This article appears in the May 2006 edition of the Catholic Medical Quarterly

Acts and Omissions At the End of Life

Pravin Thevathasan

It would appear that recent changes of policy regarding euthanasia at the BMA have been promoted by a certain number of high influential individuals. In this list, I include Professor Sheila McLean, Professor John Harris, Professor Len Doyal, Dr. Michael Wilks and Dr. Evan Harris MP. Professor McLean, an important contributor to the British Medical Association "guidance on withholding and withdrawing life-prolonging medical treatment", has stated: "my suspicion is that the routes taken by Courts have been tailored so that they cannot be seen as endorsing voluntary euthanasia ... yet arguably, the conclusion must be that the Courts are endorsing forms of non-voluntary euthanasia..." (quoted at www.ccfwebsite.com). It would therefore appear that Professor McLean accepts that euthanasia can be brought both by acts and omissions.

Professor Len Doyal goes further. He begins an article "should euthanasia be legalised?" by stating: "I believe that when we are competent to do so, we should - where possible - have the right to control the circumstances of our deaths. Involuntary and voluntary euthanasia should be legalised." (Quoted at www.bma.org.uk).Professor Doyal correctly argues that since doctors are able to withdraw life sustaining "treatments", including hydration and nutrition, they are performing acts of involuntary euthanasia. They should therefore be equally able painlessly and quickly to terminate the lives of such patients. After all, he goes on, if a doctor in A&E stands by and does nothing in the face of a patient bleeding to death, they may be charged with murder.

It would appear that both Professors McLean and Doyal are in favour of defining euthanasia as the intentional bringing about of death of the patient by act or omission when this is done for the patient's own sake. They would surely disagree with the Walton report of the House of Lords Select Committee on Medical Ethics which defines euthanasia as "a deliberate intervention undertaken with the express intention of ending life to relieve intractable pain." (Walton, cited in Keown 1995, page 124). This latter definition suggests that euthanasia exists only where there is a positive act intended to end life.

Utilitarians find all distinctions between killing and letting die unconvincing. James Rachels, for instance, gives the example of Smith and Jones who both stand to inherit should their young cousin die before them. Smith drowns his cousin in the bath and makes it look like an accident. Jones has every intention of doing the same, but as he enters the bathroom, the cousin slips and falls into the water. Although prepared to "finish the job", Jones only has to stand by and make sure that the cousin drowns. From this, Rachels concludes that unless there are some other morally significant differences, there is no distinction between killing and letting die.

What Rachels fails to acknowledge is that there are different kinds of omission. To illustrate this, let us introduce a third character who also stands to inherit should his young cousin die before him. His cousin also slips while having a bath. He hears the splash of water and is unable to get assistance. His doctor has told him that, owing to his poor health, he is likely to die should he attempt to carry even a relatively light weight and so he too chooses to stand by and let his cousin drown. However, his intention is surely very different from that of Jones.

Rachels also fails to note that there are some so called omissions that actually make something happen; they are, therefore, as wrong as actions that cause death. The inaction of Jones had only one possible outcome - his cousin's death.

The difficulties of classifying kinds of behaviour as actions or omissions have led to alternative attempts at assessing the morality of acts at the end of life. One such attempt is the principle of double effect.

Double Effect

This principle states that one may carry out an action under certain circumstances, despite the fact that one forsees a serious evil resulting from it. Four conditions are required for the application of the principle of double effect:

The action done must be good or neutral
The bad outcome must not be directly intended
The good outcome must not be achieved by means of the bad
The good outcome must outweigh the bad. In other words, there must be due proportionality.

When I give a dose of morphine to a dying patient, I may hasten his death. My intention, however, is to relieve the pain: the hastening of death is foreseen as a side-effect of my action and is unintended. The principle of double effect has recognition in British Law.

Professor Doyal, however, is not convinced by this argument. He writes: "if doctors can now believe that some severely incompetent patients are benefiting through, among other things, being starved and dehydrated to death, they must believe that their deaths constitute a moral good. Yet if this is so, why is it wrong to intend to accomplish the same good through quickly and painlessly killing such patients?"

All that Professor Doyal has proved is that you can bring about a patient's death by both intentional acts and intentional omissions.

In clinical practice, it is evident that the acts/omissions doctrine is not the deciding factor in distinguishing between acts of killing and letting die. Central to the decision making process in distinguishing between killing and letting die is the idea of medical futility and the benefits to burdens ratio. The patient is allowed to die when the burdens and risks of life-prolonging treatment outweigh the benefits of that treatment or when treatment is futile. It could certainly be argued that recent advances in medical technology have made this distinction between killing and letting die increasingly blurred. It may be difficult to understand how the act of switching off a respirator is an act of letting die rather than an act of killing. However, when it is agreed that the benefit of treatment is outweighed by the burdens, the respirator may be switched off; the patient dies of overwhelming illness rather than withdrawal of treatment.

When is it right to withdraw or withhold treatment?

Ethically, it is acceptable to withdraw treatments in the following circumstances:

When treatments are considered futile. The most obvious example in palliative care settings is cardiopulmonary resuscitation. This is not offered in the terminal phase of illness as it is extremely unlikely to be successful. Indeed, it may be argued that it is unethical as it is hardly conducive towards a dignified death.
When the burdens and risks of treatment greatly outweigh benefits.
When treatments are not considered to further the patient's medical good.
When treatments are not considered to further the patient's total good.
When treatments are not available due to resource constraints.

All these principles were either ignored or carefully circumvented in the Tony Bland case. This case effectively legalised passive euthanasia, that is euthanasia by omission. Why would it have been different if a lethal injection had been administered instead? Because, according to Lord Gough: "So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering." But, as it has been argued, intentional killings may be brought about by acts as well as omissions, and it would appear that the Rubicon was, in fact, crossed with their Lordships at the helm. As Professor Doyal notes, if it is acceptable intentionally to bring about the death of severely incompetent patients, how can it be acceptable to deny competent patients this choice for themselves?

References:

Keown, J (1995) Euthanasia Examined, Cambridge University Press

Active and Passive Euthanasia p.490-498, Moral Problems: Collection of Philosophical Essays, Edited by James Rachels, Harper & Rowe, 1979