Final exit: should the double effect rule regarding the legality of euthanasia in the United Kingdom be laid to rest?

• Author: Thompson, Brendan A.

ABSTRACT

This Note explores the double effect rule that currently governs physician-assisted suicide cases in the United Kingdom. Recent events in the British medical and legal community have raised serious questions about the rule's adequacy, and have arguably created an environment in which Parliament must reexamine the validity of both the double effect rule and the laws governing active euthanasia.

After providing some historical background regarding the origins and development of the double effect rule, this Note surveys recent developments such as changing attitudes towards euthanasia and the public reaction to the Moor verdict, both of which have created an environment that is highly critical of the double effect rule. It then analyzes these criticisms in light of the widespread confusion that application of the rule has caused in both the medical and legal community, and the conspicuous failure of Parliament to respond by legislating on this topic.

This Note argues that the United Kingdom should move away from a rule that essentially turns a blind eye to euthanasia and toward one which makes physician-assisted suicide legal only when it is carried out under a number of stringent, well-defined procedures and safeguards. It then provides a legal framework designed to aid Parliament in creating a balanced law that provides doctors with clear guidelines regarding their conduct, while ensuring that patient and societal interests in curbing potential abuses in this area are addressed.

1. INTRODUCTION

   There is currently a lack of specific law in Britain dealing directly with voluntary active euthanasia.(1) Rather than address the issue through legislation, British Parliament directs courts to apply the principle of double effect in suspected voluntary active euthanasia cases in order to distinguish situations where a physician's actions intentionally hasten the death of a patient from those in which the death of the patient occurs as an unintentional secondary effect of treating a terminally ill patient's pain with drugs. Under the double effect principle, physicians may engage in an action which has both a positive and negative effect without prosecution if the action is undertaken with the intention of achieving only the possible good effect (pain relief), without intending the possible bad effect (death of the patient) even though it may be a foreseen consequence.(2) Although this principal attempts to allow those who are morally opposed to assisted suicide a framework in which to provide adequate pain relief without violating the integrity of traditional medical morality or their consciences, its application to end-of-life decisions has been met with widespread criticism from the British medical, legal, and general community. Among the biggest criticisms of the present system is that it allows physicians to comply with patient requests for death and avoid prosecution by misstating their primary intention in terms of pain relief.

   This Note will examine both the historical and recent events that have led many to call for a change in the law regarding voluntary active euthanasia in Britain. Part II of this Note will explore the origins of the double effect principle and its initial application to euthanasia by the courts in the case of Adams. Part III will look at the changing attitudes regarding euthanasia which led many groups to present legislation to Parliament calling for a reexamination of the law. It will also explore the conspicuous failure to legislate by Parliament, especially in light of the recent decision in Moor and the tremendous reaction to its verdict by physicians, the Voluntary Euthanasia Society, the British Medical Association, and legal experts. Part IV will examine the specific criticisms that have been lodged against the double effect principle, from its naive reliance on subjective intentions to the harsh punishments that result from prosecuting doctors for murder after they fail to meet the principle's requirements. Finally, Part V will focus on the arguments for changing the current system from a rule, which is inconsistently applied and confuses physicians to one which legalizes voluntary active euthanasia and allows the government to regulate its practice. It will also discuss many of the procedural requirements that should be implemented into the new law to ensure that it clarifies the current confusion and does not create further inconsistencies in the treatment of physicians dealing with end-of-life decisions.

2. HISTORICAL BACKGROUND

   Euthanasia, derived from two Greek words meaning good (eu) death (thantos)(3), is the "deliberate production of the death of a human being on the grounds that in his situation it is considered that it is better that he should be dead than that he should continue to live."(4) English law focuses on two types of voluntary euthanasia: passive and active.(5) Passive euthanasia is defined as the shortening of human life by the non-commencement or withdrawal of treatment or life support.(6) Under English law, doctors may honor a patient's request for passive euthanasia if either made to the doctor personally or by an advance directive ("living will")(7) in cases where the patient is unable to communicate.(8) The legality of passive euthanasia, as set forth in a 1993 court judgement in the Tony Bland case, is derived from the fact that suicide has been legal in the United Kingdom since the 1960s.(9) Thus, if patients wish to end their lives prematurely by declining life-sustaining treatment, the law will respect their decision to do so.

   Active euthanasia, however, is forbidden under current English law.(10) Active euthanasia is defined as taking positive steps, which shorten the life of an ill person, usually by means of administering drugs.(11) Any doctor who performs active euthanasia at the request of a patient is guilty of murder under English law.(12) Likewise, if a doctor takes active steps to help a patient take their own life, such as providing the patient with drugs, then they will be guilty of the crime of assisting a suicide.(13)

   English law does not consider it euthanasia, however, when a doctor's active steps are taken with the intention of relieving a patient's pain and suffering, even if these steps also shorten the life of the patient.(14) This distinction is made possible by the ethical principle of double effect, which currently serves, as the United Kingdom's legal stance on the permissibility of euthanasia. The rule of double effect states that an action which has two possible effects, "one good and one bad, is morally permissible if the action: (1) is not in itself immoral, (2) is undertaken only with the intention of achieving the possible good effect, without intending the possible bad effect, although both effects are foreseen, (3) does not bring about the possible good effect by means of the possible bad effect, and (4) is undertaken for a proportionately grave reason."(15) First formulated in seventeenth century Christian ethical thought by Roman Catholic moral theologians, the principle which underlies the law of double effect has been applied to a wide variety of situations in which a foreseeable bad consequence creates a moral dilemma.(16) The rule has attempted to play an especially important role in the care of the dying, allowing those who are morally opposed to assisted suicide a framework in which to provide adequate pain relief without violating the integrity of traditional medical morality or their consciences.(17)

   In the abstract, treating a dying patient in pain with diamorphine(18) appears to satisfy the four criteria for double effect.(19) The use of diamorphine (1) is not itself immoral; (2) is undertaken only with the intention of relieving pain, not of causing death through respiratory depression; (3) will relieve pain without first killing the patient; and (4) the relief of terminal pain is a proportionately grave reason for risking the hastening of death.(20) The application of this rule to the care of the dying, however, has been highly criticized because it relies so strongly upon the subjective positive intention of the health care provider.(21) Without scrupulous honesty and clinical integrity, the principle of double effect is open to specious abuse by those who take active steps specifically designed to end a patient's life.(22)

   The rule of double effect was first applied by the English courts to physician-assisted suicide in the trial of Dr. John Bodkin Adams.(23) Dr. Adams was arrested on December 19, 1956 and charged with the murder of Edith Morrell, an eighty-one year old patient who had been suffering from arteriosclerosis and the effects of a stroke.(24) Morrell had been a patient of Dr. Adams since 1948.(25) In charging him with murder, the prosecution stated that Dr. Adams had injected Morrell with heroin and morphia with the intention of shortening her life, not alleviating her pain, so that he could allegedly benefit under her will.(26)

   In speaking for the court, Justice Devlin first explained to the jury that murder is:

   an act or series of acts, done by the prisoner, which were intended to kill, and did in fact kill. It did not matter whether Mrs. Morrell's death was inevitable and that her days were numbered. If her life was cut short by weeks or months it was just as much murder as if it was cut short by years. If the first purpose of medicine the restoration of health could no longer be achieved, there was still much for the doctor to do, and he was entitled to do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life by hours or even longer.(27) This statement called for the jury to examine Dr. Adams' subjective intent in medicating Mrs. Morrell to determine whether his intention was to relieve the patient's pain or end her life. Although the jury acquitted Dr. Adams of the murder of Edith Morrell in only...