Euthanasia and Physicians Moral Duties

Journal of Medicine and Philosophy ISSN: 0360-5310 (Print) 1744-5019 (Online) Journal homepage: http://www.tandfonline.com/loi/njmp20 Euthanasia and Physicians Moral Duties Gary Seay To cite this article: Gary Seay (2005) Euthanasia and Physicians Moral Duties, Journal of Medicine and Philosophy, 30:5, 517-533 To link to this article: https://doi.org/10.1080/03605310500253071 Published online: 20 Aug 2006. Submit your article to this journal Article views: 2702 View related articles Citing articles: 3 View citing articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalinformation?journalcode=njmp20

Journal of Medicine and Philosophy, 30:517 533, 2005 Copyright Taylor & Francis, Inc. ISSN: 0360-5310 print/1744-5019 online DOI: 10.1080/03605310500253071 Euthanasia and Physicians Moral Duties NJMP 0360-5310 1744-5019 Journal of Medicine and Philosophy, Vol. 30, No. 05, August 2005: pp. 1 27 Euthanasia G. Seay & Physicians Moral Duties GARY SEAY University of Texas Pan American, Edinburg, Texas, USA Opponents of euthanasia sometimes argue that it is incompatible with the purpose of medicine, since physicians have an unconditional duty never to intentionally cause death. But it is not clear how such a duty could ever actually be unconditional, if due consideration is given to the moral weight of countervailing duties equally fundamental to medicine. Whether physicians moral duties are understood as correlative with patients moral rights or construed noncorrelatively, a doctor s obligation to abstain from intentional killing cannot be more than a defeasible duty. Keywords: correlative duty, double effect, essentialist, euthanasia, palliation I. INTRODUCTION It is sometimes argued that physicians have as one of their special moral duties an unconditional obligation never to kill, 1 and that it is for this reason that they may not participate in euthanasia. In this view, physicians, by virtue of their most fundamental professional commitments, may never directly and intentionally 2 cause the death of a patient, and therefore administering euthanasia, even where a patient has competently requested it, is categorically forbidden to anyone who practices medicine. But, as I shall show, it is not clear how the doctor s duty never to kill could ever actually be unconditional where that is taken to mean absolute or inviolable if due consideration is given to the way in which physicians duties arise, and to the moral weight of countervailing duties that are equally fundamental to medicine. Physicians do have a duty to abstain from intentional killing, but it is only a defeasible duty. Address correspondence to: Gary Seay, Ph.D., Department of History and Philosophy, University of Texas Pan American, Edinburg, TX 78539, USA. E-mail: gseay@panam.edu 517

518 G. Seay To ask what doctors ought to do when faced with an ethical dilemma is to ask first about moral duties, rather than legal duties, and it is with only the former that I shall be concerned here. Moral duties are now often thought to be correlated with moral rights in a way I shall presently discuss and it is clear that a fully articulated theory of moral rights is essential if we hope, not merely to describe our legal rights, but also to justify them. And although some of the taxonomy of rights and duties in the law, and much of the rationale of their justification there, commonly carries over into discussions of moral rights and duties, it is plainly the latter that must have priority for otherwise we should have no basis on which to criticize our laws, or to ask which of our constitutionally sanctioned rights are a just expression of the law s coercive authority. II. CORRELATIVIST CONCEPTIONS OF DUTY Philosophers have, of course, not always conceived of moral rights and duties as related, and so it may be helpful to begin by drawing a distinction between what may be called correlative theories of duty and noncorrelative theories. Let us consider each of these approaches in turn and see what conclusions it yields regarding physicians duties. Correlative theories treat duties and rights as related, so that moral rights are construed as analogous to what Wesley Hohfeld called claims that is, rights that imply a corresponding duty in someone else. 3 Thus, to say that I have a right to your payment of your debt to me is to say that you have a duty to repay it. And to say that I have a right to security in my person is to say that everyone else has a duty to refrain from harming me. For claim-rights, then (hereafter, rights ), to say that one has a right is to say that some other person or persons have a duty toward the right-bearer; and to say that someone has a duty is just to say that some other person or persons have a right that is, a justified claim against him or her, requiring him or her to do, or forbear from doing, some specific thing. One way of conceiving of physicians duties, then, might be to see them as correlative, in this sense, with the rights of patients and others to whom they have obligations. But insofar as they are duties not everyone has, we should call them special duties, the correlates of what H.L.A. Hart (1955) called special rights. And just as Hart distinguished between these and general rights, so we might speak of general duties as moral duties we owe to all persons, as persons such as duties of veracity and fidelity to promises while special duties are duties that arise from specific relationships between persons or within specific social roles. 4

