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I have not addressed the practical problems facing advance directives or the substituted judgment principle. I have tried, however, to show that the Moral Authority Objection to the Extension View is no reason to give up on those problems.

REFERENCES

BEAUCHAMP, T. L., and CHILDRESS, J. F. (2001), Principles of Biomedical Ethics, 5th edn. (New York: Oxford University Press).

BLUSTEIN, J. (1999), ‘Choosing for Others as Continuing a Life Story: The Problem of Personal Identity Revisited’, Journal of Law, Medicine and Ethics, 27: 20 – 31.

BRODY, H. (2003), Stories of Sickness, 2nd edn. (New York: Oxford University Press). BUCHANAN, A. E. (1988), ‘Advance Directives and the Personal Identity Problem’, Philosophy

and Public Affairs, 17/4: 277 – 302.

and BROCK, D. W. (1990), Deciding for Others: The Ethics of Surrogate Decision Making

(Cambridge: Cambridge University Press).

CANTOR, N. L. (1993), Advance Directives and the Pursuit of Death with Dignity (Bloomington: Indiana University Press).

DAVIS, J. K. (2002), ‘The Concept of Precedent Autonomy’, Bioethics, 16/2: 114 – 33. (2004), ‘Precedent Autonomy and Subsequent Consent’, Ethical Theory and Moral

Practice, 7/3: 267 – 91.

(2006), ‘Surviving Interests and Living Wills’, Public Affairs Quarterly, 20/1: 17 – 30. DEGRAZIA, D. (1999), ‘Advance Directives, Dementia, and ‘‘the Someone Else Problem’’ ’,

Bioethics, 13/5: 373 – 91.

DRESSER, R. S. (1982), ‘Ulysses and the Psychiatrists: A Legal and Policy Analysis of the Voluntary Commitment Contract’, Harvard Civil Liberties Law Review (Winter), 789.

(1986), ‘Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law’, Arizona Law Review, 28: 373 – 405.

(1992), ‘Autonomy Revisited: The Limits of Anticipatory Choices’, in R. H. Binstock, S. G. Post, and P. J. Whitehouse (eds.), Dementia and Aging: Ethics, Values, and Policy Choices (Baltimore: Johns Hopkins University Press), 71 – 85.

and ASTROW, A. B. (1998), ‘An Alert and Incompetent Self: The Irrelevance of Advance Directives, Commentaries’, Hastings Center Report, 28/1: 28 – 30.

and ROBERTSON, J. A. (1989), ‘Quality of Life and Non-Treatment Decisions for Incompetent Patients: A Critique of the Orthodox Approach’, Law, Medicine and Health Care, 17/3: 234 – 44.

DWORKIN, R. (1993), Life’s Dominion (New York: Knopf ).

EISENDRATH, S. J., and JONSEN, A. R. (1983), ‘The Living Will: Help or Hindrance?’, Journal of the American Medical Association, 249/15: 2055 – 6.

FEINBERG, J. (1986), Harm to Self (Oxford: Oxford University Press).

FRANKFURT, H. G. (1971), ‘Freedom of the Will and the Concept of a Person’, Journal of Philosophy, 68/1: 5 – 20.

FURROW, B. R., et al. (2000), Health Law, 2nd edn. (St Paul, Minn.: West Group).

JONSEN, A. R., VEATCH, R. M., and WALTERS, L. (eds.) (1998), Source Book in Bioethics (Washington, DC: Georgetown University Press).

KING, N. M. P. (1996), Making Sense of Advance Directives, rev. edn. (Washington, DC: Georgetown University Press).

KUCZEWSKI, M. G. (1994), ‘Whose Will Is It Anyway? A Discussion of Advance Directives, Personal Identity, and Consensus in Medical Ethics’, Bioethics, 8/1: 27 – 48.

(1997), Fragmentation and Consensus: Communitarian and Casuist Bioethics (Washington, DC: Georgetown University Press).

(1999), ‘Commentary: Narrative Views of Personal Identity and Substituted Judgment in Surrogate Decision Making’, Journal of Law, Medicine and Ethics, 27/1: 32 – 6.

LYNN, J., et al. (1999), ‘Dementia and Advance-Care Planning: Perspectives from Three Countries on Ethics and Epidemiology’, Journal of Clinical Ethics, 10/4: 271 – 85.

MACINTYRE, A. (1984), After Virtue: A Study in Moral Theory, 2nd edn. (Notre Dame, Ind.: University of Notre Dame Press).

MAY, T. (1997), ‘Reassessing the Reliability of Advance Directives’, Cambridge Healthcare Quarterly, 6/3: 325 – 38.

