Introduction

Part 2

Part 3

Appendices

Part 1

Introduction to Part 2

Introduction to Part 3

     Appendix A

Introduction to Part 1

     Chapter 6

     Chapter 9

     Appendix B

     Chapter 1

     Chapter 7

     Chapter 10

     Appendix C

     Chapter 2

     Chapter 8

     Chapter 11

     Appendix D

     Chapter 3

Conclusions to Part 2

Thesis Conclusions

     Appendix E

     Chapter 4

     Appendix F

     Chapter 5

Bibliography

Conclusions to Part 1

Books and Articles
Legal Cases

 

 

Chapter 11: An alternative conceptual structure for ‘end-of-life’ decisions for PVS patients

 

 

The primary aim of this Chapter is to develop a conceptual structure that will enable a more satisfactory resolution of the problems associated with ‘end-of-life’ decisions for PVS patients than is possible with the conceptual structures which are presently used.  The proposed structure - which I term the ‘P-GD conceptual structure’ - will be developed from concepts introduced in earlier chapters, particularly the concepts of ‘personhood’ and ‘a good death’.

The difficulties associated with the existing conceptual structure - which I have called the ‘C-AQL conceptual structure’ [i] - have been examined in detail in Parts 1 and 2 of this thesis; suffice here to say that these difficulties concerned firstly, the problem of determining patient consciousness[ii] and secondly, the danger of occasioning a ‘slippery slope’.  In Part 2, it was argued that one of the prime causes of the ‘slippery slope’ was the use of ‘absolute quality of life’ judgements.[iii]  Because ascriptions of ‘consciousness’ do not play a central role in the ‘P-GD conceptual structure’ (other than in relation to decisions concerning the administration of pain relief) and because ‘absolute quality of life’ judgements are not permissible within this structure,[iv] the causes of the original difficulties are removed.  It remains to show that the proposed conceptual structure is still sufficiently powerful to permit the resolution of problems in relation to ‘end-of-life’ decisions for PVS patients.

The ‘C-AQL conceptual structure’ has also been used in relation to ‘end-of-life’ decisions for severely disabled infants who were not terminally ill;[v] the courts analysed such cases by first considering whether the infant’s ‘quality of life’ was considered to fall below some indeterminate minimal value - this being tantamount to a determination that it was in the infant’s ‘best interests’ that life-sustaining treatment (including ANH[vi]) be withdrawn;[vii] this, in turn, was considered to be both a legal and moral justification for the decision to withdraw life-sustaining treatment.  Such cases concerned, at one extreme, anencephalic infants to, at the other extreme, cases of Down Syndrome infants with easily curable, but potentially fatal, abdominal obstructions.[viii]  A secondary aim of this chapter is to show that the ‘P-GD conceptual framework’ cannot only encompass the making of ‘end-of-life’ decisions for such severely disabled infants but that it can radically distinguish between cases such as anencephaly and cases of Down Syndrome.  An analysis based on ‘absolute quality of life’ (as in ‘C-AQL conceptual structure’) permits no such radical distinction because such cases are seen to lie on the same continuum differing only in degree and thus facilitating the development of a ‘slippery slope’.

____________

This chapter is composed of five sections:

 

Section 1:

The elements which are required to formulate the ‘P-GD conceptual structure’ are briefly recapitulated.

Section 2:

The ‘P-GD conceptual structure’ is explained, first in a simplified form which seeks to resolve the problem of medical decision-making simply in relation to the individual patient and ignores the concerns of the wider society in relation to, for example, the possible development of a ‘slippery slope’ and scarcity of resources. Some suggestions are then made as to how these wider social concerns can be incorporated into the ‘P-GD conceptual structure’.

Section 3:

The ‘P-GD’ conceptual structure is applied to medical decision-making in relation to PVS patients.

Section 4:

The ‘P-GD’ conceptual structure is applied to medical decision-making in relation to anencephalic and Down Syndrome infants.

Section 5:

Conclusions.

 

Section 1: The elements of the ‘P-GD’ conceptual structure: a recapitulation

 

This Section summarises the discussion in earlier chapters in relation to ten such elements.

 

1. A distinction made by Phillipa Foot

 

The foundation for the ‘P-GD conceptual structure’ lies in a distinction made by Phillipa Foot in her discussion of euthanasia.[ix]  Foot distinguished between the virtues of Justice and of Charity: ‘Justice‘ has to do with what men owe each other in the way of non-interference and positive service: it is concerned with what a man has ‘a right to’.  ‘Charity’, in contrast, is a virtue which attaches to the good of others: it is concerned with what a man has ‘a need of ’.[x]

The primary obligation imposed by Justice is the ‘right to be let alone’ and free from the interventions of others.  The primary obligation imposed by Charity is to act in the ‘best interests of’ - or ‘for the sake of’ - another.  Foot argues that one may have obligations to another flowing from Justice or from Charity or from both but that, in case of conflict, the obligations imposed by Justice take precedence.

I have argued - taking the example of someone who rescues an apparently drowning man[xi] - that Foot’s assertion that the obligations of Justice always take precedence over Charity is too broad and must be amended; I have proposed a ‘Principle of Minimal Intervention’. 

Foot’s final conclusion was that not only should Charity yield to Justice but that, on occasion, the requirements of Justice should yield to the requirements of the wider society;[xii] this can also be expressed by saying that Justice has two aspects: an individual aspect ‘JusticeI’ and a social aspect ‘JusticeS’ and that whilst ‘Charity’ must yield to ‘JusticeI’,  ‘JusticeI’ itself must, on occasion, yield to ‘JusticeS’.[xiii]

 

2. Principle of Minimal Intervention

 

Principle of Minimal Intervention states:

“In cases where communication is not possible and where it is reasonable to assume that had communication been possible the intervention would be requested, then the intervention is justified provided it is performed in the ‘best interests’ of the individual and is the minimum intervention required to preserve the situation until such time as communication can be restored.”

 

3. The term ‘Object of Intrinsic Moral Worth’ [xiv]

 

Those to whom obligations are owing based on Justice are called ‘persons’ and they are said to possess ‘rights’.[xv]  A term is needed to describe those to whom obligations are owing which flow from Charity and I have proposed the term ‘Objects of Intrinsic Moral Worth’.[xvi]  The criterion for an individual being considered to be an ‘OMW’ is that consciousness has been ascribed to that individual.[xvii] 

In summary, ‘persons’ are individuals to whom obligations are owing from both Justice and Charity; ‘OMW’s’ are individuals to whom obligations are owing from Charity but not from Justice.

 

4. A necessary condition for the ascription of 'personhood'

 

I have argued that an ability to communicate with an individual is a necessary condition for the ascription of 'personhood' to that individual and, furthermore, that the level of communication required is at least that which is sufficient to determine whether the individual consents to a proposed intervention.[xviii]  I have also argued that the concept of 'personhood' (with the entitlement to exclusive ownership of ‘rights’) is too much an ‘all or nothing’ concept and that it does not encapsulate the complexities associated with the ascription of rights in modern society.  Accordingly I have introduced the concept of ‘attenuated personhood’ to allow for the inclusion into the analysis of individuals who, though they have not a present ability to communicate, have - it is believed - a possibility of achieving such an ability in the future; examples of such individuals are infants, temporarily unconscious patients and the insane.  Attenuated personhood confers a right on an individual not to be killed even if this is universally regarded as being in their ‘best interests’; no other rights are conferred.[xix]

An individual whose inability to communicate is judged[xx] to be permanent can neither be ascribed 'personhood' nor ‘attenuated personhood’;[xxi] the only obligations that exist towards them arise from Charity; they are owed no obligations arising from Justice.[xxii]  Accordingly, all decisions affecting such individuals should be made on a ‘best interests’ basis.

 

5. Is the withdrawal of ANH an ‘intervention’ for the purposes of Justice?[xxiii]

 

Because the withdrawal of ANH features so prominently in the cases to be discussed it is important that its status be clarified - is it to be classified as an ‘intervention’ which would, if performed on a ‘person’, require their consent?  What is Foot’s view?  Does Foot - in arguing that Justice prohibits non-consensual interventions in the life of a ‘person’ - intend this prohibition to apply only to ‘acts’ as distinct from ‘omissions’ ? 

Foot argues that the crucial distinction is not that between ‘act’ and ‘omission’ but between ‘active’ and ‘passive’; for example ‘active euthanasia’ can encompass not only acts but omissions:

“ ... the word ‘act’ is not to be taken to exclude omission: we shall speak of an act of euthanasia when someone is deliberately allowed to die, for his own good, and not only when positive measure are taken to see that he does.  The very general idea we want is that of a choice of action or inaction directed at another man’s death and causally effective in the sense that ... it is a sufficient condition of death.” [xxiv] 

Foot does, however, distinguish between ‘withdrawal of treatment’ and ‘active euthanasia’:

“But the act of turning off a respirator should surely be thought of as no different from the decision not to start it; ... and both should be counted as passive rather than active euthanasia ... The point seems to be that interference in a course of treatment is not the same as other interference in a man’s life, ...” [xxv]

This would suggest that, to Foot, withdrawal of ANH is not ‘interference’ and is permissible if carried out ‘for the sake of’  the individual (thus, being in accordance with Charity).  This interpretation accords with her view of the withdrawal of life-sustaining treatment from Down Syndrome infants:

“That they[xxvi] are deliberately allowed to die is certain ... even in the case of children with Down’s Syndrome who have intestinal obstructions the relatively simple operation that would make it possible to feed them is sometimes not performed.  Whether this is euthanasia in our sense or only as the Nazis understood it is another matter.  We must ask the crucial question, ‘Is it for the sake of the child himself that the doctors and parents choose his death?’ ... The fact is, of course, that the doctors  ... are usually thinking not of them but rather of their parents  ... or of ‘the burden on society’ ... It must in any case be insisted that if children with Down’s Syndrome are deliberately allowed to die this is not a matter of euthanasia except in Hitler’s sense, ... ” [xxvii]

Foot bases her objection to the non-treatment of such Down Syndrome infants - and presumably to the withdrawal of ANH in similar cases - on the fact that the obligations flowing from Charity are ignored; her analysis ignores the obligations flowing from Justice.[xxviii]  Thus, if a physician honestly believed that to withhold life-sustaining treatment from a Down Syndrome infant was in the infants ‘best interests’ then presumably - although his judgement might be criticised - the morality of his behaviour could not be impugned.  This is the Achilles heel of Foot’s analysis; it seems that to her the withholding of life-sustaining treatment from an anencephalic infant, forseeably resulting in their death, is indistinguishable from a similar course of action in the case of a Down Syndrome infant provided only that the ‘best interests’ of the infant is the paramount consideration.  Such an analysis would also imply that in cases where communication is not presently possible - such as, for example, in the case of patients who were temporarily unconscious or insane - a ‘best interests’ test would be appropriate for all medical decision-making even for those decisions which forseeably resulted in the death of the patient.  This has the result that the obligations flowing from Justice can be ignored in precisely those cases where it is most necessary[xxix] that they be honoured. 

Foot’s analysis could be saved by incorporating the concept of ‘attenuated personhood' (supra) and the principle that:

P: If an individual has either 'personhood' or ‘attenuated personhood' then procedures whose goal (whether to be achieved by act or by omission) is the death of that individual are impermissible without their consent because they contravene the obligations of Justice. 

This principle asserts nothing other than that if an individual has a ‘right to life’ then procedures which aim to deprive him of that life are impermissible irrespective of whether death results from ‘acts’ or ‘omissions’.  This principle does not preclude procedures where the death of an individual is foreseen as a possible but unwanted side effect (as when, for example, the giving of morphine for purposes of pain relief may result in the death of a patient) or even procedures which necessitate the death of an individual, provided such is not the desired result.[xxx] 

What is (usually) the goal in withdrawing ANH?  It is indeed possible that in some circumstances the goal is to remove the discomfort of the tube feeding; such cases are, however, not the norm.  Imagine an invention which permitted tube feeding to be withdrawn from a patient but such that the patient could still obtain nourishment painlessly from a patch placed on the skin.[xxxi]  Would such a procedure be used in respect of PVS patients?  Would it be used in respect of the Down Syndrome infant (spoken of by Foot) who was unable to feed?  I suggest that it would clearly not be used.  This thought experiment allows us to conclude that the goal of such procedures is the death of the patient.[xxxii] 

Thus, Foot’s conclusion - i.e. that Justice prohibits intentional killing even if this be solely ‘for the sake’ of the individual killed - must be amended to read:[xxxiii]

Conclusion 11 - 1 :  The virtue of Justice prohibits not only the intentional killing of an individual but also procedures (whether by act or omission) which have the death of the individual as their goal.

