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Euthanasia, pain relief and double effect

Published online by Cambridge University Press:  02 January 2018

David Price
David Price*
Affiliation:
De Montfort University, Leicester
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Extract

The law's overseeing of administrations of pain-relieving treatment with inevitable life-shortening consequences is of crucial significance in view of the dogmatic approach of English criminal law to active euthanasia. As Lanham states in respect of society's treatment of terminal physical pain:

‘If the euthanasia option is not available, some other method will have to be found. In Britain and Australia that method involves palliative care and the hospice movement. By contrast, in the Netherlands active euthanasia is available and palliative care is poorly developed.’

The recent prosecution in R v Cox made it abundantly clear that causing death in order to relieve a patient of further pain and suffering amounts to murder under current law. By contrast, knowingly shortening life through the administration of pain-killing drugs was recently declared to be lawful by Lord Goff in the House of Lords in Airedale NHS Hospital Trust v Bland.

Type
Research Article
Information
Legal Studies , Volume 17 , Issue 2 , July 1997 , pp. 323 - 342
Copyright
Copyright © Society of Legal Scholars 1997

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References

1. Lanham, D ‘Euthanasia, Painkilling, Murder and Manslaughter’ (1994) 1(3) Journal of Law and Medicine 146, 147Google Scholar. In the US, doctors are reluctant to administer pain relief in life-shortening doses whatever pain the patient may be suffering, yet euthanasia is also unlawful, creating obvious quandaries: see (1996) 313 BMJ 11.

2. (1992) 12 BMLR 38.

3. [1993] 1 All ER 821 at 868.

4. Report of the Select Committee on Medical Ethics HL Paper 21–1 HMSO, 1994.

5. Government Response To The Report Of The Select Committee On Medical Ethics Cmnd 2553 HMSO, May 1994.

6. Knauer states the principle more simply in the following terms: ‘One may permit the evil effect of his act only if this is not intended in itself but is indirect and justified by a commensurate reason’, see Knauer, P ‘The Hermeneutic Function of the Principle of Double Effect’ (1962) 12 Natural Law Forum 132 at 136Google Scholar.

7. See eg the evidence of Dr Robert Twycross, a consultant clinician, to the Select Committee, n 4 at para 70.

8. Select Committee Report n 4 at para 76.

9. An extremely persuasive and trenchant defence and articulation of the doctrine was recently mounted by John Finnis: see J Finnis ‘Intention and Side-Effects’, in Frey, R and Moms, C (eds) Liability and Responsibility: Essays in Law and Morals (Cambridge: Cambridge University Press, 1991) p 32 CrossRefGoogle Scholar.

10. The Working Party Report of the Linacre Centre for Health Care Ethics Euthanasia and Clinical Practice: Trends, Principles and Alternatives (1982), for instance, urged that where the risk of shortening life was considerable, the administration would only be permissible in cases of terminal illness, noting that it is a widely agreed axiom of medical practice that the least drastic remedy should be employed, see Gormally, L (ed) Euthanusia, Clinical Practice and the Law (Linacre Centre for Health Care Ethics, 1994) p 50 Google Scholar. Life expectancy is consequently a factor bearing on ‘proportionality’ or ‘adequacy’.

11. Some commentators assert that mental state is not decisive under DDE but, as I shall argue further on, this assertion is only valid in so far as unintended consequences/side-effects are concerned. Intended consequences are typically morally irredeemable.

12. World Health Organisation Cancer Pain Relief and Palliative Care (Geneva: WHO, 1990)Google ScholarPubMed.

13. Jochemsen, H ‘Euthanasia in Holland: an Ethical Critique of the New Law’ (1994) 20 Journal of Medical Ethics 212 at 213CrossRefGoogle ScholarPubMed.

14. This was the recommendation of the Report of the Special Senate Committee on Euthanasia and Assisted Suicide in Canada, Of Life and Death, which endorsed the traditional dichotomy between (illegal) active euthanasia and (legitimate) life-shortening palliative care (Ottawa, 1995); see also (1996) 47(1) International Digest of Health Legislation 124.

15. See n 4 at para 76.

16. Indeed, McLean states that ‘… British legislation makes abortion lawful only on the (somewhat disingenuous) basis of a kind of double-effect principle’, see S McLean ‘The Right to Reproduce’, in Human Rights: From Rhetoric to Reality T Campbell et al (eds) (Basil Blackwell, 1986) p 117.

