| Introduction |
Appendices |
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| Legal Cases |
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"Mr. Kelly himself did not look a day over ninety, cascades of light from the bed-lamp fell on the hairless domes and bosses of his skull, scored his ravaged face with shadow. He found it hard to think, his body seemed spread over a vast area, parts would wander away and get lost if he did not keep a sharp look-out, he felt them fidgeting to be off."
Beckett[i]
The Ward Case
In 1972 a young woman attended a Dublin hospital for a minor gynaecological operation. During the operation she suffered a cardiac arrest which caused her severe brain damage resulting in her being left spastic, bedridden, and incontinent. She was unable to speak, her mouth was permanently clenched and she was unable to swallow. She was fed artificially, at first by a nasogastric tube - which seemed to cause her considerable distress - and subsequently by a gastrostomy tube. Her eyes were open and often followed people moving in her vicinity. The judgement of her doctors was that such behaviour was ‘reflex’ in nature and not evidence of any underlying consciousness. She was diagnosed as being in a ‘near-Permanent Vegetative State’ and it was the opinion of her doctors that recovery was most unlikely. For over twenty years her condition remained essentially unchanged.
The Permanent Vegetative State or, more accurately[ii] the Persistent Vegetative State (‘PVS’), is one characterised by wakefulness in the absence of cognition.[iii] The patient, in the instant case, was diagnosed as being in a ‘near-Permanent Vegetative State’ because it appeared that some minimal cognitive capabilities remained in that she appeared both to recognise her long term nursing staff and to show distress in the presence of strangers.
In the intervening years the patient had been made a ‘ward of court’ and, in consequence, the High Court exercised a supervisory role in relation to decisions affecting her welfare. In 1995 her family, believing that the patient’s continued medical treatment, and in particular the tube feeding, was causing the Ward considerable distress, sought an order from the High Court that medical treatment, other than that of a purely palliative nature, be discontinued, and that the patient be allowed to die. The High Court,[iv] and on appeal the Supreme Court,[v] acceded to the family’s request; gastrostomy feeding was discontinued, the patient was sedated and died eight days later. Although there had been similar cases in other jurisdictions, most notably that of Karen Quinlan in the US and Tony Bland in England, this was the first case of its kind to come before the Irish courts.
The aim of this thesis
The aim of this thesis is to bring a
philosophical - as distinct from a legal or medical - approach to bear on the
issues involved in the Ward case. It is
necessary to elaborate on this distinction.
Criticisms of the decisions in the Ward case could be made from within a
number of different disciplines:
* From a legal perspective, for example, it might be argued that the court was in error in implying a constitutional right to refuse medical treatment in cases where death would be the inevitable result of such a refusal. Similarly objections to the effect that the court was in error in exercising this right on behalf of the Ward in the manner that it did, or that the right to refuse treatment on the Ward’s behalf should have been exercised by the Ward’s immediate family, are predominantly legal issues.
* From a medical viewpoint, for example, it might be suggested that the diagnosis of ‘near-PVS’ was incorrect[vi] and that a diagnosis of PVS was more appropriate. Similarly the argument that the actual behaviour of the Ward could not be classified as being solely ‘reflex‘, is essentially a medical question.
* From within a particular ethical theory, or religious tradition, it could be argued, for example, that no meaningful distinction can be drawn between letting an individual die - when the means to sustain his life are readily available - and the killing of that individual; the implication being that a prohibition on the killing of an individual necessarily implies a prohibition on the withdrawal of life-sustaining medical treatment.
This thesis is not concerned with either the legality of the decision in the Ward case nor with whether the diagnosis was in fact correct nor with whether the judgement of the court contravenes some particular ethical theory. Such arguments properly belong to their respective disciplines. More positively, this thesis could be described as being concerned with criticisms of the Ward decision which originate from within the discipline of philosophy. However, such a description is singularly unenlightening. If, however, the criticisms of the Ward decision are categorised by the level on which they operate, rather than by the disciplines from which they originate, the standpoint adopted in this thesis can be more clearly seen. To explain this idea of ‘level of criticism’ let us consider the analogy of a ‘game’, that is a system of commonly accepted rules which permit certain actions (‘moves’) but prohibit others.
A discussion about a game, any game, could be:
(i) about whether a particular move was in breach of a rule of the game; or,
(ii) about the meaning of the rules of the game, or whether such rules are consistent; or,
(iii) about whether the rules of the game, as they currently exist, are appropriate when consideration is given to wider concerns.
Similarly in a discussion about a suggested resolution of a problem (such as PVS patient care) three, quite distinct, approaches are possible.
The first approach accepts the conceptual structure[vii]
used (in the Ward case, that used by either the medical authorities or by the
courts in discussing treatment withdrawal for PVS patients) and argues that
certain conclusions were drawn which were not supported by the evidence
available, or, perhaps, that certain concepts were either misunderstood or
misapplied. The arguments used by
lawyers in criticising a court judgement, or medical professionals in
discussing decisions of colleagues, would not attempt to transcend the
framework within which the problem was usually stated and, as such, would
embody this first approach. An example
of such an argument, in the context of the Ward case, would be a discussion as
to whether the patient’s eye movements, in tracking people moving in her
vicinity, could properly be described as being reflex movements or were, on the
contrary, indicative of the patient’s consciousness.
