opponents of euthanasia are, she goes on, entitled to believe that their own lives will be worth living regardless of how much suffering they entail, “for others there comes a point...when life has become an intolerable burden, and when death would come as a welcome release”.33
So: some sick people may see “meaning and value” in their lives and believe that they will be “worth living”. But, then again, it seems clear, some may not. It turns out, after all, that euthanasia is based on the judgment that death would be better than life; that the patient’s life is no longer worth living. Although Jackson emphasizes that the judgment is that of the patient, she accepts that it is not an entirely subjective judgment, for it could be misguided, and it would then be “profoundly wrong” to help them end their life.34 Moreover, we could add, no responsible doctor would accede to a request for euthanasia merely because the patient claimed that their life was no longer worth living. The doctor would, if acting responsibly, assess the patient’s request and end the patient’s life only if the doctor agreed that death would benefit the patient. (What responsible doctor would, for example, euthanize a patient because of minor and transient discomfort?) Furthermore, if society were to relax the law to accommodate euthanasia in certain circumstances (but not others), society would be endorsing the judgment that euthanasia was justified in those circumstances (but not others).
That the justification for euthanasia rests ultimately on the judgment of the doctor (and society, if society permits the doctor to make that judgment) that death would benefit the patient becomes even clearer in relation to patients who lack the capacity to make any judgment, such as those in ‘PVS’ (‘persistent/permanent vegetative state’). Jackson claims there is “an important difference between simply being alive, and having a life which is worth living”.35 Being in PVS “is not a life and it is not living in any meaningful sense”.36 She adds:37
31 At 39.
32 At 39-40.
33 At 41.
34 At 41.
35 At 42.
36 At 42.
37 At 42.
There is nothing independently valuable about being alive, other than that it enables me to live a life. A person who is in a permanent vegetative state is alive in a biological sense, but she may not be leading a life which has any value to her.
Terri Schiavo’s gravestone, she continues, is explicit that Terri died some 15 years before her body, as “a functioning human organism”, ceased to exist.38
We have, then, in pretty short order, moved from a denial that a prohibition on euthanasia is necessary to avoid making a qualitative judgment about whether a patient’s life is worth living, to an (at least implicit) acknowledgment that it is such a judgment which underlies competent patients’ requests for euthanasia, to the application of that judgment by Jackson to incompetent patients (even incompetent patients who are not suffering).
That euthanasia is thought to be justified because life is sometimes not worth living has so long been at the heart of the case for euthanasia that it is surprising that Jackson does not seek openly to defend that position, and explain why the competing position, which holds that the lives of all patients are of equal and ineliminable worth, is mistaken.
1.3 Conflating Intention and Foresight
At the heart of the case Professor Jackson advances in Debating Euthanasia is the argument that there is no significant moral difference between a doctor intentionally shortening a patient’s life by a lethal injection and a doctor engaging in other medical conduct, such as switching off a life-support machine, or administering treatment to palliate pain, which the doctor foresees will have the effect of shortening a patient’s life. She asks:39
Given that there are a number of lawful ways in which patients’ lives might be shortened by their doctors, what would be wrong with also permitting doctors to end life quickly and painlessly using a single lethal injection?
Later, she writes:40
38 At 42.
39 At 13. The same argument was advanced over twenty years ago by Ian Kennedy in his Upjohn Lecture “The Quality of Mercy”. For my response to his argument see Keown The Law and Ethics of Medicine, above n 25, ch 3. Kennedy was by no means the first to run the argument.
40 DE, above n 6, at 32.
... in the case of a doctor standing over a patient’s bed and making a choice between removing a tube and delivering a lethal injection, it is not self-evident that there is any difference at all, in terms of both causation of, and moral responsibility for, the patient’s death.
This passage is rather typical of the imprecision which characterizes Jackson’s essay. Is the doctor’s intention in removing the tube to kill or is it to remove a futile treatment? What is meant by “delivering a lethal injection”? Does it mean an injection which is intended to cause death, or an injection intended, say, to palliate pain which hastens death as a foreseen side-effect? If, as one suspects, Jackson means to equate the removal of a tube which foreseeably hastens death with an injection intended to hasten death, and morally to equate the foreseen with the intended hastening of death, then she is revisiting a central argument for decriminalization advanced in her previous writing.41 As it is an argument to which I replied in my contribution to Debating Euthanasia,42 relatively little need be said here. Suffice it to flag three problems with her assimilation of lethal injections with medical conduct which merely foreseeably shortens life.
First, her argument fails to controvert the key ethical distinction between trying to shorten life and merely foreseeing the shortening of life, between, for example, trying to kill the patient (with potassium chloride) and trying to kill the pain (with diamorphine), a distinction long recognized by the medical profession (including the Dutch medical profession, the pioneers of euthanasia) for whom euthanasia requires the purposeful shortening of life; by English criminal law;43 and by common sense.
41 See the three publications listed in DE, above n 6, at 84 note 1.
42 DE, above n 6, at 105-110.
43 Jackson claims, citing R v Woollin [1998] UKHL 28; [1999] 1 AC 82 that in law “if you do something knowing that a particular outcome is ‘virtually certain’, or even just ‘reasonably foreseeable’, you should be judged responsible” for bringing about that outcome: DE, above n 6, at 16. This is both inaccurate and vague. Inaccurate in that the authorities establish (though cases like Woollin could have done so much more clearly) that in the criminal law ‘intention’ bears its ordinary meaning of aim or purpose, and that foresight is, at most, evidence from which intention may be inferred. (See DE, above n 6, at 105-10, citing, at 108, the eminent honoree of this volume; Keown “A Right to Voluntary Euthanasia? Confusion in Canada in Carter”, above n 4, at 5-8.). Vague in that one may be “responsible” in law and morality for foreseen consequences one brings about without being criminally liable or morally blameworthy. Doctors are “responsible” for, say, palliative treatment which they foresee shortens life, but such treatment may be lawful and ethical. (Palliative care experts maintain that palliative treatment, properly administered, does not in fact shorten life: see for example Robert Twycross “Where there is Hope, there is Life: A View from the Hospice” in John Keown (ed) Euthanasia Examined (Cambridge University Press, Cambridge, 1995) 141 at 161-62).
It serves Professor Jackson’s case little to equate lethal injections with widely-accepted medical conduct like withholding or withdrawing treatment when such withholding or withdrawal may be carried out with intent to relieve the patient of a futile or an excessively burdensome treatment, or to respect the patient’s legal right to refuse treatment, and not with intent to shorten the patient’s life.44
Second, if she thinks, as she appears to, that the law relating to lethal injections should take its cue from the law permitting the withdrawal of treatment and requiring respect for patient refusals of treatment, then lethal injections should be allowed in a far wider range of cases than patients who request them to end unbearable suffering. The law permits treatment to be withdrawn from patients both competent and incompetent. Should the law relating to lethal injections? If not, why not? Jackson also takes the view patients have a legal right to refuse treatment “for rational reasons, irrational reasons, or no reasons at all”.45 Should the law allow patients to an equivalent right to lethal injections? If not, why not?
