EUTHANASIA, ETHICS AND PUBLIC POLICY: AN ARGUMENT AGAINST LEGALISATION
EUTHANASIA, ETHICS AND PUBLIC POLICY: AN ARGUMENT AGAINST LEGALISATION by John Keown. Cambridge: Cambridge University Press, 2002, ISBN: 0-521-00933-2.
The issue of euthanasia has all the components that make for a political-legal morass. Emerging at the intersection of medicine, ethics, law, and politics, it is inspired by profound human suffering, shaped by clashing cultural values and practices regarding death and dying, and colored by the historical specter of human rights abuses. EUTHANASIA, ETHICS AND PUBLIC POLICY, by John Keown of the Faculty of Law at the University of Cambridge, skillfully navigates readers through this mire, while arguing a point of view that resists polemics.
The thesis that drives the book is both compelling and uncommon. Keown forcefully argues that neither voluntary euthanasia nor, more specifically, physician-assisted suicide should be legalized. What sets this book apart from other anti-euthanasia volumes, however, is that Keown does not argue against these practices on a principled basis, but for the pragmatic reason that they cannot be effectively controlled. That neither practice can be contained nor regulated to prevent abuses leads him to conclude that their legalization will inevitably lead down the “slippery slope” to involuntary active euthanasia—i.e., murder.
In garnering sources to support his position, Keown offers a comparative dimension by drawing on the euthanasia policies of Australia, Canada, England, Netherlands, and the United States—five countries that are currently grappling with the question of under what circumstances, if any, different euthanasia practices should be allowed.
Given the confusion over terminology within any given country and most certainly between them, Keown wisely uses Part I of the book to establish the vocabulary of euthanasia. After a brief survey of three definitions, he defines “euthanasia” as “doctors making decisions which have the effect of shortening a patient’s life and that these decisions are based on the belief that the patient would be better off dead” (p. 10). He then surveys the academic disagreements over the finer distinctions drawn between various euthanasia practices. For example, although the issue of patient consent is divided into “voluntary,” (i.e., with the patient’s consent), “nonvoluntary,” (i.e., lacking patient’s consent, usually because the patient lacks capacity but also when the patient is not asked), and “involuntary,” (i.e., contrary to the patient’s wishes), the distinctions are not accepted as relevant by all. There is also disagreement over whether “acts” (e.g., an injection) are to be treated differently than “omissions” (e.g., a decision not to administer antibiotics), as well as whether the withdrawal of life support would constitute an act or an omission. Finally, there is the controversial principle of the “double effect” that distinguishes that which is “intended” from that which is merely “foreseen.”
Keown’s position is that voluntary active euthanasia (VAE) should be broadly defined to include both acts and omissions, and to include physician-assisted suicide (PAS), a practice in which terminally ill patients self-administer a fatal dose of a drug prescribed by a physician. On the other hand, he supports the distinction drawn between intended and foreseen consequences maintaining that a physician who prescribes a drug to reduce a patient’s pain, even though it may hasten death, is not participating in euthanasia; whereas a physician who purposely does so to kill the patient is committing VAE.
In Part II, another background section necessary to set up his argument, Keown distinguishes between the ethical perspectives of Vitalism (the position that life must be preserved at all costs), Inviolability (the position that life is sacred, but that treatment may be stopped when it does not benefit the patient) and Quality of Life (the position that it is the value of the life itself, and not the specific value of the treatment, that determines when death may be sought). This section also contains one chapter that examines how the right to personal autonomy is not an absolute right, and another that demonstrates how logically difficult it is to support PAS or VAE without sliding public policy toward NVAE. For example, if physicians are allowed to prescribe deadly drugs to terminally ill patients, then why not permit them to give direct injections to those who cannot swallow the pills, and then why not expand this to those who are suffering but not terminally ill, and then to patients who have a poor quality of life but are unable to consent to termination?
This is Keown at his strongest. Even among proponents of PAS and VAE, of which I am one, he will raise doubts as to whether he may in fact be right about the dangers of legalization. In drawing out the scenario of the descent to legalized murder, his analysis is most disturbing in that it does not rely on the existence of evil intentions within a regime like that of Nazi Germany, but on well-meaning policymakers in democracies sensitive to human rights whose goal it is to end human suffering. In this, he is convincing that advocacy for the Inviolability of life position would safeguard patients from most abuses by shifting the focus to an evaluation of the benefit of the treatment for a specific patient, and not an evaluation of the worth of an individual life.