The second approach again accepts the conceptual structure. However, in this case it conducts a more abstract analysis in that it investigates the conceptual structure itself, from within that structure, for internal consistency. Such an approach has been termed one of ‘immanent criticism’.[viii] An example of such an approach, in the context of discussions about the PVS diagnosis, is found in a series of papers by Chris Borthwick[ix] where he argues that the common assertion that PVS patients have no consciousness is invalidated by the inability to find a method which will in all cases distinguish between PVS patients and those suffering from Guillain-Barré Syndrome [x] who are commonly asserted to have such consciousness.
The third approach is exemplified in the remarks of a commentator who, writing on a subject quite removed from that currently under discussion, noted that:
“It [xi] is perfectly analogous to the problem of ‘Achilles and the Tortoise’; the manner of posing the problem encloses it within the very limits that it is necessary to overstep, and as a result, renders it insoluble.” [xii]
These remarks suggest a much more radical approach than either of the previous two; an approach which would investigate the very concepts used to analyse a problem in an attempt to find alternative, more fruitful, concepts. Such an approach requires firstly, that the rules of the ‘game’ be made explicit, and then that they be justified. In a game, the obligation to make the rules explicit usually presents no problem, however, in other contexts - as in the context of legal and medical decision-making concerning PVS patient care - it presents the greatest difficulty. It is a task that can be likened to an archaeological excavation, but one which brings to light - not artefacts - but the assumptions and beliefs which are usually treated, if indeed they are ever acknowledged, as commonsensical propositions so ‘obviously true’ as to be beyond question. Both modern physics and mathematics gives eloquent testimony to the fact that whilst intuition - in the sense of a guide to that which is ‘obviously true’ - is perforce a friend when all else fails and one is utterly lost, it is not a reliable longterm companion. The great difficulty with such propositions is that they go unnoticed, and as such they can never be challenged. ‘Solutions’ which emerge from a discussion containing such propositions may then appear to possess a spurious uniqueness or inevitability. Recognising such implicit assumptions and dragging them out into the cold light of day where they can be subject to a critical scrutiny, is - in the context of the Ward case - the primary aim of this thesis. Once these assumptions are recognised then a new creative process can begin where new, more appropriate, hypotheses can evolve which in turn will allow more fruitful solutions to emerge.
An observation made by Wittgenstein[xiii]
is particularly apposite. He had noted
how:
“The first step is the one that altogether escapes notice” and consequently “the decisive movement in the conjuring trick has been made, and it was the very one that we thought quite innocent.” [xiv]
When such ‘innocent first steps’ are not recognised then the problem becomes either insoluble as in the case above of ‘Achilles and the Tortoise’, or putative solutions cannot be exposed for what they are.
It is the task of this thesis to lay bear some of these ‘innocent first steps’ made by both lawyers and medical people, in their discussions of issues such as occurred in the Ward case. The goal is that once this has been done then a search can begin for a conceptual structure which will allow a more fruitful resolution of the problem than is permitted by the conceptual structures used at present. This of course presumes that the analysis embodied in the Ward decision was unsatisfactory. The difficulties implicit in the decision will become fully apparent as, in the course of this thesis, its various facets are analysed. It will also become apparent that the problems associated with the traditional analysis are of such a fundamental nature as not to be resolvable by any cosmetic tampering with its concepts and definitions, but require a radically new approach.
In summary; the initial tasks to be
pursued in this thesis are best expressed by two questions:
(i)
Are all the legal, or medical, concepts used in the Ward case
logically coherent?
(ii)
What, if any, are the implicit assumptions that underlie the medical
and legal methods of addressing the problem posed by the Ward case? Can these implicit assumptions be justified?
So far the discussion on the conceptual
structure used in the Ward decision has been perhaps insufficiently
concrete. These structures - which will
be analysed in detail in the course of the thesis - will now be briefly
sketched as will the problems associated with them. An outline of the full argument to be developed in the thesis
will then be given. Before doing this
it is necessary to return briefly to an examination of the term ‘conceptual
structures‘.
Conceptual Structures
I have used the term ‘conceptual structure’ to refer to that body of concepts[xv] which provide the necessary framework within which a particular debate take place. It is of importance to recognise that - in relation to a particular problem - such conceptual structures have no necessary uniqueness, and secondly they can be of such a complexity as to be incapable of being made fully explicit.
Often in discussing the analysis of a problem not only is there a considerable inertia against changing the concepts that are habitually used to analyse similar problems, but there is an unwillingness to recognise that such a choice exists; so that - in relation to the Ward case - even if it is accepted that the Ward decision is unsatisfactory in a number of respects, there is a considerable reluctance to see that this may be the result of the conceptual structures that were used in the original framing of the problem. Furthermore, in the context of such as the Ward decision there may be a sceptical belief that the term ‘conceptual structure’ is ‘much ado about nothing’ and that it is devoid of significance or point. Both of these questions need to be briefly addressed.