 

6. ‘Absolute quality of life’ judgements [xxxiv]

 

‘Incremental quality of life’ judgements are quality of life judgements which seek to estimate the change in the quality of life of a patient ascribable to a proposed medical intervention; the understanding being that the intervention should be performed if, and only if, this change is positive.[xxxv]

‘Absolute quality of life’ judgements are quality of life judgements which seek to estimate the total quality of life of a patient; the understanding being that if this quality of life is minimal then life-sustaining medical treatment should be withheld and the patients allowed to die.

It was argued in Chapter 7 that the use of ‘absolute quality of life’ judgements conflict with accepted norms of equality.  Because these norms are based on the virtue of Justice, ‘absolute quality of life’ judgements may not be used in relation to ‘persons’; no such prohibition exists in relation to ‘Objects of Intrinsic Moral Worth’.

 

7. The resolution of doubt in medical judgements

 

The process by which doubt in medical judgements is resolved was discussed in Chapter 5 and the conclusion was reached that judging on the basis of probability (i.e. choosing the most probable hypothesis) was not appropriate; the consequences of making possibly incorrect choices must be examined and the choice made so that these consequences (weighted in proportion to their probabilities) be minimised.[xxxvi]  The example given was that of determining whether to attempt to rescue some people who had been trapped in the ruins of a building destroyed by an earthquake (it being accepted that they were most probably dead); the proposed principle would imply that the most probable hypothesis (i.e. that there are no survivors) should not be accepted but rather the consequence of acting as if there were survivors (when there were, in fact, no survivors) should be compared with the consequences of acting as if there were survivors (when there were, in fact, no survivors). [xxxvii]

Because of the level of doubt implicit in diagnosis of PVS (the misdiagnosis rate for PVS is close to 50%)[xxxviii] it follows that PVS patients should be treated as if they are conscious and can experience pain; this is because the consequences of treating an individual PVS patient as being able to experience pain - when, in fact, he cannot - are slight when compared with the consequences of treating him as being unable to experience pain, when in fact he can. [xxxix]

 

8. The attribution of consciousness and ability to experience pain

 

The attribution of consciousness - or an ability to experience pain -  to another is often thought of as a purely scientific judgement.  It is not.[xl]  At best, correlates of pain can sometimes be studied but even this is not possible in the case of PVS patients.[xli] 

Wittgenstein’s and Dennett’s analysis of pain judgements[xlii] show that what is most crucial in attributing consciousness and an ability to experience pain to another, is the attitude that is adopted to that other and such is not susceptible to proof.[xliii]  Wittgenstein expresses this point succinctly:

“My attitude towards him is an attitude towards a soul.  I am not of the opinion that he has a soul.” [xliv]

And again:

“Look at a stone and imagine it having sensations. ... And now look at a wriggling fly and at once these difficulties vanish and pain seems to be able to get a foothold here, where before everything was, so to speak, too smooth for it.” [xlv]

The attitude to another that allows consciousness (or an ability to feel pain) to be attributed to them flows from having empathy towards them;[xlvi] the (erroneous) belief that consciousness and pain are susceptible to a fully scientific determination is of considerable negative importance in that a statement such as that ‘PVS patients cannot experience pain’ can - unless it is seen for the pseudo-science that it is - destroy the empathy which naturally arises.[xlvii]

 

9. The concept of ‘a good death’

 

The question of whether the proposition ‘Death is an evil’ is true, was the focus of Chapter 9 and the conclusion was reached that, if unqualified, the proposition is not sustainable; it follows that some deaths are a ‘good’.[xlviii]  What obligations are imposed on others in relation to such deaths?[xlix]

In considering whether a prospective death is ‘a good death’ for another it is important to distinguish between those who have the present ability to communicate, those with whom communication may be established and those who have permanently lost the ability to communicate.  The first have the status of ‘personhood’, the second of ‘attenuated personhood' and the third of ‘Objects of Intrinsic Moral Worth’; different types of obligations are owed to each of these groups. [l]  The obligations on others to ensure that an individual achieves ‘a good death’ are implied by Charity (i.e. to act ‘for the sake of‘ another) but may be prohibited by Justice (if such interventions are unwanted).  This implies that the primary obligation on carers is to attempt to communicate with the patient to determine their wishes; the occasioning of the death of a patient in the face of his objections could not be ‘a good death’.[li]

The next question relates the timing of ‘a good death’: when, in relation to an individual patient, is it appropriate to consider such questions?[lii]  Callahan argues that:

“[it is ] ... increasingly useless to base decisions concerning whether to terminate treatment on some medical determination that the patient ‘is dying’. ... The old question was: when is a patient dying, and thus a candidate for the abatement of lifesaving treatment?  The new question should be: at what point, or within what range, should lifesaving treatment be abated to enhance the likelihood of a ‘a good death’?” [liii]

I have earlier used the phrase ‘entered on the threshold of death’ - i.e. that death is ‘on the agenda’ - in place of the phrase ‘is dying’; I believe that this meets Callahan’s objections.

Callaghan has suggested that:

“... once a potentially fatal illness appears, it be considered seriously as the candidate for the cause of death, if other conditions of the timing and circumstance of death are acceptable.” [liv]

And that:

“Death is acceptable ... when it comes at a point in life when

(i)   further efforts to defer dying are likely to deform the process of dying, or when

(ii)  there is a good fit between the biological inevitability of death in general and the particular timing and circumstances of that death in the life of the individual.” [lv]

A death in such circumstances is not only morally acceptable but is a moral good.[lvi]

 

The question of whether a death occasioned by the withdrawal of food could be ‘a good death’ was also considered;[lvii] such deaths are often described disparagingly as ‘death by starvation’ with the implication that they are an ‘evil’.  However, death by withdrawal of food (or more accurately, by cessation of eating) is often the method of dying chosen by those who ‘will’ their own deaths.  Because such persons are often said to die with great composure, it is permissible to draw the conclusion that death by the withdrawal of food (and, a fortiori, of ANH) is not necessarily destructive of ‘a good death’.

 

10 The ‘slippery slope’ as experienced in Germany in the inter-war years

 

Many deny the relevance of the Nazi ‘euthanasia’ programme to current bioethics debates but the German experience was of such horrific proportions that such claims cannot be allowed to go unexamined. 

Those who argue that the Nazi experience of euthanasia was sui generis and, as such, irrelevant to current debates assert either:

*      that Nazi euthanasia developed from, and depended on, a racist and anti-Jewish belief system which was peculiar to Nazism and has no counterpart in today’s western democracies; or

*      that it involved especially cruel practices of a patently obvious immorality and utterly distinct from proposals currently being advocated.

These arguments have been examined in Appendix E (which sketches the intellectual climate leading to the introduction of euthanasia in Germany and its development under the Nazis).  Before examining the conclusions of that appendix it may be of interest to see how some modern bioethicists treat this question of relevance.

 

Nazi Euthanasia - some views as to its relevance to current debates

 

All moral blame serves two purposes: the obvious one of condemnation, but a much more subtle and dangerous one of fuelling self-righteousness - of suggesting that we, who condemn, could never be involved in the practices which we condemn.  Edmund Pellegrino in a recent Editorial in The Annals of Internal Medicine notes that adopting such attitudes allows us the smugness of believing that:

“So obvious these moral lessons seem now, and so gross the malfeasance, that it seems redundant to revisit them.  Certainly we do not need to study such gross moral pathology that could never happen again.  That is a dangerous conclusion. ... These lessons must be repeatedly relearned.  They are pertinent to other contexts and other issues in today’s intensive bioethics debate.” [lviii]

There is a hint of such complacency in the all too easy dismissal by Margaret Pabst Battin, for example, of the link between the scarce resources argument - as often currently formulated - and as formulated in Nazi Germany.  Speaking of the current scarce resources argument, she says:

“It is important to note that this is not the same as the ‘useless eaters’ argument advance by the Nazis as grounds for the destruction of mentally retarded persons and others, though it would have been applied in some of the same cases.  The ‘useless eaters’ argument does not assert that the use of resources is not of benefit to the person in question; it asserts that this use of resources is not of benefit to others in the sense that the person in question is ‘useless’ to society.  There is no issue in the current question about whether the Alzheimer's patient is ‘useful’ to others, but instead about whether the resources are useful to him or her.” [lix]

Firstly, this assumes that the Nazi argument in favour of euthanasia was a simple utilitarian one, but as we shall see,[lx] it was not.  Secondly, she confuses questions of futility - which can be discussed even if resources are not limited -  and scarce resources.  Her formulation of the scarce resources argument, i.e. not using that which confers no benefit, is an argument against waste and, as such, the existence of and, a fortiori, the strength of any competing claims to the resources is irrelevant.  Furthermore, it seems incompatible with formulation of the scarce resource argument as used by such as Raanan Gillon (describing one of Professor Andrews’ patients):

 “... recovered sufficient consciousness to smile at cartoons, to show pleasure when his wife was present and to show distress when she was absent.  If resources were unlimited ... then the treatment should continue.  But resources are severely limited, ... the cost to others is too great for its provision to be just or fair.” [lxi] 

 

The conclusions drawn in Appendix E

 

*      Though the euthanasia programme undoubtedly set the stage for the anti-Jewish holocaust and is crucial for its understanding, the converse is not so.  Neither racism nor antisemitism was a factor in the development of euthanasia in Germany; the full development of the child euthanasia[lxii] programmes could have occurred even in the absence of Nazi racial policies.

*      Many involved in the euthanasia programmes were motivated, however misguidedly, by compassion.  Friedlander mentions[lxiii] that the doctors involved in the euthanasia programmes occasionally gave lethal injections to severely injured German soldiers, suggesting that any attempt to assert that the doctors were motivated solely by ill-will is untenable.  The exemption of Jews from the ‘mercy death’ programmes - in the context of considerable anti-Jewish sentiment - is further evidence that these programmes were not perceived in terms of punishment or conferring disadvantage, but rather as conferring advantage.[lxiv]

*      Though euthanasia - as advocated by Binding and Hoche[lxv] - had some societal, or 'statist', aspect to it that might serve to distinguish it from current definitions of the ‘right-to-die’- which stress personal autonomy and individual rights - this is more apparent than real.[lxvi]

 

These conclusions show that arguments to the effect that the development of euthanasia in Nazi Germany were sui generis and, accordingly, of no relevance to modern bioethical debates, cannot be sustained; indeed, a clear lesson can be drawn in relation to the ease with which ‘slippery slopes’ can develop from small, seemingly innocuous, beginnings:

“Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they all started from small beginnings ... it is important to realise that the infinitely small wedged-in lever from which this entire trend of mind received its impetus was the attitude towards the nonrehabilitable sick.” [lxvii]

Derr believes that the most important lessons to be drawn are:

“Lesson 1: What has happened, can happen. ...

 Lesson 2: If a culture adopts the practice of active euthanasia ... the killing should be done by nonphysicians and without physician involvement. ... It was Hippocrates’ genius to realise that if medicine is to avoid playing the role of society’s executioner, it must renounce killing utterly and without exception.  The fatal error of German medicine ... was to think it could accept a little killing ...” [lxviii] 


 

Section 2: The ‘P-GD’ conceptual structure

 

In this section the ‘P-GD conceptual structure’ is first developed in a simplified form which focuses on the interests of the individual patient, their family and their medical carers; the wider social interests being disregarded (i.e. the obligations to the patient arising from Charity and JusticeI are considered but not those arising from JusticeS);[lxix] this is undertaken Subsection 1. 

A more complete form of the structure is subsequently developed which analyses the obligations flowing from Charity, JusticeI and JusticeS; this is undertaken in Subsection 2.[lxx] 

 

Subsection 1:  The ‘P-GD conceptual structure’: the simplified version[lxxi]

 

Step 1:  The need (in other than emergencies) to establish whether communication is possible.

 

Other than in cases of emergency - which are discussed below - the medical carers’ primary obligation before deciding on a treatment strategy[lxxii] for an individual patient is to seek to establish communication with that patient.  The reason for this is that if the patient is in fact able to communicate - and is thus a ‘person’ with ‘rights’ and, in particular, the right to refuse treatment - then treatment given in the absence of consent is not justifiable either legally (being a trespass) or ethically (in that it contravenes the obligations of Justice).[lxxiii]

The level of communication required is, in the present context, that which is sufficient to give, or to refuse, consent.[lxxiv] 

The standard of diligence required in judging that communication is not possible is based on the recognition that an erroneous determination can result in the rights of the patient being denied; furthermore, an erroneous determination that the ability to communicate is permanently lost is - if negligently made - morally equivalent to a wrongful killing.