Euthanasia & Physicians Moral Duties 519 The duties of physicians, then, are special moral duties that arise in the nature of the physician s professional role, in her relationship with other persons or groups. These fall into at least seven different types: 1. duties to patients, 2. duties to the profession, 3. duties to patients families, 4. duties to colleagues, 5. duties to other health-care providers, 6. duties to institutions (e.g., hospitals, medical schools, and HMO s), and 7. duties to society. It is, of course, duties of the first kind those owed to patients that are thought to carry the greatest moral weight, and when we ask about the nature of a doctor s duties in end-of-life care, it is to these that we shall look first when moral dilemmas arise. Among duties to patients, which include those of confidentiality, avoidance of harm, and respect for autonomy, among others, the most important are surely those connected most directly with the physician s power as a healer: the duties to relieve physical suffering and to conserve and extend health and life whenever possible. 5 But the respect for human life implicit in these special obligations suggests a further duty of physicians that some believe to be even more central to the purpose of medicine: the duty of physicians to abstain from the intentional killing of patients in their care. Yet it is just this duty that has also provoked the deepest disagreements about appropriate treatment in end-of-life care, for it is often not clear how the obligation never to kill can be reconciled with the duty to relieve suffering, particularly in the cases of terminal patients facing imminent death for whom attempts at palliation have been unsuccessful, and who therefore ask for a quick and painless release through euthanasia or physician-assisted suicide. Over the relative moral weight of these two duties there appears now to be no clear consensus among physicians, philosophers, and others who write on biomedical ethics. Some regard the obligation never to kill as an inviolable duty essential to the definition of medicine since Hippocrates (see, e.g., Gaylin et al., 1988; Kass, 1989, 2002a, 2002b, Pellegrino, 1992, 1998, 2001; Baumrin, 1998), while others hold that that obligation is no more fundamental to the purpose of medicine than the duty to relieve suffering, which might sometimes outweigh it (see, e.g., Williams, 1970, p. 203; Rachels, 1986; Brock, 1992; Singer, 1979, pp. 127 157; 1994; Battin, 1998, p. 25; Kamm, 1998; Loewy, 1998; Beauchamp and Childress, 2001, pp. 113 164). The substance of the dispute, then, appears to turn on more fundamental philosophical issues. What could it mean to speak of some duty as inviolable? And are any of the special duties of a physician of this sort?

520 G. Seay To call a duty inviolable would perhaps mean that it was an unconditional duty one that was absolutely binding, in the sense that there could be no justifiable exceptions to it. Now, unless we are very literal-minded Kantians, we shall have a hard time convincing ourselves that there are any duties of this sort, for physicians or anyone else. 6 In the case of the duty to refrain from intentional killing, there can be no doubt that this is a duty doctors have, and that it is a very strong obligation indeed. Surely, if any of the physician s duties could be said to be fundamental, this one is. But could it really be unconditional? If, as the correlativist conception has it, duties are explained by the rights of others with which they are correlated, then to speak of a doctor s duty to abstain from the direct, intentional killing of his or her patients is to say that those patients have a certain right that amounts to a justified claim against him or her: a right not to be killed. Yet, on either of the two most commonly held views of what it is to have a right, it is surely false to say that such a right is absolute, in the sense of being unconditional. If we accept the conception of rights favored by consequentialists, which holds that the purpose of rights is to protect the right-holder s interests or welfare, then we must say that, since (on this view) actions are justified if and only if they produce a greater balance of good over bad results for all concerned than some other action would have done, therefore all cases in which we owe obligations to others are explainable in terms of duties to take those actions which would have results that are optimific for them, in the sense of advancing their welfare or serving their best interests. And then, by the correlativity principle, it would follow that one s rights just consist in benefits (the maximization of good results in some specific regard) that one is due. On this view, therefore, to have a right is to have a justified claim on a benefit of some sort. But in actual cases where the physician s effort to keep a dying patient alive only causes the patient to endure terrible suffering, he or she can hardly be said to provide the patient with any benefit at all. If the patient s swiftly ebbing life has at that point nothing at all good about it from the point of view of the person whose life it is, then it may be correctly perceived by him or her as only a burden, not a benefit, and then by the Principle of Utility the physician has no duty to sustain it, and the patient s right to life then becomes vacuous, since it is impossible to imagine how his or her interests could be served, or welfare promoted, by being made worse off. What he or she does have a right to, it seems at least, on this conception of rights is a quicker death, since that would be, in the patient s own view, a benefit, under the circumstances, and we may have no reason to think that he or she is mistaken about this. It follows, then, that by honoring the patient s well-founded and competent request for euthanasia in this case, the physician would be fulfilling a justified duty, since he or she would be taking the action that would produce optimific results for the patient (viz., the end of suffering through ceasing to exist 7 ).