The non-uniqueness, and complexity, of conceptual structures
The non-uniqueness of conceptual structures is clearly shown by the example of modern physics. Its development has shown that a multiplicity of conceptual structures may exist within which a problem can be considered, the choice between them being made on grounds of elegance or fruitfulness, but not of truth. Questions as to the truth of a conceptual structure - with the implication of uniqueness which this carries - are inappropriate. Thus, for example, to ask as to which of the ‘wave theory’ or the ‘particle theory’ of atomic movement, is true is a confusion of categories; the more appropriate question is as to which of the two permits a more fruitful discussion. In this context an observation by Albert Einstein is apposite:
“Physical concepts are free creations of the human mind, and are not, however it may seem, uniquely determined by the external world. In our endeavour to understand reality we are somewhat like a man trying to understand the mechanism of a closed watch. He sees the face and the moving hands, even hears its ticking, but he has no way of opening the case. If he is ingenious he may form some picture of a mechanism which could be responsible for all the things he observes, but he may never be quite sure his picture is the only one which could explain his observations. He will never be able to compare his picture with the real mechanism and he cannot even imagine the possibility of the meaning of such a comparison.” [xvi]
The belief in the uniqueness of conceptual structures is quite marked within legal debate. On reading court judgements, there often appears to be a certain inevitability in the decisions reached. Our particular constitutional philosophy separates the role of making law from that of applying the law and it reserves solely to the legislature the right to make law; our jurisprudence thus requires an acceptance of the proposition that judges do not make law. Accordingly it is one of the marks of a good legal judgement that the conclusion seems to follow inexorably from the application of relevant legal principles to the facts of a particular case. The philosopher, looking at the same problem must attempt to strip away the mask of certainty and inevitability. The quarry that he must mine is that of the uncertainties, the lacunae and the ambiguities; the very area that would render the lawyer impotent, dazzled, adrift without bearings.
To appreciate the complexity of conceptual structures a useful mental exercise, which will also help demolish the mask of certainty often found in legal judgements, is to imagine any such legal judgement being set out as a formal logical argument; the conclusion – i.e. the legal decision - being formally deduced from given propositions – i.e. from the facts of the case and the relevant legal principles. It is clear, on a moments reflection, that to reformulate even the simplest legal judgement as a strict logical deduction would be a truly Herculean task. It would require us to make explicit that which we regard as so obvious as to be indubitable. However, as mentioned earlier, it is one of the lessons learned from the study of logic and mathematics that often indubitability and obviousness are not hallmarks of truth. This mental experiment makes clear that informal arguments that appear to be incontrovertible depend for this apparent incontrovertibility on a vast substratum of shared, unconscious, belief.
In the context of the Ward decision, these ideas of complexity and non-uniqueness of conceptual structures can be better appreciated if one imagines:
* the pre-conceptualised experiential situation of the patient at the time of the court hearing and
* the pre-conceptualised experiential situation after artificial feeding has been withdrawn.
Before any discussion is possible both
situations must be described using concepts i.e.
conceptualised; the phrase ‘PVS
conceptual structure’ is used to refer both to the concepts that are used
to describe the initial and final situations and to the set of propositions,
ethical and other, which would be sufficient to permit a rigorous deduction of
the conclusion - that is that the actual result of treatment withdrawal was
ethically appropriate - from the premises - that is the circumstances of the
initial situation. This conceptual structure will differ somewhat depending
upon whether it is being carried out primarily by lawyers or by medical
professionals so that it is possible to speak of both a ‘Legal PVS conceptual structure’ and a ‘Medical PVS conceptual structure.’
It is clear from the definition of conceptual structure that it is not possible to make such a structure fully explicit. We are utterly immersed in this structure, it not only gives us our words but also ‘the facts’ which we like to think of as objective and independent, but which can have no meaning without concepts. We are like the fish swimming in the sea, unable to transcend it, unable to stand outside it to achieve a perspective. Much of the content of the conceptual structures that we use is provided by our culture. The very term ‘culture’ means the system of shared beliefs which, by providing predictability, enable a group of people to live their lives with a certain harmony and stability. To members of a society their shared beliefs may seem obvious and immutable; however it is only when, like Herodotus, they encounter other cultures that it becomes clear that much of their shared substratum of belief is in fact peculiar to their own culture. Equally we also can become aware of aspects of the conceptual structures within which a problem is usually embedded by seeking out differing conceptual structures with which to examine the problem. These differing conceptual structures can provide a background against which the original conceptual structures can be seen as it were in silhouette.
The lessons that I wish to draw from this
discussion are firstly, that there is no a
priori reason why either the ‘Legal
Conceptual Structure’ or the ‘Medical
Conceptual Structure’ used in the Ward decision is unique. Other conceptual structures may offer many
appropriate ways to resolve the problem.
The second lesson is that these legal, and medical, conceptual
structures are of such a complexity that any attempt to give a complete account
of them is doomed to failure. For the
most part they are hidden and destined to remain so. However, like a guerrilla band seeking to gauge the extent of a
hidden enemy, the best tactic is to use a probing analysis, at as many points
of vulnerability as can be found, in order to force that which was once hidden
to manifest itself.
