LIFE, DEATH AND AUTONOMY:
WHY EUTHANASIA SHOULD NOT BE CONTROLLED BY THE DOCTORS
By Fabian Tassano
Political Notes No. 78
ISSN 0267-7067 ISBN 1 85637 151 4
An occasional publication of the Libertarian Alliance,
25 Chapter Chambers, Esterbrooke Street, London SW1P 4NN.
Fabian Tassano is a Chartered Accountant and a self-employed tax
consultant. He took a First in Natural Sciences at Cambridge
University, and is now doing an MPhil at Oxford University.
(c) 1993: Libertarian Alliance; Fabian Tassano.
The views expressed in this publication are those of its author, and not
necessarily those of the Libertarian Alliance, its Committee, Advisory
Council or subscribers.
LA Director: Chris R. Tame Editorial Director: Brian Micklethwait
FOR LIFE, LIBERTY AND PROPERTY
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Christian ideology plays little role nowadays in the workings of social
policy. The illegality of suicide was removed in England over thirty
years ago. [1] Medical technology exists which makes possible the
painless ending of life. One might therefore expect to be in a position
where, if one thought it appropriate to end one's own life, one could do
so in a relatively comfortable and trouble-free way. Nothing could be
further from the truth, however.
The technology which would enable individuals to make decisions about
the value of their own lives is monopolised by the medical profession.
The drugs which would kill quickly and painlessly are not available to
private individuals, forcing them to resort to highly unpleasant
alternat-ives. In certain extreme circumstances, some doctors are
apparently prepared to make the relevant drugs available to individual
patients. However, the context of such cases makes it clear that it is
very much the doctor, rather than the patient, who controls the
technology and on whose ultimate approval its application depends. In
any case, this practice of `voluntary euthanasia' is currently illegal,
even if this aspect of the law is not one which is very rigorously
enforced.
This manifestation of the resistance of the community, and that of the
medical profession in particular, to individual autonomy may be
considered bad enough. Medical practice goes further than this, however,
in overriding the wishes of its clients. Not only will doctors refuse to
provide a service which is wanted (in this case, the chemicals required
for a painless death), but they will give treatment - against the wishes
of the patient - where this is considered to be in the patient's
`interests'.
The reluctance of medical practitioners to provide individuals with the
means to their own death is often speciously justified by reference to
the sanctity with which doctors are expected to regard all human life.
The Hippocratic Oath is sometimes invoked: "I will give no deadly
medicine to anyone if asked ..."; or the Declaration of Geneva: "I will
maintain the utmost respect for human life." More pragmatically, it may
be argued that doctors must work by a single, overriding principle -
to improve health and prolong life - and that it would place them in
difficult positions if they had to compromise this aim. This defence
rings somewhat hollow, however, in the face of what actually happens in
practice. For we find that doctors do make `termination' decisions as a
matter of course, and without the consent of their victims. We are not
speaking here only of the killing of foetuses. Doctors apply
non-voluntary euthanasia to the elderly, to comatose patients and to
handicapped babies, among others. What sort of a profession is it which
refuses to do what its clients want, and kills them without their
consent?
THE WISHES OF THE INDIVIDUAL OR THE OPINIONS OF THE DOCTORS AND OF SOCIETY
As an illustration, consider two recent cases of doctors wishing to
terminate the lives of their patients. The behaviour of Dr Nigel Cox,
who administered a lethal injection to his terminally ill patient in
response to her request that he do so - for which he was found guilty
of attempted murder - was condemned by the British Medical Association
on the grounds that "deliberately shortening a patient's life is not the
purpose of a doctor". [2] By way of contrast, in the case of Tony Bland,
a young man in a `persistent vegetative state', the medical experts did
not apparently perceive a difficulty, in spite of the fact that the
patient's explicit consent to his proposed euthanasia was obviously
unobtainable. Professor Bryan Jennett, an authority on Bland's
condition, expressed surprise that the Home Office might consider
ceasing to feed Bland as an act of murder. "Doctors take decisions like
this all the time," he was quoted as saying. "We say we are not going to
operate on this case, or that we are not going to take this chap to
intensive care. It's no more than an extension of that." [3]
It appears that where medical opinion considers the life of an
individual to be unequivocally valueless, the wishes of that individual
may become irrelevant to the question of euthanasia. On the other hand,
where a doctor provides death as a service which the patient
specifically requests, but which contravenes the self-imposed rules of
the medical profession, this is regarded as unethical. This suggests
that what is crucial in determining whether doctors end the life of a
given patient, and indeed whether treatment in general is given, is not
the wishes of the patient but the opinions of the doctor and the views
of society as a whole.
