Euthanasia, Ethics and Public Policy: An Argument Against Legalisation

by John Keown, Cambridge University Press, Cambridge, 2002, 3 18pp, index 303-3 18pp.

Vaishakhi Rajanayagam BA ( ~ l d ) , LLB student, T.C. Beirne School of Law, The University of Queensland

John Keown, the author of Abortion, Doctors and the LAW' and Euthanasia ~ x a m i n e d , ~ makes a further contribution to the fields of medical ethics and law in his latest publication Euthanasia, Ethics and Public Keown, a senior lecturer in Law and Ethics of Medicine in the Faculty of Law at Cambridge University, looks beyond the rights and wrongs of the euthanasia debate and seeks to critically evaluate the case for legalisation of any and all forms of euthanasia.

The book is divided into six parts.

I. Part I

In Part I, Keown seeks to clarify some of the confusion and frustration which has plagued the euthanasia debate as a result of the failure of proponents on both sides to define key terms and concepts. The arguments for legalisation generally focus on voluntary active euthanasia (VAE), that is, euthanasia at the request of the patient. In Chapter 1, Keown carefully defines the term VAE, which is the more frequently considered type of euthanasia throughout his book. He suggests that the definition of euthanasia should include intentional termination of a life by act, as well as by omission, for example, withdrawing tube-feeding (often called passive euthanasia). In Chapter Two, Keown considers the conflation of intended termination of a life with the concept of foreseen life-shortening. Keown examines the principle of double-effect, accepted by some UK and US authorities, which has been used to distinguish between when a doctor intentionally terminates a patient's life, and when death as a consequence of the doctor's actions or treatment is foreseen but not intendede4 Keown advocates maintaining this distinction. The focus of the third chapter is the concept of physician-assisted suicide (PAS), where the doctor assists the patient to take his or her life. Keown examines the shift of the debate in the US towards PAS rather than VAE, and considers the arguments that there is a distinction between the two, arguing that both raise substantially the same moral issues. In the Afterword, Keown briefly examines the late 2001 decision of the House of Lords in the Dianne Pretty case,5 in which the plaintiff raised rights under the European Convention on Human Rights, including the right to life6 and the right to p r i ~ a c y , ~ in support of her claim that her husband should not be prosecuted for assisted suicide if he helped her die at a time of her choosing.

1 Keown J, Abortion, Doctors and the Law, Cambridge University Press, Sydney, 1988. 2 Keown J, Euthanasia Examined, Cambridge University Press, Sydney, 1997. 3 Keown J, Euthanasia, Ethics and Public Policy: An Argument Against Legalisation, Cambridge University Press,

Cambridge, 2002. 4 Note 3 at 20-22. 5 The Queen on the Application of Mrs Dianne Pretty v Director of Public Prosecutions and Secretary of State for

the Home Department [2002] 1 All ER 1. 6 Article 2. 7 Article 8.

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II. Part II

The ethical arguments for and against euthanasia are evaluated in this part. The focus of Chapter Four are the 'value of human life' arguments. Keown examines three approaches to human life: vitalism, requiring the preservation of human life at all costs;' the sanctity or inviolability of life approach, upholding the right not to be killed intentionally regardless of inability or disability;9 and the 'Quality of life' approach which contends that, as certain lives are not worth living, it is right intentionally to end them.I0 Keown demonstrates the differences in the three approaches to human life in the context of the euthanasia debate by using two hypothetical case examples.

In Chapter Five, the autonomy, or right to choose, arguments in favour of legalisation are assessed. Under this argument only the patient has the right to determine the value of his own life, and once he or she decides life has lost its value and requests VAE the patient's choice ought to be respected.ll Keown argues that a person's self-determination is not a moral absolute requiring respect in all circumstances, and that the capacity to choose brings with it the responsibility to make choices which are not patently immoral or clearly inconsistent with human well-being.12 He also raises the question of whether a patient's choice is tmly autonomous, especially where it is 'impaired by the painful effects of terminal illness, clouded by the side-effects of medical treatment, and warped by clinical depression or "demoralisation" '.I3

Proponents of VAE assert that the law is hypocritical - euthanasia is prohibited in theory but often goes unenforced in practice, in particular by distinguishing between intended and foreseen life-shortening. Proponents of VAE also point to the hypocrisy of the law in decriminalising suicide but prohibiting PAS, as well as the fact that the law recognises a patient's right to effectively 'commit suicide' by refusing life saving treatmentt4 and allows the doctor to 'assist' in this suicide by ornission.15 Keown critically evaluates these legal hypocrisy arguments in Chapter Six, providing counter arguments to suggest that the law is neither as ineffective nor as hypocritical as it may seem.

Subsequently, in Chapter Seven, Keown discusses the slippery slope argument, the main contention against legalisation, which also forms the foundation for much of his book. Under the slippery slope argument, relaxation of the law could result in two undesirable consequences. Firstly, allowing any form of euthanasia may then encourage a 'slide' towards other forms of euthanasia. Secondly, even if VAE were justifiable or permitted as a last resort (for example in the late stages of a terminal illness), this may eventually lead to its use as a standard or premature alternative to palliative care.16 Keown suggests that the slippery slope argument works on an empirical level, making it practically difficult to draw the line (for example to cases of 'unbearable suffering'), as well on a logical level, since the arguments for condoning euthanasia in limited circumstances also condones it, logically, in less restricted situations.