Euthanasia & Physicians Moral Duties 521 Thus, if the purpose of rights is to protect the interests of right-bearers, then a patient s right, qua patient, amounts to a justified claim against the physician to be provided with the type of medical care that will most clearly be a benefit, given his or her condition. Accordingly, the physician s duty is to provide whatever treatment will most likely benefit the patient. But in some cases where a patient s remaining days or hours of life are, on the whole, bad, and where he or she wants only an end to the suffering, the greatest benefit might be the quickest possible death. And from this it seems to follow, not only that doctors are not always obliged to refrain from intentionally killing their patients, but that they will sometimes have a positive duty to provide active euthanasia. 8 Suppose, on the other hand, that the purpose of rights is not to protect the right-holder s welfare by securing a claim on certain benefits, but to protect his or her freedom or autonomy in a certain kind of choice. As Hart famously argued, the traditional consequentialist account is open to criticism, since it is not always right-bearers themselves who stand to benefit from fulfillment of their right-claims. A justified claim amounting to a right may in some cases be held by someone to whom a promise (or other contractual agreement) has been made to confer benefits on someone else. What is essential to having a right, on this alternative view, then, is to have a justified claim to a choice that limits another s freedom to act in a certain way toward the right-bearer (Hart, 1955). 9 It is, in effect, to have a fully warranted claim to control over some specified class of actions another may take. On this view, to say that someone has a right is to say that he or she holds a morally justified option that he or she may choose either to exercise or not: an option to demand certain actions from another, or not to do so. If rights are understood in this way, then part of what it means to say that a patient has a right to life is that he or she holds the option either to exercise it or not. 10 That right, like any contractual claim-right, can be waived. 11 A physician s duty to preserve the patient s life would then not be unconditional at all, but rather dependent on the patient s decision whether to exercise his or her right to life or not. On this conception of rights, it seems, the doctor has a strict duty never to intentionally kill the patient so long as the patient does not wish to be killed; but if the patient does competently express a desire to die, under circumstances where it would be rational to do so, and if that is what he or she does desire, then the patient has waived the right to life, and then the physician no longer has a moral duty to refrain from intentionally killing him or her. It appears, therefore, that if the physician s moral duties are construed as correlative with the rights of patients (or others), then the doctor s duty not to kill cannot be an unconditional duty of physicians. For, in cases where euthanasia would be judged a morally justified option, the right with which that duty is correlated is either waivable or empty (depending on which conception of rights we accept), and the duty therefore defeasible.

522 G. Seay III. NONCORRELATIVIST CONCEPTIONS OF DUTY This would, however, be insufficient to settle the question whether physicians have a special, unconditional duty never to kill, since moral duties have not always been construed as correlative with rights. Some theories of duty (e.g., Kant s, or that of the Thomistic Natural Law tradition) are not correlativist theories, since they do not rely principally on a correlation with the rights of others to explain what duties are; rather, they take duties as primary (Finnis, 1980, Ch. 8), and treat rights as arising out of them (where rights are treated at all). On a noncorrelativist theory of this sort, then, while one s moral duties may still be grounded in some feature of one s relationship to others, it is not in virtue of a moral claim of theirs that this feature obtains, but because of something in the nature of the agent, such as her rationality or autonomy. In the case of special duties, it seems clear that it is the agent s social or professional role that generates moral obligations. Since physicians duties do appear to be special duties, if they are also noncorrelative, in the above sense, then it may yet be possible to argue that at least one of them the duty never to kill is unconditional, or inviolable, in a way that escapes any of the objections considered so far. But to argue this conclusively it must be shown that there is something in the nature of medicine that makes doctors strictly bound never to intentionally kill their charges. It must be shown that being categorically forbidden to kill is part of what it means to be a physician. Some forceful attempts to do this have appeared in essays by Leon Kass (1989, 2002a, 2002b), Edmund Pellegrino (1992, 1998, 2001), Daniel Callahan (1992, 2002), and Bernard Baumrin (1998), among others. These attempts include arguments of three different kinds: 1. those holding that assisted suicide and euthanasia are wrong because suicide is wrong, 2. those holding that these practices are wrong because they would corrupt the practice of medicine by inviting abuses of the worst sort, and 3. those purporting to show that these practices are specifically wrong for doctors because they are contrary to the very nature of medicine and thus involve a violation of an unconditional duty physicians have. Since I have dealt with the first two elsewhere (Seay, 2001), I shall here be concerned only with the last. This more profession-specific type of argument usually begins from a conception of medicine as defined by a clear purpose healing, and the conservation and extension of health and life and then argues that both voluntary active euthanasia and physician-assisted suicide are incompatible with that purpose. This is the strategy adopted by Kass. For him, medicine is like other professions in being defined by devotion to an ideal. A profession,