17. Seen 4 at para 73. The Catechism of the Catholic Church (Geoffrey Chapman, 1994) emphasises the importance of DDE to Catholic principles and teachings, see para 2279.

18. See n 4 at para 242.

19. DDE arguably explains such problematic cases as R v Steane [1947] KB 997, CA. The defendant gave broadcasts for the Germans during the last war to save himself and his family from the concentration camp. He was acquitted of the offence of doing acts of assistance to the enemy with the intention of assisting the enemy. It could be argued that the action had two consequences, one good and one evil, but the defendant only intended the good effect. The bad effect was merely foreseen, not intended. Was this why the case was approved in Moloney below?.

20. (1992) 12 BMLR 38 at 39. It has been remarked that “… seldom has there been so clear an expression of the principle of double effect …”; see Mason, J and McCall Smith, A Law and Medical Ethics (London: Butterworths, 4th edn, 1994) p 320.Google Scholar

21. See H Palmer ‘Dr Adams Trial for Murder’ [1957] Crim LR 365. See also P Devlin Easing the Passing (Bodley Head, 1985) and Beckford, S The Best We Can Do (Penguin, 1989)Google Scholar.

22. [1993] 1 All ER 821 at 868.

23. See eg Beauchamp, T and Childress, J (eds) Principles of Biomedical Ethics (Oxford: Oxford University Press, 4th edn, 1994) p 208 Google ScholarPubMed.

24. In Moloney Lord Bridge distinguished intention from both motive and desire, using the person boarding the plane bound for Manchester scenario to illustrate the point: see [1985] AC 905 at 926E.

25. [1976] QB 1 (CA).

26. Above n 9, p 36.

27. [1974] 2 All ER 41 at 52, HL.

28. This is the net effect of the decisions in R v Moloney [1985] AC 905, 1 All ER 1025, HL; R v Hancock and Shankland [1986] AC 455, 1 All ER 641, HL; and R v Nedrick [1986] 3 All ER 1, CA. In so far as this is an attempt to imbue intention with notions of ‘ordinary’ language, meanings and usage, this has led to difficulties. As Lacey states: ‘In the face of this kind of problem, judges and commentators have often favoured an intermediate position in which the resort to ordinary language is buttressed by recourse to conceptual analysis and stipulation. Typically, this has consisted in the incomplete and often negative delineation of the term in question, either in terms of a partial definition, or of judicial guidelines, or both.’ See N Lacey ‘A Clear Concept of Intention: Elusive or Illusory?’ (1993) 56 MLR 621 at 628.

29. Allen, M Textbook on Criminal Law (London: Blackstone Press, 3rd edn, 1995) p 56 Google Scholar. R v Scalley [1995] Crim LR 504 illustrates the confusion created by the current law, ie that foresight of a consequence is evidence of intention but not intention itself. Professor Smith asks what a jury should be told if they ask, after being uncertain if he intended to kill according to the ordinary meaning of that word, what else they have to be satisfied of to find intention existed? See [1995] Crim LR 504 at 505–6.

30. Law Com Report No 177 A Criminal Code for England and Wales 1989, HMSO, states that: ‘Acting in order to bring about a result is, as it were, the standard case of “intending” to cause a result. But we are satisfied that a definition of “intention” for criminal law purposes must refer… to “the means as well as the end and the inseparable consequences of the end as well as the means”. Where a person acts in order to achieve a particular purpose, knowing that this cannot be done without causing another result, he must be held to intend to cause that other result. The other result may be a pre-condition … or it may be a necessary concomitant of the first result’ (at para 8.14).

31. Commentary on R v Scalley [1995] Crim LR 504 at 506.

32. (1992) 12 BMLR 38 at 41.

33. [1990] 3 All ER 930 at 938.

34. Clarkson, C and Keating, H Criminal Law: Text and Materials (London: Sweet & Maxwell, 2nd edn, 1990) p 159 Google Scholar.