Ill. Part Ill

In Part 111, Keown undertakes a case study of the Dutch experience with decrirninalising euthanasia. In Chapter Eight, the landmark decision of the Dutch Supreme Court in the

Note 3 at 39. Note 3 at 61. Note 3 at 44. Note 3 at 53. Note 3 at 53, 55. Note 3 at 56. This was established in the case of Re T [I9921 3 WLR 782. Note 3 at 64, 66. Note 3 at 70.

1 70 Book Reviews

Schoonheim case is considered, where it was held that a doctor who ends the life of a patient may, in certain circumstances, successfully invoke the defence of necessity to justify his or her actions against offences under the Dutch Penal Code.17 He critically evaluates whether the Dutch guidelines for VAE provide strict safeguards and effective controls against the 'slippery slope'.

In Chapter Nine, Keown analyses the empirical data of the first survey into the incidence of euthanasia in 1990, after the Supreme Court's decision in 1984. Keown is critical of the survey's findings and comments that 'incidence' is a matter of definition.18 He argues that despite the Dutch's claim that the guidelines only allowed for euthanasia in the narrowest sense, that is, the intentional active termination of life at the patients request (VAE), several other cases of euthanasia, including physician assisted suicides and intentional life terminating acts without request, were reported.19 1n Chapter Ten, Keown surveys the specific breaches of the Dutch guidelines' requirements based on the figures of the first survey. In particular, he focuses on breaches with respect to the requirements for an explicit request, the elastic interpretation of the requirement of 'unbearable suffering', the failure to use VAE only as a last resort, and the breaches of consultation and reporting requirements. Keown is particularly critical of the findings of the first Dutch survey and reports into the incidence of euthanasia in Chapter Eleven. He argues that there has been a 'slide' in the Netherlands from allowing VAE to condoning non-voluntary active euthanasia (NVAE), with doctors having carried out intentional life terminating acts without request. Keown also points to the increasing willingness of government bodies, the Royal Dutch Medical Association, prosecutors and courts, to support, at least in certain circumstances, the practice of NVAE.

Keown then proceeds, in Chapter Twelve, to examine the findings of the second survey, conducted in 1995, into the incidence of euthanasia in the Netherlands. He again highlights the definitional problems with determining the incidence of euthanasia, and suggests that euthanasia is far from rare in the Netherlands, particularly when the figures for PAS and NVAE are taken into account.20 In Chapter Thirteen, Keown discusses what he calls the 'Dutch denial'. He argues that the increasing body of evidence coming out of the Netherlands indicates that the guidelines have been extensively breached and that there has been inadequate control by the authorities," such that the realities of the Dutch experience lends weight to the arguments on the dangers of the 'slippery slope'. But what Keown argues is even more concerning is the fact that Dutch authorities and supporters of VAE paint a persuasively misleading picture of the Dutch experience, which hides the reality of the lack of control and enf~rcement .~~

IV. Part IV

In this part, Keown briefly examines the Australian and US experiences with euthanasia. In Chapter Fourteen, Keown examines the Northern Territory experience, following the passing of the Rights of the Terminally Ill Act 1995 (NT), or 'ROTTI A C ~ ' . * ~ The act permitted both VAE and PAS where a patient is terminally ill, experiencing pain, suffering and/or distress to an extent unacceptable to that patient, and requests a medical practitioner to assist them to terminate their life.24 Keown examines seven cases of the ROTTI Act in

Article 293 makes it an offence to take the life of another at his request, and Article 294 prohibits assisted suicide. Note 3 at 100-1. Note 3 at 96. Note 3 at 133. Note 3 at 136. Note 3 at 147-8. This act was subsequently repealed by the Euthanasia Laws Acr 1997 (NT) . Section 4 and 5 ROTTI Act.

Book Reviews 7 7 7

practice, and argues that although the Act was more detailed than the Dutch guidelines, upon closer scrutiny its wording was no more precise or strict, and was open to elastic interpretation.*j He also criticizes that the mechanisms for ensuring compliance with its provisions and supervising medical practitioners were more lax than those in the Netherlands.

The Oregon Death with Dignity Act 1994 is the focus of Chapter Fifteen. The Act allows a resident of Oregon, determined to be suffering from a terminal illness, who voluntarily expresses a wish to die, to make a written request for medication for the purpose of ending his or her life.26 The Act has been used by several people to end their lives by PAS. Keown contends that the wording of the Oregon Act is even laxer and vaguer than its Dutch and Northern Territory counterparts, especially since there is no requirement that the patient be '~uffer ing ' .~~ He also points to the alarming reality that patients suffering in the extreme stages of a terminal illness, the stereotypical patient cited by PAS campaigners, are in fact atypical under the Oregon A C ~ . ~ ~

