oxford handbook of bioethics

112 J E A N E T T E KE N N E T T

for shared activities and shared goals. Where mental illness plays a causal role in cases where an agent causes injury or offence this should inhibit blame, though maybe not always, but it need not inhibit the participant reactive attitudes more generally. Given the importance of social relations in building, supporting, and strengthening agency, and so in securing access to central human goods, the default stance in both personal and professional dealings with those suffering a mental illness or disorder, as with anyone else, must be the participant stance.

REFERENCES

AGNETTI, G., and YOUNG, J. (1993), ‘Chronicity and the Experience of Timelessness: An Intervention Model’, Family Systems Medicine, 11/1: 67 – 81.

ARISTOTLE, (1984), Magna Moralia, ed. J. Barnes, in The Complete Works of Aristotle: The Revised Oxford Translation, ii, Bollingen Series (Princeton: Princeton University Press), 1868 – 1921.

BAIER, A. (1994), ‘The Need for More Than Justice’, in Baier, Moral Prejudices: Essays on Ethics (Cambridge, Mass.: Harvard University Press, 1995), 18 – 32; first pub. in Canadian Journal of Philosophy, suppl. vol. 13: 197 – 220.

BRANDEN, N. (1993), ‘Love and Psychological Visibility’, in N. K. Badwhar (ed.), Friendship: A Philosophical Reader (Ithaca, NY: Cornell University Press), 65 – 73.

BRATMAN, M. (2000), ‘Reflection, Planning, and Temporally Extended Agency’, Philosophical Review, 109: 35 – 61.

COCKING, D., and KENNETT, J. (1998), ‘Friendship and the Self ’, Ethics, 108/3: 502 – 27. (2000), ‘Friendship and Moral Danger’, Journal of Philosophy, 97/5: 278 – 96.

and MATTHEWS, S. (2000), ‘Unreal Friends’, Ethics and Information Technology, 2: 223 – 31.

COOPER, J. (1980), ‘Aristotle on Friendship’, in A. Rorty (ed.), Essays on Aristotle’s Ethics (Berkeley: University of California Press), 301 – 40.

CORYELL, W., KELLER, M., LAVORI, P., and ENDICOTT, J. (1990), ‘Affective Syndromes, Psychotic Features and Prognosis. II: Mania’, Archives of General Psychiatry, 47/7: 658 – 62.

DEVESON, A. (1998), Tell Me I’m Here (Ringwood, Vic; Harmondsworth: Penguin). FRANKFURT, H. G. (1971), ‘Freedom of the Will and the Concept of a Person’, Journal of

Philosophy, 68: 5 – 20.

GARETY, P. A., and FREEMAN, D. (1999), ‘Cognitive Approaches to Delusions: A Critical Review of Theories and Evidence’, British Journal of Clinical Psychology, 38: 113 – 54.

JAWORSKA, A. (1999), ‘Respecting the Margins of Agency: Alzheimer’s Patients and the Capacity to Value’, Philosophy and Public Affairs, 28/2: 105 – 38.

KENNETT, J. (2001), Agency and Responsibility (Oxford: Clarendon Press).

and MATTHEWS, S. (2003), ‘The Unity and Disunity of Agency’, Philosophy, Psychiatry, Psychology, 10/4: 305 – 12.

(eds.) (2004), International Journal of Law and Psychiatry, 27/5, special issue: Responsibility and Mental Impairment.

KORSGAARD, C. (1988), ‘Personal Identity and the Unity of Agency: A Kantian Response to Parfit’, Philosophy and Public Affairs, 18: 101 – 32.

(1992), ‘Creating the Kingdom of Ends: Reciprocity and Responsibility in Personal Relations’, in J. E. Tomberlin (ed.), Philosophical Perspectives, vi: Ethics (Atascadero, Calif.: Ridgeview), 305 – 32.

(1996), The Sources of Normativity (Cambridge: Cambridge University Press). MOORE, M. S. (1975/1982), ‘Some Myths About Mental Illness’, Archives of General

Psychiatry, 32: 1483 – 97; repr. in R. B. Edwards (ed.), Insanity, Rational Autonomy and Mental Health Care (New York: Prometheus Books, 1982), 33 – 49.

