Finding a way through the ethical and legal maze: Withdrawal of medical treatment and euthanasia

Medical Law Review

Volumn 13, Issue 3, 2005, Pages 357-385

  McGee, Andrew ^a  

^a NONE

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EID: 28544452612     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi023     Document Type: Article

References (86)

1. [1993] A.C. 789.
2. I use the term 'permanent' rather than 'persistent' here in order to emphasise the fact that the law is intended to deal only with those cases in which the condition is irreversible. For discussion of the importance of this distinction, see the remarks by J.K. Mason and G.T. Laurie, 'The Management of the Persistent Vegetative State in the British Isles' (1996) 4 Jur. Rev. 263 at 263-4.
3. [1993] A.C. 789 at 876-7, 881, 887, 896.
4. Lord Mustill rejected the view that Anthony Bland's death could be regarded in law as exclusively caused by his underlying condition: [1993] A.C. 789 at 895.
5. Some doubt has been expressed concerning whether artificial nutrition can properly be regarded as medical treatment, and the issue was wrestled with in Bland. The judges decided that it was, in fact, to be regarded as medical treatment, but this view has been criticised in the academic literature. See, e.g. J.M. Finnis, 'Bland: Crossing the Rubicon?' (1993) 109 LQR 329 at 335.
6. [1993] A.C. 789 at 887.
7. [1993] A.C. 789 at 887.
8. [1993] A.C. 789 at 885.
9. [1993] A.C. 789, per Lord Goff at 864;
10. per Butler-Sloss L.J. at 819-23;
11. per Hoffmann L.J. at 826-8;
12. per Lord Keith at 859.
13. P. Singer, Rethinking Life and Death (Oxford 1994) at 75.
14. See J. Keown, 'Restoring Moral and Intellectual Shape to the Law after Bland' (1997) 113 LQR 481 at 481, though Keown concedes the decision dealt a blow to the principle which 'may yet prove to be fatal' at 481.
15. See J. M. Finnis, supra, n. 5;
16. J. Keown, supra, n. 11.
17. [2001] Fam. 147.
18. [2001] Fam. 147. I examine the analysis of some of the authors whose views played a role in the reasoning in these subsequent cases below.
19. 'Medical Treatment (Prevention of Euthanasia) Bill', H.C. (99) 00/8.
20. The arguments will be analysed in considerable detail in section IIB below.
21. See J. Keown, supra, n. 11 at 484.
22. [1993] A.C. 789 at 898.
23. [1991] Fam. 33.
24. [1991] Fam. 33 at 46, italics in original.
25. [1991] Fam. 33 at 46.
26. [1991] Fam. 33 at 53, italics added.
27. BMA, Withholding and Withdrawing Life-prolonging Medical Treatment. Guidance for Decision-Making (BMJ Books 1999) at 50. The GMC guidelines, by contrast, reflect the position articulated in Bland. In an Appendix to the guidelines summarising the law, the following is asserted: An act where the doctor's primary intention is to bring about a patient's death would be unlawful. Withholding or withdrawing treatment is regarded in law as an 'omission' not an 'act'. The implication of this way of stating the law is that an omission where the doctor's primary intention is to bring about the patient's death would be lawful. This accurately reflects the view taken in Bland.
28. [1993] A.C. 789 at 881.
29. [1993] A.C. 789 at 887.
30. [1993] A.C. 789 at 896.
31. [1993] A.C. 789 at 876-7.
32. J. M. Finnis, supra, n. 5 at 333.
33. See J. M. Finnis, supra, n. 5 at 332;
34. J. Keown, supra, n. 11.
35. It is, of course, possible to intend side-effects, so the contrast between an intended effect and a mere side-effect is not always applicable. Nevertheless, this point need not affect this argument, which is only dependent on the possibility that the distinction sometimes applies.
36. [1999] 1 A.C. 82, H.L.
37. [1999] 1 A.C. 82 at 93. The legal implications of this statement are uncertain. There are currently two competing interpretations of Woollin. One is that intention and foresight of consequences as virtually certain are identical. Another, however, consistent with the law on this point up to Woollin (R v. Maloney [1985] A.C. 905;
38. R v. Hancock [1986] A.C. 455) is that a jury may, i.e. is entitled to, infer intention from foresight of a consequence as virtually certain, but that it is not compelled to do so. This view accepts that while intention and foresight might coincide in some circumstances, the two concepts are nevertheless separate.
39. For discussion see C.M.V. Clarkson and H.M. Keating, Criminal Law: Text and Materials, 5th edn (Sweet & Maxwell 2003) at 121-43.