Euthanasia & Physicians Moral Duties 523 he thinks, is not merely a morally neutral set of technical proficiencies, but a way of life informed by an ethical commitment to an ideal that expresses a higher purpose. For teachers, that ideal is truth and wisdom, for attorneys and jurists it is justice, and for physicians it is health. This naturally given end of promoting health then gives rise to both positive and negative duties that are specific to medicine, including among the latter a special duty not to kill (Kass, 1989, pp. 29 30; 2002a, p. 20). 12 Similarly, Baumrin (1998) has argued that it is a devotion to healing and the avoidance of harm, and a consequent refusal to assist in suicides, that has been a distinguishing mark of Hippocratic medicine since antiquity. 13 Both Baumrin and Kass hold that it is this absolute and unconditional renunciation of the power to inflict death intentionally that is the necessary basis of the trust that patients must feel toward their physicians, and without which the healing relationship is impossible. Pellegrino (1992), likewise, has argued that permitting euthanasia will inevitably undermine the trust that is essential to healing. This seems in many ways a plausible argument. And yet it is plainly vulnerable to objection in one way, for it is not clear why a patient s trust would necessarily be fostered more effectively by the physician s unconditional refusal to kill than by her strict fidelity to a patient s expressed wishes that respects his autonomy, if there are cases in which the doctor cannot observe both principles. 14 Although we will all usually value our lives and expect our doctors to value them too, this may not be so in some extreme cases of unbearable, physical suffering at the end of life; and here the patient might, with good reason, expect the physician to respect his autonomous choice for relief of suffering through a quicker death. Why, in that case, wouldn t the doctor s willingness to provide it be the surest evidence of her trustworthiness? If she knows that the patient s prognosis really is as bad as he thinks it is, and all attempts at pain relief have already been exhausted to no avail, and she is sure that the patient s choice really is his own, then why isn t the duty of fidelity better fulfilled by honoring the patient s request for voluntary active euthanasia? Surely there are some cases in which the principle of nonmaleficence will itself be dependent on respect for autonomy, since we sometimes cannot know for sure what counts as harm to a patient until we know something about what that person values. Edmund Pellegrino (1992, p. 33) shared the Kass/Baumrin view that medicine is principally about healing, but for him the trust issue is merely a corollary of two larger concerns. One is that permitting assisted suicide or euthanasia will remove a traditional medical prohibition against intentional killing, and that this will then cause the distinction between nonvoluntary and involuntary euthanasia to become unclear, thereby leading to a nightmare scenario where people are subjected to euthanasia against their wills. But, as I have argued elsewhere (Seay, 2001), it is by no means obvious that physicians will be trapped on a slippery slope into abhorrent practices if the

524 G. Seay rule against intentional application of euthanasia is occasionally breached, since the distinction between nonvoluntary and involuntary euthanasia is in fact a bright line. Euthanasia is involuntary when it is administered to a patient without his or her consent when he or she is competent to give consent, but euthanasia is nonvoluntary when it is administered to a patient who has irrevocably lost (or never had) the capacity for competence, so that questions of consent either given or withheld cannot arise. And while the latter seems justifiable in some cases (e.g., where the patient is permanently unconscious and the family wishes to salvage transplantable organs to save the lives of others), the former is plainly wrong, as it violates the patient s autonomy in the most fundamental way. What is more important to the arguments of both Pellegrino and Kass, however, is a second point, their commitment to the teleological essentialist view already noted above (hereafter, TE): that medicine is definable by its devotion to a single, clearly statable purpose healing and the conservation of health and life and that physician-assisted suicide and euthanasia are morally off-limits for physicians because they cannot ever be compatible with that purpose. It is this line of argument, then, that deserves a closer look. One objection that has been raised to it is that it is not obvious why medicine (or any other profession) must be seen as having just one defining purpose (Miller and Brody, 1995; Dworkin, 1998). A significant part of what some doctors do today, after all, seems to have very little to do with healing. Much of the work of plastic surgeons, for instance, and of doctors in fertility clinics appears to be devoted not to healing and the conservation of life, but to the improvement of people s quality of life as perceived by them. Now, against this it might be argued that these practices really are troubling departures from medicine s true purpose and amount to little more than pandering to ill-conceived popular notions of what is important or desirable in life. The problem with that, however, is that nearly all of us are much less sure nowadays that the characteristics of a good life can be defined within a narrow range, and it is not always so easy to say which of a person s choices are clearly only fatuous self-indulgences and which are part of a reasonable plan of life given his or her overall commitments. In any case, fertility specialists and plastic surgeons are after all physicians who are board-certified in their specialties, and their patients are usually grateful for their services. Of course many other techniques that likewise enable doctors to improve lives are now also routine in medicine, procedures that are not strictly healing, but rather an interference with nature to correct certain natural deformities. When physicians devote themselves to helping people overcome such congenital defects as deafness or cleft palate, we are not (usually) inclined to object to this being seen as a part of medicine. Why, in any case, is it not a perfectly legitimate part of medicine to try to help make