It is true that Bland46 is authority that tube-feeding may be withdrawn from a patient in PVS on the ground that his life is no longer a benefit.47 But the
44 She cites Rehnquist CJ in the US Supreme Court in Washington v Glucksberg as saying that in the Cruzan case the Supreme Court had assumed that competent patients have a right to refuse treatment (see DE, above n 6, at 21.) Oddly, she omits to mention that in Vacco v Quill, the companion case to Glucksberg, the same judge emphasized the importance of the distinction in law between intention and foresight, between conduct intended to assist suicide on the one hand and, on the other, switching off a ventilator at the patient’s request, which need involve no intent to assist suicide: Vacco v Quill [1997] USSC 74; 521 US 793 at 800-03 (1997). The importance of the distinction was also stressed by Sopinka J, delivering the judgment of the majority of the Supreme Court of Canada in Rodriguez v Attorney-General (British Columbia) [1993] 3 SCR 519 at 606-07. In its muddled, superficial judgment in Carter [2015] SCC 5 the same court left it opaque whether, and if so why, it rejected this key and authoritatively-established distinction.
45 DE, above n 6, at 19-20 citing Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1993] Fam 95. (See also at 23: “Indeed, it is not even necessary for someone who refuses life-prolonging treatment to establish that they are suffering at all. You do not need to have a good reason to refuse unwanted life-prolonging medical treatment”). The use of the sweeping language in cases such as Re T was obiter and incautious. It is far from clear that the right to refuse treatment is unlimited. See John Keown Euthanasia, Ethics and Public Policy (Cambridge University Press, Cambridge, 2002) at 227-30. For example, s 58 of the Mental Health Act 1983 allows treatment for mental disorder to be administered even to a competent patient who has refused it. And, in relation to treatment for physical illness, a patient surely has no right to refuse treatment for an illness which, if untreated, will spread throughout, and kill many in, the community.
46 Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789.
47 Jackson thinks that withdrawal of tube-feeding in such cases must be based on the belief that the patient’s life is of no benefit: DE, above n 6, at 27. (One may pause to ask why, if
reasoning in that case has been rightly criticized for resting on the (in this context) irrelevant distinction between acts and omissions, rather than on the key distinction between intending and foreseeing death, and for thereby leaving the law in what Lord Mustill accurately described as a “morally and intellectually misshapen” state.48 It does not follow that the misshapenness should be resolved in favour of permitting lethal injections for the competent rather than by way of overruling the reasoning in Bland and holding that there is no difference in law between injections intended to kill and omissions of treatment or tube-feeding carried out with precisely the same intent.49 In any event, Professor Jackson’s invocation of Bland50 would, again, appear to commit her to the endorsement of NVAE, and even of patients who are not even suffering, which takes her well beyond her allegedly “modest”51 argument for reform.
Indeed, Jackson’s conflation of intention and foresight would seem logically to endorse not only non-voluntary but also involuntary euthanasia (euthanasia against a competent patient’s wishes or IVAE). If there were no difference between merely foreseeing the hastening of death and intending to hasten death, there would be no difference whether the patient wanted to die or wanted to live. If a doctor, because of a lack of resources, withheld or withdrew a life-prolonging treatment from a patient who wanted it, foreseeing the patient would die, why would this not morally be the same as the doctor intentionally administering a lethal injection to that patient against the patient’s wishes?
1.4 Inadequate Response to the Logical ‘Slippery Slope’ Argument
A fourth deficiency in Professor Jackson’s case is its fragile response to the logical ‘slippery slope’ argument. This argument runs that the ethical case in favour of VAE to relieve suffering is, logically, also a case in favour of NVAE to relieve
killing the patient by such an omission is based on such a belief, killing the patient by a lethal injection is not equally based on such a belief: see text above at notes 28-30). This is not so. It could be based on the view that tube-feeding is a medical treatment, like a ventilator, and that as it can do nothing to restore the patient to an approximation of health and well-functioning, it is therefore futile because it is incapable of meeting the core goal of medicine. Lord Goff’s opinion in Bland seems consistent with this line of reasoning.
48 Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789 at 887. For a penetrating critique see JM Finnis “Bland: Crossing the Rubicon?” (1993) 109 LQR 329.
49 See now s 4(5) of the Mental Capacity Act 2005.
50 DE, above n 6, at 26-28. See also, at 78.
51 At 7. She later observes that a relaxed law which contained a competency threshold would fail to help some people whose suffering is “irremediable and unendurable”: at 78. She continues: “If the justification for assisted dying is compassion, then it would seem odd to be compassionate only towards those who happen to have mental capacity”: at 78. Quite.
suffering.52 If autonomy and beneficence are thought to justify a lethal injection in the case of a suffering patient who requests it, then beneficence equally justifies a lethal injection in the case of a suffering patient who lacks capacity to request it. The absence of an autonomous request does not negate the doctor’s duty of beneficence. Doctors are under a duty to benefit their patients, both competent and incompetent, by alleviating their suffering. Given the obviously compelling force of this logical argument, few philosophers have attempted to rebut it. Many (probably most, perhaps all) leading philosopher-advocates of voluntary euthanasia also support non-voluntary euthanasia.53
Jackson does, however, attempt to rebut the argument (albeit rather half-heartedly). She writes that the logical argument does not work because it treats beneficence and autonomy as if only one would suffice. She continues:54
Instead, it would be possible for there to have to be both an autonomous choice and unbearable suffering before a doctor could legitimately help a patient to die. Given that assisted dying involves a third person bringing about a patient’s death, it is not unreasonable to suggest that both unendurable suffering and an autonomous request should be necessary before a doctor is entitled to conclude that assisting a
52 She also includes in her discussion of the logical argument the point that if the basis for euthanasia is respect for autonomy, there is no non-arbitrary way of judging between “settled, voluntary” decisions to die and requests arising from temporary unhappiness: at 53-54. This sort of argument is indeed worthy of consideration, though it could be strengthened if it focused not so much on decisions being temporary as opposed to settled, but on different types of settled decisions. If we think a settled decision to die is justified out of respect for autonomy, to end physical suffering, why not to end desperate loneliness? This tension between respect for autonomy and the principle of beneficence is evident in Jackson’s own arguments (see text above n 15; 16) and the arguments of many other advocates of voluntary euthanasia. But this sort of argument is not, I take it, generally thought of as the logical ‘slippery slope’ argument. The logical argument is directed against the case, apparently advanced by Jackson, that voluntary euthanasia is required by respect for autonomy and by the principle of beneficence. The logical argument maintains that beneficence equally justifies euthanasia to end suffering where the patient is not autonomous (as, for example, in the case of newborns) and where the principle of autonomy is simply redundant.