40. In Re A (Children) (Conjoined Twins) [2001] Fam. 147, Robert Walker L.J. noted that even if that statement were binding on the court, the doctrine of double effect would nevertheless still apply because the bad effect is merely a side effect of the good one. It is difficult, however, to see on what basis this claim can overcome the objection raised by Lord Steyn if that objection is cogent: Regardless of the fact that it is brought about by a good effect, if the bad effect is foreseen as virtually certain, it would be intended. Lord Steyn's statement is effectively a rejection of the doctrine of double effect in so far as it denies the possibility of drawing the distinction upon which the doctrine is reliant for its sense.
41. As Alan White points out (A. White, Grounds of Liability: An Introduction to the Philosophy of Law (Oxford 1985) Ch. 5), intention is not synonymous with purpose but is slightly broader than it: I can act with the intention of doing something without having the purpose of doing it, as when I go to a meeting with the intention of leaving early - my purpose in going to the meeting is not to leave early but rather, e.g. to make my views known, but my intention is both to make my views known and to leave early. This qualification is not important here.
42. This is because the means of achieving the purpose is done expressly in order to achieve that purpose, and so is itself purposed. For example, if I intend to complain to the manager regarding service at the local restaurant, I can do so by telephone or in writing. My telephoning or writing is the means by which I carry out my purpose of complaining; I telephone or write in order to complain, or for the purpose of complaining.
43. [1999] 1 A.C. 82.
44. The error has significant ramifications in English law. For instance, one of the rationales for Lord Joffe's Assisted Dying for the Terminally Ill Bill 2005 [HL] is that doctors remain uncertain whether they may face prosecution for murder when administering pain relief if such relief can only be brought about at the cost of abbreviating the patient's life. Clause 15 of the Bill provides that 'a patient suffering from a terminal illness shall be entitled to request and receive such medication as may be necessary to keep him free as far as possible from pain and distress'. Commenting on this clause, Lord Joffe notes: 'it is clear that there are a number of doctors who are concerned about using the double-effect principle in order to ease the pain or their patients because they are frightened they may be prosecuted', Report of the Assisted Dying for the Terminally Ill Committee, House of Lords, [35], 2005. It is, however, unnecessary to enact the Bill proposed by Lord Joffe in order to overcome this concern. As shown above, the distinction between an intended consequence of one's act and a foreseen consequence of one's act is cogent, and the two should not be conflated. Provided the intention is to alleviate pain, rather than kill the patient, a doctor need not fear prosecution: Even though they foresee the abbreviation of the patient's life as a certain consequence, this, of itself, does not suffice for intention, as the police officer example shows. In Queensland, the State Government amended the Criminal Code (Qld) in order to remove any residual uncertainty regarding double-effect. Section 282A of the Criminal Code (Qld) now provides that a person is not criminally responsible for providing palliative care to another person, even if an incidental effect of providing the care is to hasten the other person's death, provided the care is given in good faith and with reasonable care and skill, that is, in accordance with good medical practice, having regard to the person's state at the time and all the circumstances of the case.
45. There is no reason why a similar legislative provision could not be enacted in England to clarify the position, particularly in the wake of the questionable dicta in R v. Woollin [1999] 1 A.C. 82. It would be unnecessary to go further, as Lord Joffe's Bill proposes to do, and legalise assisted dying.
46. See A. McGee, 'Double Effect in the Criminal Code (Qld)' (2004) 4(1) Queensland University of Technology Law and Justice Journal 46 at 54.
47. A. Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Blackwell 1990) at 61-3.
48. Another problem with Duff's test is that it confuses intention with desire. The bomber may not desire the passenger deaths, but he may nevertheless intend them. The fact that he would not be disappointed should he achieve his end without causing the deaths of the passengers only shows that he does not desire to kill them, even though he intends to do so.