PERRING, C. (2002), ‘Mental Illness’, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Summer 2002 Edition), <http://plato.Stanford.edu/archives.sum2002/entries/ mental-illness/>.

PHILLIPS, P. (2003), ‘Psychopathology and the Narrative Self ’, Philosophy, Psychiatry, Psychology, 10/4: 313 – 28.

RADDEN, J. (2002), ‘Psychiatric Ethics’, Bioethics, 16/5: 397 – 411.

(2003), ‘Learning from Disunity’, Philosophy, Psychiatry, Psychology, 10/4: 357 – 60.

SCHOPP, R. F (1991), Automatism, Insanity, and the Psychology of Criminal Responsibility

(Cambridge: Cambridge University Press).

STRAWSON, P. F. (1982), ‘Freedom and Resentment’, in G. Watson (ed.), Free Will (Oxford: Oxford University Press, 1982), 59 – 80; first pub. in Proceedings of the British Academy, 48 (1962), 1 – 25.

SWEENEY, P. D., ANDERSON, K., and BAILEY, S. (1986), ‘Attributional Style in Depression: A Meta-Analytic Review’, Journal of Personality and Social Psychology, 50/5: 974 – 91.

SZASZ, T. (1961/1974), The Myth of Mental Illness (New York: Harper and Row).

(1998), ‘Commentary on ‘‘Aristotle’s Function Argument and the Concept of Mental Illness’’ ’, Philosophy, Psychiatry & Psychology, 5/3: 203 – 7.

VELLEMAN, J. D. (1997), ‘Deciding How to Decide’, in G. Cullity and B. Gaut (eds.), Ethics and Practical Reason (Oxford: Clarendon Press), 29 – 52.

(2000), ‘Well-Being and Time’, in Velleman, The Possibility of Practical Reason (Oxford: Clarendon Press), 56 – 84.

(2005), ‘The Self as Narrator’, in J. Christman and J. Anderson (eds.), Autonomy and the Challenges to Liberalism (Cambridge: Cambridge University Press), 56 – 76.

WALLACE, R. J. (1994), Responsibility and the Moral Sentiments (Cambridge, Mass.: Harvard University Press).

WATSON, G. (1982), ‘Free Agency’, in Watson (ed.), Free Will (Oxford: Oxford University Press), 96 – 110.

(1987), ‘Responsibility and the Limits of Evil: Variations on a Strawsonian Theme’, in F. Schoeman (ed.), Responsibility, Character, and the Emotions: New Essays in Moral Psychology (Cambridge: Cambridge University Press), 256 – 86.

WATTS, J., and PRIEBE, S. (2002), ‘A Phenomenological Account of User’s Experiences of Assertive Community Treatment’, Bioethics, 16/5: 439 – 54.

WELLS, L. A. (2003), ‘Discontinuity in Personal Narrative: Some Perspectives of Patients’,

Philosophy, Psychiatry and Psychology, 10: 297 – 303.

YOUNG, J. (1994), ‘The Loss of Time in Chronic Systems: An Intervention Model for Working with Longer Term Conditions’, Australian and New Zealand Journal of Family Therapy, 15/2: 73 – 80.

c h a p t e r 5

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

‘ R E I N V E N T I N G ’ T H E RU L E O F

D O U B L E E F F E C T

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

DA N I E L P. S U L M A S Y

THE Rule of Double Effect has played an important role in bioethics, especially during the last fifty years. Its major application in bioethics has been in providing physicians who are opposed to euthanasia with a moral justification for using opioid analgesics in treating the pain of patients whose death might thereby be hastened. It has also prominently been applied to certain obstetric cases. The scope of application of double effect is actually much broader than medical ethics, extending to cover such topics as strategic bombing in warfare. This chapter, while general in theory, will concentrate on its applications in medical ethics.