53 See for example Margaret Pabst Battin The Least Worst Death: Essays in Bioethics on the End of Life (Oxford University Press, New York, 1994) 120-23; L.W. Sumner Assisted Death: A Study in Ethics and Law (Oxford University Press, Oxford, 2011) 125-26. Professors Battin and Sumner were the lead ethical expert witnesses for the plaintiffs in the case of Carter v Canada (Attorney-General) [2015] SCC 5.
54 DE, above n 6, at 54-55. Original emphases. For a similar, earlier argument justifying both a request and suffering see Hallvard Lillehammer “Voluntary Euthanasia and the Logical Slippery Slope Argument” (2002) 61 CLJ 545. For a response see Keown “A Right to Voluntary Euthanasia?”, above n 4, Part III.
patient’s death would be compatible with his legal duty of care towards his patient and his ethical responsibility to ‘do no harm’.
She goes on that although it is true that doctors are sometimes entitled to treat a patient without consent, as where the patient is incompetent, “it would be possible for assisted dying to be a special case, which could be carried out only following a patient’s explicit request”.55
Her attempt to rebut the logical argument is unconvincing. It is indeed possible to require both autonomy and beneficence, but we are surely entitled to a reason for limiting the (alleged) benefit of euthanasia to the competent and for making euthanasia a “special case”, different from other situations where the doctor’s duty to alleviate suffering is not negated by the patient’s incompetence. The reason Jackson seems to offer is that euthanasia involves another person, the doctor. But this obviously won’t do: doctors are involved in benefiting their incompetent patients in many other situations, as when they administer palliative drugs to ease pain, or withdraw burdensome life-support treatment.56 If doctors properly ease the suffering of incompetent patients by administering morphine or by withdrawing burdensome treatments, why should doctors stay their hand if they judge that their incompetent patients would be benefited by euthanasia?
Jackson’s response to the logical argument is not only illogical, it is baffling: as she implies in Debating Euthanasia, and as makes clearer in her previous writing,57 she endorses non-voluntary euthanasia. Her rejection of the logical ‘slippery slope’ argument seems not only unconvincing but also (unless she no longer condones non-voluntary euthanasia) contradictory.
1.5 Inadequate Response to the Empirical ‘Slippery Slope’ Argument
Professor Jackson’s response to the empirical ‘slippery slope’ argument is also less than convincing. She writes that this argument “involves the claim that once we allow assisted dying in one case, there will be an irresistible slide towards allowing
55 DE, above n 6, at 55.
56 And there are of course many other situations, not involving the shortening of life, where doctors treat incompetent patients for their benefit.
57 See text above at notes 36-38; DE, above n 6, at 27; 78; Emily Jackson “Secularism, Sanctity and the Wrongness of Killing” (2008) 3 Biosocieties 125. In this article, Jackson appears to follow several prominent bioethicists who attach full moral status only to those human beings who qualify as ‘persons’, according to criteria such as “a rich and complex mental life, a mental life of a high order of sophistication”: at 137. Consequently, babies and human beings who are “severely impaired” lack a right not to be killed and, provided they have no family and friends, may be treated “in the same way as an animal”: at 134.
practices which we cannot defend in the same way”58 and that the most common version of the argument claims that legalising voluntary euthanasia “will make involuntary euthanasia more common”.59 She notes my observation of the many cases of non-voluntary euthanasia in the Netherlands and she comments:60
But of course this is only an example of a slippery slope at work if we have established that there is a causal link between the legalisation of euthanasia in the Netherlands and the Dutch medical profession’s (alleged) willingness to end patients’ lives without prior request.
Causation could only be proved, she maintains, if data were available showing that euthanasia without request increased after legalisation.61 She continues: “Proof that a bad practice happens in a country in which euthanasia has been legalised does not, without more, establish that it was legalisation which caused the bad practice”.62
The empirical argument could take the ‘straw man’ form set up by Jackson, setting itself the difficult if not impossible task of proving a statistical increase since decriminalization. But it need not. It could take a stronger form, less ambitious and much more difficult to rebut. This version of the argument (a version I have deployed in my previous work)63 maintains that, given the grave difficulties in drafting and policing legislation to permit only voluntary euthanasia in circumstances such as ‘unbearable suffering’, it will prove difficult if not impossible to ensure that euthanasia is carried out only on request; that requests are truly autonomous, and that euthanasia is a ‘last resort’ in cases of ‘unbearable suffering’. This form of the argument does not depend on proving a statistical increase in euthanasia without request after relaxation of the law (though it is perfectly consistent with the view that such an increase will occur, not least because doctors who perform voluntary euthanasia will reasonably wonder, or begin to wonder, why they should deny relief to their incompetent patients.) This form of the argument places the burden not on opponents of relaxation to show a statistical increase, but on the advocates of relaxation to show that their guidelines will ensure effective control over voluntary euthanasia.
58 DE, above n 6, at 55.
59 At 55.
60 At 55-56.
61 At 56.
62 At 56. We shall leave aside the questions whether, and if so why, she thinks such cases of non-voluntary euthanasia a “bad practice”.
63 “In short, the empirical argument maintains that guidelines, whether lax or strict, cannot guarantee effective regulation of the doctor’s decision-making”. Keown Euthanasia, Ethics and Public Policy, above n 45, at 76.
The Dutch initially claimed that their guidelines were sufficiently strict to prevent non-voluntary euthanasia.64 It later emerged, from their own official surveys, that their guidelines had wholly failed to prevent non-voluntary euthanasia on a wide scale. Professor Jackson’s reference to the “alleged”65 willingness of Dutch doctors to kill without request betrays a surprising lack of familiarity with the Dutch experience. As long ago as 1991, the first official Dutch survey of doctors disclosed that they admitted to having administered lethal injections without the patient’s explicit request in more than 1000 cases, and that a majority of doctors had admitted that they had either killed without request or were prepared to do so.66 The empirical evidence disproved the key Dutch claim that their guidelines would ensure effective control. This form of the empirical argument, which does not depend on showing a statistical increase after legalisation, is one which advocates of relaxation need to refute, as much as they need to answer, its logical cousin. They have yet to do so. Jackson mentions a survey in Australia, carried out by Singer, Kuhse and others, which claimed that the rate of non-voluntary euthanasia in that country was higher than the rate in the Netherlands.67 This survey, even if reliable, is of limited relevance to the empirical argument properly understood. Different countries may well have different rates of non-voluntary euthanasia for all sorts of cultural reasons. The fact that the rate in country X, which allows VAE, is lower than in country Y, which does not, has little bearing either on what would happen in country Y if its law were relaxed or, more importantly for present purposes, on whether the law in country X ensures effective control of voluntary euthanasia. The stubborn fact remains that, although the Dutch repeatedly claimed that their safeguards would prevent euthanasia without an explicit request, those safeguards have, since the law was relaxed in 1984, failed to prevent thousands of cases of euthanasia without an explicit request (most, but by no means all, involving incompetent patients).