49. Note here that we are dealing with a case where the consequence is foreseen as certain. It is, of course, generally true that foresight of a consequence as a possibility (not a certainty) is a necessary condition for intention, even though it is not a sufficient condition for it - I cannot meaningfully intend to do something that it is impossible for me to do, such as go to Jupiter. My claim here is that even a consequence foreseen as certain is not a sufficient condition of intention (and, obviously, it is not a necessary condition either because only foresight of possible consequences is necessary).
50. It might be thought that I might only intend to avoid embarrassment about not knowing the way rather than actually intending the tourist to lose their way. But it should be noted that, if the means by which I avoid embarrassment is by sending them the wrong way, then sending them the wrong way remains, of course, intended. Further, it is more accurate, I think, to say that my sending them the wrong way is motivated by my desire to avoid embarrassment: In other words, care must be taken not to confuse intention, on the one hand, with desire and motive, on the other.
51. This is an adaptation of an example used by Keown to illustrate another point.
52. On the whole, philosophers have been more sceptical of the distinction, although, as yet, they have not provided an attempt to rebut the considerations offered above. Further, the legal position of double effect has been thrown into doubt following the incorrect statements in Woollin that a result foreseen as virtually certain is an intended result. Some doctors consequently remain uncertain, in England, whether they can rely on the doctrine of double effect to protect them from prosecution if, in administering palliative care, they should incidentally hasten a patient's death. See supra, n. 36.
53. R v. Adams [1957] Crim. L.R. 365;
54. Airedale National Health Service Trust v. Bland [1993] A.C. 789.
55. See s. 282A Criminal Code (Qld);
56. Consent to Medical Treatment and Palliative Care Act 1995 (S.A.).
57. See A. McGee supra, n. 37 at 53.
58. The first alternative is that adopted by Keown. The latter may have been adopted by Finnis. I say 'may' because his review essay is ambiguous on this issue. He agrees that patients should not be given "all the medical treatments that would be provided to a patient in better shape and with better prospects" but because of his claim that artificial nutrition should not be regarded as medical treatment, his position on exactly what should have been decided in Bland is not clear.
59. J. Keown, supra, n. 11 at 484.
60. Ibid. at 485.
61. Ibid. at 486.
62. (Italics added) ibid. at 487.
63. It is to avoid such tautologies that the law distinguishes between the act and its consequences - the question of intention is only applicable to the consequences of an act: Ryan v. R (1967) 121 C.L.R. 205 per Barwick C.J. The question of whether an act is intended is not allowed by the law. Rather, the relevant question here is whether the act is voluntary. Here, since the act is withdrawal of futile treatment, the act of withdrawal cannot properly be said to be intentional or unintentional. It can only be said to be voluntary or involuntary. For this reason, Keown cannot say that the doctor only intends to withdraw the treatment, not to bring about the death of the patient. For his argument to work, then, he must locate a purpose other than the act of withdrawal itself, and other than the death of the patient, which can properly be described as intended.
64. As we shall see below, however, there are reasons why this requirement is not, in fact, fulfilled.
65. In Bland itself, for example, the decision was to be taken on the assumption that resources were infinite.
66. There is another reason why, in my judgment, withdrawal on the ground that the treatment is burdensome does not fall within the requirements of double-effect. In withdrawal, it can only be by refusing to give any further treatment that the relief can be brought, because it is that very life-sustaining treatment that is causing the burden. The relief is therefore a direct consequence of allowing the patient to die. But in palliative care, pain relief does not come from the fact that the patient's life is being abbreviated. In short, relief is not a direct consequence of abbreviating the patient's life, but of the pain relieving properties in the drug. Correlatively, the pain does not come from the fact that the patient will live longer if the relief isn't given, but rather the patient's condition. This makes it meaningful to intend only to relieve pain, not kill the patient. But in cases where withdrawal is proposed, the burden comes directly from the treatment: because it is the very act of sustaining someone's life that is causing the burden, removing that burden is necessarily choosing no longer to sustain that person's life, and choosing no longer to sustain that person's life is therefore intending that they be allowed to die. It follows that it is not meaningful only to remove the burden, without also intending the patient to die.