Euthanasia & Physicians Moral Duties 525 people s lives better? Why shouldn t a concern for the patient s quality of life be seen as among the central purposes of medicine? 15 This seems, however, to raise a problem for TE. The relief of suffering, which both Pellegrino (2001, p. 94) and Kass (2002a, p. 34) acknowledge as among the fundamental duties of physicians, appears in fact to belong more to this extended view of medicine s purpose, and to that extent represents a challenge to TE, since doctors clearly have a basic duty to relieve physical suffering even when doing so cannot literally bring healing or an extension of life at all (and may even foreseeably shorten a life). Yet bioethicists committed to TE sometimes pretend that quality of life can be discounted as a morally relevant issue in reasoning about the right thing to do in cases of hopeless terminal illness. To Pellegrino, the increasingly common belief that quality of life is relevant in these matters amounts to a cult (2001, p. 98). Even so, he allows (2001, p, 95; cf. Kass, 2002a, p. 22) that letting a patient die is sometimes justified, in cases where no cure is possible and further attempts at curative treatment will only cause further suffering. Holding that the duty to conserve life and the duty to relieve suffering are equally fundamental duties of doctors and that these duties are compatible Pellegrino notes that a physician s duty to conserve and extend life is not the same as a duty to abstain from killing, and that while the former will, on Hippocratic terms, often be nullified by the patient s advanced state of physical deterioration, the latter, he believes, cannot be compromised at all (2001, pp. 94 95). Now of course this distinction between two different duties is surely correct, and I was rightly taken to task by Prof. Pellegrino for not pointing this out in an earlier paper. 16 Physicians who accept TE can consistently acknowledge both a defeasible duty to conserve life on the one hand and an unconditional duty not to kill on the other. Hippocratic literalists will cite the Oath s prohibition on the giving of deadly drugs as the basis of the latter, 17 and the former has of course now also become widely accepted. Hippocratic medicine does not require physicians to attempt to save lives that cannot be saved no matter what (nor, indeed, to attempt any sort of cure where no cure is possible). Thus it is entirely permissible within the ethics of the Hippocratic tradition to forego futile treatment in some cases and allow a patient to die. But if letting die is sometimes allowable, questions then arise about what sort of death this will be. As noted, Pellegrino holds that the duty to relieve suffering is an equally fundamental duty of physicians, but that doctors are not morally permitted to fulfill this duty by taking direct action to intentionally cause a patient s death. What then follows from this? Is he now committed to holding that in any case of hopeless, terminal illness the physician can fully discharge his or her duty to relieve suffering simply by letting the patient die? This can hardly be his view, since this seems inhumane. Isn t it acknowledged on all sides that doing

526 G. Seay this will sometimes result in a worse death (from the patient s point of view) than active euthanasia would have, simply because euthanasia is quicker? Not at all, Pellegrino will reply here, since the doctor s duty in such a case actually involves something more: it includes providing an extensive regimen of palliation to make the patient comfortable in dying. Proper palliative care, he thinks, will nearly always be effective against even the worst physical suffering (Pellegrino, 1998, p. 73). Thus, he assures us, with today s advanced methods of pain relief and palliative care assisted suicide is not necessary (Pellegrino, 2001, p. 96; see also 1992, p. 32). But we might reasonably be skeptical about whether such a broad conclusion can really be justified. 18 In any case, Pellegrino s argument itself seems to admit that even the best palliation will occasionally fail. And if there are even some cases in which palliation is insufficient to relieve suffering, then that shows that, contra Pellegrino, the duties to relieve suffering and to abstain from killing are not always reconcilable. If there are any cases at all in which a doctor can effectively end a patient s suffering only by taking direct action to end the patient s life, then the two duties conflict, and one of them will have to give way. Moreover, even if palliation could be effective 100 percent of the time, that still would not guarantee a solution to the moral problem for what of the dying patient who does not want to approach death drugged into insensibility? Are there not some who would prefer simply to be done with it at once and avoid the spectacle of lingering on in a befogged twilight without capacity for meaningful interaction with others? 19 Such a condition would rightly be perceived as a form of physical suffering by the patient if it involved an unwanted impairment of perceptual and cognitive functioning that amounted to an unacceptable quality of life. Dying patients should not be forced by some dogmatic moral creed to endure burdensome conditions that they themselves would rather avoid. This, then, raises again the question why voluntary active euthanasia must be seen as a morally worse form of assistance in dying than merely removing artificial life-supports and allowing the patient to die. Suppose we accept that the duty to relieve suffering is no less a fundamental obligation of physicians than the duty to conserve and extend life, and that therefore letting die is sometimes justified. But the only reason that letting a patient die, in a hopeless, terminal case, could ever be better than continuing to treat him or her would be because 1. a quicker death is what the patient desires, 2. further curative treatment would be futile, and 3. the longer life such treatment would afford him or her would be a life of significantly diminished quality due to physical suffering, so that it is better from the patient s point of view to have less of it.

