23. Euthanasia: The Final Autonomy
National Law School of India, Nagarabhawi, Bangalore 72
From time immemorial concerns have been expressed about what is probably the oldest medical problem in the world - Dying with dignity. With increasing recognition of constitutional rights like the right to privacy and the right 'to be left alone', individuals are anxious to see that their end is not a humiliating and disgraceful experience. Their concerns are being aggressively manifested in the raging controversy over "assisted suicide" or euthanasia. Acceptance of the term euthanasia itself implies an acceptance of an ethical judgment as the term by definition means 'good'. But with a deluge of terms like 'assisted suicide', 'homicide upon request', the ethical and legal issues involved have become a labyrinth of largely emotive language.
The prohibitions on the taking of human life are generally accepted to be based on the most fundamental and deeply felt ethical and religious convictions. Thus although the right of each person to life is intrinsic to his status as a human being, pragmatic considerations play an significant role in watering down the absolute protection that human life may otherwise enjoy and this is what the entire debate on euthanasia represents.
Today degenerative diseases have replaced acute ones as the major killers as more and more people survive the early years of childhood and adolescence. Further, technological advances are central to the ever-widening twilight of life and death. Thus it would appear that life in utero and life in extremis are inseparable, for the same questions apply at both ends of the biological spectrum: What is human life? When does it become human? When does it cease to be human?
Although close family and friends may also be requested to help in assisting the termination of life, it is the medical profession who comes face to face with the distressing ethical and legal dimensions of euthanasia. Assisting death in a physician related context is taken to mean in general terms as "act" by a doctor with the deliberate intention of hastening the death of a patient with a terminal or incurable illness. The word terminal here implies a progressive illness whose distressing symptoms cannot be eased by any alteration of treatment. Such patterns are usually close to death, but there are some, such as those with disabling breathlessness or paralysis who may have to face months, even years of increasing distress (1).
Euthanasia has been dealt with in a number
of ways by different societies, some explicitly like the Dutch
model, some in terms of silence of the law. The way a particular
nation responds to the issue is linked inextricably with the religious
mores prevalent. Thus Orthodox Judaism forbids active euthanasia
of any kind but demonstrates a permissive attitude towards passive
euthanasia. Christian ethicists, too, insist that the use of
extraordinary means to prolong life of the terminal patient is
not required (2). To maintain a objectivity in the approach to
dealing with this issue is difficult, indeed it is questionable
whether the emotional methodology should be excluded at all.
In this context the jurisprudence which has emerged around euthanasia,
and the often case by case approach of the courts is common law
jurisdiction proves to be an ideal matrix in which to study the
ethical imperatives. First and foremost sensitization to the
issue requires that the human story be unraveled at the outset.
2. The Human Story
The human story may be categorized as the doctor-patient relationship, the loneliness of the patient, and the peculiar dilemma of the doctor. Although the doctor's involvement with the patient is very special, there can be no doubt that the defining of a relationship in legalistic terms leads to a subtle but important change in the relationship. One is in such a situation concerned in doing, not what one feels to be right, but with what one feels is legally the safest thing to do. This is anathema to the existence of a relationship governed by morality, where trust and respect are more likely to flourish. There is therefore a clear transition from a doctor-patient relationship sustained by trust to one that is more contractual and looks to the juridical protection of the patient.
The position of the patient, is of focal
significance. A patient subjected to care rather than cure presents
a painful reminder of a force greater than man's. The person
in his utter loneliness, abandoned by human therapeutic limitations,
sometimes by his family, and by God is bound to dwell upon the
apparent cruelty of such isolation and loss of hope. In his pain
he turns to the doctor who from experience has an idea of how
things might evolve for this patient. The professional in turn
faces a difficult choice on whether to use that expertise in assuming
a completely different responsibility, an additional one beyond
that of maintaining life. Paradoxically, allowing doctors to
assist death has been seen as a way of fulfilling their commitment
to prolonging lives of satisfaction and dignity. A crucial question
that follows is that of the extent to which medical decisions
should be the object of legal scrutiny and control.
3. What Amounts To Assisting Death?
The affirmation of the doctor's criminal liability is neither unanimous nor unambiguous. Judgments from all over the common law world have attached varying degrees of criminal liability often relying on hairline differences and intuitive reasoning. A distinction that has come to optimize the assisted death controversy is the one drawn between active and passive assistance, in legal terms, the performance of an act an omission. This includes, on one side of the spectrum the logic (which is difficult to assail) that a quick death by a lethal injection is preferable to one which depends on the vagaries of the disease which would follow a non treatment decision i.e. NTD by the doctor either on the patient's request or with the permission of the court. In law 'letting die' has been distinguished from active euthanasia in the clinical context often using hair splitting moral and therapeutic arguments, this even in the "danger of a charge of hypocrisy" (3). Not to do so, it was feared would be to cross the Rubicon which runs between care for the living patient and euthanasia.