The conceptual structures used in the Ward case
The Medical Conceptual Structure
A diagnosis of PVS implies that the patient has no consciousness which, in turn, entails that the patient cannot experience pleasure or pain, comfort or discomfort. Furthermore it follows from the definition that the condition - once a determined time has elapsed - is permanent. In such circumstances the question immediately arises as to the ‘point’ of medical treatment - ‘Is such treatment futile?’ A broader question can also be posed - ‘Is it in the best interests of the patient that they be helped to continue living?’ The concept of ‘quality of life’ is often used to resolve these questions; the reasoning being that if the quality of life of the patient is so poor that ‘their life is no longer worth living’ then they will not be helped to continue living and they will be allowed to die. The medical discussion on these issues relates only to decisions as to whether, or not, to continue medical treatment. The giving of ANH (Artificial Nutrition and Hydration) is considered to be a medical treatment, and the question at issue is whether this particular treatment (ANH) should be withdrawn. In assessing the morality of possible procedures considerable reliance is placed on the distinction between ‘acts’ and ‘omissions’, and between ‘direct’ and ‘indirect’ intention; the death of a patient, if directly intended or caused by an act, is considered wrongful, in contrast to deaths indirectly intended or caused by an omission.
It is often sought to justify the medical decision to withdraw ANH solely in terms of the interests of the individual patient; however the concerns of the wider society, particularly in relation to ‘scarcity of resources’, often find expression in the medical literature. However, it should be noted that such grounds were not relied on in either the Ward or the Bland cases.
Some problematic aspects of the ‘Medical Conceptual Structure’
The definition of PVS
The definition of PVS is itself problematic for a number of reasons. Firstly, one of the criteria used in the definition of PVS is that the patient, though wakeful, lacks consciousness. This criterion is relied on to distinguish the PVS condition from a similar condition called ‘Locked-In Syndrome’. It is important to note that the criterion is not the lack of ‘consciously manifested behaviour’ or some such criterion, but ‘lack of consciousness’. It will be argued that this latter criterion is, strictly speaking, not amenable to a scientific determination.
Secondly, the definition of PVS is such that it confuses issues of diagnosis with prognosis. The effect of this is that it becomes logically impossible for a PVS patient, who was in that condition for over a year, to recover consciousness. Any such recovery invalidates the original diagnosis of PVS.[xvii] Thus, the question as to whether such recovered patients had periods of consciousness during the time when they were diagnosed as PVS patients - and assumed to have no consciousness - a question which is easily resolvable by research and which might reasonably be thought to shed light on the question of the possible consciousness of PVS patients - is, for strictly logical reasons, irrelevant. The proposition that a PVS patient has no consciousness is in essence ‘fact-proof.’ [xviii]
The misdiagnosis of PVS
There is considerable evidence of misdiagnosis - the Andrews[xix] 1996 study found a misdiagnosis rate of 43% - that is 43 in every 100 of those diagnosed as PVS were not PVS. Furthermore it is possible that the Andrews 1996 study under-reported the misdiagnosis rate in that it assumed that the hearing of the non-PVS patients was unimpaired. It is instructive to dwell on this figure because had the diagnosis between PVS and non-PVS been carried out purely at random by the tossing of a coin the expected misdiagnosis rate[xx] would be 50%!
The results from other studies have not
been as dramatic. A study by Tresch[xxi]
found that 18% of patient diagnosed as PVS were aware. Other studies have concentrated on the lack
of medical confidence in the making of a diagnosis[xxii]
of PVS ; one such - a study by Grubb[xxiii]
et al - found 7.8% of European
doctors were ‘not at all confident’ at predicting the outcome for a patient who
has been in PVS for more than one year.
Were there no other reasons for disquiet, these studies provide eloquent testimony to the need for a revaluation of the criteria used in defining PVS.
Reflex actions and absence of consciousness
Amongst the tests used to determine lack of consciousness is the ‘reflex test’. In this test the patient is subjected to various stimuli to determine whether any of their responses can be categorises as being other than reflex. The absence of non-reflex behaviour is considered to be determinative of a lack of consciousness.
The concept of ‘reflex actions’ - in contrast to ‘willed actions’ - with the associated belief that such willed actions are the essential characteristic of being truly human, will be found to rely on the implicit assumption of a Cartesian metaphysic. Without such philosophical support, it becomes necessary to re-examine the meanings of the terms ‘reflex’ and ‘intended action’, and the conclusions that it is appropriate to draw concerning the supposed absence of consciousness.
Pain
Discussion on the presence of
consciousness in PVS patients may seem to be an esoteric question of purely
academic interest and devoid of practical consequence. This is not so. The assumption that PVS patients lack consciousness has as an
immediate consequence the conclusion that such patients cannot experience
pain. Certainly sedation is given to
such patients when ANH is withdrawn but its purpose is as a muscle relaxant and
is given, not for any supposed benefit to the patient, but so that the medical
carers will not suffer the distress of witnessing the contortions of the dying
patient.