With definitions and ethical perspectives reviewed, Keown turns in Part III to the main question at hand: Can VAE and PAS be effectively controlled? To answer, he explores data collected from the Netherlands, a nation whose Supreme Court in 1984 declared VAE lawful under certain conditions. After comparing statistical data on deaths with the guidelines established by the Royal Dutch Medical Association, he concludes that not only are the guidelines “elastic” rather than strict and therefore open to abuse, but that the slide to NVAE has already taken place. To support this latter claim, he draws on 1990 data that indicate that, while only 2300 patients are reported to have died by VAE and 400 by PAS, doctors intended to accelerate the deaths of another 6350 cases, some without the “explicit request” of the patient (pp. 96-98).
In Part IV, Keown moves on to the Northern Territory (NT) of Australia and the state of Oregon in the U.S. to explore whether legalization efforts through the legislative process have succeeded in ways that the Netherlands policy, based on case law, has not. In 1995 the NT passed the Rights of the Terminally Ill Act (ROTTI) permitting both PAS and VAE. Keown criticizes ROTTI for its lack of specificity, its laxity, and its weak safeguards, flaws that led to its repeal by the Federal Parliament nine months later. Oregon’s Death With Dignity Act (DWDA), legalizing PAS under certain circumstances, was implemented in November 1997 after it passed twice as a voter’s referendum and surmounted court challenges. Keown again criticizes what he sees as a lack of specificity in the Act as well as the data of the first three annual reports (1998-2000) indicating that among the most frequent reasons that patients sought PAS were loss of autonomy, fear of becoming a burden, decreasing ability to participate in activities, and loss of control of bodily functions. Keown concludes: “The Oregon Act can claim to be the most permissive regime for PAS yet devised. Unlike the Netherlands and the NT there is no requirement that the patient be suffering, let alone be suffering severely or unbearably” (p. 179). For Keown then, “suffering” in this instance seems to mean physical pain and not psycho-social distress.
Keown’s critiques of existing laws are so penetrating and detailed (at times even nitpicking, e.g., that the DWDA’s definition of “terminal”—expecting death to occur within six months—is not precise enough) that it makes me wonder why he would not suggest how imprecisions could be refined, loopholes plugged, and his fears about the slippery slope quelled. Indeed, if the objection to PAS and VAE is just a pragmatic one, and not one of logic or of ethics, why not agree to laws that draw a clear line between voluntary and nonvoluntary euthanasia for no other reason than that a line must be drawn somewhere?
But where Keown falters most is in his description and analysis of the U.S. experiences with PAS and the right to die. He criticizes the DWDA in its original version and not as amended in 1999; he ignores how the Supreme Court upheld a right to what he would call passive euthanasia in CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990); and he overstates the Court’s rejection of PAS bans in WASHINGTON v. GLUCKSBERG (1997) and VACCO v. QUILL (1997), failing to note that the rulings allowed the states to ban not only PAS, but indeed, the choice to legalize PAS just as Oregon has done.
Keown adds more fuel to his argument against legalization in Part V by enlisting expert opinion from ethics committees, courts, and medical associations of the five countries under review to heighten an argument that there is worldwide consensus that legalization is a Pandora’s box that should not be opened.
What he leaves unexplored, however, is the apparent conflict between such experts and citizens of these nations. That there is such uniformity among expert opinion against legalization and such a groundswell among patients, families, and interest groups for legalization surely indicates a disconnect between public policy and medical practice. Keown does acknowledge patient suffering. But to argue that the solution to the euthanasia quagmire is to forbid it while encouraging doctors to treat suffering more effectively hardly seems like an answer given the current failures of these most sophisticated and expensive of medical systems. Indeed, it may be the medicalization of death and dying that has spawned this very issue.
My concern about the potential impact of his anti-euthanasia position is only heightened by the final section of the book in which he explains his opposition to even passive euthanasia (PE)—defined as withholding or withdrawing life sustaining treatment with the intent to kill the patient. It is here that his previously drawn distinction between intending death and foreseeing death is most critical. If two doctors each decide to stop nutrition and hydration of their patients, one can be charged with practicing PE if the intent was to kill the patient; while the other would be safeguarded from punishment if death was merely foreseen and the intent was to stop a treatment no longer of benefit to the patient. Again, Keown declares that the essential difference is that of evaluating the treatment, not the life of the patient.
This raises two questions: How would a prosecutor or a Court get into the head of the physician to know what truly motivates the treatment decision, and would physicians be confident enough to trust the system so that they would aggressively offer palliative care? Keown’s response to the first is that MENS REA is evaluated in criminal court all the time. While true, presumably physicians would be loath to be treated as criminal suspects who must answer for their state of mind when practicing medicine. Secondly, physicians in the U.S. are so fearful about being prosecuted that they too often under-medicate, thus leaving patients in pain—contributing again to the very reasons why patients and families cry out for legalization of PAS or VAE, and illustrating the flip-side of Keown’s pragmatic argument.