THE ALL-IMPORTANT DISTINCTION IS NOT SECURE
This state of affairs having developed as a result of the gradual
collectivisation of medicine over the last hundred years or so, it is
now being proposed that the medical industry be partially liberalised to
permit patients suffering from terminal conditions to enlist the aid of
doctors to end their lives. In other words, it is suggested that doctors
should under certain circumstances be able to *kill* their patients with
impunity. One of the conditions for this is ostensibly to be the consent
of the patient.
Now many of the people who advocate this form of euthanasia are
apparently agreed that the consent of the patient is crucial, and that
*involuntary* euthanasia is ruled right out of court. Yet consider the
proposed development in the light of the current situation. On the one
hand, assisted suicide, where a person such as your relative helps you
to die, is currently illegal, and there is no suggestion that it be made
otherwise. On the other hand, *doctors* killing certain categories of
patient without their consent, such as the senile or the comatose, by
withholding treatment, is a regular occurrence. Is the legalisation of
euthanasia more likely to be a development out of the former or the
latter of these two policies?
Certain features of the history of the voluntary euthanasia movement must
also give pause for thought. In 1950, for example, Lord Chorley had this to
say to the House of Lords on the subject of the Voluntary Euthanasia Bill
then being debated. One objection to the Bill, he said, is that it
"does not go far enough, because it applies only to adults and does not
apply to children who come into the world deaf, dumb and crippled, and who
have a much better cause than those for whom the Bill provides. That may be
so, but we must go step by step." [4] At the first annual meeting of
the American Euthanasia Society in 1939, at which the Society's Treasurer
Charles Nixdorff proposed specific euthanasia legislation, it was reported
in the "New York Times" that
Infant imbeciles, hopelessly insane persons ... and any person not
requesting his own death would not come within the scope of the act.
[Nixdorff] explained to some of the members who desired to broaden
the scope of the proposed law, that it was limited purposely to
voluntary euthanasia because public opinion is not ready to accept
the broader principle. He said, however, that the society hoped
eventually to legalize the putting to death of nonvolunteers beyond
the help of medical science. [5]
In fact, the supposedly all-important distinction between voluntary and
involuntary euthanasia, which it is often confidently assumed will be
scrupulously respected, turns out on inspection to be a good deal less
secure than is usually thought. We can already see some sign of this if
we consider the way in which euthanasia is frequently described as
`mercy-killing', and compared with putting down an injured animal. There
are reasons for killing people who are visibly suffering which have
nothing to do with their own wishes, and there is evidence to suggest
that it may be primarily these, rather than patients' desire to die,
which drive the euthanasia programme. To justify euthanasia on
*utilitarian* grounds, we do not merely invoke the suffering of the
patient, but also the suffering of his relatives and the inconvenience
caused to medical staff. There are grounds for suspecting that the
consent requirement is not primary, but is rather thrown in as a sop
because killing a person against his will, however much it is supposed
to be in everyone's best interests, still offends certain old-fashioned
moral prejudices. Consider, for example, the following defence of a
utilitarian approach to euthanasia by the philosopher James Rachels,
which elegantly evades the question of whether the arguments used may be
thought to legitimise killing people against their will. [6]
Suppose a person is leading a miserable life - full of more
unhappiness than happiness - but does not want to die. This person
thinks a miserable life is better than none at all. Now I assume we
would all agree that this person should not be killed; that would be
plain, unjustifiable murder. Yet it *would* decrease the amount of
misery in the world if we killed him - and so it is hard to see,
on strictly utilitarian grounds, it could be wrong. ... So, suppose
we substitute a better conception of welfare: rather than speaking
of maximising *happiness*, let us speak of maximising *interests* -
let the principle of utility say that actions are right if they
satisfy as many interests as possible. ... the new principle avoids
the problems that plagued the old one: if it is in a person's best
interests to have freedom of choice in religion, or in choosing to
remain alive, then the principle will not countenance taking away
that freedom or that life. w In other words, a person will be
allowed to decide for himself whether to continue living provided we
consider it to be generally in people's overall long-term interests
to make such decisions for themselves. It is hard to see how this
approach to utility is more sympathetic to autonomy than the
maximisation of happiness. It does illustrate, however, how autonomy
is seen as something to be *accommodated* rather than something to
be given priority.