 

Step 2:  The situation in regard to medical emergencies.

 

This concerns situations where the effort to establish communication - and the consequent delay necessitated in so doing - may be detrimental to the life or health of the patient (the example given in the earlier discussion related to the saving of a drowning man without first seeking his consent).  In law, such interventions are permissible under the legal doctrine of ‘necessity’; ethically, they can be justified under the ‘Principle of Minimal Intervention’. 

It is important to recognise that it is minimal intervention that is justified by this principle so that, in particular, an intervention whose goal was the death of the patient could not be justified irrespective of how ‘desirable for the patient’s sake’ this appeared to be; another way of stating this is that ‘absolute quality of life’ judgements are not permissible in such circumstances.

 

Step 3:  Even the permanent loss of an ability to communicate does not, of itself, imply that consciousness - and the ability to experience pain - is absent.

 

The grounds for the assertions that an individual lacks consciousness and the ability to experience pain have been exhaustively examined in Part 1[lxxv] where it was shown that such assertions have an irreducible core of uncertainty.[lxxvi]  Wittgenstein’s great contribution to the analysis of such propositions was in his noting that such judgements are primarily to do with the attitude adopted to an individual; scientific issues being of purely secondary importance.  Thus, the attribution of consciousness and the ability to experience pain to an individual patient depends primarily on whether one feels a present sense of empathy with them. 

The main concern of this thesis is with PVS patients; it has been argued[lxxvii] that the level of doubt in connection with the diagnosis of PVS and the consequences of incorrectly judging any patient as being unable to experience pain (when contrasted with the consequence of incorrectly judging any patient as being able to experience pain) justifies the conclusion:

Conclusion 5 -5 : All patients diagnosed as PVS should be treated as if they are conscious and can experience pain.

In this regard, Kòbler-Ross tells an apposite story:

“Mrs F was a terminally ill and severely debilitated Negro woman who lay in her bed for weeks, motionless.  Looking at her dark-skinned body in those white bed sheets reminded me in a gruesome way of tree roots.  Due to her crippling disease, it was hard to define the outline of her body or her features. ... The patient had had a stroke recently and was unable to speak; she was also unable to move any limbs, and it was presumed that her mind was no longer functioning. ... maybe it was just an old habit of mine to keep my patients informed of what was going on.  I told her I was taking her daughter away for a while ... The patient looked at me and I understood two things: First, she was fully aware what was going on in her environment, in spite of her apparent inability to communicate; the second, and unforgettable lesson, was never to classify anybody as a so-called vegetable even if they appear to be nonreactive to many stimuli.” [lxxviii]

 

In the analysis to follow it is necessary to distinguish between three situations:

 

A:

where communication is believed to be presently possible;

B:

where communication is not presently possible but is expected to be possible at some future stage; and

C:

where it is believed that communication is permanently impossible.[lxxix] 

 

 

A:  Where communication with the patient is believed to be presently possible

 

Step 4A:  The need to obtain consent to a proposed intervention.[lxxx]

 

The need to obtain consent does not imply that in all situations it is necessary to obtain an explicit verbal consent: the road accident victim (who, let us assume is able to communicate) does not need to be explicitly asked for consent for permission to apply a tourniquet to stop his bleeding; consent - as in so many other areas of life - can be read from demeanour and from many of the other clues that we, as humans, are well used to interpreting.[lxxxi]  The important principle to recognise is that to treat a person without their consent  - even in situations where the proposed treatment is unanimously agreed to be in their ‘best interests’ - is a denial of their 'personhood', this is especially so if against their express wishes.  The argument against medical paternalism is based not on utilitarian grounds - quite the contrary, to insist on the need for consent may hinder medical efficiency and may result in ‘inappropriate’ medical treatment - but on the requirements of Justice;[lxxxii] this point is well expressed in Foot’s comment that:

“It is important to emphasise that a man’s rights may stand between us and the action we would dearly like to take for his sake” [lxxxiii]

 

Step 5A:  All treatment decisions should be made on an ‘incremental quality of life’ basis;   ‘absolute quality of life’ judgements are prohibited;

 

The decision whether or not to give treatment to an individual must (if it is to accord with Charity) be in his ‘best interests’; this implies either that his quality of life will be improved by the treatment (an ‘incremental quality of life’ judgement)[lxxxiv] or that his quality of life is so poor that he should be ‘allowed’ to die (an ‘absolute quality of life’ judgement).

‘Absolute quality of life’ judgements are prohibited for patients with whom communication is believed to be presently possible[lxxxv]; such patients are ‘persons’ and are entitled to all the rights of persons including the ‘right to life’; this implies - as has been argued earlier[lxxxvi] - that all strategies (whether by act or omission) which have the death of the patient as their goal are impermissible if activated without the consent of the patient.  What of the 90 year old patient who gets pneumonia?  Assuming that such a death would be, for him, ‘a good death’,[lxxxvii] must he give his consent to not getting the antibiotics which would permit him to recover?[lxxxviii] 

 

Step 6A:  Medical decision-making on the ‘threshold of death’

 

I have argued[lxxxix] that death can, in certain circumstances, be a ‘good’.  However, to occasion the death of another and for this death to be described as a ‘good’, it must first be in accord with Charity (i.e. be ‘for the sake of’ this other) and, secondly, it must not conflict with Justice.

The occasioning of the death of another can be accomplished ‘directly’ by an act - usually described as ‘killing’[xc] - or by indirect means.

A ‘killing’ obviously breaches the patient’s ‘right to life’ if contrary to their expressed wishes; a breach also occurs even if the killing, though not contrary to the patient’s expressed wishes, is not in accordance with their explicit instructions.[xci]  However, a ‘killing’ in accord with the patient’s expressed wishes (i.e. an ‘assisted suicide’) would - if it is also believed to be for the ‘best interests’ of the patient - accord with both Justice and Charity; as such, it is ethically permissible.

What of the withdrawal of life-sustaining treatment (including ANH) which forseeably results in death?  Two cases need to be distinguished:

(i)   where the death of the patient is the goal of the withdrawal of treatment;

(ii)  where the death of the patient, though not the goal of the withdrawal of treatment, is a foreseeable or even necessary consequence.[xcii]

In relation to (i) the contemplated course of action is morally equivalent to a killing[xciii] and is justified only if it is in accord with the express wishes of the patient.

In relation to (ii) an observation made by Daniel Callahan (in speaking of ‘a good death’) is of assistance:

“If it [i.e. ‘a good death’] is carried out without the informed consent of a patient, it is a basic offence against that person’s dignity ... the desire for a peaceful death does not override such obligations.” [xciv]

This raises extremely difficult questions: does it mean that the 90-year-old pneumonia victim must consent to their non-treatment?  Strictly interpreted it does.  Must this consent be explicit?  What if the patient does not wish to confront such a question?  Must the physician force a patient to discuss the issue of death in order to get an explicit consent not to treat?[xcv]  Such a suggestion seems barbarous.  A conclusion that can be tentatively drawn is that a strategy which forseeably results in the death of a patient, and which is carried out unknownst to the patient, is not permissible; some gesture of consent - even to the extent of a leaving of such questions to the judgement of the physician - must be made.[xcvi]

These problems have not been adequately resolved under the existing conceptual frameworks and the answers offered by the ‘P-GD conceptual structure’ are not wholly satisfactory; in defence, it can be stated that the resolution of these questions was not the focus of this thesis.  The inclusion of the rights of others[xcvii] into the analysis - as recommended by Callahan[xcviii] - may help in finding a more fitting resolution of these problems.

 

B:  Where communication with the patient, though presently impossible, is believed to be possible at some future stage.

 

Patients classified under this subsection have ‘attenuated personhood'.

 

Step 4B:  Medical treatment decisions which do not forseeably result in death 

 

All such decision must be made on a ‘best interests’ basis.  As expressed in terms of the obligations imposed by Charity and Justice, the relevant principle is that all decisions must be based on Charity (i.e. ‘for the sake of’ the patient); the obligations of Justice being in abeyance.

 

Step 5B:  Medical treatment decisions which forseeably result in death

 

It is necessary to distinguish between decisions which forseeably (or even necessarily) result in the death of the patient but where the death is not the goal of the procedure, and decisions where death is the goal of the procedure. 

An example of the first type of treatment decision is the giving of morphine where the aim of the procedure is to alleviate pain but where it is recognised that death may result.  The withdrawal of ANH - if done to alleviate severe discomfort occasioned by the tube feeding - also falls into this category; in such a case death would be a necessary result of the procedure but not it’s goal.

An example of the second type of treatment decision is the withdrawal of ANH in cases where the decision to do so is justified on the grounds of the poor (absolute) quality of life of the patient.

 

Step 6B:  Medical treatment decisions which forseeably (even necessarily) result in death but do not have death as their goal, are not prohibited.

 

Such decisions are - if made in the ‘best interests’ of the patient - in accord with the obligations of both Justice and Charity.

 

Step 7B:  Medical treatment decisions which have the death of the patient as their goal, are prohibited.

 

Such decisions though, perhaps, in accord with obligations of Charity, conflict with the obligation of Justice.[xcix]  The situation of infant patients is of special interest.

If the patient is an infant, then their right to be protected from procedures which have death as their goal (a right protected by their ‘attenuated personhood') is no more open to being abrogated by the decision of its parents than by any other individual.  (All other decisions are taken on the basis of the infant’s ‘best interests’ - a matter concerning which the infant’s parents would normally be an appropriate judge).

Two examples show this principle in action:

(i)   The example given by Phillipa Foot[c] of the Down Syndrome infant with the easily curable abdominal obstruction who will die in the absence of treatment.

The goal of the withholding of such treatment is the death of the infant;[ci] the fact that the treatment is being withheld either in the ‘best interests’ of the infant or at the behest of the infant’s parents provides no justification.

(ii)  The case T (a minor) (wardship: medical treatment).[cii]  This case concerned an 18-month-old infant ‘T’ who needed a liver transplant to survive but whose mother refused consent believing that the operation would lead to greater suffering and distress for T and was, thus, not in his ‘best interests’.  The operation had a success rate of 80-90% and, if performed, the prognosis for T was that he would survive into adulthood.  The courts upheld the parents’ decision holding that “It was in T’s best interests that decisions as to his future treatment be left to his parents.” [ciii]

Under the ‘P-GD conceptual structure’ T had an ‘attenuated personhood'; [civ] as such, he forfeited all rights other than the right to life.  All decisions other than those whose goal was T’s death could be take in his ‘best interests’ but the decision that his death was in his ‘best interests’ is prohibited.  This implies that the operation should be performed. 

 

Step 8B: Medical treatment decisions must be made on an ‘incremental quality of life’ basis; ‘absolute quality of life’ judgements are prohibited

 

This is simply a restatement of steps 4B, 6B and 7B.

 

C:  Where communication with the patient is believed to be permanently impossible.

 

Patients classified under this subsection have lost their 'personhood'.

 

Step 4C:  All treatment decisions, including those whose goal is the death of the patient, are to be taken on a ‘best interests’ basis.

 

Accepting that death could be a ‘good’ for such a patient,[cv] can a distinction be drawn between the ‘killing’ of such a patient and indirect procedures which have as their goal the death of the patient? 

 

From the perspective of the patient’s family.

 

In discussing the concept of ‘a good death’ it was pointed out that the ‘goodness’ of the death related not only to the individual who was dying but also to their surviving family and the wider society.[cvi]  Callahan points out that for a death to be ‘a good death’ it must result in minimal deformation to the family and to the wider society.[cvii]  Hence, even if from the patient’s perspective no distinction could be drawn between a ‘killing’ and strategies (such as the withdrawal of life-sustaining treatment) which have the death of the patient as their goal, a distinction might be drawn from the family’s perspective: a family might, for religious or other reasons, willingly accept withdrawal of life-sustaining treatment but not accept a ‘killing’;[cviii] conversely, a family might regard the giving of a lethal injection as being preferable to a withdrawal of life-sustaining treatment in that the resulting death was less traumatic.

Can a distinction be drawn between a ‘killing’ and more indirect strategies when judged solely from the patient’s perspective?