At the heart of the issue is the theoretical question whether the 'performance' amounts to an act or an omission. The doctor's conduct is to be differentiated from that of an interloper who maliciously turns off a life support machine. This is because although an interloper may perform exactly the same act as the doctor who discontinues life support, whereas the doctor in discontinuing life support is simply allowing his patient to die of his pre-existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient's life, and such conduct in law may not possibly categorized as an omission.
This leads to the somewhat illogical conclusion that an 'act' resulting in death done without lawful excuse and with intent to kill is murder, an 'omission' to act with the same result and with the same intent is in general no offense. But this proposition is subject to one important exception in common law, namely that a person may be criminally liable if he stands in such a relation to the victim that he is under a duty to act. No doubt the special confidence of the patient that the doctor enjoys would bring him under a duty to act.
Another variation is caused by the status of the patient. The terminally ill patient is one, who in well-established medical opinion faces death in the near future. Here the prospect of euthanasia is one of speeding up the inevitable. On the other hand, the young incurable one presents a different problem. Not only is there no treatment to cure the patient, but uncertainty exists as to the possibility of discovering a cure and of that cure being an effective one. In the meantime the patient is in agony.
As a matter of the criminal law of causation, it is fundamental that the death of the patient be traced to the act (or omission) of the doctor. A possible and interesting defense to the doctor is provided by the case of R vs. Malcherek (4). Here the appellant stabbed his wife, who in a critical condition was put on the life support system which was later withdrawn. It was sought to be contended by the defense that such withdrawal broke the chain of causation and hence the cause of death of the victim could not be attributed to the stab wounds but the disconnection from the life support systems. Rejecting the argument it was held that at the time of withdrawal and the victim's subsequent death the original injury was a continuing or operating cause of death. By holding thus the court appeared to be giving a winning point to the advocates of passive euthanasia. Thus may not a court take the view that the original disease was the cause of death, which chain of causation may not be broken by mere withdrawal from life support systems by the doctor? Not surprisingly the court rejected the argument in subsequent cases.
By far the most important aspect of doctor
assisted death in the legal context is the consensual nature of
actions involved. Where a conscious patient can give consent
for the withdrawal of treatment, what happens of the insensate
patient incapable of "requesting death"?
4. 'Good' Motives And 'Bad' Intentions
Euthanasia as an exceptional but accepted part of medical practice has collected a number of justifications and legitimization along the way. The advocates of doctor assisted termination of life emphasize that a doctor's duty to prolong life is not concerned with all forms life, but only human life of a quality that the person concerned wishes to have prolonged. Thus the Libertarian argument would have us believe that to prolong the life of a person who being of sound mind does not wish to have prolonged, contradicts the fundamental moral principle of respect for autonomy, and importantly in some cases the doctor's duty to relieve suffering. It would follow that euthanasia is to be permissible not because everyone should accept that it is right but simply because to deny a person control of what on any analysis must be the most important decision of life is a form of tyranny. Looking at it thus the balance of the moral argument shifts to asking why death should not be assisted?
This approach fails in the context of criminal liability for homicide that a doctor may face where all pervading importance is given to the factor of 'intention'. There is no ambiguity in the attitude of the law in the UK to a positive act of euthanasia. Motive is irrelevant, if the doctor intends to kill he is as liable to prosecution as is the non-professional. Circumstances, though, at times allow the application of the doctrine of double effect in the law. The doctrine states that an action which has a good objective may be performed despite the fact that the objective can only be achieved at the expense of a coincident harmful effect (5). The application of the doctrine of double effect has however to be qualified - in that the action itself (the one that leads to the remoter consequence) must be either good or morally indifferent. The good effect must not be produced by means of the ill effect, there being a proportionate reason for allowing the expected ill to occur. This, effectively excludes therefore an act of positive euthanasia on the logic that death being the ultimate bad end, can never be balanced to be preferable to life, albeit a painful one.
The pertinent case in this regard is the
unreported case of R vs. Adams (6), where Dr. Adams was
prosecuted on the charge of 'treating' a patient incurably, though
not terminally ill, with increasing doses of opiates. The court
in summing up expressed the opinion that a doctor is entitled
to relieve pain and suffering even if the measures he takes may
"incidentally shorten life". Thus so long as the physicians
interest is to banish pain it does not matter whether he has the
subsidiary intention to end the patient's life. This only re-emphasizes
the fact that doctors walk a fine line between their responsibility
to relieve suffering and their obligation to maintain life. The
duty of the doctor is confounded by such cases where patients
interests may contradict the well-defined duties of doctors.