MILL, J. S. (1986), On Liberty (Buffalo, NY: Prometheus Books).

NEWTON, M. J. (1999), ‘Precedent Autonomy: Life-Sustaining Intervention and the Demented Patient’, Cambridge Healthcare Quarterly, 8/2: 189 – 99.

O’NEILL, O. (2002), Autonomy and Trust in Bioethics (Cambridge: Cambridge University Press).

PARfiT, D. (1984), Reasons and Persons (Oxford: Oxford University Press).

PRESIDENT’S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH (1983), ‘Deciding to Forgo Life-Sustaining Treatment: A Report on the Ethical, Medical, and Legal Issues in Treatment Decisions’, repr. in Jonsen (1998: 159 – 219).

QUANTE, M. (1999), ‘Precedent Autonomy and Personal Identity’, Kennedy Institute of Ethics Journal, 9/4: 365 – 81.

REGAN, T. (1983), The Case for Animal Rights (Berkeley: University of California Press). RHODEN, N. K. (1990), ‘The Limits of Legal Objectivity’, North Carolina Law Review, 68:

845 – 65.

RICH, B. A. (1997), ‘Prospective Autonomy and Critical Interests: A Narrative Defense of the Moral Authority of Advance Directives’, Cambridge Quarterly of Healthcare Ethics, 6/2: 138 – 47.

ROBERTSON, J. A. (1991), ‘Second Thoughts on Living Wills’, Hastings Center Report, 21/6: 6 – 9.

RYLE, G. (1949), The Concept of Mind (London: Hutchinson).

SASS, H., VEATCH, R. M., and KIMURA, R. (1998), Advance Directives and Surrogate Decision Making in Health Care (Baltimore: Johns Hopkins University Press).

SAVULESCU, J., and DICKENSON, D. (1998), ‘The Time Frame of Preferences, Dispositions, and the Validity of Advance Directives for the Mentally Ill’, Philosophy, Psychiatry and Psychology, 5/3: 225 – 46.

SCHNEIDER, C. (1998), The Practice of Autonomy: Patients, Doctors, and Medical Decisions

(Oxford: Oxford University Press).

SUPPORT PRINCIPAL INVESTIGATORS (1995), ‘A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments (SUPPORT)’, JAMA 274/20: 1591 – 8.

VEATCH, R. M. (1993), ‘The Impending Collapse of the Whole-Brain Definition of Death’,

Hastings Center Report, 23/4: 18 – 24.

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VELLEMAN, J. D. (1991), ‘Well-Being and Time’, Pacific Philosophical Quarterly, 72/1: 48 – 77. WATSON, G. (1975), ‘Free Agency’, Journal of Philosophy, 72/8: 205 – 20.

WOLF, S. M., et al. (1991), ‘Sources of Concern About the Patient Self-Determination Act’,

New England Journal of Medicine, 325/23: 1666 – 71.

c h a p t e r 1 6

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P H Y S I C I A N -

A S S I S T E D D E AT H : T H E S TAT E O F T H E D E B AT E

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G E R A L D D WO R K I N

WHEN I first began writing on the topic of physician-assisted suicide and active voluntary euthanasia it seemed to me that the philosophical literature was unlike that of most other controversial topics, e.g. abortion, cloning, etc. On those topics there was much debate about the moral status of individual acts, as well as discussion of the social policy issues that tended to rely on predictions about future consequences. But as regards physician-assisted suicide there seemed to be general consensus that at least with respect to individual acts of physician-assisted suicide there could be occasions on which it was morally permissible. I am aware, of course, of the existence of a large non-philosophical literature that argued that all killing of innocent persons (whether consensual or not) is wrong. But among philosophers writing from a secular perspective that conclusion seemed not to be accepted.

Almost all of the discussion centered on the policy and institutional issues. Should physician-assisted suicide and/or active voluntary euthanasia be legalized? Should codes of conduct allow physician-assisted suicide? And the discussion of these issues was largely consequentialist in nature. People’s views differed according to whether they believed that things would be horrible or not if we legalized physician-assisted suicide. Much was made of the only data we had, which was from the Netherlands, and that data was read in optimistic or pessimistic ways. Why

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nobody paid attention to the Swiss, who had legalized physician-assisted suicide for some time, is a mystery.

It also seemed to be an issue that promised little new by way of theoretical issues. The themes of intended versus foreseen consequences, killing versus letting die, the principle of double effect, had been pretty well worked over. There were still epicycles that could be introduced, as Frances Kamm has done with respect to both double effect (her idea of triple effect) and the significance of cases where everything is held constant and we judge that killing is no worse than letting die.