Euthanasia & Physicians Moral Duties 527 If we did not think these things, we would not agree to helping the patient have a shorter life. Thus, it is simply disingenuous to say that a consideration of quality of life cannot be allowed to figure in our deliberations about the right thing to do, morally speaking, for suffering terminal patients. It will be part of our reason, whether we acknowledge it or not, in any case where we think withdrawal of aggressive treatment is justified. 20 But, as James Rachels argued long ago, if we think that the reason a shorter life is better for the patient is because less suffering is better than more, then why is that not also an argument for active euthanasia, rather than merely letting die? After all, in that case, suffering is reduced to the minimum possible (Rachels, 1975; see also 1986). The reply to this, however, will be that active euthanasia is worse than letting die, because in letting die it is the disease, disorder, or injury that kills, whereas in active euthanasia it is the physician who does it (Callahan, 1992; Kass, 1989, p. 43), 21 and the direct, intentional killing of the innocent is always wrong (Pellegrino, 2001, p. 94). On this view, then, even if letting die entails more suffering, it is nevertheless morally better because it involves no intentional killing of the innocent. People who think this sometimes take refuge in the principle of Double Effect, a crucial part of which holds that an action with two expected results, one good and one bad, may nevertheless be justified provided that only the good outcome is intended by the agent and the bad merely foreseen, but unintended. 22 Thus Double Effect seems to justify the use of powerful narcotics in palliation for the suffering terminal patient even where the dose is likely lethal, provided that the patient s death is merely foreseen and that the aim is instead the relief of his or her unremitting pain. The killing is morally permissible, then, because it is only foreseen though unintended. But this artful philosophical maneuver is necessary only because we are assuming that any intentional killing of the innocent is wrong. And why should we think this? In another of Rachels arguments (1986, pp. 68 71), to which philosophers have been insufficiently attentive, the helpful point is made that this way of thinking involves a kind of category-mistake. Suppose I live in a society in which it is held immoral to kill blue-eyed people, and imagine that one day my blue-eyed neighbor, Lars, conceives some misguided belief that provokes a homicidal impulse toward me. In a fit of rage, Lars attacks me with a meat cleaver. But I have my revolver at hand and take aim to shoot him dead. Alarmed onlookers intervene, shouting, You can t shoot Lars! He has blue eyes! But surely, we will all say, these people are confused. Lars s having blue eyes is morally irrelevant here what s relevant is that his action presents a mortal threat to me, and that I, as an innocent party, am therefore justified in using deadly force against him in self-defense. Here, it is Lars s guilt, in threatening the innocent, that justifies my action in attempting to kill him. To point out that I am thereby also in danger of

528 G. Seay breaking the rule forbidding killing the blue-eyed is simply to misidentify the morally relevant factor that determines what one ought to do here. In much the same way, however, one makes a category-mistake if one thinks that active euthanasia is always wrong because it involves the intentional killing of the innocent. For this is to assume that moral desert is the issue 23 in cases where euthanasia may be considered: that is, that since the innocent (by definition) do not deserve to die, it is wrong to kill them intentionally, and therefore wrong to kill this innocent patient even if he competently requests to die. But in cases of terminal illness marked by terrible suffering, where active euthanasia may be contemplated, considerations of guilt and innocence are irrelevant. What s relevant morally in such a case is that the patient s suffering is unrelievable and that the life in question is the patient s to keep or give up as he or she chooses. 24 Whether the patient desires to hold on to life or not, in the circumstances, and also, of course, whether he or she has a realistic view of the situation so that we might say his or her wish is rational (as, of course, in many imaginable cases it would not be) are the morally crucial issues here not whether the patient is innocent or guilty. If the patient truly desires to have his or her life terminated and freely chooses this option, and if physicians are convinced that this desire is indeed rational in view of the patient s actual prognosis, then it is hard to see why active euthanasia would be wrong in such a case even if the patient is innocent. But what this shows is that resorting to Double Effect in moral reasoning about such cases is otiose. If the patient wishes to die because he or she believes that the days of life remaining to him or her can hold nothing but unbearable suffering, and doctors concur that this belief is justified on the best evidence so that the patient s desire is rational, in the circumstances then it seems the patient s death is not a bad thing to be the cause of. Indeed it might be a good thing to be the cause of, in this grim situation, if the expected burdens of survival really do cancel out benefits of life in the view of the person whose life it is. From this it follows that, in this case, causing that death intentionally is actually better, morally speaking, than bringing it about indirectly as only a foreseen consequence of palliation. Wittgenstein once observed that a wheel that can be turned though nothing else moves with it, is not a part of the mechanism (1958, p. 95e), and that seems to be the problem with trying to use Double Effect to prove that letting die is always morally better than active euthanasia. It is not doing any work at least, not any that needs to be done in thinking about this sort of moral problem. IV. CONCLUSION We seem therefore to be left with the conclusion that a noncorrelativist account of moral duties will in fact not yield the result favored by supporters