Finally, if we are taking on board surveys from countries beyond the Netherlands, it is odd that Jackson should have ignored surveys from the UK, surveys which are closer to home, more recent than the Singer-Kuhse survey, and carried out by a leading medical sociologist whose work takes no side in the ethical debate: Professor Clive Seale. Seale found that the incidence of euthanasia in the UK
64 At 120-23.
65 DE, above n 6, at 56.
66 Keown Euthanasia, Ethics and Public Policy, above n 45, at 116. For more recent evidence confirming the failure of the law in the Netherlands and in Belgium (which legalised voluntary euthanasia by statute in 2002) to provide effective control, see Keown “A Right to Voluntary Euthanasia?”, above n 4, 29-40; Etienne Montero Rendez-vous avec la mort: dix ans d’euthanasie légale en Belgique (Anthemis, Limal, 2013).
67 DE, above n 6, at 57.
was “extremely low”, significantly lower than in the Netherlands.68 Moreover, in a letter to The Guardian, Seale explicitly rejected as inflammatory and inaccurate any suggestion that UK doctors were intentionally ending patients’ lives on a large scale.69 Seale’s letter was a response to an article by Simon Jenkins which reported: “One third of all registered deaths are by deliberate morphine overdose and one third by the removal of life support, premeditated acts by medical staff.”70 Seale replied: “I am the author of the 2006 survey of UK doctors that generated these figures, and this statement distorts the findings of the survey ...”. Seale went on:
The survey showed that one-third of deaths involved a decision to withdraw or withhold treatment, and a further third involved giving a drug (which may or may not have been morphine) that in the doctor’s opinion might have had an effect on the length of life. In some cases, for example, this would have involved a mutually shared decision not to continue with a course of antibiotics, or honouring a request from a dying patient not to pursue the option of a hospital admission.
Seale observed:
This is hardly ‘deliberate’ or ‘premeditated’ ‘killing’, or an offence about which judges must decide whether to prosecute, as Jenkins’ inflammatory language suggests. Such public statements by authoritative sources damage trust between patients and doctors and distort the true picture.
1.6 Absence of a Concrete Legal Proposal
Jackson’s less than adequate response to the empirical ‘slippery slope’ argument is exacerbated by her failure to produce a concrete proposal for legal reform, let alone one which meets concerns about the feasibility of effective control. Jackson writes that none of the objections to legalisation is sufficiently compelling “to justify a refusal even to attempt to devise an effective assisted dying law”.71 Her “modest” argument is that we should at least try.72 A “refusal to contemplate” the
68 Clive Seale “National Survey of End-of-Life Decisions Made by UK Medical Practitioners” (2006) Palliative Medicine 3 at 6. See also Clive Seale “End-of-Life Decisions in the UK Involving Medical Practitioners” (2009) 23 Palliative Medicine 198 at 201.
69 Clive Seale “Inflammatory Words on End-of-Life Care” The Guardian (letters), 1 November 2008.
70 Simon Jenkins “Denial of the Right to Die is Sheer Religious Primitivism” The Guardian, 22 October 2008.
71 DE, above n 6, at 7.
72 At 7.
legalisation of assisted dying has costs and negative consequences.73 This prompts two responses.
First, as we noted in the Introduction, legalisation has been repeatedly contemplated in the UK. In 1936 a Bill to permit voluntary euthanasia was debated in the House of Lords;74 in 1994 a Select Committee of the House of Lords produced a comprehensive report (accompanied by two volumes of evidence) unanimously rejecting legalisation;75 in 2006 another Select Committee of the House of Lords produced an extensive report (again accompanied by two volumes of evidence) on the issues raised by Lord Joffe’s Assisted Dying for the Terminally Ill Bill.76 The issue was again debated in the Lords in 2009.77 In short, there has been no shortage of attempts to devise an effective law. Far from “refusing to contemplate” the case for legalisation, that case has been repeatedly contemplated by expert committees and legislatures in the UK (and beyond).78 And, with relatively few exceptions, it has been rejected.
Secondly, despite her argument that we should try to devise an effective law, Jackson does not, surprisingly, try to do so. The reader might reasonably have expected a concrete proposal for reform, at least in outline. The relevant part of her essay is entitled “What might an assisted dying law look like?”79 By the end of that part, the reader is scarcely any the wiser. It mentions various considerations for and against certain types of reform, but is reticent about which type of reform the author favours. We are told that one approach “might” be to allow competent patients to request “terminal sedation” in advance;80 that both prospective and retrospective investigation “might” be advisable;81 and that:82
Where a decision will result in death, it would be
inappropriate to
allow the doctor to go ahead without some additional
safeguard, like a
73 At 8.
74 Voluntary Euthanasia (Legalisation) Bill, above n 1.
75 Report of the Select Committee on Medical Ethics, above n 1.
76 Assisted Dying for the Terminally Ill Bill 2005, above n 1. For a critique of the Bill and the Report see John Keown Considering Physician-Assisted Suicide (Carenotkilling.org, 2006). See also DE, above n 6, at 164-70.
77 And, yet again, in both the Lords and the Commons in 2015: see above n 2.
78 See for example New York State Task Force on Life and the Law When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York State Task Force, 1994).
79 DE, above n 6, at 62.
80 At 65.
81 At 66.
82 At 66. Original emphasis. It is also unclear, given her moral equation of the intentional and the foreseen hastening of death, whether such requirements would apply to foreseen as well as intentional life-shortening. If not, why not?
second opinion, and there would have to at least be the possibility of an investigation, after the event, so that cases which did not fall within the rules can be identified and prosecuted.
This is all rather tentative and vague. Is the ‘safeguard’ going to be a second opinion and, if so, by whom, when, and what matters would it cover? If the additional safeguard is not to be a second opinion, what would it be? Why only the “possibility” of an investigation? And an investigation by whom, when, and comprising what? The sort of largely pro forma review carried out ex post facto in the Netherlands and Belgium by a review committee? Or reporting without any review committee, as in Oregon?