It was not simply that it was very unlikely that introducing some new way of looking at the problem (comparable, for example, to Thomson’s take on abortion) was going to affect the policy debate. It did not seem that relevant considerations were likely to generate new ideas of intrinsic philosophical interest. This no longer seems to be the case. There are a number of interesting problems and issues that need to be further explored. I shall first set out what I take to be the current state of discussion on the topic and then present a budget of problems that deserve further investigation.

THE CUR RENT STATE OF T HE DEBATE

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The essential outlines of the debate over voluntary euthanasia have not changed very much since Glanville Williams and Yale Kamisar debated the issues almost fifty years ago. On the one hand, an appeal to considerations of autonomy and the relief of suffering: individuals should be able to choose the timing and mode of their dying and they should not have to suffer from pain and other modes of indignity such as incontinence, paralysis, muscular wastage, and mental deterioration. So far these would only generate a right or permission to take one’s own life, but when we consider the problems in the context of end-of-life medical care and the uncontroversial duty of physicians to relieve the suffering of their patients we get a claim to assistance in dying. The claim may be only to the assistance of a willing physician with perhaps a derived claim to referral to a willing physician if the physician as a matter of conscience cannot participate. Or it may be to an obligation on the part of the physician if the mode of relief is the administration of pain-relief medication — even if the physician knows that eventually this will result in the death of the patient. (Would we regard it as acceptable for a physician to invoke a ‘conscience clause’ and refuse to administer morphine under such circumstances?)

Those who opposed physician-assisted suicide do not generally deny the value of autonomy and the relief of suffering. Many, but not all, even concede that in particular cases a physician would be justified in providing a patient with the knowledge or means for them to take their own life. Yale Kamisar, for example,

a strong opponent of legalizing physician-assisted suicide, said that if he were convinced that someone was terminally ill, suffering from intolerable pain that could not be relieved, were competent, and requested death, he would ‘hate to have to argue that the hand of death should be stayed’ (Kamisar 1958: 975). But opponents believe that there are a number of different considerations, usually of a consequentialist nature, that lead to the conclusion that, important as the values of autonomy and relief of suffering are, they cannot justify the institutionalization or legalization of physician-assisted suicide. These considerations include the possibility of discovery of cures, the dangers of mistaken diagnosis, the difficulties of knowing when requesters are rational, the dangers of patients being coerced or pressured by relatives or by their physicians, and the effects of legalization on the doctor – patient relationship. In addition, there are the slippery slope arguments: physician-assisted suicide will lead to active voluntary euthanasia and this in turn to involuntary euthanasia. Physician-assisted suicide for the terminally ill will be extended to those who are suffering whether or not they are terminal. Physician-assisted suicide, which requires contemporaneous consent, will lead to physician-assisted suicide by means of advance directives. Given that the number of patients who need assistance in dying and who meet the usual conditions (terminal, non-relievable suffering, competence, wishing to die) is small, and given the seriousness of the dangers, physician-assisted suicide should not be legalized.

Given the uncontroversial nature of the values invoked by supporters of physician-assisted suicide, their moral arguments are usually attempts to show that the arguments of the opponents are faulty rather than to present positive arguments in favor of physician-assisted suicide. And the attempts to show the inadequacy of the opponent’s arguments are usually ad hominem. I don’t mean any disparagement by that term; much of moral argument is ad hominem and no worse for that. I mean that the argument takes the form of claiming that those who oppose physician-assisted suicide are inconsistent. They favor various policies such as the administering of pain medication that leads to the death of the patient, or they favor withdrawing life-support at the (competent) patient’s request, or they favor DNR orders, or they favor terminal sedation (putting a patient into a coma and then withdrawing food and water). The proponent of physician-assisted suicide presents arguments that claim to show that there is no way of distinguishing between these (favored) policies and physician-assisted suicide. So one cannot both favor these policies and reject physician-assisted suicide. The opponents of physician-assisted suicide must either accept physician-assisted suicide or reject the favored policies. The argument is ad hominem because it does not seek to show that the opponents must accept physician-assisted suicide. They may instead abandon their favored policies. So the arguments do not establish physician-assisted suicide. They merely show that the opponents must give something or other up. That is why the arguments are ad hominem; they are addressed only to people who accept

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certain premises, e.g. that the favored policies are permissible. Someone who starts out by having no views about, for example, terminal sedation, or who actually thinks it impermissible is unaffected by these arguments.

