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<ul><li><p>EUTHANASIA, ETHICS AND</p><p>PUBLIC POLICY</p><p>An Argument against Legalisation</p><p>JOHN KEOWN</p><p>University of Cambridge</p></li><li><p>published by the press syndicate of the university of cambridge</p><p>The Pitt Building, Trumpington Street, Cambridge, United Kingdom</p><p>cambridge university press</p><p>The Edinburgh Building, Cambridge CB2 2RU, UK</p><p>40 West 20th Street, New York, NY 10011-4211, USA</p><p>477 Williamstown Road, Port Melbourne, VIC 3207, Australia</p><p>Ruiz de Alarcon 13, 28014 Madrid, Spain</p><p>Dock House, The Waterfront, Cape Town 8001, South Africa</p><p></p><p>C John Keown 2002</p><p>This book is in copyright. Subject to statutory exception</p><p>and to the provisions of relevant collective licensing agreements,</p><p>no reproduction of any part may take place without</p><p>the written permission of Cambridge University Press.</p><p>First published 2002</p><p>Printed in the United Kingdom at the University Press, Cambridge</p><p>Typeface Adobe Minion 10.5/13.5 pt. System LATEX 2 [TB]</p><p>A catalogue record for this book is available from the British Library</p><p>Library of Congress Cataloguing in Publication data</p><p>Keown, John.</p><p>Euthanasia, ethics and public policy: an argument against legalisation / John Keown.</p><p>p. cm.</p><p>Includes bibliographical references and index.</p><p>ISBN 0 521 80416 7 ISBN 0 521 00933 2 (pb.)</p><p>1. Euthanasia. 2. Euthanasia Moral and ethical aspects. 3. Euthanasia Social aspects.</p><p>4. Terminal care Moral and ethical aspects. I. Title.</p><p>R726 .K465 2002 179.7 dc21 2001043592</p><p>ISBN 0 521 80416 7 (hardback)</p><p>ISBN 0 521 00933 2 (paperback)</p></li><li><p>CONTENTS</p><p>Preface xi</p><p>Foreword xiii</p><p>Acknowledgments xv</p><p>Table of cases xvi</p><p>List of abbreviations xviii</p><p>Introduction 1</p><p>part i Definitions 7</p><p>1 Voluntary euthanasia 9</p><p>2 Intended v. foreseen life-shortening 18</p><p>3 Physician-assisted suicide 31</p><p>part ii The ethical debate: human life, autonomy, legalhypocrisy, and the slippery slope 37</p><p>4 The value of human life 39</p><p>5 The value of autonomy 52</p><p>6 Legal hypocrisy? 58</p><p>7 The slippery slope arguments 70</p><p>vii</p></li><li><p>viii c o n t e n t s</p><p>part iii The Dutch experience: controlling VAE?condoning NVAE? 81</p><p>8 The guidelines 83</p><p>9 The first Survey: the incidence of euthanasia 91</p><p>10 Breach of the guidelines 103</p><p>11 The slide towards NVAE 115</p><p>12 The second Survey 125</p><p>13 The Dutch in denial? 136</p><p>part iv Australia and the United States 151</p><p>14 The Northern Territory: ROTTI 153</p><p>15 Oregon: the Death with Dignity Act 167</p><p>part v Expert opinion 181</p><p>16 Expert committees 183</p><p>17 Supreme Courts 191</p><p>18 Medical associations 208</p><p>part vi Passive euthanasia: withholding/withdrawingtreatment and tube-feeding with intent to kill 215</p><p>19 The Tony Bland case 217</p><p>20 Beyond Bland: the BMA guidance on withholding/withdrawing medical treatment 239</p><p>21 The Winterton Bill 260</p><p>Conclusions 273</p></li><li><p>c o n t e n t s ix</p><p>Afterword 282</p><p>Bibliography 292</p><p>Index 303</p></li><li><p>TABLE OF CASES</p><p>Airedale NHS Trust v. Bland 13, 22, 40, 64, 1913, 215, 21742, 24756,260, 273, 279</p><p>The Alkmaar Case 84Bolam v. Friern HMC 219, 224, 226, 251Bouvia v. Superior Court 2378C v. DPP 192, 236The Chabot Case 109, 141, 146, 148Frenchay NHS Healthcare Trust v.S 225, 227Hyde v. Tameside AHA 65In the Matter of Ann Lindsell v. Simon Holmes 224In the Matter of Claire Conroy 2378In the Matter of a Ward of Court 226Law Hospital NHS Trust v. Lord Advocate 256McKay v. Essex AHA 59NHS Trust A v. M; NHS Trust B v. H 235Osman v. United Kingdom 283R. v. Adams 24, 28R. v. Arthur 258R. v. Brown 61R. v. Collins and Ashworth Hospital Authority ex parte Brady 22930R. v. Cox 12, 28R. v. Dudley and Stephens 59R. v. Gibbins