35. Fletcher, G Rethinking Criminal Law (Little Brown, 1978) p 257 Google Scholar.

36. Gillon, R Philosophical Medical Ethics (Chichester: John Wiley. 1986) p 137 Google ScholarPubMed.

37. Despite occasional references to the word ‘unlawful’ in the definition of murder, eg in the Court of Appeal in Attorney-General's Reference (No 3 of 1994) [1996] 2 All ER 10, as Professor Smith states, ‘What does “unlawful” mean? It is not a distinct element in the crime of murder as it is in the case of “constructive” or “unlawful act” manslaughter’: see comment on A-G's Reference (No 3 of 1994) [1996] Crim LR 268 at 270. The need for a ‘defence’ akin to necessity in the context of a prosecution for murder has been judicially recognised. In DPP v Hyam [1975] AC 55, Lord Hailsham referred to the notion of ‘lawful excuse’ existing independently of the established defences, to which Lord Mustill also, rather obliquely, alluded in Bland [1993] 1 All ER 821 at 890. But see also Hacker, and Raz, (eds) Law and Morality: Essays in Honour of H L A Hart (Oxford: Oxford University Press, 1977) pp 169–173 Google Scholar.

38. Hanink states that ‘The moral significance of the distinction between intention and foresight is crucial to the [DDE]’: see J Hanink ‘Some Light on Double Effect’ (1975) 35 Analysis 147.

39. Report of the President's Commission Deciding to Forego Life-Sustaining Treatment 1983, p 82.

40. 79 F 3d 790 at 823 (Re-hearing en bunc 1996).

41. Harris, J The Value of Life (Routledge, 1985) p 43 Google ScholarPubMed. Anscombe has also commented on the arbitrariness of choosing an act description which suits the individual in the particular circumstances: see G Anscombe ‘Action, Intention and “Double Effect”’ (1982) Proceedings of the American Catholic Philosophical Association 12 at 23.

42. Phillippa Foot proffers the example of a potholer trapped in an entrance to a cave which is rapidly filling with water, thereby impeding the exit of other potholes in the cave. She asks if anyone could say that, if the others ‘blew up’ the trapped potholer with explosives causing inevitable death, that they only intended to escape and that the death of the trapped potholer was merely an unintended side-effect? See P Foot ‘The Problem of Abortion and the Doctrine of Double Effect’ (1967) Oxford Review 5.

43. Boyle, J ‘Who is Entitled to Double Effect?’ (1991) 16 Journal of Medicine and Philosophy 474 at 480CrossRefGoogle ScholarPubMed. See text above at n 15 and following for discussion of the abortion scenarios.

44. Geddes, L ‘On the Intrinsic Wrongness of Killing Innocent People’ (1973) 33 Analysis 93 at 94CrossRefGoogle ScholarPubMed. Geddes' account is, of course, at odds with traditional Catholic teaching.

45. An example originally postulated by the Law Commission commenting on the decision in Smith [1961] AC 290, Law Commission Report No 10, HMSO.

46. Finnis above n 9, p 47.

47. Simester argues that inseparability is based on instantiation and the agent's conception of his actions: see Simester, A ‘Moral Certainty and the Boundaries of Intention’ (1996) 16(3) Oxford Journal of Legal Studies 445 CrossRefGoogle Scholar.

48. Duff, R ‘Intentionally Killing the Innocent’ (1973) 34 Analysis 16 at 17–18CrossRefGoogle ScholarPubMed. He states: ‘But surely there is a logical absurdity in suggesting that 1 can intend to decapitate, or cut into small pieces, or remove the heart of, a living human being, without thereby intending his death … There are… logical limits on what I can include in, or leave out of, my descriptions of my intentional actions.’ At p 17 he asks rhetorically whether in the Dudley and Stephens scenario the defendants simply ‘altered the cabin boy's dimensions’, assuming he was alive when the first cannibalistic actions occurred?!.

49. Above n 42, pp 157–8. She takes the same stance regarding the exploding of the trapped potholer in the scenario set out above in n 42.

50. Above n 38, p 150.

51. Kuhse, H The Sanctity-of-Life Doctrine in Medicine (Oxford: Clarendon Press, 1987) p 98 Google Scholar.

52. See above n 42.

53. Duff above n 48, p 19. He prefers instead a connection based on ‘logical entailment’ over one of empirical certainty: see Duff, A Intention, Agency and Criminal Liability (Cambridge: Cambridge University Press, 1990) p 90 Google Scholar.

54. See above n 42 and n 48 and text at n 52.

55. Somerville, M ‘Pain and Suffering at the Interfaces of Medicine and Law’ (1986) 36 University of Toronto Law Journal 286 at 287–288CrossRefGoogle Scholar.