V. Part V

In this section, Keown presents expert opinion in support of the case against legalisation. He looks at the views of expert committees, national courts and national medical bodies in three jurisdictions: England, Canada and the US. Chapter Sixteen focuses on the views of expert committees, namely the House of Lords Select Committee in England, The Special Committee of the Canadian Senate and the New York State Task Force. Keown establishes that all three bodies, although from various jurisdictions, studied the arguments for and against legalisation closely and concluded that relaxing the law would prove to be bad public Of particular concern were the difficulties of developing adequate guidelines, and the severity of the risks inherent in legalisation. Similarly, in Chapter Seventeen, Keown finds that the US and Canadian Supreme Courts, as well as the House of Lords, have all declined to relax the prohibition against euthanasia; the most common concern of the courts being the potential for abuse. Keown pays particular attention to the US, considering two Supreme Court decisions" in which constitutional challenges against laws prohibiting PAS were dismissed. The expert opinions of the British Canadian and American Medical Associations are the focus of Chapter Eighteen. Keown conveys that the medical associations in all three jurisdictions believe euthanasia is inconsistent with the values and ethics of medicine, and encourage palliative care over either PAS or VAE.~'

VI. Part VI

The focus of this final segment of the book is the concept of passive euthanasia (PE), that is, the withholding or withdrawal of treatment andlor tube-feeding with the intent to kill. Keown contends that while the focus in this part is on English law, similar trends are reflected in other jurisdictions such as the US. In Chapter Nineteen, Keown examines the landmark decision of Airedale NHS Trust v land.^^ In that case the House of Lords applied the reasoning that a doctor could treat an incompetent patient only if it was in the patient's best interests, finding that since continued tube-feeding and treatment was no

Note 3 at 161. Section 2.01 of the Death with Dignity Act. Note 3 at 179. Note 3 at 178. Note 3 at 190. Washington v Glucksberg 138 L Ed 2d 772 (1997) and Vacco, Attorney-General of New York et al. v Quill et al. 138 L Ed 2d 834 (1997). Note 3 at 209, 212-3. [I9931 AC 789.

7 72 Book Reviews

longer in Tony Bland's best interests because he was in a persistent vegetative state, the doctor could legally withdraw or withhold such treatment. Keown suggests that their Lordships' reasoning has unwittingly shifted the emphasis of the law from the inviolability of life to the quality of life, accepting that certain lives are of no benefit and may lawfully be intentionally terminated by withholding or withdrawing treatment.33 He suggests that this leaves the law open to the dangers of the 'slippery slope'. Subsequently, in Chapter Twenty, Keown considers the British Medical Association's (BMA) publication of its 'guidance'34 for doctors with respect to withholding or withdrawing tube-delivered food and water, and argues that this constitutes a powerful professional endorsement of the court's approach in Bland's case. Keown expresses concern that the BMA has extended its endorsement of PE from the circumstances in Bland's case, that is those with no awareness, to those with severely impaired mental capacity. He suggests that this does not sit well with the BMA's unqualified opposition to VAE, NVAE and PAS, and makes it more difficult to resist the 'slippery slope', both in practice and in principle.35 Consequently, in Chapter Twenty-one, Keown examines the 1999 Medical Treatment (Prevention of Euthanasia) Bill,36 which sought to make it unlawful for those responsible for a person's care to withdraw or withhold treatment, including tube-feeding, with the purpose of hastening death. Keown argues that the criticisms of the Bill by the BMA and the British government, were based on misconceived perceptions that it would do more than revert the law to the situation before Bland's case, and would deny a competent patient their right to refuse treatment.37

In Ethics, Euthanasia and Public Policy, John Keown presents a comprehensive and convincing argument against the legalisation of any and all forms of euthanasia. However the book is by no means one-sided, and as Lord Mustill commends in his foreword to the book, it is 'a work which displays a consistent and deeply felt ethical purpose, and yet is able to do so in a moderate and scholarly tone'.38 Keown considers the ethical arguments, both for and against legalisation, and presents logical and persuasive counter-arguments, assisting readers to understand more complex conceptual issues by using hypothetical scenarios. However, Keown does not focus purely on the moral and ethical debate, and in fact dedicates much of the book to proving his thesis of the dangers of legalising euthanasia, even in a restricted form. Through his case studies, particularly his in-depth analysis of the Dutch experience, he presents empirical data and practical evidence in support of his arguments, and allows the reader to experience the euthanasia debate on a more tangible level. Further, the book provides an international perspective considering the opinions of courts, government bodies, medical associations and commentators from England, Europe, US, Canada and Australia. In the wake of growing demands for legalisation in Australia, especially since the death of Nancy Crick, Keown gives the prudent warning that once the doors are opened to any form of euthanasia, no matter how restricted, it will be difficult to resist the dangers of the 'slippery slope'. This book will provide informative reading for policy makers, members of the legal profession, or simply interested members of the public, whether proponents or opponents of euthanasia.

33 Note 3 at 235. 34 British Medical Association, Withholding or Withdrawing Life-Prolongiizg Medical Treatment, Guidance for

Decision Making, (1999). 35 Note 3 at 256-7. 36 Referred to as the Winterton Bill, after the M P who introduced it, Ann Winterton. 37 Note 3 at 262. 38 Note 3 at xiv.