IT MUST BE THE PERSON HIMSELF WHO CHOOSES TO DIE
I do not intend here to discuss the question of whether, and in what
circumstances, people should be given full access to the means of ending
their lives. My own view is that it is unacceptable to restrict the
supply of pharmaceuticals in any way, and that if people want to commit
suicide, they should not be chronically prevented from doing so in the
most painless and convenient way available. However, I realise that this
goes against the grain of the prevailing attitude on suicide, which is
to regard it as at best a temporary irrationality and at worst a sign of
a deranged mind, except possibly in circumstances so extreme that the
majority of people would agree that a person's life was unbearable.
Let us leave to one side, however, the question of whether a person
should ever be prevented from committing suicide. Let us consider a
situation in which suicide has been fully legalised for a finite set of
circumstances. By `fully legalised' I mean that not only is it not
punishable "per se" to kill oneself, but also that the means to do it
painlessly are readily available. What must be considered as being
crucial in any such arrangement is that, whatever the conditions are
which must be fulfilled to gain an exemption from the normal
prohibition, it must be - the person himself - who chooses if and when
to die, and not someone else. Otherwise it would not be a partial
legalisation of suicide but a partial legalisation of murder.
Now if one or more other persons are to be involved in the act of
suicide as assistants, it is surely of paramount importance that those
persons should be clearly under the control of the would-be suicide.
This strikes me as a much more important condition than that they should
not stand to benefit from the person's death. The possibility of a
pecuniary motive in such cases is so obviously labelled that it is
readily suspected by police and judges, and tends to be seized upon by
juries. On the other hand, gratuitously destructive or ideological
motives, which may well arise when the suicide assistant is not fully
and genuinely answerable to the suicide, are not something which the law
tends to recognise. Another point is that people who stand to gain
financially from the suicide's death usually have at least a
relationship of some kind with the person and therefore are likely to
have a greater than average psychological resistance to killing them
against their will. Strangers having no relation, neither emotional nor
economic, with the person are on the other hand unlikely to have as much
compunction about failing to respect that person's wishes.
Since doctors are to play the role of assistants under the currently
favoured proposals for euthanasia, the crucial question therefore
arises, "are doctors under the control of their patients"? I believe
that the answer to this is unequivocally negative, and that doctors are
therefore quite unsuitable as suicide assistants, and should certainly
not be entrusted with the power to kill.
More seriously, it is proposed not only that doctors should add to their
armoury of monopolies the power to end human lives, but also that they
are to be the arbiters in deciding whether the conditions for
permissible `suicide' are met in any particular case. I would argue that
the world view of the medical profession, both covert and explicit, and
in particular the fact that the interests of - other people -
(relatives, the community, society as a whole) are taken into account in
making decisions about patients, makes this possibility an extremely
dangerous one.
THE INHERENT PATERNALISM OF MEDICINE
Allowing people complete freedom to choose their own death, in the sense
of removing *all* the legal obstructions, is a development to which we
do not seem to be very near. There has always existed a certain horror
about suicide. It is an act which some people regard as the supreme
expression of a person's autonomy: an apparent rejection of all social
conventions and responsibilities, and an assertion of the person's
assessment of his or her own life as being of insufficient value
compared with the effort required to continue it. Wittgenstein called
suicide "the elementary sin", and warned that "if suicide is allowed
then everything is allowed". [7]
As things stand, there appears to exist too much resistance to the idea
that people should be allowed to terminate their lives on the basis of
their own evaluation, for there to be a significant liberalisation of
the pharmaceutical laws. The Church of England, for example, seems to be
echoing public opinion rather than Christian doctrine when it argues
that if a person
... has dependents who need him, or if he has a positive
contribution of a recognisable kind which he could still make to the
well-being of others, these could be sufficient grounds for denying
him, in the general interest, the exercise of his right to
die. [8]
If, however, people are to be deprived of the power to choose whether to
live or die, we should at least be consistent and not give that legally
sanctioned power to make those choices to others. If assisting a person
to kill himself is to be treated as a crime, apparently because of the
danger of abuse if it were not, it should be treated as an even more
serious crime when the assistant is a doctor. Similarly, since murder is
treated as the most serious crime of all, the intentional taking of life
by a doctor without the patient's consent, however much it is supposed
to be in the patient's best interest, should be treated as an at least
equally serious crime.