56. Smith, J and Hogan, B Criminal Law (London: Butterworths. 7th edn, 1992) p 332 Google ScholarPubMed.

57. See above n 1 at p 15 1. See above n 28 for cale citations.

58. Nonie, A Crime, Reason und History (London: Weidenfeld & Nicholson, 1993) p 45 Google Scholar.

59. Williams states also: ‘One who acts from necessity acts from a kind of good motive’: see Williams, G Textbook of Criminal Law (London: Stevens, 2nd edn, 1983) p 597 Google Scholar.

60. Beauchamp, T and Childress, J Principles of Biomedical Ethics (Oxford: Oxford University Press, 3rd edn, 1989) p 134 Google ScholarPubMed.

61. [1993] 1 All ER 821 at 867d.

62. Mason and McCall Smith state that ‘… while public opinion in the United Kingdom will give great latitude to the medical profession in its tight against suffering, it is not yet prepared to accept the use of a substance which has no analgesic effect, has no known therapeutic purpose but which is known to be lethal when injected’: see Mason, J and McCall, A Smith Law and Medical Ethics (London: Butterworths, 4th edn, 1994) p 321 Google Scholar.

63. Finnis above n 9, p 36.

64. Prolongation of Life — Paper 1: The Principle of Respect for Human Life (The Linacre Centre, 1978) p 13.

65. Uniacke states the third DDE condition as follows: ‘(3) The good effect must flow from the action at least as immediately (in the order of causality, though not necessarily in the order of time), as the bad effect’: see S Uniacke ‘The Doctrine of Double Effect’ (1984) 48 The Thomist 188 at 192.

66. Uniacke above n 65, p 208.

67. Williams, G Sanctify of Life and the Criminal Law (London: Faber & Faber, 1958) p 286.Google Scholar

68. Helen Benyon suggests, in ‘Doctors as Murderers’ [1982] Crim LR 17, 18 that Devlin J in R v Adams meant when he said that a doctor ‘… does not have to calculate in minutes, or even in hours, and perhaps not in days or weeks, the effect on a patient's life of the medicines which he administers or else be in peril of a charge of murder’ (see H Palmer n 21 at p 375) that a doctor lacks mens rea where he has not precisely calculated the effects of the medication he administers.

69. Finnis above n 9, p 51. Kuhse above n 51 suggests that the moral nature of an indivisible act is determined by what the agent positively wills or intends as an ‘interior act of the mind’, at p 113. She also notes that Elizabeth Anscombe is ambiguous on this point (see Anscombe, E Intention (Basil Blackwell, 1957) pp 9.44.49Google Scholar) and states that ‘It would follow, then, that whether an agent, say “defends himself” or “kills the attacker” depends on just that: the interior act of willing one rather than the other’, at p 113.

70. See P Van der Maas et al ‘Euthanasia and other Medical Decisions Concerning the End of Life’ (1992) 22 (Special Supplement) Health Policy 71–77.

71. Reg Pyne of UKCC and Ludovic Kennedy both gave evidence to the Select Committee that this was often done with the intention of terminating life, see n 4 at para 78.

72. See n 29, pp 172–3.

73. The Law Commission Report No 218 Legislating the Criminal Code: Offences Against the Person and General Principles, HMSO states in respect of this same issue (at para 36.9): ‘It is not for the defendant himself to adjudicate upon the reasonableness of the steps that he takes to prevent the offence, because that would unfairly and dangerously exculpate defendants who had an irresponsible, irrational or anti-social notion of the extent to which it is acceptable to react when threatened with attack. The reasonableness of the defendant's reaction is rather to be adjudicated upon by the jury, as a means of applying an external control to the conduct of persons who think themselves under attack.’.

74. A Norrie ‘Oblique Intention and Legal Politics’ [1989] Crim LR 793 at 799. See n 19 re R v Steane..

75. Clarkson, C and Keating, H Criminal Law: Text and Materials (London: Sweet & Maxwell, 3rd edn, 1995) p 148.Google Scholar

76. Conceivably, this could form part of the mens rea determination, just as subjective recklessness and gross negligence require an evaluation of whether the risk run was justifiable and reasonable, but intention has traditionally been a primarily subjective concept.

77. [1939] 1 KB 687, [1938] 3 All ER 615. In London Borough of southwurk v Williams [1971] Ch 734. the Court of Appeal stated that Bourne was based on necessity, at 746.

