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Passive Euthanasia: A Cri de Cœur

5 Oct, 12 | by Iain Brassington

Don’t worry: this isn’t another instance of me yammering on about the right to die or the right to induce death.

I’ve recently received a parcel; it contained a copy of this book by Leanne Bell, which happened to fall open at p 204.  On that page, you’ll find this passage:

Active euthanasia involves a deliberate act intended to kill [...].  This is illegal in England and Wales because it satisfies the definition of ‘unlawful killing’ and will therefore either be murder or manslaughter depending on the mens rea (that is, the state of mind) of the doctor at the time.  He is likely to face criminal prosecution, regardless of whether the patient and/or the family requested or consented to it.  By contrast, passive euthanasia involves the withholding or withdrawing of treatment from the patient, i.e. an omission rather than an act, and, in certain circumstances, can be legal. [emphasis mine - IB]

No.  Wrong.  Wrong on two fronts.  Withholding treatment may be an omission, but withdrawing it isn’t.  More importantly, while the active/ passive distinction boils down to one between administration and non-administration, it is simply not true that non-administration is the same as passive euthanasia.

Euthanasia requires the intention to end life based on a motive of beneficence directed at the person who will die.  Neither withdrawing nor withholding treatment indicates the intention to end life.  Only if you’re withdrawing or withholding treatment with the intention that this should end life have you committed passive euthanasia.

There’s a simple test you can run here: When withdrawing or withholding treatment, would it be coherent to hope for the patient’s survival – however miraculous – without further intervention?  It would not be coherent in cases of euthanasia, because you can’t intend that life should end and yet hope that it doesn’t.  It could be coherent otherwise.

Or another version of the same test: If you are considering withholding or withdrawing treatment and the patient does not die, would you see this as contrary to your intention?  If yes, you’re considering passive euthanasia; if no, you aren’t.

Bell is by no means alone in getting PE wrong.  The mistake is all over the place – both in the clinical ethics literature, and in the wider public domain.  I’m not wholly sure where it’s come from, but I suspect it may derive from Rachels having made it in”Active and Passive Euthanasia“, and then a little more explicitly in “Killing and Letting Die“:

Many people believe that “passive euthanasia” – allowing terminal patients to die, rather than pointlessly prolonging their lives – is sometimes permissible; but they also believe that killing patients is always wrong.

I’ve got a lot of time for Rachels, and much of what he says on killing and letting die in these essays is good.  But this is wrong.  Even good essays can have wrinkles in them; and this is a big one.  And if it’s the source of the same mistake being made elsewhere, that’s quite serious.

ADDENDUM: Oh, hell – it gets worse.  From p 203:

Voluntary euthanasia involves a mentally competent patient asking the doctor to end their life, whereas involuntary euthanasia refers to a situation where the patient either lacks mental capacity or lacks the physical ability to communicate his wishes due to severe disability or lack of consciousness.

So I looked through the rest of the book.  It’s embarrassingly bad, at least in respect of the ethics.  Another random sample: Futility is, apparently, a school of ethical thought alongside consquentialism and deontology (p 22).  That’s not only philosophically incompetent: believing it requires that one has only the vaguest grasp of English.

How did this get past peer-review?

If you’re considering recommending this book to your students: don’t.  You’ll be doing them a serious disservice.

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  • Sarah

    I apologise if it strikes you as a stupid question but I don’t quite understand what is so wrong with the distinction that was given for voluntary and involuntary euthanasia?

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    What’s described here is non-voluntary euthanasia – killing someone in the absence of a stated desire. Involuntary euthanasia is killing someone contrary to their stated desire.
    Many people, including me, think that “involuntary euthanasia” is an oxymoron; the distinction is important, though.

  • Sarah

    Oh, I get it now. Thanks for spelling it out for me.