There have been instances in recent times where the medical judgements that pain could not be experienced have been made with a certitude that countenanced no doubt; judgements which were subsequently found to be erroneous. This has occurred in relation to certain anaesthetic practices and in relation to infants and animals. For example, as recently as a decade ago it was believed that newborn infants could not experience pain and accordingly, they were not given pain relief during surgical procedures. The justification for this was that such infants lacked the ability to think conceptually and having no concept of pain, could not experience pain. Similar arguments are put forward in relation to the ability of animals to experience pain. The speciousness of this argument becomes quickly apparent when the distinction is made between the ability to have an experience and the ability to know that experience as an experience of a particular type[xxiv] - this latter requiring conceptual thought.
The justifications offered for the assertion that ‘PVS patients cannot experience pain’ will be examined at a later stage, suffice to say that they are less than compelling. It will be argued that the correct conclusion to draw is that there is a doubt as to whether patients diagnosed as PVS can suffer pain. This conclusion can be justified simply on the basis of the studies on misdiagnosis but there are other equally compelling reasons for its adoption. Once this is accepted then current methods of dealing with PVS patients become extremely difficult to justify.[xxv]
The ethical criteria to be used in incorporating the presence of doubt into medical decision-making will be discussed. It will be argued that - because the detriment of treating a PVS patient as if they were conscious when they were in fact not so, is so much less than the detriment of treating a PVS patients as having no consciousness when in fact they have consciousness - the ethical course is to treat all PVS patients as if they were conscious. This is a conclusion that is eloquently supported by descriptions of PVS patient behaviour, such as that given by Mr Justice Lynch of the patient at the centre of the Ward Case:
“... she never got used to the nasogastric tube. She reacted against it by pulling it out an enormous number of times, probably well over a thousand times and probably also by way of reflex reaction to an unpleasant stimulus ...” [xxvi]
The confidence, indeed arrogance, behind a statement such as that of Sir Stephen Brown in the Bland Case that:
“ ... Although Antony Bland’s body breaths and reacts in a reflex manner to painful stimuli it is quite clear that there is no awareness on his part of anything that is taking place around him. ... He is fitted with a catheter which has given rise to infection necessitating surgical intervention. It is to be noted that the necessary surgical incision was made without any anaesthetic because Anthony Bland is utterly devoid of feeling of any kind.” [xxvii]
needs to be challenged particularly when it is realised that the ‘cost’ of treating such a patient as if they can feel pain, is slight. The resistance to such a course of action suggests that other, deeper, issues are at stake.
It will be suggested that one of these deeper issues is the concept of personhood. This is a concept which does not explicitly feature in either the medical, or legal, conceptual structures, yet as will be argued, it is crucial to an adequate resolution of the problem. The presence or absence of consciousness functions in both the medical and legal conceptual structures as a surrogate for this concept of personhood. This it does by virtue of assuming an underlying Cartesian metaphysic, which is again implicit and unquestioned.
The Legal Conceptual Structure
The ‘Legal Conceptual Structure’ used in the Ward case adopted the medical conceptual structure (as outlined above) as its foundation. The Ward court assumed that the problem it was presented with essentially related to the giving, or withholding, of medical treatment. Certainly this was the form in which the problem was presented to the court but it was not essential that this be adopted as the framework for legal analysis. It is important to note how crucial this step is to the subsequent analysis and, secondly, its contingency. It is crucial because without it, an alternative conceptual structure is required to resolve the problem; with it, the steps required for a ‘solution’ are clear. Its contingency is clear from the argument that the existence of ‘tube feeding’ was a purely fortuitous circumstance and that had the patient been ‘spoon fed’ this first step in the courts’ analysis would not have been possible (it being difficult to construe feeding by spoon as a ‘medical treatment’).
In the event the courts had, and exercised, a choice in their adoption of the medical conceptual structure. In the Bland case the courts showed an awareness of this. They recognised that other conceptual structures - such as a refinement of the rules relating to ‘killing’ - might be more appropriate, but felt that such would require a radical alteration of the law as to require legislation. The courts in the Ward case recognised no such alternatives.
Once the problem is regarded as being essentially about the decision to give, or withhold, medical treatment, it is easily resolvable by asking a number of subsidiary questions:
1. Has a competent person the
right to refuse medical treatment even if their death is the inevitable result
of such refusal?.
2. Is the giving of ANH a
medical treatment?
3. Is this right to refuse
such medical treatment lost by virtue of the incompetency of the patient to
give consent?
4. If not, who can exercise
the right on their behalf?
5. What criteria should be
used in exercising this right?
The Ward court answered ‘yes’ to the first two of these questions and ‘no’ to the third. The fourth question was to be resolved by the patient’s family and medical carers, if these were in agreement with the course of action to be adopted. If not, application was to be made to the court. The criterion to be used was the ‘best interests’ of the patient judged by their existing, and predicted, quality of life.
