#5357 - End Of Life Issues - Medical Law

1. General

• Finnis and Harris in Keown, J. (ed.) Euthanasia Examined (CUP 1995): Debate between the two authors.

  • Harris starts by saying that allowing euthanasia is about respect for persons and autonomy.

  • Finnis starts by making the philosophical case against euthanasia:

    • Defines the central case of euthanasia as the adopting and carrying out of a proposal that, the life of a person be terminated on the ground that it would be better for him/her if that were done.

    • Notes that the moral argument which condemns euthanasia does not condemn the use of drugs which cause death as a side effect; there is a legal and moral distinction based on the intention.

      • Appeals to his idea of a direct harming of basic goods; there is a difference between choosing to harm one of them, and that harm being an unavoidable consequence of another course of action which one chooses to undertake.

    • Intentionally terminating life by omission is just as much murder as deliberate intervention; by failing to address this in Bland the HL made a mistake.

    • Human bodily life is the life of a person and has the dignity of a person. Every human being is equal precisely in having that human life which is also humanity and personhood, and thus that dignity and intrinsic value. Human body life is not merely instrumental for the person or spirit but is an intrinsic and basic good; it is the concrete reality of the human person; dualism will serve it no good. In refusing to violate that life one respects the person in the most fundamental and indispensible way.

    • So should provide a person in PVS with food, water and cleaning to respect him; if a person has made a request to refuse treatment, then in respecting autonomy may reasonably accept that death is a side effect of doing so. But suicide requests are different for this is request not rationally confined to one’s own particular identity and circumstances but is a direct harm to the good of humans.

  • Harris then seeks to deal with issues in three tenets of Finnis’ theory:

    • The moral importance of intention:

      • Whilst agrees that because I get drunk tonight does not mean that I intend to have a hangover tomorrow, he submits that we should still be deemed responsible for that hangover. No sound theory of action can ignore those things which we deliberately do to ourselves.

      • Moral responsibility should encompass what we intend and voluntarily bring about; not clear why it is unfair and unreasonable to hold someone to account for the latter.

      • If free choice matters it matters because of the effects of choosing whether they are side effects or not. Choosing makes a difference to the person and to the world.

    • What is a person:

      • Problem with Finnis’ account is that he wants to say that capacity to participate in goods is constitutive of personhood, but also wants to claim that a person in PVS is still a person when they clearly lack this capacity.

      • A PVS patient may be a living human body but it is not the living body of a person.

    • Killing and killing:

      • Thinks that it is self-deception to regard the choice to refuse treatment as a self-regarding one only with no impact on the wellbeing of other people. We respect the value of lives by respecting autonomy; it is an affirmation of that value to respect the wishes of a person who has made a choice as to the appropriate time at which their life should end.

  • Finnis provides a critique of one of Harris’ earlier accounts:

    • Starts by noting inconsistency of Harris’ thesis; he believes that may be personhood even prior to conception on the basis that can project back capacities of future persons onto the organism, ye t refuses to bring forward those capacities to persons who are in a state of PVS.

    • If, as Harris asserts, being a person entails being capable of appreciating that point then personhood must come and go; what really matters is how strong that capacity must be; a point which he fails to address and highlights the fragility of his thesis.

    • Harris adopts the notion of critical interests and thinks that they can survive capacity, although his thesis is more subjective than that of Dworkin’s; but this cuts both ways as it is not clear why should be allowed to stand idly by and let someone misinterpret the interests with irreversible consequences.

  • Harris responds once more;

    • Thinks that Finnis misses the point; talks about claims of critical interests because he thinks that they essentially boil down to claims about autonomy, or are subsidiary to them. Denial of euthanasia is wrong not because it involves frustration of critical interests but because fails to respect autonomy.

    • Says that many people, even with dementia still have capacity to value life itself; only 1-5% don’t.

    • The wrong of killing is distinct as it is located in the principle that it is wrong to take an autonomously valued life; thus involuntary euthanasia is always wrong.

    • Thinks that despite all the rhetoric him & Finnis are not that far apart as what they both appreciate is that there is virtue in possession of the ability to perform some intellectual act and that the human individual is morally significant; what differ over is when it is plausible to attribute that capacity.

  • Finnis then responds to criticisms by Harris:

    • Harris responsibility idea has impact that in doing one thing always responsible for what could have done in the alternative; which can be taken to the extreme. The distinction between intention and side effects remains a morally significant one.

    • Suspects that Harris may not be telling the truth when says thesis is limited to voluntary euthanasia.

    • Exercise of autonomy should be consistent with and limited by enjoyment of others; exercises of autonomy which proceed on the basis of premises which are false and injurious in implications to other members of society can rightly be overridden by law.

• R. Dworkin, Life’s Dominion (Harper Collins, 1993), chapter 7: Essentially thinks that there is no right answer.

  • There are dangers both in legalising and refusing to legalise euthanasia; the rival dangers must be balanced and neither should be ignored. The emphasis we put on dying with dignity shows how important it is that life ends appropriately, that death keeps faith with the way that we have lived.

  • We cannot understand what death means to people without looking back on life. We worry about the effect of character of the last stage of life as a reflection on the life as a whole.

  • Most of the different ideas about life and a good life we hold intuitively and do not examine except in moments of special crisis or drama. But they are always there and guide decisions which we feel are automatic. These values are critical in the sense that they concern what makes a life successful rather than unsuccessful. They are not opinions about how to make life pleasant day-to-day i.e. experiential interests. The enjoyment of the latter depends upon the inclination of the former and the person’s critical interests will depend very much upon his personality. Critical interests are reflected in the notion of integrity i.e. commitment to one’s conception of a good life. People’s views about how to live will colour their convictions when they die- people want death to express those values which they saw as important to their own lives. Timing is also important here. Thus, there is no uniform collective decision which can serve everyone decently.

  • In the context of abortion Dworkin discusses the difference between human investment and natural investment to conceptualise the pro life/choice debate. Anyone who believes in the sanctity of life for its sake will be inclined against euthanasia, as it violates natural investment.

• Huxtable, Euthanasia and the Law (CUP, 2008), esp ch 1 and 6: The solution to the euthanasia problem lies in identifying the appropriate ethical prism through which to view the various practices that might or will lead to the ending of life and ensuring that this viewpoint is uniformly adopted in law. There is no shortage of perspectives here- all of which have at some point been adopted in English law in some form. It is not clear which paves the best way forward. Constructing a compromise here is both possible and desirable.

  • Notes definitional problems around euthanasia; people seem to assume what they are talking about but often the same word is used to describe a number of different situations. Note that strictly speaking it translates to ‘good death’- but this begs the question.

    • Author says: intentional ending of life motivated by the belief that it will in some way be beneficial for them.

  • Suggests that maybe the intrinsic value of life could be challenged. It is this thinking which underpins distinctions such as act/omission. What about the value of self-determination? Does this impact upon the value of life (Dworkin)? Does life only have instrumental value? Will euthanasia lead to dehumanisation?

  • English law currently occupies three grounds;

    • Respect for autonomy;

    • Intrinsic value of life;

    • A judgement on the quality of life.

  • There are, as it seems, three answers, none of which offer a solution:

    • Condoning the current law:

      • Preserving the status quo means that various worthwhile insights on competing ethical perspectives can continue to exert influence. The problem is that the hypocrisy will remain.

      • Uncertainty means that the law is not fulfilling its basic function.

      • However, to work through the ethical issues again only means that the conflict returns. The difficulty then becomes to select between rival accounts, none...