  • ColinGavaghan

    I wonder if the source of the author’s problems lies in her mixing up of legal and non-legal terminology. In the context of a discussion about legal and illegal conduct, a term like ‘passive euthanasia’ – a somewhat contested ethical term which means next to nothing in law – is out of place.
    In fact, it would be a lot more useful if discussions about the legality of various end-of-life choices could steer clear of the e-word altogether. There is no crime of ‘euthanasia’ in English (or Scots, or NZ) law, and invoking it tends to lead readers/listeners into considerations of whether X is ethically analogous with Y, rather than whether X is legally permissible. Fine if you’re critiquing the law, less fine if you’re explaining it.
    Anyway, I think this has led to confusion about whether she is making an ethical or a legal claim. With regard to withdrawing treatment, you seem to have interpreted her comments as making an ethical case, as when you say that ‘Withholding treatment may be an omission, but withdrawing it isn’t.’ Logically, you’re quite right. But if the author is making a legal claim, then the common law courts have in fact treated Rx withdrawal as if it were an omission. Lord Goff in Bland made the point pretty clearly: ‘I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission.’
    Of course, this is a highly disputable position, ethically and logically, and Lord Goff had to go and add a very counterintuitive caveat to the effect that if the doctor pulls the plug, that’s an omission, but if you or I sneak in and do likewise, that’s an act. (The more obvious position – that it’s a permissible act from a doctor, and an impermissible act from anyone else – was not seen as being available to him.) Legally, though, it’s not clear that the author is entirely wrong, although she could have expressed the point with greater clarity and precision, i.e. withdrawing treatment may sometimes be treated as an omission.
    I think the same might be true re intention. You say that ‘you can’t intend that life should end and yet hope that it doesn’t.’ Well, in English law you probably can. Even without the (in)famous Woollin gloss, the position in English law has long been that, where someone acts with foresight of virtual certainty, ‘the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen.’ (R v Nedrick)
    So if you (as a non-doctor) switch off the life-support machine, praying for a miracle but – by your own admission – knowing with 99.9% certainty that death will occur, that is either (following Woollin) intent, or more plausibly (following Nedrick) a state of mind from which an inference of intent may be drawn. What you desired, and what you intended are, in law, not always identical.
    Describing that situation as ‘euthanasia’, though – passive or otherwise – is unhelpful and confusing.

    It looks to me like the real moral here may be that – assuming we need any more general ‘medical law and ethics’ books (and I’ll readily admit that I’ve done my best to torpedo proposals in this regard) – authors should take care to spell out which they are describing at any given time. Is this a normative claim, or legal, or linguistic, or … what?
    (Although, in all honesty, the part about ‘involuntary’ euthanasia is a strong piece of evidence that she possibly doesn’t know this stuff at all, and that my charitable reading is actually misplaced.)

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    Thanks for this: it’s very useful, and not just in this context.

    As to the wider point about an overkill of E&L course materials – David and I were talking about this on FB (which you may have seen), and wondering whether the world really does need another landfill textbook. I think that there is possibly one defence of them, and that’s precisely that they are good for landfill. Good quality paper won’t decompose, possibly for centuries. That makes it an excellent carbon sink.

    We should applaud publishers’ contributions to keeping the planet cool by pulping wood that will then be replaced by more trees that will themselves be pulped in the service of unnecessary and otherwise counterproductive academic publishing. Every little helps.

  • Daniel Sokol

    The JME blog: a cri de coeur

    At the risk of sounding pious and with
    respect to the JME bloggers, I am a little surprised by the tone occasionally adopted
    in the JME blog and, indeed, in some responses.
    I have no objection to taking issue with parts of books, articles, and
    arguments – that is an important function of the JME blog – but the way that it
    is done in the blog strikes me increasingly as rude and disrespectful.

    I have not read Ms Bell’s book so I
    cannot comment on its merits or otherwise, but I have no doubt that she has
    devoted much time and effort to it. Is
    there really a need for the blogger to make statements such as “Oh, hell – it gets worse”, “it’s embarrassingly bad”, “philosophically incompetent”, “how did this get past peer-review?”, and
    “If you’re considering recommending this
    book to your students: don’t. You’ll be doing them a serious disservice.” I doubt one would make such remarks to the
    author herself, and I see even less reason to make them in a forum as public as
    this blog.