Euthanasia & Physicians Moral Duties 529 of TE, for it will not after all show that direct, intentional assistance in dying is in all cases contrary to the purpose of medicine. And this is consistent with the conclusion of the correlativist account we considered earlier. On the question of what physicians are morally permitted to do, the two accounts are in agreement. What then is the point of insisting that doctors have an unconditional moral duty never to kill, so that they may never participate in active euthanasia or even physician-assisted suicide? If we think that respect for patient autonomy and the relief of suffering are two fundamental moral duties of physicians, then it appears the former claims are false, for the duties to respect autonomy and relieve suffering will on some occasions permit physicians to honor patient requests for active euthanasia. Although doctors do of course also have a fundamental moral obligation to abstain from intentional killing wherever possible, that duty of forbearance is only a defeasible duty, not an unconditional one. In this article I have argued that physicians moral duties, properly understood, do not include an absolute prohibition on direct, intentional action to help a patient die, and that therefore physician participation in voluntary active euthanasia is not always wrong. But I have taken no position here on the further question of whether physician-assisted death should be made legal or decriminalized. I have held that physicians do have a prima facie duty to abstain from direct, intentional killing, and clearly, moral considerations that might justify an exception to that rule in certain types of situations might be insufficient to justify establishing an altogether new moral convention in medical practice. Rather, an entirely different set of arguments would be needed to prove that the effects of such a change were not themselves more harmful than beneficial, and I have not attempted to provide such arguments here. 25 NOTES 1. Some philosophers draw a distinction between obligations and duties, but I shall here be using the terms interchangeably. The physician s duty to conserve life whenever possible is now usually thought to entail no obligation to extend the lives of suffering, terminal patients who have asked that no further measures be used, but it is often argued that the permissibility of withdrawing life-support does not in any case entail the justification of voluntary active euthanasia or physician-assisted suicide, even where the patient has requested it. This is, of course, to assume (what I think is far from obvious) that a defensible moral distinction can be drawn in clinical cases between killing and letting die; nevertheless, I shall for the purposes of this paper take as uncontroversial that doctors do have a special duty not to kill. What is in dispute is whether that duty is unconditional or only prima facie. 2. It is customary to draw a moral distinction, on the basis of the Principle of Double Effect, between bringing about a patient s death directly, as an intended result, and bringing it about only indirectly as an outcome that is foreseen but unintended, with the latter held justifiable in some cases and the former not. But, as I shall make clear in due course, I have doubts about the usefulness of Double Effect in reasoning about physician-assistance in dying, and am concerned rather with whether physicians may ever take direct action that intends a patient s death.

530 G. Seay 3. Strictly, it is not only claim-rights, but also liberties, in Hohfeld s theory, that have correlative duties: for, to say that I have a liberty-right to freedom of speech or conscience, or to the enjoyment of my property, is also to say that everyone else has a duty toward me not to interfere with these things (Hohfeld, 1964). 4. To describe the duties as arising in this way is of course not the same as explaining why we are justified in recognizing such duties. I would argue, along lines suggested recently by Brad Hooker (2000), that a system of duties is justified if the internalization by everyone of the moral code prescribing those duties would more effectively maximize the general welfare than the internalization of any other similar moral code. Obviously, a thorough treatment of this matter is well beyond the scope of this article. 5. The notion of a physician s duty to prolong life seems not to have been a part of medical ethics in ancient Greece and Rome, even among Hippocratic practitioners, but to have arisen only later, with the collapse of classical civilization and the spread of Christianity (Amundsen, 1978). Nevertheless, we do of course recognize it today as one of the special duties of physicians. 6. Jonathan Bennett (1966) showed, long ago, how difficult it is to believe in such unconditional obligations. 7. The notion that this could be an optimific result has been questioned by Leon Kass (1989, pp. 40 41; 2002a, p. 34; cf., Garcia, 1993), who thinks it obvious that no one can be benefited by being made dead, since there is then no beneficiary. But this does not clearly follow; for, as Frances Kamm has argued at length (1998, p. 31), if some lives have deteriorated to the point that there is nothing at all good about them because they are wholly consumed with physical suffering, and there are no compensating benefits at all, then those lives might be made better, comparatively speaking, just by being made shorter. A similar position is taken by Erich Loewy (1998, p. 54). 8. That physician involvement in either euthanasia or assisted suicide is in some cases not merely permissible but a firm, moral duty has been argued by Margaret Battin (1998, p. 25). 9. My discussion here of the correlativist conception of rights owes much to an admirably clear treatment of the subject by Wayne Sumner (2000). 10. This point has been forcefully argued by Rosamond Rhodes (1998). 11. Hart, with his characteristic sensitivity to the complexity of positive law, was careful to stop short of saying that all rights can be waived. Of course, in the law, it would be controversial to hold that a right to life can be waived. But this shows only that the law is in need of reform. 12. Kass s arguments have been criticized at length by Gerald Dworkin (1998). 13. As Darrel Amundsen (1978) noted, however, this was very much a minority position in Greek and Roman medicine. Most physicians in the Greco-Roman period seem not to have thought that physicians had a special duty to refuse to participate in assisted suicide or euthanasia. On the contrary, these practices were thought entirely justifiable in extreme cases as a part of routine medical care. In rejecting this, the Hippocratics were the exception, and their position took hold as essential to Western medicine only after Christian moral theology became culturally pervasive. 14. Pellegrino (2001, p. 95) seems convinced that there are no cases in which the doctor cannot respect both principles. But I am not so sure about this, as I shall presently explain. 15. Against this it might be objected that, if the aim of promoting a patient s quality of life really is fundamental to medicine, then why would it not amount to a duty powerful enough to swallow up all of a physician s other moral duties (so that his or her sole obligation would be to promote the patient s quality of life)? If this happens in end-of-life cases of the sort envisioned here, why not in all medical ethics dilemmas? But then, the professional character of medicine would seem to be compromised, since the many other rules of medical ethics and the informed judgment of a skilled practitioner to apply them would not be needed. The answer to this, it seems to me, is that even if physicians acknowledge patient quality of life as a fundamental goal of medicine, that in no way eliminates the need for more specific principles of medical ethics or for physician discernment in applying them, since moral dilemmas seemingly resistant to straightforward solution will still arise in clinical cases, and doctors will have to resolve these conflicts just as they do now, by weighing their prima facie moral duties. Even where physicians agree on the fundamental importance of promoting patient quality of life, the morally correct means of achieving that goal may still be unclear; thus, in an actual case, doctors might have to decide, for instance, whether fulfilling a duty of veracity, on the one hand, was more justified than fulfilling a duty of nonmaleficence, on the other. Agreement on the goals of medicine, in other words, does not remove the need for judicious decisions by well trained medical professionals regarding the morally defensible ways of achieving those goals for individual patients.

