Killing them softly

October 31, 1997

Our archaic murder laws should be modernised to encompass mercy killing, argues Mary Warnock whose husband, Geoffrey, was helped to die in 1995

In discussing whether to permit euthanasia, the first move is usually to insist that only voluntary euthanasia is being considered. This move is designed to show that no one need argue against involuntary euthanasia - permitting the destruction of innocent victims on the grounds that someone else thinks they would be better dead. My discussion here is concerned with types of euthanasia which might be legalised, or morally accepted, not practices which, in any civilised country, would be deemed a gross assault on human rights. Nor would the kinds of euthanasia I discuss lead to dreadful abuses of human rights, by an irreversible slide down a slippery slope. There is law against murder already to inhibit such a descent. The question is "What counts as murder?" Can some forms of euthanasia escape such a charge?

Three typical cases of euthanasia can be distinguished (and there are more). First, there is the case of someone, like Tony Bland, the Hillsborough victim, who is not terminally ill, but is in a Permanent Vegetative State (PVS), being kept alive by artificial feeding and hydration and constant nursing care, but who, in the nature of the case, is not suffering, nor indeed experiencing anything at all. Might killing such a person, or letting him die, be generally legitimised, without appeal having to be made, in each case, to the courts?

The second kind of case is the most familiar, that of someone who is terminally ill, with at most a few weeks to live, and who is in constant and increasing pain or other intolerable distress, such as inability to breathe. Should the relief of suffering by drugs count as murder, if it also shortens the patient's life?

Third, there is the case of someone who is fatally, but not yet terminally ill, and whose life is an unbearable burden. Such a person may repeatedly express a longing to die, both for her own sake and for the sake of whoever is looking after her. She knows that things will get worse. She is the long-term no-hoper. Should she be allowed to decide to die?

It is in connection with the first case, that of someone like Tony Bland, kept alive only by hospital technology, that a distinction is drawn between "killing" and "letting die". To insist on this distinction is to rely on a primitive theory of causation, according to which a cause has to be an action, pulling, pushing, kicking, sticking in a needle with a lethal dose. Even if this is the most obvious sense of "cause", the way, perhaps, by which we learn the concept as we are picked up and moved around as babies, it is by no means the only sense. I can cause the death of my pet by neglecting to feed him just as well as by kicking him down the stairs. So withdrawing treatment, or nutrition, is as much a cause of death as is giving the fatal dose. It is prevarication to suggest that "letting him die" is less potentially culpable than "killing him", once the decision to do so has been made. If it is the first step that counts, then the first step here is deliberately coming to the conclusion that he should die. If people wish to hold on to the distinction between killing and letting die, whether through a superstitious belief in "active" causes being the only real causes, or through a reluctance to be the one to give the injection, then I suppose there is little harm done, except that a lingering death may be nastier, at least for those nursing the victim, than a fatal injection. But the responsibility for death is unaltered. On the face of it, whatever the means of death, murder has been committed. There was mens rea (guilty intent) and that there was also a good motive is no defence against the accusation of mens rea in a murder charge. In any case, the motive is not to end the patient's suffering, for he is already beyond suffering. The suffering is that of the patient's family.

There is also the serious matter of pointlessness. What is the good of spending huge sums of money on keeping alive someone who will never even know whether he is alive or dead? People often argue that he must be kept alive, in case, contrary to all expectation, he recovers. In which case, I would say, he was not in a PVS. There was a misdiagnosis. We need an absolutely sure (or as near as possible) means of diagnosing PVS, preferably not by symptoms alone, but by physiological observations of the condition of the brain, over a long time, or by both together. And then we need the ending of the life of a patient in PVS, subject to the consent of the family, to be lifted securely out of the scope of the law of homicide, or the law of manslaughter, perhaps categorised as excusable homicide, alongside self-defence or misadventure. This would entail that the doctors and nurses who, with the family's consent, made the decision would be subject to no penalty, even if someone decided to bring them to trial. But no intervention of the law would be needed unless somebody disputed the diagnosis. We are moving to this position. As long as the PVS diagnosis is a sufficient condition for the ending of life, then this type of case could be properly dealt with.