Since it is, as a matter of fact, the case that most physicians favor the policies in question, and indeed the right of a competent patient to decline medical treatment (including food and water), even if death is inevitable as a result, is firmly entrenched in the legal system, the dialectic of the opponents is to dispute the claim that there is no way of distinguishing the favored policies from physician-assisted suicide. This is where the various hoary distinctions of killing versus letting die, intending versus foreseeing, doing versus allowing, make their appearance. The opponents of physician-assisted suicide claim that these distinctions are (1) real distinctions and

(2) morally relevant, and that the favored policies fall on one side of the distinction whereas physician-assisted suicide falls on the other. To this the proponents either deny that the distinctions exist, or that they are morally relevant, or that they distinguish physician-assisted suicide from the favored policies.

With respect to the legalization issues, the arguments are, for the most part, questions about the nature and quality of the evidence for the potential dangers and harms. It is, or should be, recognized by all that it is not enough to claim that some danger might come from physician-assisted suicides, or that it could happen. That claim is far too weak to establish that some morally permissible action should not be allowed by the legal system. (Even defenders of what has been called the ‘precautionary principle’ do not think that the mere logical possibility of some ecological disaster is a reason for not acting in some way.) On the other hand, it is too strong to demand that the dangers are certain or inevitable. After all, a possibility less than a half of a very serious danger may be quite enough to worry about. What has to be argued is not that the disasters are possible, or inevitable, but that their probability (given their degree of harm) is serious enough to justify making an otherwise permissible act illegal. And, of course, it is not their probability given legalization, but their probability given legalization with the safeguards proposed by the defenders of legalization.

So the debate has focused on the meager database of the Netherlands and Oregon. The former has played a larger role because of the greater number of cases and the scrutiny to which it has been exposed. If anything is clear from this discussion, it is that the interpretation of the data is highly correlated with the normative position of the investigator. If the investigator is strongly opposed to physician-assisted suicide, it is highly likely that he will think the fact that some 900 persons were killed or allowed to die without explicit request shows that the dangers are not merely possible but real. If the investigator is highly favorable to physician-assisted suicide, then it will be pointed out that in most of these cases the patients would have died very shortly thereafter, that these cases include patients who had made preliminary requests for euthanasia and then gone into comas, or had otherwise become incompetent to renew their request, and that many of these

cases involved the withholding or withdrawal of medical care rather than either physician-assisted suicide or active voluntary euthanasia. In any case, as Kuhse and Singer (1988) have pointed out, since we have no reliable statistics for the incidence of physician-assisted suicide or active voluntary euthanasia prior to the quasi-legalization of these practices in the Netherlands, we have no idea whether the number of cases of medically assisted dying without full and explicit consent of the patients is greater or less under the existing system than it was before. We do know from a number of surveys in Australia and the United States that many physicians have assisted their patients in dying. One argument for legalization is that it permits this underground, completely unregulated, practice to be scrutinized by official institutions.

None of this is to deny that we have to work with the empirical evidence we have. If it is of poor quality, or quantity, then we should do whatever we can to increase the amount and quality of our database. The experiment currently taking place in Oregon is useful if not decisive. Some critics of the Oregon experiment predicted that the patients most likely to take advantage of the new law would be depressed, socially vulnerable, and without access to good hospice cares. In fact the patients have been mostly middle-class, with 92 per cent of them having access to hospice care.

One possible source of empirical data that has not, to my knowledge, been evaluated is the very large number of patients who have refused life-support such as CPR, who have been allowed to withdraw from life support, who have refused artificial hydration and alimentation, or who have been killed by increasing doses of pain medication. When these practices were proposed by physicians, and when they were sanctioned by the courts, there were the same kinds of prediction made by opponents as are now made about physician-assisted suicide. Patients would be manipulated or coerced into making, or agreeing, to such practices. Patients who might be cured by new discoveries would mistakenly request to be removed from life-support. The slippery slope from voluntarily requesting DNR to having such orders entered on their chart without consent would be traversed. Why haven’t studies of the misuse and abuse of the right to refuse medical treatment been made? If the predictions prove, for the most part, to have been false, then, barring some hypothesis as to why the situation is quite different with respect to physician-assisted suicide, we would have plausible reasons to suppose that the worst fears of the critics are groundless.