 

From the perspective of the patient

 

The argument in favour of a ‘killing’ (by, for example, a lethal injection) is that such a death is quick and painless.[cix]  However, a recent report[cx] on the practice of euthanasia in Holland argues differently.  This report - which was based on a survey carried out amongst doctors[cxi] - found that medically assisted suicides have not always been swift and painless: the doctors admitted to ‘botching’ a quarter of all cases.[cxii]

The argument against indirect procedures such as the withdrawal of ANH is that - being tantamount to starvation - they cause unnecessary suffering; yet against this it can be argued that death by the withdrawal of food and drink is the preferred method of many who ‘will’ their own deaths.[cxiii]  

The medical ethicist Mary Warnock argues that:

“I’m not sure that in the case of euthanasia I don’t believe in a bit of prevarication and deception.  There’s not much difference between killing and letting die.  What used to happen when people had babies at home and they were severely deformed was that the doctor or midwife would ‘cause’ the baby to die by turning it over or smothering it.  My father-in-law was a GP and he used to do it.  Afterwards he would say he couldn’t save it, and there would be no questions asked.  A very good thing.” [cxiv]

In a subsequent interview[cxv] she reiterated the point that a serious moral difference did not exist between killing someone and letting them die, and said that the worst way of killing someone is to withdraw food from them; a ‘better’ way of killing them is to give them, as doctors do, massive doses of painkillers.

The conclusion that I wish to draw is that:

Conclusion 11 - 2 : Judged solely from the perspective of the patient involved, an act which results in the patient’s death (i.e. a ‘killing’) is preferable to indirect procedures which have the patient’s death as their goal, in that the former is likely to cause less suffering.  Judged from the perspective of the patient’s family, there is no a priori reason for preferring either alternative.  No other moral distinction of substance can be drawn between these alternatives.[cxvi]

 

Subsection 2:  The ‘P-GD conceptual structure’: the fuller version.

 

In attempting to incorporate the wider social interests - i.e. JusticeS - into the analysis given in the preceding subsection (which simply considered the obligations flowing from Charity and JusticeI) two issues are of an obvious relevance: scarcity of resources and the development of a ‘slippery slope’.

 

Scarcity of resources

 

The problem of finding ethical criteria for the allocation of ‘scarce resources’ is, perhaps, one of the most contentious and difficult to confront medical ethics at the present time; the discussion here is restricted to simply noting one way in which the ‘P-GD conceptual structure’ might assist.

The ‘P-GD conceptual structure’ admits two classes of patients: those who are ‘persons’[cxvii] and those who have no[cxviii] personhood.  In a situation where resources are scarce it seems clear that that if there was a claim on such resources by two patients one of whom was a ‘person’ and the other an ‘OMW’ (but not a ‘person’), equal in all other respects,[cxix] then the claim should be resolved in favour of the ‘person'.  This would imply that[cxx] in cases where death was appropriate (i.e. a ‘good’ and contemplated ‘for the sake of’ the patient) but where the patient’s family refused to consent to either a killing or a withdrawal of life-sustaining treatment, that the decision could be justified by appealing to the rights of other patients to these scarce resources.[cxxi]

Conclusion 11 - 3 :  “Patients, in losing their ‘personhood’, also lose the right to equality of treatment with ‘persons’;[cxxii] hence, in resolving claims to scarce resources between ‘persons’ and ‘non-persons’, the claims of ‘persons’ take precedence, all else being equal.”

 

The development of a Slippery Slope

 

In discussing the concept of ‘a good death’ in relation to a patient who had permanently lost the ability to communicate (and, thus, lost their 'personhood') it was concluded that - if judged from the perspective of the patient - a ‘killing’ was preferable (in that it caused less suffering) to indirect strategies which had the patient’s death as their goal.  If judged from the perspective of the patient’s family, no general conclusion could be reached as all depended on the circumstances of the particular case.[cxxiii]  Does the inclusion of the wider social interest (JusticeS) into the analysis give reasons for changing this conclusion?  In other words, are the social consequences of permitting direct killing different from the social consequence of permitting an indirect procedure - such as the withdrawal of ANH - whose goal is the death of the patient? [cxxiv]

 

Direct killing: the social consequences

 

Foot argued that certain forms of euthanasia should not be legalised, even though they were morally unobjectionable when considered as individual acts; amongst her reasons was the difficulty in ensuring that consent was truly voluntary and the possible social consequence of legalisation in so far as it might lessen the willingness of society to take care of the aged.  Drawing on the experience of euthanasia in Nazi Germany, Foot argued that:

“Apart from the special repugnance doctors feel towards the idea of a lethal injection, it may be of the very greatest importance to keep a psychological barrier up against killing.” [cxxv]

Foot’s point on consent - though relevant to the debate on assisted suicide - is not immediately relevant in discussing end-of-life care for PVS patients because they have lost the ability to communicate; there is, however, a danger that the level of ability to communicate required might well become the subject of contention.[cxxvi]  Foot’s second point - on the danger of lessening the willingness to take care of the aged - also seems, at first hearing, to be of no particular relevance to proposals in relation to PVS patients because their situation differs so greatly from the normal aged.  However, the level of misdiagnosis which exists in relation to PVS[cxxvii] and some recent proposals made by the BMA(1999) for widening the categories under which withdrawal of ANH should be permitted,[cxxviii] give reason for caution.

Foot’s last point on the psychological danger of permitting killing is her strongest and it is here that the experience of euthanasia in Germany is most relevant.  Justice Robert H. Jackson, who was Chief of Counsel for the US at the Nuremberg Trials, has argued:

“To begin with, [the Hadamar euthanasia program] involved only the incurably sick, insane and mentally deficient patients of the Institution.  It was easy to see that they were a substantial burden to society, and life was probably of little comfort to them.  It is not difficult to see how, religious scruples apart, a policy of easing such persons out of the world by a completely painless method could appeal to a hard-pressed and unsentimental people.  But ‘euthanasia’ taught the art of killing and accustomed those who directed and those who administered the death injections to the taking of human life.” [cxxix]

A conclusion which is endorsed by Derr:

“The fatal error of German medicine ... was to think it could accept a little killing ...” [cxxx]

A further reason for caution in permitting direct killing is that it would certainly require legislation.[cxxxi]  The experience of legislating on social issues[cxxxii] is that, under the pressure of continued litigation, the categories of applicability tend to widen from that which was originally envisaged; the act of legislating itself becoming the initial step of the slippery slope.

Conclusion 11 - 4 :  Though individual cases of killing may - when judged as isolated cases - be morally unobjectionable; the consequences to the wider society of permitting such practices are likely to be so seriously detrimental to general social wellbeing, that they should not be permitted.

 

Indirect strategies:[cxxxiii] the social consequences

 

Whilst it may seem at first sight that the permitting of indirect strategies - such as the withdrawal of ANH - would involve less danger of occasioning a slippery slope than would the permitting of killing, the Nazi experience - where withdrawal of food and hydration was often used as a mechanism for euthanasia[cxxxiv] - suggests caution. 

The current legal position[cxxxv] in Ireland and in the UK on the withdrawal of ANH is that, if it is medically justified as being in the ‘best interests’ of a patient, then it is not regarded legally as being a ‘killing’; though in England a court application is required prior to such a withdrawal and furthermore, it is only permitted in relation to PVS patients.  This has the effect of not assimilating the withdrawal of ANH to standard treatment decision-making procedures.[cxxxvi]  The Irish courts have not required that an application to the courts be made prior to the withdrawal of ANH and neither have they restricted the procedure to PVS patients; the effect is that decisions to withdraw ANH are (in Irish law and medical practice) fully assimilated with normal treatment decisions.[cxxxvii]

Considered from the wider social perspective, there are both advantages and disadvantages in not considering the withdrawal of ANH as a ‘killing’; first, the advantages.

 

Distinguishing the withdrawal of ANH from direct killing: the social advantages

 

The advantage of not considering the withdrawal of ANH as being a ‘killing’ is that then it can be used as a strategy for resolving ‘end-of-life’ issues for such as PVS patients without precipitating the slippery slope that might be occasioned by sanctioning 'killing' even in circumstances which were precisely defined.  Furthermore, the precise stipulation of such circumstances would require legislation, thus adding a further momentum to any slippery slope.

 

Distinguishing the withdrawal of ANH from direct killing: the social disadvantages

 

However, the pretence - and it is a pretence[cxxxviii] - that the withdrawal of ANH is not morally equivalent to a killing, creates its own dangers.  It permits the withdrawal of ANH to be assimilated to normal medical treatment decisions and this belies the gravity of the decision to withdraw ANH, a seriousness which would be patent in the giving of a lethal injection.  In this, the withdrawal of ANH has much in common with some applications of the double effect doctrine when the latter is used as a mechanism for shedding responsibility.[cxxxix]  Furthermore, when killing or its moral equivalent, is spoken of as ‘treatment’, [cxl] the prohibitions that spring from conscience are all too easily ignored: in considering the withdrawal of ANH simply as ‘treatment’ there is no obvious moral reason why it should not, in certain circumstance, be considered appropriate for non-PVS patients: no reason, for example, why it should not be applied to disabled infants, irrespective of the level of disability, provided only that it was adjudged to be in their ‘best interests’.  In this context a recent report of police inquiries into the deaths of more than 30 elderly patients in a mental hospital in Derby is of interest: inquiries began when nurses reported 15 senior colleagues to the police.  ‘They alleged that food and water were withdrawn from vulnerable patients leaving them weakened and open to secondary conditions such a pneumonia.’ [cxli]  It is, of course, necessary to wait until the full facts of this case become clear but, assuming the facts are as they seem, it would not be unreasonable to suppose that these same senior nurses would have been appalled at suggestions that they give lethal injections to the patients from whom they withdrew food and hydration.  Further evidence of a diminution in the seriousness with which decisions to withdraw ANH are regarded is found in a recent proposal from the BMA which urged that the requirement to apply to the courts for permission to withdraw ANH should be removed;[cxlii] it also proposed that the withdrawal ANH be permitted in cases involving stroke victims and the confused elderly who were not terminally ill.[cxliii]  These developments suggest that the withdrawal of ANH is being too closely associated with normal treatment decisions.

 

The withdrawal of ANH in relation to a killing: a proposal

 

A possible path out of these difficulties is to indulge in a slight pretence[cxliv] and to argue that the withdrawal of ANH should be considered not as a ‘killing’ - for to do so would precipitate a slippery slope both by virtue of the permitting of killing and by virtue of the legislation that this would require - but to be so close to being ‘killing’ that very stringent procedures are required for its use as a treatment strategy.  In short, the withdrawal of ANH should be considered as if it was on the borderline, just short of being classified, both morally and legally, as ‘killing’.  Three alternative procedures are suggested:

*      An obligation on carers to apply to the courts for permission to withdraw ANH.  This would give the courts a supervisory role and ensure that the withdrawal of ANH was considered by medical carers to be a uniquely serious procedure.  This is the situation currently adopted in England. 

*      An obligation on carers to apply to the courts to validate a determination that 'personhood' was lost.  This would have the advantage of clarifying the treatment criteria to be subsequently used - i.e. all treatment withdrawal decisions to be based on the ‘best interests’ of the patient - and could be made in conditions other than the emergency conditions usually associated with court applications for leave to withdraw life-sustaining treatment.

*      Some regulatory system other than the courts[cxlv] to ensure that the withdrawal of ANH and similar treatment strategies whose goal is the death of the patient, is permitted only in cases where ‘personhood’ is absent. 

Conclusion 11 - 5 : The withdrawal of ANH carries less risk of creating undesirable social consequences than does direct killing,[cxlvi] provided that the withdrawal of ANH is regarded as sui generis different from other treatment decisions and of a seriousness such as to require special safeguards.

 

Section 3: PVS patients under the ‘P-GD’ conceptual structure.

 

The arguments on how the ‘P-GD conceptual structure’ would resolve problems associated with ‘end-of-life’ decisions for PVS patients have been presented in the preceding Sections; they will be collated here as a series of points:

(i)         The misdiagnosis rate for PVS is of such a magnitude that, in relation to any particular PVS patient, the possibility of misdiagnosis should always be borne in mind.[cxlvii]

(ii)       PVS patients should be treated as if they are conscious and can experience pain. 

This obligation - based, as it is, on Charity -  does not lapse on a determination that the patient has permanently lost the ability to communicate (and, thus, lost their 'personhood').[cxlviii]

Whilst writing these concluding remarks, a recent Editorial in the journal Anaesthesia has come to hand which argues that anaesthesia should be routinely given to those classified as being brainstem dead when their organs are being removed.[cxlix]  This proposal is considerably in advance of what is proposed in this thesis which is that PVS patients should be treated as if they are conscious and can expereince pain.

(iii)      The primary obligation[cl] - in other than medical emergencies - is to attempt to establish communication with the patient.[cli]

(iv)      Until a determination is made that a patient’s inability to communicate is permanent, the patient has an ‘attenuated personhood': this implies that all medical decisions in relation to the patient’s care should be made on the basis of his ‘best interests’, but that no intervention - such as the withdrawal of ANH -  should made which has the patient’s death as its goal even if such were judged to be in his ‘best interests’.[clii]

This is equivalent to saying that ‘incremental quality of life’ judgements are permitted but ‘absolute quality of life’ judgements are prohibited.