Jackson continues that euthanasia and assisting suicide should remain criminal offences, but that defences “might” exist if “a set of criteria are met”.83 Alternatively, “it would also be possible” for them to be regarded as lesser offences in certain circumstances.84 She adds that there are two ways in which defences could be created. The first would be akin to self-defence to a murder charge, though this would have “substantial downsides”, as it would not provide the “comfort blanket” that legalisation would provide,85 and if doctors were to be involved it would be reasonable for them to expect prospective certainty.86 Further it “could also be argued” that if euthanasia is acceptable in certain circumstances, there is no reason why those circumstances could not be described in advance.87 Following on from this, she writes, a second way to provide a defence would be to set out the criteria in a statute, a model of this approach being the Abortion Act 1967.88 She repeats:
89
... there would also need to be some mechanism through which cases in which the rules were not followed could be identified, with the possibility of prosecution if appropriate. Prospective authorization could not amount to a licence to kill, without rigorous processes in place to ensure that the rules are followed in practice, and that where the rules are broken, this is both identified and reported to the public prosecutor.
83 At 66.
84 At 66-67. Why, if she thinks society has a moral duty to provide them to suffering patients who want them, should they be offences at all?
85 At 67.
86 At 68.
87 At 68.
88 At 68.
89 At 69.
What this “mechanism” would be and how it would function is not explained. And is the Abortion Act 1967 a suitable model, an Act which has failed to prevent widespread abortion on request for ‘social’ (that is, non-medical) reasons (in clear violation of the law) and under which doctors have been ‘pre-signing’ certificates in respect of women they have never even seen and about whom they know nothing?90
Jackson then considers whether the law should allow euthanasia or only physician-assisted suicide. At least here there is clarity: there are “compelling reasons” for legalising both.91 Jackson rightly notes that doctors could kill patients more effectively than patients could kill themselves,92 and that suicide can be unpleasant, difficult and stressful.93 She is equally clear that there should be no requirement of “terminal illness”, not only because the concept is unclear, but also because “unbearable and irremediable” suffering is not confined to the dying, and “if compassion is our justification for legalisation, it is that sort of suffering which should be the criterion, not terminal illness...”.94
She then turns to the substantive criteria for euthanasia.95 She writes: “A request for assisted dying should prompt thorough investigation of the person’s circumstances and this should be sufficiently challenging that it could not be reduced to some meaningless bureaucratic hurdle”.96 Moreover:97
If the criteria are to offer meaningful safeguards, there would need to be some way to ensure consistency of application. This could take the form of some centralised route for the prospective authorisation of access to assisted death, and nationwide retrospective monitoring of all assisted deaths, with prosecutions where the statutory criteria were not, in fact, met.
What such a process would look like and how it would operate are, again, not explained.
90 “Abortion forms being ‘pre-signed’” The Guardian, 23 March 2012. Professor Mason comments (above n 7, at 433): “I, personally, get nervous when anyone adopts the Abortion Act as a paradigm – as Professor Jackson does...”.
91 DE, above n 6, at 71.
92 At 71.
93 At 72.
94 At 79.
95 At 73.
96 At 74. (Like the Abortion Act?)
97 At 74.
Jackson continues that, to eliminate ‘doctor shopping’ it would be “possible”, as in the Netherlands, “for the only ‘gatekeeper’ to be the family doctor”. Leaving aside the fact that the family doctor in the Netherlands is not the only gatekeeper (hospital doctors lawfully can and do apply euthanasia), Jackson continues that this “would probably not work as effectively in the UK or the US” as in the Netherlands where, she says, family doctors know their patients better.98 Another issue “which would have to be addressed” is whether to involve a patient’s family and carers in the decision.99 She proceeds that it would be of “critical importance” to distinguish between a desire to die which is permanent and one which is a symptom of depression, and any relaxed law “would therefore need to include some sort of psychiatric assessment of the patient...”.100 But what sort of psychiatric assessment? By whom? By GPs with no expertise in psychiatry? Over what period? Assessment of all patients requesting euthanasia or only of some patients and, if only some, how would they be identified?
She writes that the patient’s own assessment that their suffering is unbearable would be insufficient: doctors would only comply with their ethical and legal duty if they agreed with the patient that euthanasia was the only way to alleviate their suffering.101 She suggests a “palliative care and social support filter”: the palliative care filter would involve thorough investigation of the person’s reasons for seeking death so that only requests which persisted despite access to high-quality care were granted.102 A social support filter would try to work out alternative ways of improving the person’s quality of life.103 “Assisted dying would then be a last resort, which would be justifiable only when it is clear that optimum care and support cannot relieve the person’s suffering and obviate their desire for death?”104 But what would these filters involve? Who would operate them and how? And what if high quality palliative care was available but refused? Or was not available (as it often is not)? And what if “optimum care and support” was available but refused? Or was not available (as it often is not)?
Jackson turns to the argument that the justification for euthanasia is respect for autonomy, that there is no ground for limiting euthanasia to people whose
98 At 74.
99 At 74.
100 At 75.
101 At 75. Euthanasia as a “last resort” palliative option should, she writes, involve discussions with the patient about their suffering and what other options for alleviation might be available: at 78.
102 At 78-79.
103 At 79.
104 At 79.
doctors think are suffering unbearably, and that euthanasia should be available even to the healthy.105 Her response is less than convincing. She writes that “this would be to ignore the ethical responsibility, not to mention the legal duty not to commit a crime, of the person who does the assisting”.106 This begs two questions. First, is there an ethical responsibility to deny euthanasia to a healthy patient who autonomously requests it? Secondly, if there is not, why shouldn’t the law permit it? (Of course, assisting suicide in such circumstances is currently a crime, but so is assisting suicide in cases of unbearable suffering, and that doesn’t stop Jackson from arguing that that prohibition should be relaxed.) She concludes that a defence should exist “only in certain limited circumstances, where helping someone to die is defensible as a compassionate response to suffering which cannot be alleviated in any other way”.107 She adds that the right is to ask for assistance from a willing doctor “or other third party”, who “would act appropriately only in certain limited circumstances, when helping someone to die could properly be said to be an act of responsible benevolence or compassion”.108
All this prompts several questions. First, as we asked in Part 1.1, what is to count as “suffering”? Must it be physical, or may it be mental, or emotional, or even existential, as in the case of elderly persons who request euthanasia because they are “tired of life”? On this key issue (as on others) Jackson is elusive. She rejects “terminal illness” as a requirement because of its lack of clarity,109 but that might be thought at least as clear as “unbearable suffering”. We should recall here Jackson’s discussion of the reasons that patients typically want their lives ended.110 She noted that “All of the available evidence suggests that what people fear most towards the end of life is seldom pain, but what I will refer to as ‘loss of self’”.111 She quoted the evidence from Oregon that the three most common motivations for accessing physician-assistance in suicide were not suffering, unbearable or otherwise, but “loss of autonomy”; “loss of dignity”; and a “decreasing ability to participate in activities that made life enjoyable”.112 She wrote about the way in which patients’ “lack of independence interferes with their sense of self”;113 their “internal sense of wanting their death, and the dying process which precedes it, to be consistent
105 At 76.
106 At 76.
107 At 76.
108 At 76-77.
109 See text above n 94.
110 See text above at notes 16-20; DE, above n 6, at 9-11.
111 DE, above n 6, at 9.
112 At 9.
113 At 10.
with the values that have been important to them during their life”;114 about those who “believe that their life has ceased to be any sort of life to them”;115 about how it was not clear that palliative care could alleviate “the psychosocial consequences of bodily decline”,116 and how “extreme dependency”117 could prompt requests for euthanasia. Does she think (as she seems to, not least as she nowhere rejects any of them) that “loss of self” (whatever that means), “loss of autonomy”, and “extreme dependency” are sufficient justifications for euthanasia?