This book is written with a clarity that is rare in this complicated, cross-disciplinary field, and so should be well received by Keown’s intended audience of a general reader. It would also be an effective text in health policy, medical law, or comparative law courses. Keown’s contribution is in educating the public, policy makers, and academics about what is at stake as five different nations struggle over the question of how we die.
The thesis that drives the book is both compelling and uncommon. Keown forcefully argues that neither voluntary euthanasia nor, more specifically, physician-assisted suicide should be legalized. What sets this book apart from other anti-euthanasia volumes, however, is that Keown does not argue against these practices on a principled basis, but for the pragmatic reason that they cannot be effectively controlled. That neither practice can be contained nor regulated to prevent abuses leads him to conclude that their legalization will inevitably lead down the “slippery slope” to involuntary active euthanasia—i.e., murder.
In garnering sources to support his position, Keown offers a comparative dimension by drawing on the euthanasia policies of Australia, Canada, England, Netherlands, and the United States—five countries that are currently grappling with the question of under what circumstances, if any, different euthanasia practices should be allowed.
Given the confusion over terminology within any given country and most certainly between them, Keown wisely uses Part I of the book to establish the vocabulary of euthanasia. After a brief survey of three definitions, he defines “euthanasia” as “doctors making decisions which have the effect of shortening a patient’s life and that these decisions are based on the belief that the patient would be better off dead” (p. 10). He then surveys the academic disagreements over the finer distinctions drawn between various euthanasia practices. For example, although the issue of patient consent is divided into “voluntary,” (i.e., with the patient’s consent), “nonvoluntary,” (i.e., lacking patient’s consent, usually because the patient lacks capacity but also when the patient is not asked), and “involuntary,” (i.e., contrary to the patient’s wishes), the distinctions are not accepted as relevant by all. There is also disagreement over whether “acts” (e.g., an injection) are to be treated differently than “omissions” (e.g., a decision not to administer antibiotics), as well as whether the withdrawal of life support would constitute an act or an omission. Finally, there is the controversial principle of the “double effect” that distinguishes that which is “intended” from that which is merely “foreseen.”
Keown’s position is that voluntary active euthanasia (VAE) should be broadly defined to include both acts and omissions, and to include physician-assisted suicide (PAS), a practice in which terminally ill patients self-administer a fatal dose of a drug prescribed by a physician. On the other hand, he supports the distinction drawn between intended and foreseen consequences maintaining that a physician who prescribes a drug to reduce a patient’s pain, even though it may hasten death, is not participating in euthanasia; whereas a physician who purposely does so to kill the patient is committing VAE.
In Part II, another background section necessary to set up his argument, Keown distinguishes between the ethical perspectives of Vitalism (the position that life must be preserved at all costs), Inviolability (the position that life is sacred, but that treatment may be stopped when it does not benefit the patient) and Quality of Life (the position that it is the value of the life itself, and not the specific value of the treatment, that determines when death may be sought). This section also contains one chapter that examines how the right to personal autonomy is not an absolute right, and another that demonstrates how logically difficult it is to support PAS or VAE without sliding public policy toward NVAE. For example, if physicians are allowed to prescribe deadly drugs to terminally ill patients, then why not permit them to give direct injections to those who cannot swallow the pills, and then why not expand this to those who are suffering but not terminally ill, and then to patients who have a poor quality of life but are unable to consent to termination?
This is Keown at his strongest. Even among proponents of PAS and VAE, of which I am one, he will raise doubts as to whether he may in fact be right about the dangers of legalization. In drawing out the scenario of the descent to legalized murder, his analysis is most disturbing in that it does not rely on the existence of evil intentions within a regime like that of Nazi Germany, but on well-meaning policymakers in democracies sensitive to human rights whose goal it is to end human suffering. In this, he is convincing that advocacy for the Inviolability of life position would safeguard patients from most abuses by shifting the focus to an evaluation of the benefit of the treatment for a specific patient, and not an evaluation of the worth of an individual life.
With definitions and ethical perspectives reviewed, Keown turns in Part III to the main question at hand: Can VAE and PAS be effectively controlled? To answer, he explores data collected from the Netherlands, a nation whose Supreme Court in 1984 declared VAE lawful under certain conditions. After comparing statistical data on deaths with the guidelines established by the Royal Dutch Medical Association, he concludes that not only are the guidelines “elastic” rather than strict and therefore open to abuse, but that the slide to NVAE has already taken place. To support this latter claim, he draws on 1990 data that indicate that, while only 2300 patients are reported to have died by VAE and 400 by PAS, doctors intended to accelerate the deaths of another 6350 cases, some without the “explicit request” of the patient (pp. 96-98).