Some problematic aspects of the ‘Legal Conceptual Structure’
ANH a ‘medical treatment’
The difficulty in considering ANH as a medical treatment is well illustrated in a comment made by Keith Andrews, in relation to his evidence to the court in the Bland case:
“At the trial I suggested that treatment,
by its very nature, was given to treat an abnormality and said that I could not
understand what abnormality the food was supposed to be treating ... although
it is standard practice to provide prescribed preparations of food for nasogastric
tubes, there is no reason, apart from the time needed for its preparation, why
liquidised ‘normal’ food should not be used.” [xxviii]
The term ‘treatment withdrawal’
The phrase ‘treatment withdrawal’ is often used in relation to the Ward decision. It is a term which is at once both too narrow and too broad in its ambit, and, more importantly, it camouflages one crucial aspect of the underlying problem - the resulting death of the patient.
It is too broad in that it seems to include decisions which are of a purely medical nature, where the death of the patient is not a foreseeable outcome and which are quite uncontroversial.
It is too narrow because it restricts the discussion to (non)treatment, thereby medicalising the problem, and implicitly rules out consideration of other possible resolutions which do not depend on (non)treatment.
It camouflages the problem because it permits the brute fact to be avoided that the inevitable result of such a procedure is the death of the patient. Furthermore this is the desired - although perhaps not the legally intended - result. This may seem a provocative suggestion yet if the question is posed as to what is the procedure’s criterion of success, the answer is undoubtedly the death of the patient.[xxix] The essential point of the procedure is not to successfully remove the tube and to wean the patient away from ANH. To understand that this is so imagine that, on the withdrawal of ANH by the medical carers the patient’s family began to spoonfeed the patient (a situation not unlike that which occurred in Glass case[xxx]) and that the patient continued to survive much as they did when ANH was being administered. Would those who suggested the withdrawal of ANH not regard such a survival as a bizarre and ‘unintended’ result? If so, why?
It seems that the withdrawal of treatment is acting as a mask[xxxi] and thereby permitting what is in reality a social problem to be resolved by medical means. In the Ward case, the issue of death - and as we shall see later that of ‘personhood’ - are like spectres permeating the entire discussion yet not fully acknowledged. It is necessary that such issues be placed centre-stage, and that the discussion be refocused on the death resulting from the non-treatment, for it is this that gives rise to the ethical importance of the decision and to the apparent ethical paradox of justifying a medical decision, supposedly taken in the best interests of an individual, yet which forseeably results in their death.
As the first step in finding an ethically
appropriate solution to a problem is to see the situation with clarity, it is
most unlikely that a fitting solution will emerge in the presence of
denial. Commentators such as Elisabeth
Kòbler-Ross have noted[xxxii]
the prevalence of ‘death denial’
amongst medical professionals and it is important that such denial find no
haven within philosophical discussions.
An important step in ensuring this is to insist on an appropriate
terminology, one which does not obfuscate, or distort, the underlying problem.[xxxiii] To this end the phrase ‘end-of-life problems involving PVS patients’ is to be preferred to ‘treatment withdrawal for PVS patients’; hence the choice of title
for this thesis ‘An alternative
conceptual structure for the resolution of end-of-life problems involving PVS
patients’.
_________________
Aside from questions of terminology it may well be that ‘treatment withdrawal’’ is an inappropriate procedure for resolution of end-of-life problems involving PVS patients. This viewpoint is not without support. Mr Patrick Hanafin, writing recently in the Journal of the Irish College of Medical Practitioners stated that:
“... those in a permanent vegetative state (PVS), were "objectified and silenced" in official discourses ... the current legal conception of the right to die was "woefully inadequate". Not only was there a lack of certainty for all concerned, but the very method - treatment-withdrawal - was not necessarily the most respectful of human autonomy.” [xxxiv]
Andrews, in his discussion of misdiagnosed patients, had noted that:
“Fifteen of the 17 misdiagnosed patients showed the ability to respond ... within 16 days of admission. The exception was patient B; we did not identify his responses until 25 weeks after his admission, though it was obvious from subsequent conversations with him that he had not been vegetative for some time. ... It is disturbing to think that some patients who were aware had for several years been considered to be, and treated as being, vegetative. It must be extremely distressing to be aware but unable to make contact with family or clinical carers.” [xxxv]
For a patient to be aware and yet be treated as being vegetative is indeed horrendous, yet how much more so is the position of the patient who is aware, is treated as vegetative and whose carers stop his feeding?
The ambiguous role played by consciousness
Many of the legal and medical discussions concerning ‘end-of-life’ decisions for PVS patients give a central role to the supposed absence of consciousness of such patients. It has been already mentioned that the presence of consciousness implicitly functions as a surrogate for personhood, the supposed absence of consciousness thus justifying the withdrawal of treatment. The court in the Bland case, for example, were insistent that their decision applied only to insensate patients, though subsequent English cases have widened this criterion. However, in the Ward case,[xxxvi] the Irish court not only applied the Bland principles to a case where there was some level of awareness but amazingly this very awareness became a motive for treatment withdrawal. In the words of Lynch J.:
“... but if such minimal cognition as she has includes an inkling of her catastrophic condition, then I am satisfied that that would be a terrible torment to her and her situation would be worse than if she were fully P.V.S..” [xxxvii]
The concept of ‘consciousness’ is thus playing a truly paradoxical role[xxxviii] in discussions of PVS. On the one hand, when discussing PVS patients, its supposed absence serves as a reason for treatment withdrawal; yet in considering ‘near-PVS’ patients, its existence is considered as an added reason for treatment withdrawal.