and Proctor 59, 233R. v. Howe 59R. v. Moloney 29R. v. Moor 26, 28R. (Pretty) v. DPP 5, 192, 28291R. v. Woollin 279, 246, 262, 269, 288Re A (Children) 28, 59, 236</p><p>xvi</p></li><li><p>t a b l e o f c a s e s xvii</p><p>Re B 231Re C 160Re D 227Re F 218Re H 227Re J 2312, 2445, 251Re R 227, 244, 251Re T 245Re T (Adult: Refusal of Medical Treatment) 66Reeves v. Commissioner of Police of the Metropolis 22930Rodriguez v. British Columbia (Attorney-General) 32, 149, 1923Secretary of State for the Home Department v. Robb 228The Schoonheim Case 84The Sutorius Case 109, 146, 148Vacco, Attorney-General of New York et al. v. Quill et al. xi, 1934, 238Washington v. Glucksberg xi, 34, 32, 1935, 204, 238X. v. Germany 283</p></li><li><p>ABBREVIATIONS</p><p>A 2d Atlantic Reporter, 2nd SeriesAC Appeal CasesAll ER All England Law ReportsAm J Hosp Pall Care American Journal of Hospice and Palliative</p><p>CareAm J Law Med American Journal of Law and MedicineAm J Psychiatry American Journal of PsychiatryAnn Intern Med Annals of Internal MedicineBMJ British Medical JournalBMLR Butterworths Medico-Legal ReportsCal Rptr California ReporterCamb LJ Cambridge Law JournalCamb Q Healthc Ethics Cambridge Quarterly of Healthcare EthicsCath Med Q Catholic Medical QuarterlyCm Command PaperCr App R Criminal Appeal ReportsCrim LR Criminal Law ReviewDLR Dominion Law ReportsDuq L Rev Duquesne Law ReviewEHRR European Human Rights ReportsFam LR Family Law ReportsFam Pract Family PracticeFitzpatrick F. J. Fitzpatrick, Ethics in Nursing PracticeGomez Carlos F. Gomez, Regulating Death:</p><p>Euthanasia and the Case of the NetherlandsGormally Luke Gormally, Euthanasia, Clinical</p><p>Practice and the LawGriffiths John Griffiths et al., Euthanasia and Law</p><p>in the Netherlands</p><p>xviii</p></li><li><p>l i s t o f a b b r e v i a t i o n s xix</p><p>Guidance BMA, Withholding and WithdrawingLife-Prolonging Medical Treatment.Guidance for Decision Making</p><p>Guidelines KNMG, Guidelines for EuthanasiaHastings Cent Rep Hastings Center ReportHC House of CommonsHendin Herbert Hendin, Seduced by Death:</p><p>Doctors, Patients and Assisted SuicideHL House of LordsILRM Irish Law Reports MonthlyIssues Law Med Issues in Law &amp; MedicineJ Contemp Health Law Policy Journal of Contemporary Health Law and</p><p>PolicyJ Med Ethics Journal of Medical EthicsJ Med Philos Journal of Medicine and PhilosophyJ Pall Care Journal of Palliative CareJ R Soc Health Journal of the Royal Society of HealthJ R Coll Physicians Lond Journal of the Royal College of Physicians of</p><p>LondonKeown J. Keown, Euthanasia Examined: Ethical,</p><p>Clinical and Legal PerspectivesL Ed Lawyers Edition, United States Supreme</p><p>Court ReporterL Med &amp; Health Care Law, Medicine and Health CareLegal Stud Legal StudiesLloyds Rep Med Lloyds Law Reports: MedicalLords Report Report of the Select Committee on Medical</p><p>EthicsLQR Law Quarterly ReviewMed J Aust Medical Journal of AustraliaMed L Rev Medical Law ReviewMed Law Medicine and LawMinn L Rev Minnesota Law ReviewN Engl J Med New England Journal of MedicineNew LJ New Law JournalNJ Nederlandse JurisprudentieOutline Ministry of Justice, Outlines Report</p><p>Commission Inquiry into Medical Practicewith Regard to Euthanasia [sic]</p></li><li><p>xx l i s t o f a b b r e v i a t i o n s</p><p>Parl. Deb. Parliamentary DebatesQB Queens Bench (Law Reports)QBD Queens Bench Division (Law Reports)Report Medische beslissingen rond het levenseinde.</p><p>Rapport van de Commissie onderzoekmedische praktijk inzake euthanasie</p><p>Singapore J Legal Stud Singapore Journal of Legal StudiesSurvey Medische beslissingen rond het levenseinde.