In Part IV, Keown moves on to the Northern Territory (NT) of Australia and the state of Oregon in the U.S. to explore whether legalization efforts through the legislative process have succeeded in ways that the Netherlands policy, based on case law, has not. In 1995 the NT passed the Rights of the Terminally Ill Act (ROTTI) permitting both PAS and VAE. Keown criticizes ROTTI for its lack of specificity, its laxity, and its weak safeguards, flaws that led to its repeal by the Federal Parliament nine months later. Oregon’s Death With Dignity Act (DWDA), legalizing PAS under certain circumstances, was implemented in November 1997 after it passed twice as a voter’s referendum and surmounted court challenges. Keown again criticizes what he sees as a lack of specificity in the Act as well as the data of the first three annual reports (1998-2000) indicating that among the most frequent reasons that patients sought PAS were loss of autonomy, fear of becoming a burden, decreasing ability to participate in activities, and loss of control of bodily functions. Keown concludes: “The Oregon Act can claim to be the most permissive regime for PAS yet devised. Unlike the Netherlands and the NT there is no requirement that the patient be suffering, let alone be suffering severely or unbearably” (p. 179). For Keown then, “suffering” in this instance seems to mean physical pain and not psycho-social distress.
Keown’s critiques of existing laws are so penetrating and detailed (at times even nitpicking, e.g., that the DWDA’s definition of “terminal”—expecting death to occur within six months—is not precise enough) that it makes me wonder why he would not suggest how imprecisions could be refined, loopholes plugged, and his fears about the slippery slope quelled. Indeed, if the objection to PAS and VAE is just a pragmatic one, and not one of logic or of ethics, why not agree to laws that draw a clear line between voluntary and nonvoluntary euthanasia for no other reason than that a line must be drawn somewhere?
But where Keown falters most is in his description and analysis of the U.S. experiences with PAS and the right to die. He criticizes the DWDA in its original version and not as amended in 1999; he ignores how the Supreme Court upheld a right to what he would call passive euthanasia in CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990); and he overstates the Court’s rejection of PAS bans in WASHINGTON v. GLUCKSBERG (1997) and VACCO v. QUILL (1997), failing to note that the rulings allowed the states to ban not only PAS, but indeed, the choice to legalize PAS just as Oregon has done.
Keown adds more fuel to his argument against legalization in Part V by enlisting expert opinion from ethics committees, courts, and medical associations of the five countries under review to heighten an argument that there is worldwide consensus that legalization is a Pandora’s box that should not be opened.
What he leaves unexplored, however, is the apparent conflict between such experts and citizens of these nations. That there is such uniformity among expert opinion against legalization and such a groundswell among patients, families, and interest groups for legalization surely indicates a disconnect between public policy and medical practice. Keown does acknowledge patient suffering. But to argue that the solution to the euthanasia quagmire is to forbid it while encouraging doctors to treat suffering more effectively hardly seems like an answer given the current failures of these most sophisticated and expensive of medical systems. Indeed, it may be the medicalization of death and dying that has spawned this very issue.
My concern about the potential impact of his anti-euthanasia position is only heightened by the final section of the book in which he explains his opposition to even passive euthanasia (PE)—defined as withholding or withdrawing life sustaining treatment with the intent to kill the patient. It is here that his previously drawn distinction between intending death and foreseeing death is most critical. If two doctors each decide to stop nutrition and hydration of their patients, one can be charged with practicing PE if the intent was to kill the patient; while the other would be safeguarded from punishment if death was merely foreseen and the intent was to stop a treatment no longer of benefit to the patient. Again, Keown declares that the essential difference is that of evaluating the treatment, not the life of the patient.
This raises two questions: How would a prosecutor or a Court get into the head of the physician to know what truly motivates the treatment decision, and would physicians be confident enough to trust the system so that they would aggressively offer palliative care? Keown’s response to the first is that MENS REA is evaluated in criminal court all the time. While true, presumably physicians would be loath to be treated as criminal suspects who must answer for their state of mind when practicing medicine. Secondly, physicians in the U.S. are so fearful about being prosecuted that they too often under-medicate, thus leaving patients in pain—contributing again to the very reasons why patients and families cry out for legalization of PAS or VAE, and illustrating the flip-side of Keown’s pragmatic argument.
This book is written with a clarity that is rare in this complicated, cross-disciplinary field, and so should be well received by Keown’s intended audience of a general reader. It would also be an effective text in health policy, medical law, or comparative law courses. Keown’s contribution is in educating the public, policy makers, and academics about what is at stake as five different nations struggle over the question of how we die.
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