Secondly, what degree of suffering is thought to justify euthanasia? Jackson seems (her formulations vary) to require that suffering be “unbearable”118 and “permanent and irreversible”119 and that the suffering “cannot be alleviated in any other way”.120 But what is meant by “unbearable”? And how is a doctor to assess whether the patient’s suffering is or is not unbearable when the patient insists it is. (Didn’t Jackson inform us previously that the patient is the “true expert” here?)121 And what if the doctor thinks that “unbearable” suffering could be alleviated by, say, palliative treatment, but the patient refuses it? May the doctor nevertheless euthanize the patient (as seems to be lawful in Belgium)? And why need the suffering be “unbearable”? What if it is “bearable” but the patient would much rather not bear it?
She claims that doctors have duties of beneficence and non-maleficence, that in “almost all” cases, helping to end a patient’s life would harm them, and that legalising “assisted dying” would carve out a limited exception, based upon the recognition “which is already given substance by the doctrine of double effect and the rules governing treatment withdrawal” that sometimes hastening death is compatible with a doctor’s duty of care.122 But if a patient autonomously judges that their life is no longer worth living, and wishes to die, for whatever reason, why is helping to end their life a harm rather than a benefit? Moreover, Jackson is proposing that the law allow intentional killing: double effect rejects intentional killing. Further, “the rules governing treatment withdrawal” (at least the legal and professional rules) require treatment withdrawal at the request of the patient. The doctor must generally comply with the patient’s request for treatment withdrawal,
114 At 10.
115 At 10. Original emphasis.
116 At 11.
117 At 12.
118 At 10. Compare: at 79 (‘horrible’).
119 At 1.
120 At 76.
121 See text above n 22; DE, above n 6, at 10.
122 DE, above n 6, at 77.
whether the patient is suffering unbearably, bearably, or not at all. Why, then, deny euthanasia to anyone, suffering or not, who autonomously requests it? And, on the very next page of her essay, considering whether euthanasia should be allowed by advance directive, she writes that “the critical justification for assisted dying is so that the person themselves can determine the moment of their death...”.123 Again, then, why deny any autonomous request for euthanasia?
Third, is Jackson open, as she seems to be (“assistance from a willing doctor, or other third party”124) to laypeople carrying out euthanasia and/or assisting suicide? On what basis would they decide whether to end life, and how would such lay killing be supervised and controlled?
Fourthly, in her earlier writing on the subject, Jackson openly condoned non-voluntary euthanasia.125 Nowhere in Debating Euthanasia does she retract that condonation, but it is much more muted. It is, however, implicit in her discussion of patients in PVS.126 It is also implicit in her discussion of euthanasia by advance directive,127 where she notes that a law “which confines help to people who meet some competency threshold fails to help some people whose suffering is irremediable and
123 At 78.
124 At 76.
125 At 157-62. See text above at note 57.
126 See text above at notes 35-38.
127 She asks (DE, above n 6, at 77-78) if the law should permit euthanasia by advance directive. She writes that one compelling argument against “might” be that a person cannot know what it would be like to be profoundly incapacitated and, more importantly, it would be necessary for someone other than the patient herself to determine the moment of death, by deciding when to implement the advance directive. “If”, she adds, we have to be certain that euthanasia remains the person’s considered preference at the moment it is carried out, it may be impossible to satisfy this condition when the person is no longer competent. In addition, she writes that “in so far as the critical justification for assisted dying is so that the person themselves can determine the moment of their death, it will seldom be possible to specify in advance, with sufficient precision, exactly when one wants to die”. This is puzzling. First, Jackson’s argument in favour of legalising euthanasia relies on attempting to show it is equivalent to the life-shortening withdrawal of treatment and the refusal of treatment. But the withdrawal of treatment to respect an advance directive is well established in law and widely accepted in practice. So it is odd to see the tail now wagging the dog, and the suggestion that euthanasia by advance directive should be an exception. It is indeed impossible to discuss with an incompetent patient whether they still want euthanasia, but it is no less impossible to discuss any treatment choice with an incompetent patient. And while a decision would indeed have to be taken by another person as to when to implement an advance directive requesting euthanasia, such decisions already have to be taken in relation to advance directives requiring the withdrawal of treatment.
unendurable”.128 She adds:129 “If the justification for assisted dying is compassion, then it would seem odd to be compassionate only towards those who happen to have mental capacity”.130 She continues that “we have to address the question” whether we are limiting access to people with mental capacity because that is the only law that is politically feasible or whether we “genuinely believe that these are the only circumstances in which assisted dying is legitimate?”131 Remarkably, she does not address the question.132 She writes only that she supports restrictions to “protect the vulnerable”: the presence of “unrelievable suffering” and a “palliative care and social support filter, for example”.133 The key question whether euthanasia should be limited to the competent is simply left hanging. This is strange, given her explicit condonation of non-voluntary euthanasia in her previous writing, and her implicit endorsement of it elsewhere in Debating Euthanasia.
In the light of the above four points, the reader might well conclude: so much for Professor Jackson’s proposal to legalise euthanasia only “in certain limited circumstances”.134
Producing an ethically coherent and workable proposal for reform, which will ensure effective control, is a central challenge to which any advocate for reform must surely rise. Jackson does not do so. She indicates that she favours a law permitting both euthanasia and physician-assisted suicide for competent patients with “unbearable suffering” who need not be “terminally ill”. But many important questions remain unanswered. Who would be allowed to perform it (laypeople as well as doctors?) and upon whom (patients who are “extremely dependent” and those who are “tired of life”?) and what safeguards would be put in place to ensure effective control? Would they differ significantly or at all from those in the Netherlands (essentially a prior second medical opinion and subsequent reporting by the euthanizing doctor to a review committee?) If not, why should we expect control to be any more effective than it has proved to be in that jurisdiction?
To argue that we should try to do something, while gesturing at possible criteria and safeguards, hardly advances the debate. Campaigners have been trying for years, and still are. We are already familiar with the main questions of principle and practice which any argument for reform must answer. Professor Jackson’s
128 DE, above n G, at 78.
129 At 78.
130 Compare her rejection of the logical ‘slippery slope’: see text above at note 54.
131 DE, above n G, at 78.
132 A question raised, moreover, at the end of her essay.
133 DE, above n G, at 78.
134 At 77. Original emphasis. And see text above at note 24.
essay does little to answer them. One cannot reasonably expect every question to be answered in a contribution to a short book, but the reader could reasonably expect a concrete proposal for reform, at least in outline.