(v)        An erroneous determination that a patient’s ability to communicate is permanently lost is - if negligently made - morally equivalent to a wrongful killing.[cliii]

(vi)      On a determination that a patient has permanently lost the ability to communicate, their 'personhood' and, with it, all their rights cease.  Subsequently all health care decisions - including those whose goal is the death of the patient - are to be taken on the basis of the patient’s ‘best interests’.  (Subject to the provisos that the rights of other patients to scarce resources may, in certain cases, take precedence over such a patient’s ‘best interests’ and secondly, that the direct killing of such a patient is prohibited - by reasons of the wider social interest - even though it may be in his ‘best interests’.)

(vii)     Once a determination is made that a PVS patient has permanently lost the ability to communicate, they have died ‘as a person’; they have entered onto the threshold of death and the obligation[cliv] to ensure that they achieve ‘a good death’ arises.[clv] 

In discussing this question, an insight garnered from the families of such patients is useful:[clvi] the families distinguish between the patient’s ‘death as a person’ and the ‘death of the body’ of the patient.  Accepting this distinction, it becomes possible to state that the process of death has begun with the determination of loss of personhood and accordingly the primary obligation is to ensure ‘a good death’ for the body.

The interests[clvii] of the patient’s family are of importance in determining both the manner and the timing of the death; for example, it may be that circumstances are such that the death should be postponed.[clviii]  The interests of the family are, however, not decisive in that the rights of other patients to scarce resources must be considered.[clix]

The manner of death should be by the non-treatment of a potentially fatal illness or by the withdrawal of ANH.  Though active interventions which cause death (i.e. are a ‘killing’) are morally equivalent to a withdrawal of ANH in situations where the death of the patient is the goal of the procedure, they should be prohibited for social reasons.

(viii)   Stringent safeguards are required in permitting strategies - such as the withdrawal of ANH - which have the death of the patient as their goal.

(ix)     The analysis appropriate to ‘end-of-life’ decisions for ‘near-PVS’ patients is identical to that for PVS patients.


 

Section 4: Anencephalic and Down Syndrome infants under the ‘P-GD’ conceptual structure.

 

The arguments as to how the ‘P-GD conceptual structure’ would resolve problems associated with ‘end-of-life’ decisions for Anencephalic and Down Syndrome infants have been presented in the preceding Sections; they will be collated here as a series of points, first for Anencephalic infants and then for Down Syndrome infants.

 

Anencephalic infants

 

(i)         In cases of anencephaly, the absence of a developed cortex indicates that communication will never be possible.[clx]  In such cases both ‘personhood’ and ‘attenuated personhood' are absent.

(ii)       Such infants should be treated as if they are conscious and can feel pain. 

In this regard the recent recommendation that ‘brainstem dead’ patients should be routinely anaesthetised before organs are removed is highly persuasive.[clxi]

(iii)      The obligations flowing from Justice, but not from Charity, are in abeyance.  The infant - not having either 'personhood' nor ‘attenuated personhood' - has no rights and, in particular, has no ‘right to life’; all health care decisions must be taken on the basis of the infants ‘best interests’. 

(iv)      Procedures which have the death of the infant as their goal are permitted if they are in the ‘best interests’ of the infant.  In other words, both ‘incremental’ and ‘absolute quality of life’ judgements are permitted.

(v)        The obligation to provide such an infant with ‘a good death’ arises out of the obligations to the infant which are based in Charity.  They also arise - and may be diminished by (in cases where the parents do not wish the child to die) - the obligations due to the infant’s parents.  The obligations due to other patients arising from a scarcity of resources are also relevant.  The timing of the infant’s death should be decided in a manner which best accommodates these various obligations.

(vi)      The death of such an infant may not be occasioned by a ‘killing’ even if this be done solely from motives of compassion, as this endangers the wider social interest in preventing the development of a ‘slippery slope’.  Indirect strategies which have the death of the infant as their goal are permissible but only with stringent safeguards.

 

Down Syndrome infants

 

Phillipa Foot, in her discussion of euthanasia, condemned[clxii] the withholding of routine (but life-sustaining) medical treatments from Down Syndrome infants; she concluded on a note of furious indignation reminiscent of Jonathan Swift:

“And for our children, since we scruple to gas them, not even the manner of their death is ‘quiet and easy’; when not treated for an intestinal obstruction a baby simply starves to death.” [clxiii]

The ‘P-GD conceptual framework’ - using Foot’s earlier analysis in term of ‘Justice’ and ‘Charity’- is capable of translating this indignation into a more philosophical argument. 

 

(i)         Accepting that there is a substantial possibility that a Down Syndrome infant would, in adulthood, have an ability to communicate at a level which is sufficient to give consent to medical treatment,[clxiv] implies that ‘attenuated personhood' should be ascribed to the infant.

(ii)       ‘Attenuated personhood' implies that the infant has a ‘right to life’; in turn, this implies that no medical procedure which had the death of the infant as its goal, is permitted.  In other words, ‘incremental quality of life’ judgements are permitted but ‘absolute quality of life’ judgements are prohibited.  If a particular procedure improved the quality of life of a child, i.e. the ‘incremental quality of life’ increased, it should be used irrespective of views as to the value of that child’s life; to suggest otherwise is to seek to diminish that child’s personhood.

More specifically; the withdrawal of life-sustaining treatment - if not fully justified by the pain and suffering occasioned pain of the procedures themselves - is not permitted; the withdrawal of life-sustaining treatment is justified only if the quality of life of the infant after the withdrawal of treatment is better than its quality of life whilst it was being given (i.e. an ‘incremental quality of life’ judgement).

In Foot’s example of the Down Syndrome infant with the easily curable abdominal obstruction; incremental quality of life considerations imply that the operation should be performed.[clxv] 

(iii)      Simply from a consideration of the age of such infants, virtually the only circumstance where the question of ‘a good death’ might be relevant is if the infant was terminally ill.[clxvi]  In such cases the best death possible should be sought for the infant; however, the withdrawal of ANH or other strategies whose goal is the death of the infant are not permissible in that the requirements of Justice - and the prohibitions implied by the ‘right to life’ - are not in abeyance. 

 

Section 5: Conclusions.

 

The ‘P-GD conceptual structure’ is sufficiently powerful to permit the resolution of the Ward case; in fact it permits precisely the same conclusion as was arrived at in that case namely that ANH should be withdrawn as being in the Ward’s ‘best interests’ and that she be allowed to die; but it permits this solution without occasioning the ‘slippery slope’ implicit in the Ward judgement.  The ‘P-GD conceptual structure’ does this by showing:

4         that in, certain circumstances, death is a ‘good’.

4         that a ‘best interests’ analysis - despite it’s apparent attractiveness and the innocuousness suggested by its name - is necessarily destructive of 'personhood'.

4         how to delimit and ‘ring-fence’ the area where a ‘best interests’ analysis is appropriate.

4         that withdrawal of ANH is (normally) a strategy which has the death of the patient as its goal.

4         that strategies which have the death of a patient as their goal infringe (if performed without the consent of the patient) the 'personhood' of the patient.

4         that strategies which have the death of a patient as their goal differ radically from normal treatment decisions.

4         that the crucial concept in analysing ‘end-of-life’ decisions for PVS patients is not the supposed lack of consciousness of the patient, but their inability to communicate.

4         how the withdrawal of life-sustaining treatment from patients such as Down Syndrome infants, can be clearly and radically distinguished from its use in cases of PVS and near-PVS.

4         the need for stringent safeguards in cases where withdrawal of ANH is deemed to be appropriate.

 


[i] It utilises the concepts of ‘consciousness’ (in that the absence of consciousness is considered to be of importance) and ‘absolute quality of life’ (in that it sanctions ‘absolute quality of life’ judgements).

[ii] See. Conclusion 1 - 4  There is no neurological test which will determine PVS patient consciousness.

Conclusion 4 -5 : A further reason for rejecting the assertion that consciousness is necessarily absent in PVS patients, is to be found in the fact that PVS is a syndrome rather than a unitary, theoretically coherent, medical condition; and that it lies on a continuum of conditions at one end of which is the Locked-In Syndrome.

[iii] See the discussion in Chapter 7.

[iv] Strictly speaking ‘absolute quality of life’ judgements are not permitted in relation to persons (because they conflict with egalitarian principles) but are permitted in relation to ‘Objects of Intrinsic Moral Worth’ - it is, for example, quite permissible to state of a dog (an ‘OMW’ but not a ‘person’ ) that they are better off dead.

See Conclusion 7 - 5 :There are at least two reasons why ‘absolute quality of life’ judgements should be rejected: they are unreliable and they are incompatible with the egalitarian principle that all persons be treated as equal.  Furthermore ‘absolute quality of life’ judgements often function as a mechanism of denial so that situations which are unacceptable to the decision-maker are not permitted to continue.

[v] It has been so used by the English courts (see the discussion of such cases in Chapter 8, Section 2 of this thesis and in Appendix C); there is no reported case of its use by the Irish courts in a similar situation.

[vi] i.e. Artificial Nutrition and Hydration.

[vii] The ‘quality of life’ judgements which underlie such decisions are ‘absolute quality of life’ judgements; as such, they are impermissible (in respect of persons) within the ‘P-GD conceptual structure’.

[viii] See Re B (a minor) (wardship: medical treatment) [1990] 3 All ER 927 and discussed in Appendix C, case 7; in this case the decision of the Court of Appeal overturned the decision of the court at first instance which was that life-sustaining treatment be withheld. 

For an ethical discussion of such cases see Foot op.cit. p.57.

[ix] A synopsis of Foot’s arguments on euthanasia is set out in Appendix D; her argument is also discussed in the Introduction to Part 3.

[x] This distinction allows Foot to separate the ‘goodness’ of a proposed action from its ‘oughtness’ ; ‘goodness’ being a necessary, but not sufficient, condition for the performance of the action.

[xi] In Chapter 10, Section 5.

[xii]  Foot applied this latter principle in discussing ‘assisted suicide’, where she argued that to yield to a request from a dying patient that they be killed, although in accordance with Charity (the dying patient being in severe pain so their killing could certainly be ‘for their sake’) and Justice (the patient having requested their own death, their killing would not offend Justice) might nevertheless offend against the wider interests of society in that it could occasion a ‘slippery slope’ leading to a wider acceptance of killing which would be socially harmful.  (Foot op.cit. p.59)

[xiii] I wish to thank Dr. Dolores Dooley for this suggestion. 

[xiv] See the discussion in the introduction to Chapter 10.

[xv] See the arguments for proposition (U) set out in Chapter 10.

[xvi] ‘OMW’s’ for short.

[xvii]  There is no logical requirement that this particular criterion be chosen but it appears to be standard.

[xviii] See Conclusion 10 - 18 :  In stating that the ability to communicate is a necessary condition for the ascription of 'personhood'; the level of communication required is at least that which is sufficient to determine whether the patient consents to a proposed intervention. Furthermore, the standard required in determining that a patient lacks the ability to communicate is indicated by the fact that an erroneous determination that such an ability was lacking is, if negligently made, morally equivalent to a wrongful killing.

[xix] See Conclusion 10 - 21 :The principles outlined in Chapter 10 concerning obligations to others are:

*      Obligations to others flow either from Charity or from Justice. 

*      Obligations flowing from Justice take precedence over obligations flowing from Charity subject only to the ‘Principle of Minimal Intervention’.

*      The obligations to an individual flowing from Charity arise because of the ascription of consciousness to that individual; such individuals are known as ‘Objects of Intrinsic Moral Worth’.

*      The obligations to an individual flowing from Justice arise because of the personhood of that individual.

*      It is a necessary condition for the ascription of personhood to an individual that communication be possible with that individual.

*      It is a necessary condition for the ascription of rights to an individual that they have personhood.

*      Individuals who are likely to achieve an ability to communicate or who once had such an ability and for whom there is some possibility that it may be regained, have an ‘attenuated personhood'.

*      Attenuated personhood confers a right on an individual not to be killed even if this is universally regarded as being in their ‘best interests’; no other rights are conferred.

[xx] Bearing in mind that an erroneous determination, negligently made, is morally equivalent to a wrongful killing.

[xxi] This conclusion depends on an acceptance of Wittgenstein’s ‘Private Language Argument’; see Chapter 10.

[xxii] See Conclusion 10 - 22 : The assertion that all decision-making in relation to a patient who has permanently lost the ability to communicate, should be on the basis of the patient’s ‘best interests’, necessarily entails that such a patient has lost their personhood.