78. [1987] AC 417, 1 All ER 771, HL.

79. [1992] 1 All ER 832, HL.

80. (1884) 14 QBD 273.

81. Glanville Williams remarked some while ago that, in the context of medical treatment, if the judiciary and legislature continued to spurn the defence of necessity, there would be a need for legislation to provide for various problematic cases: see G Williams ‘Defences of General Application: (2) Necessity’ [1978] Crim LR 128 at 134.

82. A genuine belief of conformity with professional standards should excuse for homicide apart from in cases where the belief was so unreasonable as to constitute gross negligence, creating the possibility of a conviction for involuntary manslaughter.

83. This stated that no offence would be committed where palliative care was administered ‘which was appropriate in the circumstances’, even where the person's life expectancy was reduced, unless the person refused to consent to it: LRC Recodifying Criminal Law, Report 30, 1987, pp 185–6.

84. D Carswell ‘Rejecting Criminal Liability for Life-Shortening Palliative Care’ (1990) 6 Journal of Contemporary Health and Law Policy 127 at 130, 133.

85. [1993] 1 All ER 821 at 876–7 and 880.

86. Again, English courts would be potentially lured into a finding that intention was lacking because of the absence of a necessity or similar defence, leading to an acquittal for murder. But is this inquiry to proceed totally without reference to professional wisdom and guidelines and other ethical principles?.

87. Uniacke, for instance, states (above n 65, p 195): ‘But the Doctrine is not identical with the view that certain actions are intrinsically wrong, nor with the “Pauline teaching that we may never do evil that good may come.’”

88. Kuhse above n 5 1 at p 85, states that DDE is ‘… of special importance for absolutist moral schemes’.

89. Sanford Kadish has remarked that ‘The double effect doctrine seems to me much like a fiction in the law, serving to preserve appearances for a principle that has lost its sufficiency’: see ‘Respect for Life and Regard for Rights in the Criminal Law’ in Respect For Life in Medicine, Philosophy and the Law (Johns Hopkins University Press, 1975) pp 63, 71. The doctrine was dismissed as sophistry by Hart, H L A in his Punishment and Responsibility (Oxford: Oxford University Press, 1968)Google Scholar.

90. Duff comments that ‘The Absolutist is not concerned with the relative and commensurable evils of alternative courses of action: intentional killing is not an alternative, whose merits and demerits must then be weighed, but something which we may not even contemplate as a possibility’: see R Duff ‘Absolute Principles and Double Effect’ (1976) 36 Analysis 68 at 76.

91. R Frey ‘Some Aspects To The Doctrine of Double Effect’ (1975) 5(2) Canadian Journal of Philosophy 259 at 280.

92. Finnis, for example, advocates such a development, above n 9, p 49.

93. Definitions of ‘euthanasia’ themselves are a source of difficulty in this sphere, but whether one is using the phrase ‘active euthanasia’ in the sense of an ‘easy death’ or as a ‘painless killing’, life-shortening pain relieving measures satisfy either description.

94. 79 F 3d 790 at 824.

95. 79 F 3d 790 at 858. Of course, neither this author nor the majority in this case are suggesting that a doctor in the latter situation is actually guilty of murder. The two sentences contain a non-sequitur.

96. The BMA, as well as Dr John Morley of the Pain Relief Centre, Dr Steven Greer of the Psychological Medical Unit at the Royal Marsden Hospital and Dr Janet Hardt of the Royal Marsden Palliative Care Unit, all gave evidence to the Select Committee that there was a small minority of patients for whom effective pain relief alternatives are not currently effective, see above n 4 at paras 146, 151–2 and 154.

97. See C Campbell et al ‘Conflicts of Conscience: Hospice and Assisted Suicide’ (1995) (May-June) Hastings Center Reports 36 and Dame Cicely Saunders ‘In Britain: Fewer Conflicts of Conscience’ (1995) (May-June) Hastings Center Reports 44, for discussion of such potential conflicts in the United States, and a comparison of current English and American perspectives.

98. See H Biggs ‘Euthanasia and Death with Dignity: Still Poised on the Fulcrum of Homicide’ [1996] Crim LR 878.

99. Thus, such a policy directly flies in the face of those who would deny such utilitarian approaches to moral action, see eg. J Finnis Fundamentals of Ethics (1983) ch 4.