67. [2002] 2 All E.R. 449.
68. [2002] 2 All E.R. 449 at 461.
69. [2002] 2 All E.R. 449 at 461.
70. It is, perhaps, unsurprising that Keown argues that the distinction between intention and foresight applies also to cases of refusal of medical treatment. When someone refuses medical treatment, they do not necessarily intend to die, according to Keown. On the contrary, they merely foresee their own death. See J. Keown Euthanasia, Ethics and Public Policy (Cambridge 2002) at 66-8. The implausibility of this account of lawful refusal is exposed by Re B itself: Having known, from the evidence, that Ms B's life had become intolerable to her, Dame Elizabeth Butler-Sloss should, on Keown's account of the law, have ruled the refusal of the treatment unlawful because she clearly wanted to end her life on account of its quality not on account of the burden-someness, or futility, of the treatment.
71. See the previous note.
72. [1993] Fam. 95 at 113.
73. The intractable practical difficulties such a law would involve - how, in each case, we really tell whether the patient intends or merely foresees their own death (and the associated difficulties of policing the law this would involve), the amount of hard or borderline cases that would be thrown up, etc., are further evidence for concluding that, as a matter of law, the distinction between intention and foresight cannot be applied in these cases.
74. Keown would no doubt respond that this case is catered for by the fact that the patient would be mentally competent and, if they did not want the treatment to be withdrawn, there would be no question of withdrawing the treatment. But such a reply begs the question: The condition here (ex hypothesi) is untreatable, so what makes it wrong to withdraw it is the fact that the patient nevertheless considers themselves capable of living a meaningful life and indicates their desire to carry on living.
75. Recall the BMA guidelines on withholding and withdrawing treatment, which state, in accordance with the analysis offered by Keown, that a doctor can withhold or withdraw treatment where death is foreseen but not where it is intended. BMA, Withholding and Withdrawing Life-prolonging Medical Treatment. Guidance for Decision-Making (BMJ Books 1999) at 50.
76. [2001] Fam. 348.
77. [2001] Fam. 348 at 356.
78. [2001] Fam. 348 at 356.
79. [2001] Fam. 348 at 358.
80. Bolam v. Friern Barnet Hospital Management Committee [1957] 1 W.L.R. 582.
81. [1993] A.C. 789 at 885.
82. Philosophers such as Singer have considered that this notion of life as a gift is a religious notion that, in a secular era, is increasingly losing its relevance. This explanation assumes that religion is the origin of the idea of life as a gift. But could not the opposite be the case? Could it not be our sense of life as a gift that is the impulse for religion? The suggestion is at least plausible, and merits serious consideration - it would explain, for instance, why so many people who claim to live by a secular ethic nevertheless endorse the principle of the sanctity of life.
83. In the case of competent patients, such as Ms B in Re B, the patient's right to refuse means that they allow themselves to die by their underlying illness or condition. The law imposes no duty on them, and no duty on their doctors, to sustain their life. When, by contrast, they wish to carry on living, a doctor has a duty to continue administering the treatment. If the doctor discontinues the treatment, then s/he is criminally responsible for the patients death, not because s/he has factually caused it, but because s/he has allowed the patient to die of their underlying condition when s/he could have intervened to prevent that death, and had a duty to do so (because the patient wanted to continue living). As pointed out by Thomas J. in Auckland Area Health Board v. A-G [1993] 1 N.Z.L.R. 235, the question of causation in these contexts is therefore, at bottom, the question of whether moral and/or legal responsibility is to be attributed to a doctor.
84. [1993] 1 N.Z.L.R. 235.
85. Ibid. at 249.
86. Airedale National Health Service Trust v. Bland [1993] A.C. 789 at 887.