Conclusion 10 - 23 : On the understanding that the obligations flowing from Charity are not diminished solely by reason of the loss of personhood, it can be asserted that a loss of the ability to communicate which is judged to be permanent entails a loss of personhood.

[xxiii] This discussion draws on the earlier discussions in Chapter 6, Section 3, Subsection 1; Chapter 7, Section 3, Subsection 2 and Chapter 8, Section 2.

[xxiv] Foot op.cit. p.34.

[xxv] ibid. p.48.

[xxvi] i.e. infants with mental or physical defects.

[xxvii] ibid. p.56-7.

[xxviii] Foot does discuss the impossibility of communicating with such children and canvases the possibility of a guardian being appointed to give consent; however, the ‘consent’ that is envisaged relates not to non-treatment but to the giving of a lethal injection.

[xxix] Because the patient’s present inability to communicate precludes them arguing their case.

[xxx] However Professor Andrew Grubb - in an article entitled ‘When is it just to kill a Siamese twin so that the other might live?‘ [The Times 12-9-00] - states:

“The so-called ‘doctrine of double effect’, whereby an undesired bad consequence of a doctor’s action may be excused if incidental to achieving a good outcome, does not apply when the bad consequence is a moral certainty and which the law takes to be intended.”

[xxxi] A similar thought experiment allows us to distinguish between cases where death is a certainty and cases where death is the goal of a procedure: consider cases of ectopic pregnancy where the mother’s life is endangered by the pregnancy.  The procedure usually undertaken necessarily results in the death of the foetus; imagine an invention which allowed the mother’s life to be safeguarded whilst allowing the pregnancy to continue; such an invention would obviously be used in such cases, thus showing that whilst the death of the foetus may, at present, be the necessary consequence of the current medical procedure, it is not its goal.

See Chapter 7, Section 3, Subsection 2 for a fuller discussion of this problem.

[xxxii] See also Teresa Iglesias, ‘Ethics, Brain-Death, and the Medical Concept of the Human Being.’ Medico-Legal Journal of Ireland (1995) at p.57:

“The intent in the deprivation of nourishment is to bring about death, which means to kill.  I cannot interpret this but as euthanasia.”  [emphasis in the original]

See also the earlier discussion (Chapter 8, Section 2) of a reported case concerning the withdrawal of syringe feeding from a patient who was not PVS: Re R (Adult: Medical Treatment). (Appendix C - number 11).  ‘R’ was a 23 year old who had been born with a serious malformation of the brain and with cerebral palsy; he was unable to chew and his food was syringed into the back of his mouth.  The original court application had sought permission to withhold life sustaining treatment including ANH (i.e. the syringe feeding) though this was subsequently amended to a request for permission to insert a gastrostomy tube; the court granted this permission on the implicit understanding that an application to remove the gastrostomy tube might subsequently be made. 

This application to the court appears, on its face, to be designed to manipulate the facts of the case in order that they fit the accepted legal categories for withdrawal of ANH.

[xxxiii] This may not be as great an amendment to Foot’s position as it appears, because whilst it undoubtedly helps resolve the problem posed by the Down Syndrome infant (unlike Foot’s analysis) it seems to reemphasis the point noted in Appendix C that:

“The distinction made by Foot, between active and passive euthanasia is not that between act and omission with which it is often confused.  Active euthanasia is the positive choice of a behavioural strategy - whether act or omission - which is sufficient to result in death.  Thus, the killing of a man by a lethal injection and the refusal to give him a life saving drug when under a duty to do so, are both examples of active euthanasia.”

Foot seems not to have applied this distinction in her discussion of the Down Syndrome infant; it is possible that she believes that the doctor has a duty in such cases to the parents but that he owes no duty to the infant. 

[xxxiv] See Chapter 7 particularly Conclusion 7 - 2

[xxxv] For reasons of simplicity, expected changes in the ‘life expectancy’ of an individual due to an intervention - as distinct from changes in their ‘quality of life’ - have been ignored in the present discussion; the incorporation of life expectancy does not appear to present any special theoretical difficulties, though much further work is needed to examine how this be best accomplished practically.  Some results recently published in the Journal of the American Medical Association suggest that life expectancy is of greater importance to the aged than quality of life; in examining the result of a survey of the aged only a modest correlation was found between health values and quality of life :

"Although only 30 per cent of patients rated their current quality of life as excellent or very good, over 68 per cent were willing to give up, at most, one month of 12 in exchange for excellent health."

[Reported in the Irish Times 4-2-1998]

[xxxvi] See Conclusion 5 -2 : Acting on the basis that those circumstances which are most probably true, are true, does not ensure that the unwished for consequences that flow from a (then unknowably) incorrect choice are minimised.  In such cases an index should be compiled of the probabilities of various eventualities, weighted in proportion to the magnitude of their respective unwanted consequences, and the eventuality be chosen which corresponds to the minimum index.  In short, the decision procedure to be adopted in such cases of incomplete knowledge, is that one should act so that the unwished-for consequences that flow from a (then unknowably) incorrect choice are minimised.

[xxxvii] An example of the use of such a principle is provided by the current medical practice in relation to the disposal of hypodermic syringes (in view of the danger of AIDS being transmitted): because the consequences of treating a syringe as not-infected (when, in fact, it is infected) so greatly outweigh the consequences of treating a syringe as infected (when, in fact, it is not infected), all syringes are treated as infected.  Treating only those syringes as infected which were most probably infected, would not be considered to be an appropriate practice.

[xxxviii] See Conclusion 4 -12   The best estimate for the rate of misdiagnosis of PVS is of the order of 50%. This implies that the diagnosis of PVS is essentially a random process.

[xxxix] See Conclusion 5 -5 : All patients diagnosed as PVS, should be treated as if they are conscious and can experience pain.

The phrase ‘as if‘ is used not in the sense of suggesting a pretence, but rather in the sense of suggesting that in the face of incomplete knowledge as to which PVS patients are conscious - and some undoubtedly are - all should be treated as if they were conscious.

[xl] In Chapters 1 and 3.

see especially:

*      Conclusion 1 - 2  There is no area of the brain, and no specific brain activity, that is uniquely associated with the possession of consciousness.

*      Conclusion 1 - 4  There is no neurological test which will determine PVS patient consciousness.

*      Conclusion 1 - 6  There are theoretical limits to the determination of necessary and sufficient conditions for the ascription of consciousness.  Any attempt by science to assert that particular criteria are both necessary and sufficient for ascribing consciousness  is unwarranted.

*      Conclusion 3 - 2 : As yet, no particular areas of the brain have been identified, damage to which, or whose inactivity, is uniquely associated with PVS.

*      Conclusion 3 - 3 : Excepting cases where all brain activity is absent, there are no areas, or processes, of the brain that can be uniquely associated with the experience of pain to the extent that the non-activation of these areas, or the absence of these processes, would justify the conclusion that pain is not present.

*      Conclusion 3 - 4 : In PVS there are no areas, or processes, of the brain that can be uniquely associated with the experience of pain to the extent that the non-activation of these areas, or the absence of these processes, would justify the conclusion that pain is not present.

*      Conclusion 3 - 7 : ‘Pain’ is not open to a purely scientific analysis.  At best, correlates of pain can be studied but the validity of the correlation is not fully amenable to a scientific determination. This is particularly so when the ability to communicate is either non-existent (as in the case of animals) or is permanently lost (as in the case of PVS patients).

[xli] Because of their inability to communicate in conjunction with the fact that brain functions are often redistributed subsequent to brain damage.  See Chapters 1 and 3.

[xlii] See Chapters 3 and 10.

[xliii] Guy Robinson, Philosophy and Mystification p.198:

“My attitude is a matter of my whole demeanour toward him involving the rights and duties and customs of my culture.  Not something that is simply true or false like an opinion, a matter for argument and proof.  Paradigms, attitudes, and ways of looking are not matters of proof and disproof.”

[xliv] Wittgenstein PI-II (iv), p. 178e.

[xlv] Wittgenstein PI-1 § 284.

[xlvi] See Conclusion 3 -9 :The question ‘Is X in pain?’ consists of, in fact, two questions:

”Is X a suitable candidate for a pain judgement?” - i.e. does he belong to the class to whom pain is (normally) ascribed?

“If X is a suitable candidate, is X in pain?”

Conclusion 3 -10 : A candidate for a pain judgement is an appropriate candidate if it has the capacity to engender empathy, or, equivalently, if it possesses consciousness.  The term ‘capacity to engender empathy’ is to be preferred in that it - unlike the term ‘consciousness’ - lays no claim to a spurious scientific rigour.

Conclusion 10 - 14 : An initial leap of empathy is a precondition for seeing another as a fitting subject for possessing rights, for being an ‘Object of Intrinsic Moral Worth’ or for possessing the ability to communicate; this gesture of empathy is not a product of rational determination but flows from the adoption of an ‘attitude’. It is the gesture of ‘seeing oneself in another’ that enables ‘personhood’ to be conferred on that other; conversely, the refusal to ‘see oneself in that other’ precludes the attribution of  ‘personhood’.

[xlvii] J F Miller III [‘Wittgenstein’s Weltanschauung’, Philosophical Studies, (1964)] helps clarify some of these issues.  Miller points out that:

“It is part of Wittgenstein’s methodology to show what remarks are merely grammatical, that is, having justification in language usage rather than on scientific grounds, and which are not.  A remark like ‘All objects are coloured and have extension,’ is purely grammatical: it merely means that what we call objects are in all cases extended and coloured.  Science could not dispute the sentence, for to do so would be to deny that we do call coloured and extended things ‘objects’ which is certainly the case.” [op.cit. p.130; emphasis in the original]

Later, Miller discuses Wittgenstein’s remark that we can ascribe pain only to that which behaves like a human being:

“Immediately thereafter, he says that we would not ascribe pain to a corpse or to a stone.  Here he is acknowledging and recommending a Weltanschauung, namely that world-view which is prevalent in our own present day Western Society.  For if we interpret this remark about pain as saying that inanimate objects and the dead have no feelings, we are openly adopting a particular world-view.” [op.cit. p.134; emphasis in the original]  

The conclusion to be drawn is that the categories to which pain may be ascribed is part of the grammar of ‘pain’ and not a subject for scientific investigation.  Science in so far as it discusses pain must work within the given grammar.  Hence, the question of whether PVS patients can experience pain is primarily a grammatical question - or better, a question of the attitude that is adopted to PVS patients - and only secondarily is it a scientific question.

See also Rush Rees Discussions of Wittgenstein at p.59:

“When I say the dog is in pain I am not describing what the dog is doing, any more than I describe what I am doing when I give expression to pain.  It is more like an expression of pity.  At any rate, feeling pity, trying to ease him and so on - or perhaps turning away from the sight - is all part of believing that he is in pain.  And to say that I was obviously justified in that - or maybe that I was mistaken - is a different sort of thing from saying that I was justified or mistaken in believing that he had a fracture.”

[xlviii] Such a death is called ‘a good death’.

cf. Conclusion 9 - 15 : As the proposition ‘Death is an evil’ (simpliciter) cannot be justified on either logical or psychological grounds, it is not sustainable.  It follows that some deaths are a ‘good’.

[xlix] The writings of Elizabeth Kübler-Ross and Daniel Callahan who have both written extensively on this subject, have been discussed in Chapter 9.

[l] See  Conclusion 9 - 18 : In considering whether a prospective death is ‘a good death’ for a patient who has entered onto the threshold of death (i.e. one for whom death is an immanent possibility) it is important to distinguish between those patients who have the present ability to communicate, those with whom communication may be established and those who have permanently lost the ability to communicate.

[li] Callahan, speaking of the necessity of communication in relation to ‘a good death’, says:

“If it is carried out without the informed consent of the patient, it is a basic offence against that person’s dignity ... the desire for a peaceful death does not override such obligations.”

[Daniel Callahan, The Troubled Dream of Life: Living with Mortality, p.203]

See Conclusion 9 - 16 :  In stating that ‘a good death’ is a good, the obligations imposed on third parties are strictly circumscribed.

Conclusion 9 - 17 : The primary obligation on the carers of a patient who has entered onto the threshold of death is to attempt to communicate with the patient.  Medical carers should desist from a proposed intervention if contrary to the patient’s wishes and, in particular, the occasioning of the death of a patient in the face of his objections could not be ‘a good death’.