5. The Consent Factor
In certain crimes the mental state of the victim assumes importance in evaluating criminal liability. In this context it is necessary to address the issue whether consent/request of the patient can absolve the doctor of criminal liability. This is a pertinent issue in spite of the fact that homicide has never been defined as a crime where the mental state of the victim is of any relevance. But it is urged that the mental (as well as the physical) state of the patient is the quintessence of the actions leading up to euthanasia.
The factor of consent is important in cases where invasive life support systems for feeding, hydration or ventilation for the insensate patient are being used. Thus the consent of the patient (where he is capable of giving consent) is necessary to continue such invasive treatment which, fundamentally, violates the bodily integrity of the patient. The position at common law is that non-consenting medical treatment is assault or battery and therefore patients have a presumptive right to refuse medical treatment (7). Thus in the case of In Re T (8), the court held that an adult patient who suffers from no incapacity has an absolute right to consent to medical treatment, to refuse it or to choose one rather than another of the treatment being offered. This right of choice is, further, not limited to decisions which others might regard as sensible. It exists notwithstanding the fact that the reason for making the choice are rational, irrational, unknown or even non-existent. Thus such an absolute freedom of choice, ensures that a patient will not be kept alive contrary to his wishes which he can express. The law regarding consent to medical treatment is naturally, different for minor children, insensate patients and capable adults.
There are certain circumstances though when the doctor may be entitled to proceed without the consent of the patient. In an interesting development in the law of consent for medical treatment, the court In Re W (9), exercising its unlimited jurisdiction over minors held that it could, in the child's own best interests, objectively considered override the wishes of a child who had sufficient intelligence and understanding to make an informed decision. The case involved a 16 year old girl suffering from Anorexia Nervosa, who sought to refuse medical treatment in circumstances which would in all probability lead to her death or severe permanent injury. This in cases where the patients are incapable of consenting, or as in the above case capable of so doing the courts have used the 'best interests' argument to override non consent to medical treatment.
Passive euthanasia manifested in non treatment decisions are on the other hand strengthened by cases which uphold the necessity of consent for medical treatment. In this context it is relevant to refer to the highly poignant case of 17 year old Tony Bland (10). Bland was trapped in the Sheffield football stadium disaster. By the time he was resuscitated the parts of his brain giving him consciousness had become liquid, but modern medicine allowed him to be kept alive - in a persistent vegetative state (PVS) for years possibly decades (11). Under the circumstances he could not be deemed to have consented to or refused medical treatment and all treatment had to be given to him on the basis that his doctor considered them to be in his best interests. The House of Lords in its decision held that since treatment had commenced without consent, and where when it is now clear that such treatment holds no hope, the doctor would be under no duty to continue such treatment. Thus it followed that though the termination of his life was not in the best interests of Tony Bland, his best interests in being kept alive had also disappeared, taking with it the justification for a treatment regime without consent and the correlative duty to keep it in being.
In the case of a patient incapable of making a choice, there are three options open to the court to whom application for the withdrawal of life support mechanism has been made (12). (a) Relying on an antecedent choice by a patient who can no longer make one. This is in light of the 'living will' innovation. (b) To infer from evidence, the general feelings of the patient about incurable/terminal disease. (c) Appointment of a surrogate to make the choice. This is more in the nature of fiction, where the surrogate is deemed to think as the patient would have and make a choice.