In the second case, that of the terminally ill, good practice dictates that the doctor give what drugs are necessary to make the remainder of the patient's life tolerable, regardless of whether, without the drugs, he would have lived a day or a month longer. I am certain, too, that most good and compassionate doctors, especially GPs and especially where the patient is dying at home, act on this principle. They do not look beyond the aim of alleviating suffering; and patients' families are mostly content that this should be the aim, asking no questions, save those seeking to ensure that the doctor is doing all he can. But "all he can" means "all he can to make the situation tolerable". Death is the outcome anyway; and the question is not when but how the patient dies.

It is only if someone charges the doctor with malpractice that the doctor will have recourse to the notoriously shifty Double Effect argument, which holds that one can separate what is intended from the consequences of what is intended. If the consequences are unwanted, one can say "I did not intend that consequence. All I intended was that which perhaps brought it about". So the doctor can plead that all he intended was to ease suffering. That the patient died was an unwanted consequence. The trouble is that in reality one cannot separate intention from consequence in this way. If I persist in practising my violin, in order to gain a distinction in my grade VIII exam next week, knowing that my sick neighbour will be affected by the noise, I cannot, morally, plead that all I intended was to perfect my scales, and that disturbing my neighbour was simply an unwanted consequence for which I was blameless. If I knew he would be disturbed, then I was equally responsible, both for my good result in the exam and for his distress. Doctors sometimes plead that they do not know that the outcome of the drug dosage they give will be the patient's earlier death. But if they claim this, then they cannot claim to know that the dosage will bring relief either; all reason to trust their judgement will be undermined. What they should say is that, even if they were sure that death would follow sooner than it would if they had not increased the dose, they judged that this was less important than the relief of suffering. They made a value judgement, and weighed the value of relief of suffering above the value of a few more days or weeks of life. This is a decision that they should be trained and trusted to make. Keeping people alive at all costs is not the sole aim of medicine. In the miseries of terminal illness, care and comfort are aims of equal, or greater, importance.

But this case, though morally and legally miles from murder, and such that a murder charge should never arise, is solely concerned with people who would be agreed to be on their death beds. (The concept of terminal illness, though generally well understood, might be clarified, if only to make a murder charge less probable.) It contributes nothing to the most difficult debate about euthanasia, where a person may be ill, but not terminally ill, and may wish to die, because of the pain and futility of his life and the expectation of further degeneration of his faculties. In debating euthanasia we need to focus on this sort of case. The demand that the law be changed arises from compassion for such people.

One modest change would improve things a bit: the mandatory life sentence for murder could be lifted. So far, no one convicted of a so-called "mercy killing" has served less than six years in prison. If it were left to judges to determine the sentence for murder with flexibility, then gradually a sentencing policy might be developed which would do justice to the motive of the mercy-killer, but yet retain both the absolute reliance we ought to feel on the law, and the moral principle that one must not deliberately deprive people of their lives, many years of which might yet be lived.

Yet the question remains whether we really want to regard the mercy-killer as a criminal, even if a criminal for whom the judge has expressed sympathy by the lightness of his sentence. On the other hand, do we want to run the risks inherent for the whole concept of murder by saying that in certain circumstances, other than self-defence or the defence of others, intentional killing is not wrong?

It is time to look at this question again, dispassionately. The whole law of homicide is a mess, archaic, difficult either to understand or administer. In July, Lord Mustil, delivering judgment on a case on the border between murder and manslaughter, said: "One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice, and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning." It was Lord Mustil who, with other judges, allowed Tony Bland to die. Perhaps the law with regard to euthanasia could be examined as part of a review of the homicide law. Doctors and patients would benefit.

Mary Warnock is a member of the Archbishop of Canterbury's advisory group on medical ethics.

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