Paternalism - putting patient's `interests' above their wishes - is
endemic at all levels of medicine. The tenet that `doctor knows best' is
applied not merely when it comes to determining whether a patient's life
is so awful that it should be actively terminated. In every other area
of medicine - deciding *whether* to treat, *how* to treat, whether to
save or whether to let die - doctors apply considerations other than
the wishes of the patient in deciding what is appropriate. Apart from
the `interests' of the patient, these considerations include the
patient's ostensible quality of life, the costs and benefits to the
community, the doctor's ethical preferences and the appropriate
allocation of resources. "Should each doctor care for his own patients
[or] should each behave as a member of a group whose aim is the good of
all patients?" asks Professor Martin Hollis, [9] concluding that the
doctor has responsibilities to the community which go well beyond those
to any one of his individual clients.
Medical paternalism has expanded to the point where we should be
extremely wary of augmenting the powers of the profession still further.
Yet the very breadth of those powers has created a climate of passive
acceptance in which their extension to new areas elicits relatively
little protest.
"MERCY-KILLING"
We must recognise the root of the euthanasia issue, which is that
individuals are denied access to chemicals which would provide a
painless death. Because medical paternalism has progressed to a highly
advanced stage, practically all pharmaceuticals are out of bounds to the
layman. However, it is plausible to suppose that, even if drugs such as
antibiotics or contraceptives were available over the counter, the
supply of those drugs which lent themselves readily to suicide would
nonetheless be controlled. Society is currently not prepared to
countenance that people should be able to kill themselves painlessly
simply by buying something from the chemist.
What then of the proposal that doctors should be permitted to kill a
patient suffering from a suitably horrific illness, subject to the
patient's consent? What those who advocate this are saying, in effect,
is that, having denied the person the right to control his body, society
will give it back to him under certain conditions. We should be very
suspicious of such a conditional liberty. Whose interests does it serve
if this apparent concession is made? Ostensibly the decision of death
will become one of partnership between society, the patient and the
medical professionals, in the sense that all three must give their
consent for the act of killing to go ahead. Society will give its
decision in the form of procedural rules; the doctors concerned by
deciding whether the patient's condition warrants euthanasia; and the
patient himself by signing a form. However, it should be considered
carefully whether the balance of power is evenly enough distributed to
make each of those decisions equally meaningful.
It is also worth asking oneself why it is almost always mercy-killing,
and only rarely assisted suicide, that is discussed. It is true that
patients sometimes get into a condition where it would be impossible for
them to ingest without aid a lethal drug placed in front of them. On the
other hand, many seriously ill patients who would prefer to die are
perfectly able to perform the necessary bodily actions which would make
them alone responsible for ending their life. Indeed, one wonders how
many of the former type of patient passed through a stage of being of
the latter type, during which they would have ended their lives if they
had been allowed access to the means. Why, then, is it almost invariably
the image of the doctor administering a lethal injection that is invoked
in discussions of euthanasia? This alone should make one wary of the
assumption that it is the patient's autonomy which is primarily at stake
in the euthanasia controversy, rather than the feelings of observers
such as doctors, nurses and relatives. The latter possiblity would
certainly make sense of the ominous argument sometimes produced that `we
do it for dogs; should we treat humans any less kindly?'. On the basis
of the evidence provided by discussions of the subject, one would
realistically have to conclude that the sort of euthanasia proposed was,
at least potentially, `killing with consent' rather than `killing by
request'.
AN OPTIMISTIC ASSUMPTION
Once we allow doctors to kill their patients with their patients'
consent, as opposed to letting patients have access to the means of
death, we are unquestionably closer to the possibility of involuntary
euthanasia. Even if this step did not mean that we found it easier to
contemplate killing conscious patients without their consent - an
optimistic assumption which may be questioned - we will nevertheless
have legitimised one of the factors required for involuntary euthanasia,
namely homicide, and thereby eliminated one of the safeguards against
it.