2. A RESPONSE TO CRITICISMS
As we noted at the start of this paper, Debating Euthanasia has attracted several reviews.135 All have been broadly favourable.136 In this final part of the essay I shall respond briefly to some of the criticisms which have been levelled in some of those reviews at my contribution to the book, starting with John Coggon’s review article.
Dr. Coggon’s article, which is directed mostly against my essay, invites a raft of criticisms, including his failure to mention most of the weaknesses in Jackson’s essay that have been identified above.137 In the interests of space I shall confine myself to three of his criticisms of my essay. First, Coggon claims that I exaggerate the extent to which the principle of the inviolability of life is instantiated in current medical law. He writes that the law gives patients the right to refuse not only treatments that are futile or too burdensome but to refuse any treatment for any reason, including to end their life.138 He continues that “Keown...argues against claims that the law allows passive euthanasia”;139 “wrongly suggests that the inviolability principle is necessarily incorporated in law and practice, when the truth is that law and practice are sufficiently permissive that they allow (rather than require) people to act according to the inviolability ethic”;140 and “pleads too much when he says [the inviolability of life] represents or reflects current law and medical ethics”.141 Coggon’s assertions could hardly be more mistaken: I nowhere advance any such argument, offer any such suggestion, or make any such plea. On the contrary, I have long criticized the law for allowing “passive euthanasia” (the intentional ending of life by planned omission), in particular, the decision of the majority of the Law Lords in Bland142 that it is lawful to withhold tube-feeding
135 See above n 7.
136 For example: “concise and excellent” (Woodruff, above n 7); a “must read” (Mason, above n 7, at 434); “invaluable” (Edwards, above n 7, at 641).
137 Dr. Coggon’s muddled review article can be contrasted with the measured review article by Professor MacLeod, above n 7.
138 Coggon, above n 7, at 410.
139 At 410.
140 At 411.
141 At 411.
142 Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789.
from a patient in PVS even with intent to kill.143 I repeat that criticism in Debating Euthanasia.144 I have also long criticized the sweeping dicta in cases like Re T which assert an apparently unlimited right to refuse treatment.145 I repeat that criticism in Debating Euthanasia.146 To make matters even more curious, Coggon later acknowledges the reality that I have criticized court decisions in these respects.147 He does not seem to realize that, in the light of this acknowledged reality, his review’s central criticism self-destructs.
A second criticism Coggon makes is that I mention, in replying to the Australian euthanasia survey carried out by Singer and Kuhse, that they are two of the world’s leading advocates of euthanasia.148 Coggon claims that I am thereby casting “suspicion” on them and that, if we are to be “cynical” about them, then, as I am a leading opponent of euthanasia, people should disregard my empirical argument.149 I nowhere advocate cynicism in relation to Singer and Kuhse’s survey, or claim that it should be disregarded. But, if the authors of a survey in relation to a controversial issue are leading advocates on one side of that issue (whichever side it may be) it is surely reasonable to point that fact out to the reader. Nor does it follow that because I am an opponent of legalising euthanasia, my empirical case should be disregarded. For my empirical case does not rest on any survey I have carried out. It rests squarely on the surveys carried out over the last quarter of a
143 John Keown “Restoring Moral and Intellectual Shape to the Law after Bland” (1997) 113 LQR 481.
144 DE, above n 6, at 109.
145 Keown Euthanasia, Ethics and Public Policy, above n 45, at 66-68; 227-28.
146 I write of the courts’ “unnecessarily sweeping statements about the right to refuse treatment...” and note that they have yet to hold that a doctor may, let alone must, withdraw treatment with intent to assist a refusal of treatment which is suicidal: DE, above n 6, at 112. Coggon claims (above n 7, at 410) that the law endorses suicidal refusals of treatment, but his claim seems to rest on the sweeping dicta in cases like Re T, not on ratio. A further instance of my alleged position that the law consistently incorporates the inviolability of life is claimed to be my view that suicide remains unlawful, albeit no longer criminally unlawful. Coggon claims (above n 7, at 412) that I offer neither argument nor authority for this view. However, I provide both argument and authority in one of my earlier books (Euthanasia, Ethics and Public Policy, above n 45, at 66-68; 227-28) a book cited by Coggon (above n 7, at 404 note 5). For example, as Lord Bingham noted in Pretty, even after suicide was decriminalized by the Suicide Act 1961, “The policy of the law remained firmly adverse to suicide, as section 2(1) of the Act makes clear”. R (Pretty) v DPP [2001] UKHL 61 at [35]. Indeed, section 2(1) is itself clear authority for the unlawfulness of suicide. If it were lawful for X to commit suicide, why is it criminal, and punishable by up to fourteen years’ imprisonment, for Y to encourage X to do so? How can it be a serious crime to encourage someone to act lawfully?
147 Coggon, above n 7, at 417 note 71.
148 At 415.
149 At 415-16.
century by the Dutch, the pioneers of euthanasia. The key empirical observation I have made in my work, and which I make again in Debating Euthanasia,150 is that those surveys disclose that the Dutch guidelines have been widely disregarded, and with virtual impunity.
In an earlier passage, Coggon muddied the empirical waters by claiming that my interpretation of the evidence contradicts Jackson’s, and that the best the “confused reader” can do is to look at the primary sources.151 I am all for readers looking at the primary sources. But where does Emily Jackson even attempt to refute the evidence I have cited from the Netherlands? Nor am I alone in expressing concern about the Dutch experience. Serious concerns have been expressed by courts and expert committees, including (as I point out in Debating Euthanasia) the UN Human Rights Committee in 2001 and again in 2009.152 It is peculiar that neither Coggon nor Jackson mentions these concerns.
Thirdly, in Debating Euthanasia, I asked how assisting suicide, a matter of the gravest public concern, could ever be a private matter, so as to be protected by the right to “private and family life” under Article 8 of the European Convention on Human Rights. Coggon responds: “Any law student reading his essay will, of course, be able to unravel this conundrum”.153 Assisting suicide, he writes, can be a matter of “decisional privacy” and be public in the sense of being open to careful regulation.154 If a law student were to give me such a glib answer, I would ask: “What do you mean by ‘decisionally private’?”; “Which ‘decisionally private’ matters are open to ‘careful regulation’ and which are not?”; and “If X helping Y to commit suicide (or killing Y on request) is an aspect of Y’s right to ‘private’ life, what conduct would not engage the right to ‘private’ life?” The Supreme Court in Nicklinson dismissed the claim that the prohibition on assisting suicide breaches Article 8, and the Law Lords in Pretty held that the prohibition does not even engage Article 8.155 The conundrum is not, then, so easily unravelled.