The concept of ‘quality of life’
The concept of 'quality of life' is a concept of great usefulness in many areas of life. In medicine, for example, before carrying out a procedure, it is necessary to know whether the proposed intervention would benefit the patient. The concept that is used to assess this is the 'quality of life' of the patient; the obligation on medical carers being to desist[xxxix] from the intervention if it would not improve the 'quality of life' of the patient. The term ‘quality of life’ is also used in the context of ‘end-of-life’ decisions for PVS patients where it seeks to offer a measure of the value of the patient’s life considered as a totality. It was so used in both the Ward and the Bland cases and is common in the medical literature.
I will seek to draw a distinction between
these two usages of the phrase 'quality of
life'. In the first usage the
task is to determine whether a particular intervention will lead to a positive
or negative increment in the 'quality of
life' of another - such a
judgement I will call an ‘incremental quality of life judgement’. However, the phrase 'quality of
life' is used in the Ward case
in quite a different sense. There the
task is to measure the totality of a
patients 'quality of life' and the
question that is asked is “Is the
totality of this patients life so bad that they would be better off dead?” I will use the term ‘absolute quality of life’ to refer to this usage of the term 'quality of life'.
It may seem
that the ability to make ‘incremental quality of life’ judgements depends logically on an ability to make ‘absolute
quality of life’ judgements: that to determine an ‘incremental quality of life’
judgement one needs first to determine the ‘absolute quality of life’ before
the intervention, then after the proposed intervention, and then to compare
both. This is certainly a possible procedure but, as will be shown,
it is not a logically necessary
procedure. This may seem like a particularly esoteric
exercise but it is important to establish that the ability to make ‘incremental
quality of life’ judgements is not logically dependant on the ability to make
‘absolute quality of life’ judgements.
It is of importance because ‘incremental quality of life’ judgements are
the ‘bread and butter’ of everyday medical practice and of great assistance in
medical decision making. ‘Absolute
quality of life’ judgements bear such a great similarity to ‘incremental
quality of life’ judgements that they may appear equally innocuous.
‘Absolute
quality of life’ judgements, however, are not innocuous; they declare that the
life of another is such that they would be better off dead. Once such judgements are accepted in one
legal sphere then it is difficult to find logical reasons to prohibit their
being applied to others - to the severely disabled, the mentally retarded and
those suffering dementia and from Alzheimer's Disease. To the judge, the
‘absolute quality of life’ of the alcoholic vagrant may indeed be slight;
though it might surprise the judge to find that, perhaps, in the eyes of the
vagrant - who values his life of ‘freedom without rules’ - the judges ‘absolute
quality of life’ might appear equally deficient. These prejudices are amongst the inevitabilities of life. It is important that philosophy does not
give them an added respectability, for if it does then the restraints which
normally prohibit prejudice flowing into action are lessened with, as has been
seen in recent history, horrendous results.[xl]
It will be argued that the distinction between ‘absolute quality of life’ and ‘incremental quality of life’ judgements is of fundamental importance in medical ethics in that it enables issues, which were hitherto confounded, to be disentangled thus permitting more appropriate solutions to emerge.
The distinction between ‘Killing’ and
‘Letting die’
The courts, and many ethicists, seek to draw a strict distinction between the moral responsibility of an individual for his acts, and for his omissions. In the Ward, and similar, cases this distinction manifests as that between ‘killing’ and ‘letting die’. This distinction can have momentous consequences. A procedure carried out by a clinician, if viewed as an act, can result in a charge of murder; however if viewed as an omission, the procedure can be considered as exemplary medical practice and beyond reproach.[xli] One might expect that procedures carrying such radically different consequences, would be clearly distinguishable. This, however, is not the case, as is seen in the following example where it can be seen that the distinction requires a jesuitical subtlety of thought.
Consider a patient on artificial ventilation who cannot survive in its absence. A person cuts the ventilation tube. If that person is the patient’s physician who decided to withdraw treatment, then the procedure is classed as an omission - i.e. an omission to continue providing medical treatment. If, however, the physician wanted the patient to die and the cutting of the tube was a means to achieve this end then procedure is an act and the physician is guilty of a murder.[xlii] Similarly if the person is a relative of the patient, then the cutting of the tube is, in all cases, considered to be an act and the relative is guilty of murder. This is so irrespective of whether the family member was motivated by altruism or by ill-will.
Such distinctions are in danger of being perceived as mere casuistry, and a conceptual structure which is crucially reliant on such distinctions, is in danger of falling into disrepute.
The possibility of a 'slippery slope'
This problem concerns the possibility that the decision in the Ward case will be applied to ‘end-of-life’ problems in other than vegetative state cases. The judges in the Ward case were emphatic in stating that their decision was to be strictly construed and that it had no broader applicability. However, there are a number of reasons for suggesting that this limitation is ineffective, of no more effect than a mere aspiration.
Firstly, the Ward judgement did not require that, in future cases, application be made to the courts for permission to withdraw ANH. In England, the Bland court insisted on the necessity of such application with the result that the development of clinical practice in this area is closely monitored by the courts.