This facilitation of a choice is diametrically
opposite to the paternalistic role assumed by the courts in a
number of cases. This is particularly problematic in liberal
democracies where the libertarian, individualist approach demands
that the wishes of the person be respected in this, the most intimate
of decisions. The two models, the one of autonomy and the other
of paternalism of the state, has come to be viewed as conflicting
and mutually exclusive. But the intensely human problem of euthanasia
does not respect the boundaries of political philosophies. What
is required is a subjective approach within the skeletons of a
framework to be laid down by law and the mores of a particular
6. In Whose Best Interests?
In a number of cases seeking the consent of the court in taking a non-treatment decision, the courts have time and again relied on the balance of interests to formulate a critical equation to help the courts decide. This essentially value judgment has come into sharp focus especially in the case of abnormal infants and minors. In the poignant case of In Re B (13) an infant with Down's syndrome was diagnosed as having an intestinal blockage for the removal of which the parents refused permission to operate, contending that this was a case where nature had made its own arrangements to terminate a life which would not be fruitful. The question the court had to determine was whether it was in the child's best interests to have the operation and live as a mongoloid child with the associated handicaps and defects or die within a week due to the intestinal blockage. The court authorized the operation. The decision is to be approved under the circumstances because not to authorize the operation would amount to a statement that the life of a mongoloid child is of such a quality that it ought to be extinguished, which view cannot be upheld. In this context the observations in the case of In Re superintendent of family and child service and Dawson (14) drives home a very important point. It was stated here that the decision as to what is a livable life can only be made in the context of the disabled person and in that context he would not compare his life with that of the person enjoying normal advantages, for he would know nothing of a normal person's life, never having experienced it. In making the starting point not what might have been, but what is, a case is clearly made out for excluding value judgments, based on a view of life that is in relative terms.
This brings us to the oft repeated question, what is life? On the answer depends the outcome of much of the vexatious problems of biology and medicine. Where the medical interventions for resuscitation and the prolongation of life has enabled us to more or less tell death to wait, it is necessary nonetheless to recognize our limitations. Ethicists have come forward to distinguish life in effect, as biological and biographical (15). The latter would refer to the sum of aspirations, decisions, achievements, and human relations. Thus when a person cannot live anymore of this biographical life, killing itself loses the meaning of destroying life. To a certain extent then it would reflect moral insensitivity to deny biological death to a person who can no longer live a life of such a quality. It is difficult in such situations to see how the interests of society are benefited by a denial of death.
In certain cases where the best interests of the community are put forward as an argument for withdrawal of life-support, so that limited resources may be used in more hopeful cases, there is a distressing social cost-benefit analysis involved. Though repugnant, such rationalization of non treatment decisions is a very real issue, in the health care systems of much of the third world.
The onus of deciding the best interests
of the patient on a balance of interests seems to have shifted
now from the physician to the courts. It is doubtful whether
the courts will be able to bring in the same amount of subjectivity
to individual cases, for in real life and death situations there
can be no objective absolute.
Any discussion of euthanasia if it is to move from the domains of a purely academic exercise, has to be in a socio-economic context where every human life has an equal value. A neutral application is conceivable in the case of a society where life is already devalued by poverty, riots and civil disruptions. Thus although many people would acknowledge that there may be circumstances where euthanasia would be appropriate for an individual patient, they would oppose it as a policy measure as it would tend to devalue life. The related fear being that devaluation would be selective, and that euthanasia may occur too often among the weak and powerless of society. The existence of societies keen on the pursuit of eugenic goals will not allow us to wish away such fears. The line between the morally right, morally less wrong, morally wrong and the criminal is very thin indeed.
Many inconsistencies in law remain. In the words of Lord Mustil "The whole matter cries out for exploration in depth not only of a new set of ethically and intellectually consistent rules, (probably) distinct from the criminal law, but also of a sound procedural framework within which the rules may be applied to individual cases" (16). It is here that the courage (ruthlessness?) of the Dutch is to be acknowledged in facing issues squarely (17). The rest of Europe has responded in various hues to the alleged attempt by the Dutch to portray their model of euthanasia as an exportable one (18). Whatever the pitfalls and dangers of such a model the point of importance is that although legislation is now being seen as an opening to euthanasia as an accepted practice, a more realistic view to take would be that it is a necessary instrument to prevent unacceptable situations. To deny that euthanasia is the only logical solution in some cases can only be regarded as the ostrich syndrome. Criminal law as a tool to control this practice, is impotent. Proscription did not work with abortion, with drugs and with prohibition and will not work with euthanasia. What the law can do by bringing euthanasia out into the open, is to improve the quality of end of life decision-making by removing the need for secrecy. In this endeavor the law is important, but the most important thing is education. There is need to revitalize the role of the medical profession. Doctors have to urgently improve their communication skills so that people stop being afraid and doctors themselves, confused.
It would not be in the interests of ethical consistency to allow the law to deal with each new case as it arises in a gradual and uncertain process. In the circumstances the best option seems to be to leave the end of life decision in the hands of our doctors aided, and abetted by a facilitative framework of law that helps preserve the subjectivity of each situation. It is in our interests, as potential patients to train our doctors to regard this, as part of their duties without diluting standards. That such a conclusion has a jurisprudential backing dating back to Socrates is obvious in this statement of his, whose clairvoyance seems to lend these words a prophetic hue: "I hope ........ that we shall hear no more of legislation to enable man to die in peace, but that doctors will be ready to go on carrying their responsibilities in this as in so many matters of life and death".
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