</p><p>Het onderzoek voor de CommissieOnderzoek Medische Praktijk inzakeEuthanasie</p><p>Survey 2 G. van der Wal and P. J. van der Maas,Euthanasie en andere medische beslissingenrond het levenseinde. De praktijk en demeldingsprocedure</p><p>Task Force When Death is Sought: Assisted Suicide andEuthanasia in the Medical Context (Reportof the New York State Task Force on Lifeand the Law)</p><p>U Rich L Rev University of Richmond Law ReviewWLR Weekly Law Reports</p></li><li><p>1</p><p>Voluntary euthanasia</p><p>Voluntary</p><p>Campaigners for relaxation of the law typically stress that they are cam-paigning only for VAE voluntary active euthanasia. VAE is generally un-derstood to mean euthanasia at the request of the patient,1 and this is howit will be used in this book. VAE can be contrasted with non-voluntaryactive euthanasia (NVAE), that is, euthanasia performed on those who donot have the mental ability to request euthanasia (such as babies or adultswith advanced dementia) or those who, though competent, are not giventhe opportunity to consent to it. Finally, euthanasia against the wishes of acompetent patient is often referred to as involuntary euthanasia (IVAE).</p><p>Some commentators lump together the last two categories and classifyall euthanasia without request as involuntary. Others (including the au-thor) think that it is preferable to keep the two categories distinct, notleast because it helps to avoid unnecessary confusion.</p><p>Euthanasia</p><p>Given the absence of any universally agreed definition of euthanasia itis vital to be clear about how the word is being used in any particularcontext. The cost of not doing so is confusion. For example, if an opin-ion pollster asks people whether they support euthanasia, and the poll-ster understands the word to mean one thing (such as giving patients alethal injection) while the people polled think it means another (such aswithdrawing a life-prolonging treatment which the patient has asked tobe withdrawn because it is too burdensome), the results of the poll willbe worthless. Similarly, if two people are discussing whether euthanasia</p><p>1 Or at least with the consent of the patient. Euthanasia would still be voluntary even if the doctor(or someone else) suggested it to the patient and the patient agreed.</p><p>9</p></li><li><p>10 d e f i n i t i o n s</p><p>should be decriminalised and they understand the word to mean quitedifferent things, their discussion is likely to be fruitless and frustrating.</p><p>Euthanasia, a word derived from the Greek, simply means a gentle andeasy death.2 Used in that wide sense, one hopes everyone is in favour ofeuthanasia: who wants to endure, or wants others to endure, a protractedand painful death? Obviously, however, campaigners for the decriminali-sation of euthanasia are not using the word in this uncontroversial sense.They are not simply supporting the expansion of hospices and improve-ments in palliative care. They are, rather, arguing that doctors should incertain circumstances be allowed to ensure an easy death not just by killingthe pain but by killing the patient. Given the variety of ways in which theword euthanasia is used, rather than pretend that there is one universallyaccepted meaning, it seems sensible to set out the three different ways inwhich the word is often used, beginning with the narrowest.</p><p>All three definitions share certain features. They agree that euthanasiainvolves decisions which have the effect of shortening life. They also agreethat it is limited to themedical context: euthanasia involves patients livesbeing shortened by doctors3 and not, say, by relatives. Moreover, all threeconcur that characteristic of euthanasia is the belief that deathwould benefitthe patient, that the patient would be better off dead, typically because thepatient is suffering gravely from a terminal or incapacitating illness orbecause the patients condition is thought to be an indignity. Withoutthis third feature, there would be nothing to distinguish euthanasia fromcold-blooded murder for selfish motives.</p><p>In short, all three definitions concur that euthanasia involves doctorsmaking decisions which have the effect of shortening a patients life and thatthese decisions are based on the belief that the patient would be better off dead.Beyond these points of agreement, there are, as we shall see, several majordifferences.