A second review which contains criticisms of my essay is by Ricardo Chueca.156 The review is poorly written (in parts garbled, presumably because English seems not to be the author’s first language) and poorly reasoned. I am, for example,
150 DE, above n 6, at 118-28.
151 Coggon, above n 7, at 412.
152 DE, above n 6, at 124.
153 Coggon, above n 7, at 415.
154 At 415.
155 R (on the application of Nicklinson and another) (Appellants) v Ministry ofjustice (Respondent); R (on the application of AM)(AP)(Respondent) v The Director of Public Prosecutions (Appellants) [2014] UKSC 38; R (Pretty) v DPP [2001] UKHL 61.
156 Chueca, above n 7.
accused of using “an overload of citations and references”.157 This is odd, given that, as the Series Editor’s Preface points out,158 the format of the Hart series, which both Professor Jackson and I followed, is to keep citations to a minimum. I am, moreover, accused of making a “mockery” of contrary views. The supporting citation is to page 112 of the book. On that page I illustrate with a hypothetical case the fact that it is possible for a patient to refuse treatment precisely in order to end his or her life. It is not a view I mock: it is a view I hold.
One criticism made by Lord Alex Carlile is that neither Emily Jackson nor I got to grips with some fundamental issues.159 As an example he writes that the criminal law needs to be seen not simply as an instrument of regulation but as an indicator of society’s values, and that a law allowing assisting suicide sends a message: that helping seriously ill people to commit suicide is reasonable and acceptable. However, I make clear in my essay that the criminal prohibition on VAE/PAS is grounded in a foundational value, the ineliminable dignity of each patient. Citing the House of Lords Select Committee on Medical Ethics, I emphasize that that prohibition is the “cornerstone of law and of social relationships” which “protects each one of us impartially, embodying the belief that all are equal.”160
Finally, Jennifer Edwards’ review. The review is at least as unbalanced as Coggon’s: seven pages are devoted to a largely uncritical reprise of Emily Jackson’s essay; three to a largely critical assessment of mine. For example, Dr. Edwards swallows whole Jackson’s insipid response to the logical slippery slope argument. “In order to properly protect patients”, writes Edwards, “Jackson rightly argues that both justifications [respect for autonomy and relief of suffering], as well as numerous other safeguards, are needed should the law be reformed (p 54)”.161 My response in the book to this line of argument – the response that beneficence equally justifies relieving the suffering of the incompetent – is not even mentioned, let alone rebutted.
Turning to my essay, Edwards thinks it “curious” that I accept “the withdrawal of treatment and the use of the doctrine of double effect where they are medically necessary” yet “worr[y] that VAE/PAS might imply that patients are ‘better off dead’”.162 There is nothing curious about it. As my essay made plain, VAE/PAS involve intentionally ending/helping to end someone’s life because it is thought
157 Chueca, above n 7.
158 DE, above n 6, at v.
159 Carlile, above n 7.
160 DE, above n 6, at 89-91.
161 Edwards, above n 7, at 637.
162 At 639.
they will be better off dead, whereas withdrawing treatment need involve no such intention or judgment, and double effect precludes them.
Edwards goes on that I am on shaky ground when I claim that, in withdrawing tube-feeding from a patient in PVS a doctor’s intention need not be to shorten life and may be only to stop a futile treatment. She asks:163
Quite how providing someone with the nutrition they require to live could be burdensome, particularly to someone like Anthony Bland who was insensate and therefore unaware of what discomfort might come from tube-feeding, is not explored....
By confusing the issue of futility with the issue of burdensomeness, Edwards distorts my argument.
The reviews by MacLeod, Mas n, Carlile and Woodruff are insightful and balanced. Sadly, those adjectives resist application to the reviews by Coggon, Chueca and Edwards.
CONCLUSION
I welcome the observation by Dr Woodruff that my essay “quietly addresses the major reasons for changing the law...and rebuts them all”164 and Professor Mason’s view that my argument in favour of the reality of slippery slopes is more persuasive than Professor Jackson’s against.165 I also welcome Professor MacLeod’s conclusion166 that the most glaring weakness of the book is its asymmetry: whereas I take Emily Jackson’s arguments seriously, she evades key moral arguments which I deploy against decriminalization (arguments, one may add, which have long been deployed by opponents of decriminalization.)
Not only does Professor Jackson evade the key moral argument against decriminalization (the inviolability of life); advance a fragile argument against the logical slippery slope; and fail to explain how a law allowing VAE and PAS would (unlike the laws in the Netherlands and Belgium) ensure effective control; but her own case for reform is both vague and, indeed, contradictory. What is its moral basis? Autonomy, beneficence, or some combination of the two? What type of suffering, and to what degree, is required to qualify for VAE and PAS, and why? Moreover, her equation of intended death with foreseen death, which lies at the
163 At 640.
164 Woodruff, above n 7.
165 Mason, above n 7, at 432.
166 MacLeod, above n 7.
heart of her argument, is unpersuasive. Does she think (to borrow an illustration used both by Lord Goff167 and by Rehnquist CJ168) that ordering allied troops onto the Normandy beaches on D-Day, foreseeing that many will be killed, is morally equivalent to ordering them in intending them to be killed? The conflation of intention and foresight is rejected by common sense, professional medical ethics, and the criminal law. Not even the Dutch buy it. Moreover, if it were the case that foreseeing death were the same as intending death, and that there were no moral differences between, on the one hand, euthanasia (A) and, on the other hand, foreseen life-shortening palliative care (B), and the withdrawal of futile (C) or burdensome (D) or refused (E) life-prolonging treatment, then why should A be limited to those who request it and who are suffering unbearably when B, C, D and E aren’t? Why (as she proposes) should A be a serious criminal offence, albeit subject to possible defences, but not B, C, D and E? Jackson’s equation of intention and foresight, which not even she follows through consistently, is a major fault-line throughout her essay.
Nevertheless, I welcome Professor Jackson’s essay in Debating Euthanasia as a useful contribution to the debate. It is written with obvious concern for the suffering and the wishes of those who would like to have the option of VAE and/or PAS. It provides a very good contemporary example of the more or less standard case for legalisation which has been made over the years and which seems attractive and persuasive to many. Nor is it difficult to see why it seems attractive and persuasive to many. When, however, that case has been subjected to closer scrutiny by legislatures, courts and expert committees in the bulk of jurisdictions, it has been rejected. And, this essay concludes, with good reason.
167 Robert Goff “The Mental Element in the Crime of Murder”
(1988) 104 LQR 30, at 44.
168 Vacco v Quill [1997] USSC 74; 521 US 793 at 802-03
(1997).
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