The Rule of Double Effect has been heatedly debated in the literatures of philosophy, theology, and bioethics. Some have tried to derive all of morality from it (Knauer 1979). Some have pronounced it a dead idea, riddled with confusions and inconsistencies (Davis 1984; Quill et al. 1997). Some have felt that it contains some kernel of truth and have either tried to revise it radically in order to preserve that truth (Quinn 1989) or have suggested that whatever kernel of truth it contains must be defended in some other form of moral analysis (McIntyre 2001; Foot 1978). Still others have defended it in a more or less traditional formulation (Boyle 1980).

Even the name given to the notion of double effect has proven controversial. Some have called it a Dogma; some a Doctrine. Some have called it a Principle; others a

Rule. Following Beauchamp and Childress,1 I will call it the Rule of Double Effect. It seems to me that it is best to label it a rule since it is not sufficiently fundamental to any ethical theory to be called a principle. Rather, it seems to be a meta-rule used in deciding about certain types of case in which more fundamental rules appear to clash. Calling it a dogma or a doctrine has the potential to obscure debate by suggesting theological and/or legal overtones, or by suggesting a prominence that may be unwarranted.

While many philosophers have dismissed it as an anachronism, the persistence of the debate about double effect suggests that the idea has some staying power. In this chapter, I will propose a substantial reformulation of the requirements of the Rule of Double Effect (RDE), making use of recent developments in the philosophy of mind and taking seriously the critiques of those who quite simply have found many suggested applications of the RDE to be incredible. One should understand that by ‘reformulation’ I will not simply be defending the traditional form of the RDE. But one should also understand that I will not be completely revising it. My intention is to show how the rule itself is fundamentally sound, both morally and conceptually, but that the conditions governing the rational application of the RDE, particularly with respect to the intention – foresight distinction, must be substantially tightened if that soundness is to be preserved.

THE TRA D I T I ONA L FORMUL AT I ON

OF THE RDE

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Most commentators turn to Mangan (1949) for an authoritative historical account of the RDE and its traditional formulation. While I agree with Mangan that the historical discussion and evolution of the RDE finds its beginning in Aquinas’ discussion of killing in self-defense, Aquinas himself never articulated the RDE or anything that looked much like the rule as it is known today. Properly speaking, the RDE emerged after centuries of reflection on Aquinas’ discussion of self-defense and its application to an ever widening circle of cases.2 As will become clear from what I argue below, I do not think the RDE actually works as a justification for using lethal force in cases of self-defense.3 Aquinas’ justification of killing in self-defense

1 Beginning with the fourth edition of their very widely used textbook, Tom L. Beauchamp and James F. Childress (1994: 206) changed from calling it a ‘principle’ to a ‘rule’.

2 The first clear formulation of the RDE that approximates its present form does not come until Jean-Pierre Gury in the 19th century (see Kaczor 1998).

3 Thomas A. Cavanaugh (1997) thinks that Aquinas would not permit the use of force that one knew would be lethal, while Joseph M. Boyle (1978) thinks Aquinas would permit this. Cavanaugh seems correct about Aquinas’ logic, while Boyle seems correct about what Aquinas thought he was proving. That such confusions have never been resolved suggests the need for a fresh approach.

of the RDE have largely ignored important developments in action theory and have been written as if moral philosophy and philosophy of mind were parallel universes that never communicate or influence each other. An important example in this regard is the treatment of the RDE by Beauchamp and Childress. They write that ‘the distinction between what is intended and merely foreseen in a planned action is not viable’, and cite John Searle in support of this position.4 However, in citing Searle, the authors appear to misinterpret him.5 In the passage they cite, Searle is actually making a distinction between different kinds of unintended consequences of actions. He is not discussing the distinction between the intended and the foreseen. Searle actually fully and explicitly defends the distinction between the intended and the foreseen in his later book Intentionality, stating, ‘A common confusion is to suppose that if someone knows that something will be a consequence of his action then he intends that consequence’ (1983: 103). That bioethicists simply insist (without philosophical argument) that there is no distinction between the intended and the foreseen, and pay so little attention to recent developments in philosophical action theory, seems a serious lapse in scholarly rigor.