</p><p>Euthanasia as the active, intentional termination of life</p><p>According to probably themost common definition, euthanasia connotesthe active, intentional termination of a patients life by a doctor who thinksthat death is a benefit to that patient. On this definition, euthanasia is not</p><p>2 Euthanasia in The New Shorter Oxford English Dictionary (1993) I, 862.3 Or, possibly, nurses acting under medical direction.</p></li><li><p>voluntary euthanasia 11</p><p>simply a doctor doing somethingwhichhe foreseeswill shorten the patientslife, but doing something intending to shorten the patients life. Intentionis used here in its ordinary sense of aim or purpose. Such a defini-tion of euthanasia was adopted by the House of Lords Select Committeeon Medical Ethics, which was appointed in 1993 to examine euthanasiaand related issues. Published in 1994, its report defined euthanasia as: adeliberate intervention undertaken with the express intention of endinga life to relieve intractable suffering.4 The word intervention connotessome act, rather than an omission, by which life is terminated. Similarly,the New York State Task Force on Life and the Law, which also reported in1994, defined euthanasia as: directmeasures, such as a lethal injection, byone person to end another persons life for benevolent motives.5 In short,euthanasia is often understood to be limited to the active, intentionaltermination of life, typically by lethal injection.</p><p>The criminal law in most jurisdictions, including the UK and the USA,regards active intentional killing by doctors as the same offence as ac-tive intentional killing by anyone else: murder. An example of a doctorfalling foul of the law of murder is the prosecution in England in 1992 ofDrNigel Cox.DrCoxwas a consultant rheumatologist in aNationalHealthService hospital. One of his elderly female patients, aMrs Boyes, was dyingfrom rheumatoid arthritis. She was in considerable pain, and pleaded withDr Cox to end her life. He injected her with potassium chloride and shedied minutes later. Surprisingly, he then recorded what he had done inthe patients notes. A nurse who read the notes reported the matter to hersuperior. The police investigated the matter, and the Crown ProsecutionService decided to take action.</p><p>Dr Cox was charged with attempted murder. The charge was attemptedmurder rather than murder because, according to the Crown ProsecutionService, it was not possible to prove that the potassium chloride had ac-tually caused the victims death because her corpse had been cremated.The judge directed the jury that it was common ground that potassiumchloride has no curative properties and is not used to relieve pain; thatinjected into a vein it is lethal; that one ampoule would certainly kill,</p><p>4 Report of the Select Committee on Medical Ethics (HL Paper 21-I of 19934) (hereafter LordsReport) para. 20.</p><p>5 When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (Report of the NewYork State Task Force on Life and the Law (1994)) (hereafter Task Force) x.</p></li><li><p>12 d e f i n i t i o n s</p><p>and that Dr Cox had injected two.6 In view of the weight of evidenceagainst him, it is not surprising that Dr Cox was convicted. He was,however, given only a suspended prison sentence. The General MedicalCouncil, the medical professions regulatory body, was also lenient. Al-though it censured his conduct, it did not erase his name from the med-ical register and merely required him to undergo a period of re-training.7</p><p>This is just the sort of case that everyone easily recognises as a case ofeuthanasia (or, at least, attempted euthanasia). In short, everyone agreesthat euthanasia includes active, intentional termination of life. There aresome, however (including the author), who use euthanasia in a widersense.</p><p>Euthanasia as the i...</p></li></ul>


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