Now, it might be argued that the two situations — physician-assisted suicide and withholding or withdrawal of treatment — are distinct in the following sense. In the case of the refusal of treatment even if the predicted horrors were likely we cannot cite them in an argument. For patients have a right to refuse treatment and rights trump (at least over some range) bad consequences. It is not merely that it is permissible for patients to refuse treatment. It is impermissible to force them to have treatment against their will. It is an invasion of their bodily autonomy to force

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them to have feeding tubes, or to undergo CPR. So even if the study I suggested showed that there were many cases of abuse or misuse, we simply have to accept them as the price to be paid for not violating the rights of patients. This leads to the next issue.

IS THERE A N ASYMMET RY BET WE EN

DENY ING WITHHOLDING/WITHDRAW ING REQUESTS AND DENY ING ASSISTANCE

IN DY I N G ?

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This argument is the first one of my budget of problems that deserves further research. It is more or less common ground between the two sides that there is the asymmetry just mentioned. In my book Euthanasia and Physician-Assisted Suicide: For and Against, I also assumed that the premises of this claim were correct, i.e. that physician-assisted suicide and withholding or withdrawing treatment were morally distinct because of the right to bodily integrity (Dworkin et al. 1998). I argued that, though there was a moral distinction, it was not sufficiently weighty to justify denying physician-assisted suicide to patients who were in otherwise exactly the same condition, i.e. were terminal, wished to die, competent, etc.

In both situations we have patients in identical positions who have to endure further life under circumstances that they find intolerable. In both cases, by denying their respective demands to have medical treatment cease, or to have assistance in dying, we force upon them a continued existence that is incompatible with their fundamental views as to how their life should be led. Even were there an additional right that is violated in one case but not the other (the right to control over what is done to one’s body), this might make the refusal to withdraw treatment morally worse than the refusal to allow assistance in dying, but they are both above a threshold that forbids the state to deny the patient’s wishes.

I now think that it is not so clear that the claim to withdrawal or withholding of treatment rests on the claim to bodily integrity. Consider the following case. A person has a disease such that any exposure to the sun’s rays would be immediately fatal. He is protected from death by an electro-magnetic field, which has no other effect on him than to protect him from exposure to the sun. He discovers that he now has a different, terminal, illness that is causing him great pain. He wishes to end his life. He asks for the field to be turned off so that he can die immediately. It does not seem to me that his request for withdrawal of treatment is any less stringent because refusing to comply with it would not be a violation of his bodily integrity. His claim rests on the fact that his autonomy requires us to respect the fact that he does not want to have medical treatment. And this in turn rests on his

right to determine for himself how to lead his life and when to end it. But this is exactly the same basis for the claim to assistance in dying.

There is, moreover, the thought that there are not two independent rights — bodily integrity and autonomy — but one basic right (autonomy) from which both the right to bodily integrity and the right to assistance in dying derive. If, as Dan Brock has argued, it is plausible to argue that the right to bodily integrity is itself ultimately grounded on the right to autonomy, then to argue for the right to withdraw or withhold treatment on the ground of a right to bodily integrity, but to deny that it is grounded in a more fundamental right of self-determination, is inconsistent (Brock 1999).

WHAT IS THE RELEVANCE OF INTENT ION

AND MOT IVE TO ACT-EVALUAT ION?

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The next issue that I believe needs further exploration is one raised most clearly by Judith Thomson (1999) and James Rachels (1986). Judith Thomson argues that the intention with which the agent acts in a particular situation is not relevant to whether the act is morally permissible, though intentions may be relevant to the evaluation of the person’s character.

In her view we are led to very strange consequences if we accept the traditional idea, incorporated into the principle of double effect, that the intention with which the agent acts bears upon the question of whether his act is morally permissible. She gives the following as an example of the absurdity to which this view leads.

According to the PDE [principle of double effect], the question of whether it is morally permissible for the doctor to inject a lethal drug turns on whether the doctor would be doing so intending death or only intending relief from pain. This is just . . . [an] absurd idea. If the only available doctor would inject the pain to cause the patient’s death, or is incapable of becoming clear enough about her own intentions to conclude that what she intends is only to relieve her patient’s pain, then — according to PDE — the doctor must not proceed, and the patient must be therefore allowed to suffer. That cannot be right. ( Thomson 1999: 515 – 16)

This view, which has important consequences for ethics more generally, is one that deserves a degree of critical scrutiny that so far it has not received. First, with respect to the specific application at hand, there is the issue of how the PDE should be understood. As Thomson understands it, the view applies to the evaluation of moral permissibility of act tokens. It is the specific intention with which this agent acts in this particular set of facts that is supposed to determine moral permissibility. This may have a degree of plausibility as a reading of the doctrine as it has been historically formulated. But those who wish to defend the principle have open to them the idea that what is being evaluated is act types, not tokens. The idea, then,