In this chapter I will offer an explanation and defense of the distinction between the intended and the foreseen based on the work of John Searle (1983), Michael Bratman (1987), and Alan Donagan (1987). This will lead me to a reformulation of the requirements for the rational application of the RDE that will address some of the worries expressed by opponents of the RDE. I fully realize that this approach will never satisfy those who simply hold that intentions never matter in the moral evaluation of human acts, or who insist that contemporary theories of human action are all mistaken. But the burden of proof would seem to be upon those who raise such objections to show how contemporary scholars in philosophy of mind are all wrong about the distinction between the intended and the foreseen, or admit that the distinction is valid but supply moral arguments about why it is nonetheless morally irrelevant.

Historical Misapplications of the RDE Now Function

as Paradigm Cases

A second significant error has been committed by proponents of the RDE. In the early twentieth century they misapplied the rule in a way that has subsequently stretched the distinction between the intended and the foreseen beyond the point

4 See Beauchamp and Childress (2001: 131 and n. 44).

5 See Searle (1980: 65). Searle’s concern in this passage is with the unintended aspects of actions that seem to count as relevant aspects of the action (such as Oedipus’ marrying his mother) and the unintended aspects of the action that seem so far removed from the core of what the agent is doing and thinking that they cannot be considered parts of the action at all (such as Oedipus’ causing some neurons in his brain to fire and say, ‘I do’).

118 DA N I E L P. S U L M A S Y

of credibility.6 This may have solved certain moral problems from the perspective of Catholic theology in the short run, but in the long run it has proven disastrous to the defense of the RDE in the wider world.7 I would argue that the mistake was the application of the RDE to the cases of tubal ectopic pregnancy and the cancerous gravid uterus. Both proponents and opponents seem to accept the traditional view that these are typical applications of the RDE (even paradigmatic instances of its use), and have conducted their debates accordingly. But if these cases represent a misapplication of the RDE, then the moral and conceptual soundness of this rule does not rise and fall with discussions of these cases.

In hindsight, it seems that the RDE was applied to these cases by Catholic medical moralists in an attempt to justify their intuitive belief that life-saving operations upon women who carried tubal ectopic pregnancies or were pregnant while suffering from cancer of the uterus were morally justifiable and distinct from the ethics of abortion. Since Catholic teaching in opposition to abortion has been absolute, and the theological climate of the day was not very open to innovation, I suspect that the only principle to which these Catholic moralists felt they could appeal in order to justify this procedure was the RDE. Unfortunately, however, this application of the RDE has rendered the whole notion (which I will contend is basically sound) incredible to many observers both inside and outside the Catholic faith. In extending the RDE to cover these cases, they have jeopardized the intellectual standing of this important moral rule with respect to cases in which it does readily apply.

Once one gives up on the idea that the RDE applies to these cases, however, the task of defending it becomes much easier. In ‘reinventing’ the RDE, I will formulate the conditions for the rational application of this rule in such a way that the cases of ectopic pregnancy and the cancerous gravid uterus are excluded. I believe that surgical interventions for these conditions can be justified, morally and conceptually, on grounds other than the RDE that do not require an acceptance of the moral permissibility of abortion. Explaining fully how this is so is beyond the scope of this chapter.

For the duration of this chapter I will proceed as follows: First, I will present my ‘reinvented’ set of requirements for the correct application of the RDE. Second, I will present the underlying action theory that corrects the first significant error and supports and explains my reformulation of the distinction between the intended and the foreseen in the RDE. Third, I will apply this reinvented RDE to the cases of morphine and ectopic pregnancy to show how this corrects the second significant

6 This complex and fascinating history is detailed by David F. Kelly (1979: 274 – 309). The morality of hysterectomy in the cancerous gravid uterus case was justified under double effect at the very beginning of the 20th century. After decades of debate, the doctoral dissertation of an American Jesuit named Bouscaren, by applying the rule of double effect, finally won acceptance within the Church for surgery for ectopic pregnancies in 1933.

7 See, for instance, relatively early attacks by Williams (1957: 200 – 5) and Glover (1977: 86 – 91).

error. Fourth, I will consider some major objections and suggest how I think the arguments that I have presented can move the debate about the RDE forward constructively.