[lii] See Conclusion 9 - 19 :  The acceptance of human mortality implies that medical carers must, in treating a patient who has entered onto the threshold of death, consider whether - in postponing the particular death - a ‘better death’ is more likely.  The particular circumstances of the patient and their family are of crucial importance to any such evaluation. If it is deemed that a better death is unlikely then the immanent death (termed ‘a good death’) is a positive good in the sense that there is a moral obligation on the medical carers to attempt to achieve that death for their patient and to do so in a manner that is in as harmonious as is possible with the patient’s interests.  ‘A good death’ is to be distinguished from a ‘a least worse death’ which connotes no such positive moral obligations.

[liii] Callahan op.cit. p.44-46.

[liv] ibid. p.199.

[lv] ibid. p.180.

Callahan  believes that death can be deformed in three ways;

 - by ‘deforming the process of dying itself’ - as in technological brinkmanship which can ‘both save life and ruin dying’ as when it results in extended loss of consciousness;

 - by ‘deforming the dying self’ - as with obsessions with loss of control or loss of image.

 - by ‘deforming the community of living’ as when community life is distorted thorough the denial of death or through doctrines that certain lives are not worth living. [ibid. p.192]

[lvi] ibid. p.200:

“I call such a death a ‘moral good’ because it allows us to achieve important personal as well as social ends.”

[lvii] In Chapter 9, Section 3 particularly in the discussion preceding Conclusion 9 - 21. which states:

 Death by withdrawal of food - and a fortiori withdrawal of ANH - is not necessarily destructive of ‘a good death’.

[lviii] Edmund Pellegrino, ‘The Nazi Doctors and Nuremberg: Some Moral Lessons Revisited’,  Editorial, Annals of Internal Medicine (1997) at p.307-8.

[lix] Margaret Pabst Battin, The Least Worse Death, at p.151.

[lx] See Appendix E.

[lxi] Gillon (1993) at p.1603.

[lxii] The development of the adult euthanasia programme is more problematic in that it was, to some extent, justified in terms of ‘racial purity’.

[lxiii] Henry Friedlander, The Origins of Nazi Genocide, p.297.

[lxiv] Mark Rothe [in his Amicus Curiae brief to the US Supreme Court in the case of Vacco v Quill (1996) at p.13] quotes Simon Wiesenthal as saying:

“The Nazis considered euthanasia a quasi-ethical sort of murder, and reserved it for members of their own kind.”

See also Patrick G. Derr, ‘Hadamar, Hippocrates, and the Future of Medicine: Reflections on Euthanasia and the History of German Medicine.’ 4 Issues in Law and Medicine, at p. 488:

“We know, for example, that the moral collapse of German medicine was not caused by antisemitism.  Ironically, as Wertham has noted: ‘Jewish mental patients, old and young, were strictly spared and excluded.  The reason given was that they did not deserve the ‘benefit’ of psychiatric euthanasia. This lasted up to the second half of 1940.’ ”

[lxv] See Appendix E.

[lxvi] Rothe (op.cit. p.7) comments:

“The distinction, however, may not be that sharp.  Contemporary proponents of the ‘right to die’ do not rely exclusively on the autonomy, but on the perceived worthlessness of the lives in question, and the economic costs of sustaining them.”

See also Derr op.cit. p.494:

“Still, it is worth remembering that the engine which drove the early moral transformation of German medicine was not the ideology of racial discrimination, but medical economics.”

[lxvii] Leo Alexander, ‘Medical science under dictatorship’ New England Journal of Medicine, p.46.

[lxviii] Derr op.cit. p. 491-4.

[lxix] JusticeI stands for Justice as understood in its individual aspect whereas JusticeS denotes its social aspect.  See Section 1(1).

[lxx] It might appear that the likely social consequences would be already taken into account in any judgement as to the morality of an act, however what is at issue here is not the social consequences of an act, considered as an isolated act, but the different question of the social consequences of permitting a (moral) act to become an accepted practice; thus, for example, no moral objection might lie against an isolated act of drinking alcohol in a public place yet the permitting of such a practice to become common is open to social objection.

[lxxi] The development of the ‘P-GD conceptual structure’ is set out as a sequence of steps (as would be followed in making treatment decisions).

[lxxii] i.e. to either give, or withdraw, medical treatment.

[lxxiii] See Conclusion 10 - 9 : In taking health care decisions affecting a patient, the principal obligation imposed by the virtue of Justice is to attempt to communicate with the patient; this obligation overrides all obligations to the patient flowing from Charity.

[lxxiv] See Chapter 10, Section 4.

[lxxv] In Chapters 1, 2, 3 and 5.

[lxxvi] See also Section 1(8) supra.

[lxxvii] In Chapters 4 and 5.

[lxxviii] Kòbler-Ross (1970), p.144 [emphasis added].

[lxxix] The steps are labelled in accordance with the relevant category.

[lxxx] See Conclusion 10 - 10 : To take health care decisions for a patient without first attempting to communicate with the patient in order to determine their wishes, is in effect a denial of their 'personhood' and this is so even if all such decisions are taken solely on the basis of what is believed to be in the patient’s ‘best interests’.

[lxxxi] Such interventions might also be justified under the ‘Principle of Minimal Intervention’ (supra).

[lxxxii] A recent report in the Journal of the Royal Society of Medicine [as reported by the Science Editor of The Times (31-7-2000)] found that the practice of administering medication to older patients by hiding it in their food, was widespread;

“They found that in ... 71% [of the nursing homes surveyed] senior nursing staff admitted that medicines were sometimes administered covertly.”

Such practices clearly contravene the requirements of Justice in that they ignore the obligation to obtain consent.

However, in that many of the patients suffered from dementia, they might not have a present ability to communicate rationally and accordingly might have an ‘attenuated personhood'; in such circumstances a ‘best interests’ basis for medical decision making is appropriate (the role of Justice being simply to prohibit interventions whose goal is the death of the patient).  This exercise shows that the proposed ‘P-GD conceptual structure’ permits a more refined analysis of certain problems than do existing conceptual structures.

[lxxxiii] Foot op.cit. p.49.

see also Conclusion 10 - 4 : The right to be let alone can be analysed into:

(i) the right to be free from ‘non-beneficial’ interference; this right flows from both Charity and Justice.

(ii) the right to be free from ‘beneficial’ interference; this right flows from Justice.

[lxxxiv] As stated in Step 4A (supra), interventions based on ‘incremental quality of life’ judgements require the consent of the patient. 

[lxxxv] If communication is believed to be possible at some future stage then they have an ‘attenuated personhood'; see steps (B).

[lxxxvi] Section 1 (5).

[lxxxvii] Pneumonia was, I believe, once known as ‘the old man’s friend’.

[lxxxviii] In such cases the withholding of antibiotics is a strategy whose goal is the death of the patient.

[lxxxix] See Chapter 9.

[xc] I use the term ‘killing’ in its normal sense as being an act (as distinct from an omission) whose goal is the death of the patient; i.e. a directly intended death.

[xci] i.e. an issue on which they have not directly expressed an opinion.

[xcii] See Section 1 (5).

[xciii] As argued in Section 1(5).

[xciv] Callahan op.cit. p.203.

[xcv] The existence of such cases must not be allowed to give shelter to the physician who ignores the obligation to obtain an informed consent in situations where the patient is willing to confront the issues involved.  In this respect the recent controversy over the seemingly widespread use of ‘Do Not Resuscitate’ orders in the UK is of interest [see: an editorial and article in The (London) Independent (16-4-00) citing research done by the organisation ‘Age Concern’]: a BMA spokesman, commenting on the controversy, said:

“It is often easier for doctors to say I will make a decision as to what is in the patient’s best interest, and perhaps overlook the necessity to share that decision with the patient.” [BBC News online service 13-4-00]

[xcvi] Of course these issues might have been confronted before the onset of illness (whether by a ‘living will’ or otherwise) and this problem shows the desirability of so doing.

[xcvii] Particularly the claims of other patients to the use of scarce resources.

[xcviii] See Callahan op.cit. p.213.

[xcix] See Conclusion 11 - 1 :  The virtue of Justice prohibits not only the intentional killing of an individual but also procedures (whether by act or omission) which have the death of the individual as their goal.

[c] See Section 1(5).

[ci] The issue of scarce resources was not relevant to the original problem.

[cii] The Times of 25th October 1996; see also in Current Law Year Book 1996 at p. 179; the case is discussed in    Appendix C, (number 12).

[ciii] Current Law Year Book 1996 at p. 179; (per Butler-Sloss, L J.)

[civ] The reports do not suggest that ‘T’ would have been unable to acquire the ability to communicate.

[cv] To some, it may appear paradoxical that the death of a patient might be in their ‘best interests’.  However, a contemplation of the possible nature of the experience of a PVS patient may make such a conclusion less difficult to accept: Strawson’s imaginary account of a ‘disembodied’ consciousness, given earlier, is helpful this regard.  (See Chapter 10, Section 3, where Schneiderman’s arguments are also discussed.)

Note also Foot’s observation (in discussing the Karen Quinlan case):

“Much could be said about this last case.  It might even be suggested that in the case of unconsciousness this ‘life’ is not the life to which ‘right to life’ refers.” [Foot op.cit. p.58]

[cvi] The interests of the wider society are being omitted from this analysis, they will be incorporated into the analysis in the following subsection. 

[cvii] See Section 1(5). 

See also Callahan op.cit. p.180:

“Death is acceptable ... when it comes at a point in life when

(i) further efforts to defer dying are likely to deform the process of dying, or when

(ii) there is a good fit between the biological inevitability of death in general and the particular timing and circumstances of that death in the life of the individual.”

[cviii] The refusal of a family to accept both strategies can be resolved by a consideration of the rights of other patients to scarce resources.  This is discussed in the following subsection.

[cix] The testimony of some families to this effect is given in Chapter 9, Section 3.

[cx] The Times (26th Feb 2000) in its report of a study by Professor van der Maas published in The New England Journal of Medicine (February, 2000).

[cxi] The doctors who participated in the study had been given immunity from prosecution.

[cxii] The ‘botched’ cases came mainly in the late 1980’s and early 1990’s when doctors used opiates, such as morphine, whose effects are unpredictable.

[cxiii] See Section 1 (9) and also the discussion in Chapter 9, Section 3 leading to Conclusion 9 - 21 :  Death by withdrawal of food - and a fortiori withdrawal of ANH - is not necessarily destructive of ‘a good death’. 

[cxiv] Mary Warnock interviewed in The Sunday Times 1st Dec. 1996. [emphasis added]

[cxv] Mary Warnock participating in ‘The Moral Maze’ ( BBC Radio 4; 5th Dec. 1996) in a discussion on euthanasia.

[cxvi] The incorporation of JusticeS will entail a radical revision of this conclusion.  (See the following subsection.)

[cxvii] i.e. those who presently are, or who are expected to become, able to communicate.

[cxviii] Because either they never had 'personhood', e.g. infants for whom there is no expectation that they ever will be able to communicate, or because they have lost 'personhood', e.g. individuals who have permanently lost the ability to communicate.

[cxix] i.e. in their distress and need for medical treatment.

[cxx] As mentioned in the previous subsection.

[cxxi] This discussion is not dissimilar to that concerning the conflict between the so-called ‘rights’ of animals and the rights of persons; see, for example, the discussion of animal rights by Lori Gruen in her essay ‘Animals’ [included in Peter Singer (ed.) A Companion to Ethics] in which Gruen states:

"According to Regan [Tom Regan, The Case for Animal Rights], all beings who have inherent value have it equally. ... Whilst this position is egalitarian and respects the value of individuals, it does not provide any guiding principle for action in cases where values conflict.  Consider the following example, which Regan mentions: ‘Imagine five survivors are on a lifeboat.  Because of limits of size, the boat can only support four.  All weigh approximately the same ... Four of the five are normal adult human beings.  The fifth is a dog.  One must be thrown overboard or else all will perish.  Whom should it be?"

Regan argues that we should kill the dog because ‘Death for the dog ... though a harm, is not comparable to the harm that death would be for any of the humans.’  Others, however, argue that ‘Death is the great equaliser ... Black or white, male or female, rich or poor, human or animal, death reduces us all to nothing.’ and that Regan’s distinction is not sustainable. [Singer op.cit. p.346-7.]

The ‘P-GD conceptual structure’ and its distinction between ‘Objects of Intrinsic Moral Worth’ and ‘persons’, permits conflicts between the obligations which are due to animals and to persons, to be precisely stated (surely a precondition to their being resolved!).  Applying the P-GD conceptual structure to Regan’s example: whilst there are obligations in Charity to animals, animals have no rights and, in particular, no ‘right to life’; however, persons have a ‘right to life’; thus Regan’s problem is easily resolvable within the P-GD framework by virtue of the preeminence accorded to Justice over Charity - the ‘right to life’ of persons prevails over charitable obligations to animals.