Euthanasia & Physicians Moral Duties 531 16. Seay (2001). Unfortunately, Pellegrino also attributes to me a claim I have never made, that relief of suffering is always prior to the preservation of life (note 7, Pellegrino, 2001, pp. 93, 99). My view is, rather, that the relief of suffering is sometimes prior to the preservation of life (depending on what the patient desires and on what the patient s reasons are). 17. This would of course hardly be sufficient by itself to prove that the practice is immoral for doctors, since there are several provisions of the Hippocratic Oath that are no longer held binding on physicians, and no code of rules can carry moral force apart from arguments to show why we ought to give assent to those rules. In fairness, it should be noted that Kass did attempt to provide a rationale for the no poisons rule, but it is only the trust argument about which I have already expressed reservations (see pp. 9 10 above). 18. It is not difficult to find physicians who share my skepticism on this point. See, e.g., Angell (1998). 19. That more than a few terminal patients would in fact apparently prefer this option is supported by data in Emanuel et al. (1996). 20. Helga Kuhse has argued (1987, pp. 168 194) that the often-invoked distinction between ordinary and extraordinary means of preserving life must in any actual case depend on a judgment about quality of life (whether or not that is acknowledged by the person drawing the distinction). Ruth Macklin (1987, pp. 55-57) appeared to take a similar view on this question. 21. Tom Beauchamp (2000, p. 282 284) has recently criticized this assumption on the ground that causal judgments about death, within the clinical context, presuppose systems of duties that come with the physician s role, so that we often cannot say what it is a doctor has done, morally speaking, until we know what his or her specific duties were regarding a particular patient. Thus an unjustified letting-die may be as culpable as a killing indeed, it may itself be an instance of killing. For an earlier treatment of this subject that draws a similar conclusion, see Kuhse, 1987, pp. 43 50. 22. This familiar philosophical remedy seems to work in some cases but to be more like handwaving in others. When it does work, it is often not clear why it does which leads to the interesting question of whether there are more fundamental principles at work in such cases. I have explored this question at greater length elsewhere (Nuccetelli & Seay, 2000). 23. It is, of course, also to assume that death is inevitably something bad, which could therefore not be rationally desired by anyone. But whether death is the worst possible alternative or not, in a given situation, depends on what the options are in that case (Beauchamp and Childress, 2001, p. 132; Loewy, 1998, pp. 55 56), and it is not difficult to imagine cases in which another alternative may in fact be much worse, so that a desire for a quick death would be rational (see, e.g., Hare, 1975, p. 45; Brandt, 1978). 24. To dispute this second point would carry the burden of defending an explicitly theological premise; and since philosophy is, I think, in no position to carry that off successfully, I here ignore the objection to which it leads. 25. An earlier version of this article was read by Susana Nuccetelli, who offered many helpful suggestions for improvements. I am grateful for her assistance in making the paper much better than it would otherwise have been. REFERENCES Amundsen, D. (1978). The physician s obligation to prolong life: A medical duty without classical roots. Hastings Center Report, 8(4), 23 30. Angell, M. (1998). Helping desperately ill people to die. In L. Emanuel (ed.), Regulating how we die (pp. 3 20). Cambridge, MA: Harvard University Press. Battin, M. (1998). Is a physician ever obligated to help a patient die?. In L. Emanuel (ed.), Regulating how we die (pp. 21 47). Cambridge, MA: Harvard University Press. Baumrin, B. (1998). Physician, stay thy hand!. In M. Battin, R. Rhodes & A. Silvers (eds.), Physician assisted suicide: Expanding the debate (pp. 177 181). New York: Routledge.

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