A RE FOR MUL AT ION OF T HE RULE

OF DOUBLE EFFEC T

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

If one encounters a conflict between a specific duty to do good and one’s general duty to avoid evil, and

1.this conflict arises from one intentional act with at least two foreseeable effects;

2.the act itself is either morally good or morally neutral;

3.the conflict of duties arises because intentionally bringing about one effect is morally good while intentionally bringing about another effect is morally bad;

4.all other reasonable means of achieving the good effect with less risk of causing the bad effect have been exhausted;8

5.the good and bad effects are not foreseen as coming about by way of intervening agents;9

6.one’s prior intention is to act in such a way that one’s intention in acting is to bring about the good effect while the foreseen bad effect is not part of one’s intention in acting;

7.one is sincere and rational in one’s report of one’s complex prior intention, such that, at the very least:

(a)the intended act itself is not an alternative definite description of the bad effect;

(b)the good effect is not an alternative definite description of the bad effect;

(c)the bad effect is not wholly spatiotemporally contained within the intended act itself;

(d)the bad effect is not wholly spatiotemporally contained within the good effect;

(e)the intended act does not entail the bad effect logically;

(f)the good effect does not entail the bad effect logically;

(g)the bad effect is not one’s further intention in so acting;

(h)the bad effect is not an empirically necessary causal condition for the good effect;

(i)one does not intend the good effect by way of the bad effect;

8 Space precludes me from defending each of the amendments I am making to the classical formulation of the RDE. For a discussion of Requirement 4, see Sulmasy (2000).

9 If there are intervening agents, the proper moral category for analysis is cooperation or complicity, not double effect. See Sulmasy and Pellegrino (1999).

120DA N I E L P. S U L M A S Y

8.and the act is undertaken with due proportionality, which is to say:

(a)the good effect is proportionate to the bad effect;

(b)the means under consideration are proportionate to the expected effects,10

then one is morally responsible for having undertaken the act with due diligence, in accordance with this rule, and in this sense one is morally responsible for all of the good effects and bad effects of the act one has undertaken intentionally. But one is not morally culpable for having brought about the bad effect of the act.11

THE ACT ION THEORY UNDER LY ING THIS

REFOR MUL AT I ON OF T H E RDE

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

The first point to establish is that intentions matter in the moral evaluation of human acts. This is, of course, denied by utilitarians and other consequentialists, who discount the moral significance of agency and look only to consequences. The importance of intention is sometimes discounted by those who worry about the public verifiability of intentions and prefer to limit the moral evaluation of human acts to the observable aspects. Some will accept the moral relevance of intention, but reduce it to a character trait: something that is good in so far as it produces morally good actions or morally good results.

But it seems plain to the common person that intentions matter in the moral evaluation of acts. One learns from childhood that one is far more deserving of blame for what one has intentionally brought about than for what one has not intentionally brought about. Judges and juries expend great energy in distinguishing between manslaughter, homicide, and the degrees of murder based upon complex evaluations of the intentions of the defendant. Intentions are the backbone of the agency that is in moral acts. Moral acts do not merely happen. They happen because agents make them happen. And agents make their acts happen through intentions. To discount the importance of intentions in the moral evaluation of human acts is

10This requirement is infrequently noted. Not only must the outcomes be proportionately balanced, the means used must ‘fit’ the end intended. For example, normally one would not be justified in using an expensive, toxic, intravenously administered drug such as amphotericin B to treat athlete’s foot. See Kaczor (1998: 310 – 12).

11This is another very important point often lost on critics of the RDE, but perhaps because it

is rarely made explicit by proponents. The RDE does not abolish moral responsibility. There is a distinction between what one does intentionally and what one intentionally does. The former simply refers to an act that one freely undertakes. The latter refers to what one aims at accomplishing in so acting. A physician who administers morphine to a dying patient does so intentionally, and is morally responsible for the act and all of its outcomes. This means that she should not do so without engaging in some form of double effect reasoning, so that she is acting responsibly. But this does not mean that she is intentionally aiming at making the patient dead. If she did, she would be morally culpable. See Bratman (1987: 124 – 5).