What is Euthanasia by neglect and why is it wrong?

An ethical reflection by Anthony Ozimic (SPUC) and Dr John Fleming (SCBI)

Many people concerned about human rights, medical ethics and the rights of the elderly and disabled have over many years continually voiced their opposition to the withholding or withdrawal of nutrition and hydration from a patient so as to cause the patient's death. Such intentional killings are rightly termed "euthanasia" or "euthanasia by omission" (and they are promoted as such by the pro-euthanasia Hemlock Society). In an open letter published in the Daily Telegraph in July 2001, 11 respected medics and medico-legal lawyers said: "...the withdrawing and withholding of treatment from patients, particularly hydration and nutrition, is a matter of prime public concern."

There are few moral convictions more deeply ingrained than the sanctity of human life, and there is no stronger human instinct than self-preservation. The purpose of the law is to protect fundamental human values, fundamental human rights. One of the ways in which the law fulfils this purpose is by insisting that those who exercise power over life and death of their fellow human beings must not intentionally cause the death of an innocent human being. However, any law passed to legalise euthanasia by neglect sends a signal to society that the lives of the mentally incapacitated are not worth living, indeed that the law implicitly recommends that they should be killed. Is it right for the law to tell the most vulnerable members of our society that they would be better off dead? Should the "survival of the fittest" really be the character, the ethos, the ethics of our society?

Until now we have always said "no", and our legal prohibition on killing the innocent extends to intentionally killing by omission. That is, unlawful killing under English law includes both acts and omissions. In the 1993 Bland case, Lord Justice Hoffman noted that: "If someone allows a small child or invalid in his care to starve to death, we do not say that he allowed nature to take its course. We think that he has committed a particularly wicked crime. We treat him as if he had introduced an external agency of death. It is the same ethical principle which requires doctors and hospitals to provide patients in their care with such medical attention and nursing as they are reasonably able to give. The giving of food to a needy person is so much the quintessential example of kindness and humanity that it is hard to imagine a case in which it would be morally right to withhold it."

Many patients who can receive sustenance orally are given it through nasogastric or gastrostomy tubes for convenience. However, the judges in the Bland case redefined tube-feeding as "medical treatment" and allowed medical staff to withdraw it from PVS patient Tony Bland, who then died of dehydration. The Bland judgement was a total reversal of traditional medical ethics, a disturbing departure from the common law and legislation by judicial fiat. Lord Mustill noted that the judgement left the law "morally and intellectually misshapen".

Nutrition and hydration (assisted or otherwise) are always of benefit to the patient, regardless of the person's 'quality of life'. The only exceptions to this are where nutrition and hydration and/or their physical administration are physically burdensome or impossible, when the patient can no longer assimilate them, or where the benefit may be negligible, e.g. where death is imminent. The withholding or withdrawal of nutrition and hydration from a non-dying patient who is able to assimilate them can only result in the premature death of the patient by starvation and dehydration, a death at once unpleasant and drawn out. (This may also apply to a terminally-ill patient, depending upon the prognosis.) Such euthanasia by omission is contrary to the fundamental principle of medical ethics: primum non nocere-first, do no harm.

One popular account of medical ethics, makes appeal to "the four principles":
  1. non-maleficence (to avoid harm)
  2. beneficence (to do good)
  3. autonomy (the right to act freely) and
  4. justice (acting fairly towards the patient).

Leaving aside the obvious shortcomings of such an abbreviated approach to medical ethics, we can nevertheless see how euthanasia by neglect violates all four principles:

  1. Euthanasia by neglect is maleficent: it causes harm by killing a patient through a very long drawn out process of starvation and dehydration, a process which is uncomfortable and painful for the patient.
  2. Euthanasia by neglect cannot be beneficent: A doctor is ethically and legally obliged to act in a patient's best interests. Intentionally killing the patient by neglect of reasonable care can never be in the patient's best interests.
  3. Euthanasia by neglect extinguishes the autonomy of patients and diminishes the autonomy of doctors. Autonomy is not an absolute the exercise of which trumps all other considerations.. The patient must exercise his or her right to autonomy in a responsible and ethically sound manner. Both ethics and the law say that, just as we cannot sell ourselves into slavery, we cannot consent to be murdered. This is because the right to life, like the right to liberty, is inalienable. The obligation to respect the right to life extends to respecting one's own life. It is unethical to intentionally deprive oneself of life. Making euthanasia by neglect available to patients would lead to pressure on doctors and nurses to assist suicide and intentionally kill their patients by neglect. The effect of this is to significantly diminish their autonomy to practise their professional arts ethically, and according to their consciences and the Hippocratic Oath. Legalising assisted suicide and intentional killing by neglect of reasonable care turns a class of private citizens into public killers. It changes doctors and nurses from being healers and carers into poisoners and killers.
  4. Euthanasia by neglect violates justice, the requirement to treat all patients impartially and to be fair when allocating health care resources. The possibility of euthanasia by neglect would lead to pressure (real or perceived) on the elderly and the chronically ill to cease being a burden on society, on the health service, and on their relatives. Legalising euthanasia by neglect reduces the patient from being an individual to whom the doctor has a professional obligation, into a utile, a unit in a utilitarian system of healthcare rationing, with an implied duty to die if they became too difficult or time-consuming or expensive to treat.

Autonomy or an excuse to kill?

Doctors are required to consider each individual patient's best interests. However, it is often wrongly assumed that the only way to determine best interests is to find out what they wanted before they became incapacitated. 'Best interests' are not always based on the choices a patient makes, or might have made before they became incapacitated. Failing to observe the incompetent person's wishes does not necessarily imply disrespect for the individual or contravene his or her rights. Doctors often need to make treatment decisions against the patient's wishes, but in their best interests, e.g. when a patient asks for a prescription, the doctor will consider whether or not it will benefit the patient. Autonomy, while being important, is not the only interest a patient has. Their other interests include life and health, and the provision of a reasonable standard of health care to support life and health. These interests become especially important if a person becomes incapacitated, a circumstance in which the patient can no longer exercise autonomy. Regardless of any decrease in autonomy, an incapacitated person still has intrinsic dignity and a right to live simply by virtue of being human.1

Another danger is that an emphasis on advance decisions shifts the focus towards a concept of quality of life. It is true that considerations of quality of life can help make decisions which are in the patient's best interests, e.g. doctors are not required to provide treatments which are burdensome, disproportionate to benefit, even if they serve to keep a patient alive. However, the crucial fact is that being killed is never in a patient's best interests. Any system using advance decisions must prevent them being used to bring about the deaths of patients. In the Bland case, Lord Mustill noted that "It is a striking fact that in 20 of the 39 American states which have legislated in favour of 'living wills', the legislation specifically excludes termination of life by the withdrawal of nourishment and hydration."

A third danger is if the exercise of autonomy is handed over to a person exercising a lasting power of attorney. Such a proxy decision-maker would not need to be medically or legally qualified; would not be not legally accountable for the consequences of whatever advice or instructions that he may give to medical staff; and may benefit in some way, especially financially, from the patient's death. Such a proxy decision-maker might order the patient to be deprived of care or treatment on the grounds that the incapacitated patient "wouldn't want to live like this". So the concept of autonomy would become corrupted to a concept of substituted judgment and euthanasia would become an option even if the patient had not asked for it. Only the senior clinician in charge is fully qualified to make decisive judgements as to the appropriate medical care and treatment for the patient. This does not mean that the patient may be subjected to whatever treatments and decisions the doctors care to make. The doctor must seek only and always the patient's restoration of health, preservation of life, prevention of impairment and alleviation from suffering.

Conclusion

Euthanasia by neglect is unethical and its legalisation would degrade the moral character of patients and doctors and pervert the purpose of medicine, which is health. It is a macabre type of medicine that kills instead of cures. Legalised euthanasia is coming to Britain unless doctors and nurses, disabled people and carers, lawyers and the clergy, parents, teachers, the old and the young - all who have a voice and vote - act to stop it.

References

  1. The Universal Declaration of Human Rights 1948 forbids discrimination on the basis of 'personhood'. It declares that "everyone has the right to recognition everywhere as a person before the law" (Article 6), and that "everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind" (Article 2)