    If medical ethicists had a code of ethics
    (and, after reading the JME blog, perhaps we should) I would like to think that
    this would constitute a breach of it. In
    respect of ‘duties of manner’, Robert Audi wrote in ‘Practical reasoning and
    ethical decision’ (2006): ‘May we not
    judge a person to have acted wrongly because of something done (say) crudely,
    insensitively, or condescendingly? It
    might be a type of act that is permissible or even obligatory, say helping a
    patient to get into a high bed. There
    are ways to do this that are wrong, such as doing it resentfully,
    complainingly, or violently.’ This
    applies equally to rude or vituperative blogs.

    Finally, from the point of view of
    self-interest and career progression, I doubt the authors of such blogs and
    those who in their responses join in, do themselves any favours by potentially offending
    colleagues and other readers who, like me, find themselves embarrassed when
    reading the posts.

    The JME blog is a useful resource with
    many virtues, but I feel that it oversteps the mark rather too often. Criticism, even robust criticism, is
    fine. Outright rudeness is not.

  • Keith Tayler

    Well put. I was beginning to think I was the only person who thought there is too much heat and little light in some of these exchanges. Such a damning review based on a reading of a few pages is not only ridiculous. but discourteous. I could randomly pick a few pages in any of the great philosophers works and no doubt find errors of reason and judgement, but that would not stop me from recommending them to students. Obviously futility is not a school of ethical thought alongside consequentialism and deontology, but within the context of the book “futility“ and “medical futility” might loom large as it does in the numerous papers and books on this subject. It can within this context be described as a ‘school of ethical thought’, albeit a small one. Perhaps it was over emphasised. Bell’s book might not be particularly good (I have not read it so I have no idea), but I struggle to find many philosophically competent bioethics books so it might well be better than average.

  • Stephen

    There can also be voluntary euthanasia involving currently-incompetent or unconscious patients, if they’ve left a living will or some similar clear statement of a wish to die.

  • http://twitter.com/rocza Kelly

    If you think this is an example of bad behaviour in ethics, I invite you to spend more time with American bioethicists.

  • http://www.law.manchester.ac.uk/aboutus/staff/iain_brassington Iain Brassington

    Perhaps unsurprisingly, I disagree with your assessment of
    the tone taken here; it’s really no different from that in any number of research seminars and conferences. (OK: that might just seem to you to be a search for companions in guilt. I don’t see it that way.) Would I say something like this in person? Possibly: maybe not with the exact words, but something similar. Do I stand by the idea that to recommend this book to students would be doing them a disservice? At least in respect of the ethics content: yep, I do.

    When it comes to comments, about which you also worry, David and I have a very liberal policy. A couple of comments weren’t let through in respect of The Paper Of Which We Do Not Speak, and one person was banned – but, beyond that, people can say what they want to say. That’s the only occasion (except in obvious cases of spam) on which either of us has wielded the ban-hammer, or even attempted moderation.

    But you’re in danger of losing sight of something here, I think, which is that the post started out as – and overwhelmingly is – what it says it is: a cri de cœur concerning yet another repetition of an all-too-common, and very basic, mistake. To this was appended a hypothesis about the provenance of the error, and why it’s so common. (I was sorta hoping that someone would pick that up, and either confirm it or put me right.) The post was provoked by the book, but it wasn’t really about that book – I only identified the book once people started asking me what it was; it was about something in, but not unique, to it.

    If there’s something I’d change about the post, it’s that I’d separate more clearly the criticism-of-the-book bit from the criticism-of-a-popular-mistake bit. (The former might not – but might – have seen publication in that case: I’m not sure.) But I didn’t. And here we are.

  • Keith Tayler

    American academics can be a bit thuggish, especially those in the “soft” disciplines where rudeness, hostility, ignoring opposing opinion and an over inflated belief in expert knowledge creates an ethos they believe to be academia. Psychology, economics, AI (the MIT AI Lab has been likened to working in a Soviet university) and of course bioethics are soft disciplines that like to appear hard. All a bit silly.

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