A further example to show the usefulness of the proposed framework is given by an actual case [reported on a BBC Radio 4 discussion (6.8.00) on Veterinary Ethics ] concerning a vet who was asked by a couple to ‘euthanise’ their cat - which was perfectly healthy - because they were expecting a baby.  The vet tried to persuade the couple to let her find another home for the cat; the couple refused and insisted that the cat be killed.  The vet did, in fact, find another home for the cat but in the same town and the cat subsequently returned to its original home.  A complaint was lodged with the Royal College of Veterinary Medicine and the vet was disciplined.  On a first hearing, the decision seems difficult to justify - especially if analysed in terms of animal ‘rights’; however, if analysed in terms of the P-GD framework, it is more easily justified: the vet owes obligations of Charity to the cat (an ‘OMW’) but obligations of both Charity and Justice to the cat owner (obligations of Justice flowing from contract in that the couple had contracted with the vet that she kill the cat); hence, the obligations to the cat owners should prevail.  (Had they sought to have their child killed rather than their cat?  Then the ‘right to life’ of the child would take precedence over the contractual right of the parents.)

[cxxii] In so far as they lose the protection of the virtue of Justice.

[cxxiii] see Conclusion 11 - 2 (supra).

[cxxiv] Assuming that both procedures are justified in the individual case (i.e. when analysed in terms of Charity and JusticeI  but not JusticeS).

[cxxv] Foot op.cit. p.59.

[cxxvi] As has sometimes happened in relation to the obligation to obtain an informed consent when this obligation has been interpreted as casting an onus on the patient to show that their refusal of treatment was an informed choice (i.e. that they understood the treatment procedures being refused) and that they had ‘rational’ reasons for their refusal.  In this regard the case of Carrie Coons is instructive; she was diagnosed as being in a PVS and a court application had been made to withdraw ANH.  Permission was granted but before this decision could be implemented Carrie Coons woke up, began to eat and talk and then expressed her desire to continue living.  The medical ethicist Bonnie Steinbock has argued that Carries Coons’ expressed wish to live was not subjectively rational and need not be heeded:

“Her capacity for assessing evidence has been affected by her own bizarre experience ... Courts should resist the temptation to oversimplify this job by treating a patient’s utterances during brief periods of consciousness as determinative.”

[Borthwick (1996) p.186; this quotation was discussed in Chapter 4, Section 4.]

[cxxvii] See Conclusion 4 -12 : The best estimate for the rate of misdiagnosis of PVS is of the order of 50%. This implies that the diagnosis of PVS is essentially a random process.

[cxxviii] See: Conclusion 8 - 12 : The BMA (1999) proposals on the withdrawal of ANH are not restricted to PVS patients but appear to encompass all patients who have minimal awareness.  These proposals are even more capable of being extended to the disabled than were the original proposals to restrict withdrawal of ANH to PVS patients - proposals which at the time the BMA insisted had no ‘implications for other categories of severe handicap’.

[cxxix] see Rothe op.cit. p.5.

[cxxx] Derr op.cit. p. 491-4 (see Appendix E). [emphasis added]

[cxxxi] Some of the judges in the Bland case referred to the necessity for legislation (see Chapter 6).

[cxxxii] As is evident in the development of the law on abortion in England subsequent to the Bourne case.

[cxxxiii] i.e. strategies whose goal is the death of a patient in circumstance where - judged as isolated cases - such strategies are ethically unobjectionable.  For simplicity, the example taken in the discussion is the withdrawal of ANH; similar points can be made in respect of other treatment strategies which - though legally classified as ‘omissions’ - have the death of their patient as their goal.

[cxxxiv] See Appendix E.

[cxxxv] See Chapter 6.

[cxxxvi] Though see the BMA (1999) proposals which are discussed in Chapter 8; see also Appendix C for a discussion of the case law.

[cxxxvii] See:

*      Conclusion 8 - 8 :  In that the Ward judgements - unlike the Bland judgements - made no distinction between the withdrawal of ANH and the withdrawal of other forms of life-sustaining medical treatment, the withdrawal of ANH would be justified under Irish law in cases of disability where it would not be justified under English Law.

*      Conclusion 8 - 9 : The ethical importance to be attached by medical practitioners to the withdrawal of ANH is obscured by its assimilation to other medical treatments; this tendency is exacerbated by the Ward court’s insistence that the withdrawal of ANH is not a cause of death.

*      Conclusion 8 - 10 :  The Irish courts, by relinquishing their supervisory jurisdiction over cases where a patient’s family and medical carers unanimously agree that the withdrawal of life-sustaining treatment is in a patients ‘best interests’, may facilitate the development of a 'slippery slope'.

*      Conclusion 8 - 11 : Current BMA (1999) proposals on the withdrawal of ANH are more compatible with existing Irish law that with current English Law in that the Ward decision permits

- the withdrawal of ANH from patients who are not strictly PVS.

- the withdrawal of ANH without prior application to the courts.

[cxxxviii] See Section 1(5) and, in particular, Conclusion 11 - 1 :  The virtue of Justice prohibits not only the intentional killing of an individual but also procedures (whether by act or omission) which have the death of the individual as their goal.

As a further argument on the point being asserted, imagine an aged patient in an old person’s home.  It is conceivable that both her family and medical carers consider her to be an irksome, cantankerous individual who gets no enjoyment from life; being incontinent and difficult to feed, it is considered to be in her ‘best interests’ that tube feeding be commenced.  Now - once, in Wittgenstein’s phrase, ‘this decisive step in the conjuring trick has been made’ - the way is open for a decision that, because the patient’s quality of life is so poor, her tube feeding should be withdrawn and she be allowed to die.  What would have brought forth the full rigour of the criminal law if attempted in one step, can (with the connivance of the law) be easily accomplished in two.  Lest this seem an extreme conclusion consider the case of Re R [Appendix C, number 11] where a court application to permit the withdrawal of syringe feeding was withdrawn in favour of an application to permit the commencement of tube feeding on the understanding that a subsequent application might be made to seek its discontinuance, if this was regarded as being in R’s ‘best interests’.  In similar circumstances under Irish law, it appears that there would be no necessity to seek the leave of the court for any of the proposed interventions.

[cxxxix] Timothy E. Quill has argues that:

“Some patients can live in an agonising twilight between suffocation and death because of the ambiguity of our intentions. ... The double effect does not acknowledge the fact that, for some patients, death is preferable to unremitting suffering.”

Quill discusses the conclusions of an ‘Ethics Committee‘ in regard to one particular case:

“They suggested that the physician could actively treat Mrs. B’s suffering by giving her enough morphine and sedation so that she became unconscious (therefore unaware of her suffering) and then letting her die by dehydration. ... using the double effect to treat her suffering aggressively without intending death.”

[Timothy E. Quill, Death and Dignity: Making Choices and Taking Charge. (1993) p 107-112.]

See also Quill, Dresser and Brock ‘The Rule of Double Effect - A Critique of Its Role In End-of-Life Decision Making’ New England Journal of Medicine.(1997).

[cxl] As was sometimes the practice in Nazi Germany (see Appendix E).

[cxli] The Times (2-9-1999).

[cxlii] The fact that the medical profession may well have a conflict of interest in relation to proposals concerning the withdrawal of ANH from PVS and other patients should not be overlooked - see the discussion in Chapter 4 footnote 263.

[cxliii] See BMA (1999) and discussion of the BMA proposals in Chapter 8.

[cxliv] It may be argued that this discussion is tainted with hypocrisy in that whilst arguing that the withdrawal of ANH is a ‘killing’, the conclusion depends on the general perception that it is not so.  All that can be said in defence is that - just as the double-effect doctrine, although at times something of a subterfuge, may yet be the most effective way of preventing a slippery slope - the present proposal may permit a fitting solution to a difficult problem.

[cxlv] Mary Warnock has suggested that ‘the Dutch way - not legalisation but regulation - is an excellent way of supervision’  [BBC Radio 4 ‘The Moral Maze’ (5.12.1996)]

[cxlvi] In situations in which (if considered in isolation) both would be justified as being in the ‘best interests’ of a patient who was permanently unable to communicate.

[cxlvii] The differential diagnosis between PVS and other conditions such as locked-in syndrome (in which consciousness is readily ascribed) is essentially a random process; see Conclusion 5 - 5  (supra).

[cxlviii] See Conclusion 5 - 5  (supra); also Step 3 (Section 2, Subsection 1).

[cxlix] See Young PJ, Matta BF, Editorial: ‘Anaesthesia for organ donation in the brainstem dead - why bother?’ Anaesthesia, 2000 Feb; 55(2):105-6.  The editorial was a response to guidelines suggesting that anaesthesia was unnecessary in such cases. 

[cl] which is based on Justice.

[cli] See Steps 1 and 2 (Section 2, Subsection 1).

[clii] See Conclusion 11 - 1 (supra); see also Steps 4B, 5B, 6B and 7B (Section 2, Subsection 1).

[cliii] See Step 1 (Section 2, Subsection 1).

[cliv] which is based on Charity and which still persists because the PVS patient is still considered to be conscious [see (ii) above]

[clv] See Conclusion 9 - 17 to Conclusion 9 - 21 inclusive.

[clvi] In the Frenchay v S [Appendix C; number 3] a consultant’s report stated that the patient’s mother had, for the last two years, clearly wished ‘his body to be allowed to die’. [op.cit. p.406].  Also a private communication, in the form of a memorial card, from the family at the centre of the Ward case to Dr. Dolores Dooley of UCC, spoke of the ‘two deaths’ of their daughter.

[clvii] Obligations based on both Justice and Charity exist towards the patient’s family.

[clviii] Callahan [op.cit. p.218] in discussing his concept of a peaceful death defined it not only in terms of the interests of the patient but also in terms of the interest of the patient’s family and of the wider society.  A death which involved an ‘undue burden’ being cast on either the patient’s family or the wider society could not be a good death.  This is of particular relevance in the case of PVS patients as the continued use of life support will, judged from the patients perspective, not give him any chance of a better death.  As judged from his families perspective, it may well (when used as a short term measure) provide the necessary time to permit a better death; it is unlikely to do so when used as a long term measure and will then be destructive of the wider interests of society because of the demands it places on scarce resources.

[clix] Callahan suggests that health care insurers should not reimburse families for long term care of PVS patients other than minimal nursing care or at least assign a low priority to such treatment.  He argues that:

“... increasingly few people will believe for long that this form of ‘life’ merits being called human.  It is a moribund life sustained by technological artefact in the face of a biological condition crying out to come to an end as it would ordinarily in nature.” [op.cit. p.217]

Although Callahan’s good will is clearly foremost his formulation is clearly problematic, particularly when viewed against the Nazi practice of ‘mercy killing’.  The concept of personhood permits a much more acceptable formulation.

[clx] The probability of communication being possible before ‘attenuated personhood' is ascribed is considerably greater in cases of ‘preciousness’ than ‘stickiness’ - see the discussion in Chapter 10, Section 5.

[clxi] See the discussion on Young PJ, Matta BF, ‘Anaesthesia for organ donation in the brainstem dead--why bother?’ [Anaesthesia, 2000 Feb] in Section 3(ii).

[clxii] As mentioned earlier in Section 2.

[clxiii] Foot op.cit. p.57.

[clxiv] This is the level of communication required by the argument as developed in Chapter 10; however, a level sufficient to determine consent to the continuance or withdrawal of life-sustaining treatment - i.e. an ability to answer the question ‘Do you wish to continue living?’ - is all that is required in order that the argument be sustained in the present setting.

[clxv] The concept of ‘quality of life’ used as a tool to enable medical treatment decisions can be applied to the case of a Down Syndrome infant with an easily curable abdominal obstruction, in two distinct ways, as an ‘incremental quality of life’ judgement or as ‘absolute quality of life’ judgement.

As an ‘incremental quality of life’ judgement: it is clear that the infants quality of life after the removal of the abdominal obstruction would be better than before its removal; hence incremental quality of life considerations would indicate that the operations should proceed.

As an ‘absolute quality of life’ judgement: in this case what is first relevant is not the improvement of the quality of life if the abdominal obstruction was removed.  There is a logically prior question which is whether the life in question is of such poverty, and shows an absence of what are normally considered to be basic human pleasures, that it is in reality not a human life at all.  The ‘C-AQL conceptual framework’ enables the judgement that if the absolute quality of life is so poor and the operation to remove the abdominal obstruction would occasion a change so marginal as to be of no consequence, the  child should be allowed to die.

[clxvi] Remembering Callahan’s question: ‘Considering all the circumstance of timing, age, etc, is death appropriate at this juncture?’