It is naive to assume that doctors are invariably benevolent and that
they operate only on the basis of our best interests, notwithstanding
the fact that the profession behaves as if this attitude of supplicatory
veneration were "de rigueur". The modern presumption in favour of doctor
benevolence has meant that the powers of the medical profession have
grown to intolerable levels. The response to the apparent dilemmas which
this development has generated is to *reduce* these powers, not to
consider ways of increasing them.
One way in which the aims of the euthanasia lobby could be partly
advanced, without involving us in the dangers of expanding doctor power,
is to strengthen the consent requirement for treatment. Although
nominally a practitioner must obtain the consent of a competent patient
before he can carry out medical intervention, in practice this
requirement is only weakly observed. The requirement that a patient must
agree to treatment should not be imagined to mean that doctors
necessarily sit down with their patient and discuss carefully, and
without putting any pressure on the patient, the options available,
including non-intervention. What typically happens if, for example, a
person is found to have a life-threatening tumour is that he is rushed
off to hospital for an operation and is expected to sign a standard form
when he gets there. Of course he is theoretically entitled to `get off
the bus' at any point, but how many of us have the mental strength to
think things through, arrive at a decision, and then argue with the
professionals, in a situation like this? [10] This is obviously not made
any easier if a patient is not given all the information about his
condition or the possible courses of action and associated risks and
benefits.
THE STRONGEST POSSIBLE SAFEGUARDS
Before the euthanasia problem can be solved in a tolerable way, it is
necessary for users of medical services to recognise that - they have no
genuine control - over those services. Patients must ask themselves,
what is it that gives doctors the right to have power over them? Is a
situation in which the medical profession has gradually and tacitly
appropriated the medical technology to itself, and assumed a position of
power over a sick person's body, an acceptable one? If sufficient people
find the answer to this to be negative, then the response must be to
demand that medical technology, and in particular the pharmaceuticals
which produce a painless death, should be freely available. If they
were, euthanasia would cease to be an issue, since a doctor would
generally have to comply with his patient's request for the means to his
own suicide.
As long as the power of having access to pharmaceuticals remains
monopolised by doctors, we need to have the strongest possible
safeguards against the abuse of this power. Making it acceptable for
doctors to *kill* their patients, under conditions determined partly by
doctors, is a move which cannot possibly have sufficient safeguards to
prevent it from being used as an instrument of control over others, and
which undermines the existing protection which patients have in other
areas against being exploited by doctors.
NOTES
1. The act of suicide - although not that of assisting suicide - was
decriminalised by the Suicide Act 1961.
2. "The Sunday Times", 20 September 1992.
3. "The Sunday Times", 27 September 1992.
4. Quoted in Yale Kamisar, "Euthanasia legislation: some non-religious
objections", in A. B. Downing and Barbara Smoker, "Voluntary
Euthanasia", Peter Owen, London, 1986, p. 131.
5. Ibid, p. 132.
6. James Rachels, "The End of Life", Oxford University Press, 1986, pp.
155-156.
7. Ludwig Wittgenstein, "Notebooks 1914-1916", Blackwell, Oxford, 1979,
p. 91e. Of course, Wittgenstein's apparent abhorrence of suicide was not
without personal significance, in view of his permanent state of
pessimism verging on depression. Elsewhere he asks, "How can a man be
happy at all, since he cannot ward off the misery of this world?", ibid,
p. 81e. Three of Wittgenstein's brothers committed suicide.
8. Church of England General Synod, "On Dying Well", Church Information
Office, London, 1975, pp. 6-7.
9. Martin Hollis, "A death of one's own", in J. M. Bell and Susan
Mendus, eds., "Philosophy and Medical Welfare", Cambridge University
Press, 1988, p. 8.
10. In David Hare's film "Strapless", the heroine doctor reveals to one
of her cancer patients who has been undergoing harrowing chemotherapy
that he does not have to go on with the treatment if he does not want
to. The sympathy of the audience is aroused; how kind of her to tell the
unhappy young man that he may choose not to fight his cancer. On
ereflection, one wonders why he was not told this to begin with.
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