Secondly, the Ward decision was not restricted to cases where it was believed that the patient had no consciousness.[xliii] In the Ward case Egan J., in his dissenting judgement, noted that all parties appeared to accept that if there were no cognitive function then treatment could be withdrawn; he distanced himself from this proposition and continued:
“... this is not a case of no cognitive function ... If slightly more cognitive function existed, would a right to withdraw sustenance still be claimed to be permissible? Where would the line be drawn?” [xliv]
To this question there is no answer, nor hint of an answer, in the judgements of his colleagues.
Lastly, the Ward judgements placed reliance on the concept of ‘absolute quality of life’. Within the conceptual structure used by the court, the paucity of quality of life was, it was held, sufficient to justify withdrawal of ANH. In other jurisdictions - in England and the US, for example, - ‘absolute quality of life’ judgements have been used in relation to disabled infants to justify either the withdrawal of ANH, or the non-use of routine treatments without which the infants die. Certain of these cases concerned infants suffering from very severe disability such as anencephaly, other cases, however, concerned Down Syndrome infants.[xlv] In cases of very severe disability such medical (non)treatment may indeed be an appropriate ethical response. The great difficulty is that in using the concept of ‘absolute quality of life’ to justify such (non)interventions there is no natural boundary beyond which it is possible to state that the ‘absolute quality of life’ of an individual is such that their life is worthwhile. For these, and other, reasons I will argue that - unlike ‘incremental quality of life’ judgements - ‘absolute quality of life’ judgements are ethically impermissible, and that alternative means of resolution of the problems posed by anencephalic infants must be found.
In fact the conceptual structure which will be proposed for resolution of the PVS cases does allow a resolution of these ‘infant cases’ without the need for making ‘absolute quality of life’ judgements. It has the further advantage that it does incorporate a natural boundary - the ability to communicate at some future stage - on one side of which are cases such as anencephaly, and on the other those of Down Syndrome infants. This permits a radical distinction to be drawn between the criteria used for treatment decisions for these two types of cases.
An Alternative Conceptual Structure
The concepts that will form the core of the proposed conceptual structure have already been intimated. These are the concepts of ‘death’ and ‘personhood’.
In relation to the ‘death’ it will be argued that the proposition ‘Death is an evil’(simpliciter) cannot be substantiated.[xlvi] This will lead to the conclusion that some deaths - called ‘good deaths’ - are a ‘good’. The concept of ‘a good death’ will be clarified and it will be argued that, in certain circumstance, there is a moral obligation on medical carers to ensure that their patients achieve such a ‘good death.’
In relation to ‘personhood’ it will be argued that the ‘ability to communicate’ is a necessary condition for the ascription of ‘personhood’.
A distinction made by Phillipa Foot is of considerable help in elaborating on the moral obligations on medical carers to their patients and will be adopted in this thesis. Foot distinguished between the obligations that arise from the virtue of Charity and from the virtue of Justice. It will be argued that the obligations flowing from Justice (and which imply ‘rights’) preclude any steps being taken, whether by acts or omissions, to end the lives of anyone to whom such obligations are owing (i.e. ‘persons’). In contrast obligations flowing from Charity ( ‘moral obligations’), and which - in the context of medical care - are to always act in the best interests of a patient, carry no such implication in relation to the death of patients.
The conclusion to be drawn is that, if the ability to communicate is judged to be permanently lost, personhood ceases as do the obligations to that individual that flow from Justice. The obligations that flow from Charity persist. These latter obligations may, in certain cases, imply that steps be taken, either by acts or omissions, to end the lives of such patients. The broader requirements of Social Justice may however influence such decisions particularly in relation to the best utilisation of scarce resources and the requirement that ‘a slippery slope’ not develop. This latter danger will also be lessened by the suggested prohibition on ‘absolute quality of life’ judgements.
The suggested analysis will also permit two further contributions to be made to the ongoing debate on PVS:
1. Given that there is a measure of doubt underlying certain medical judgements, it will suggest certain ethical principles to permit the existence of such doubt to be incorporated into medical decision-making. One consequence of such an approach is the conclusion that PVS patients should, in all but the most extreme cases, be treated as if they are conscious.
2. The definitions of PVS can be recast in terms of ‘inability to communicate’ rather than in terms of ‘lack of consciousness’. This redefinition has the advantage of allowing the distinction between PVS and ‘Locked-In Syndrome’ to be placed on a more secure philosophical footing and, in addition, it allows the differing ethical problems posed by these two groups of patients, to emerge with a greater clarity.
The Structure of this thesis
The thesis is
divided into three parts followed by a final chapter entitled ‘Thesis Conclusions’ :
|
Part 1 |
considers the ‘Medical Conceptual Structure’ and some of the difficulties connected with it. |
|
Part 2 |
considers the ‘Legal Conceptual Structure’ and some of its associated problems. |
|
Part 3 |
develops a new conceptual structure for resolving ‘end-of-life’ decisions concerning PVS patients. It is called the ‘P-GD conceptual structure’ - in that it relies on the concepts of ‘personhood’ and ‘a good death’ - in contrast to the ‘C-AQL conceptual structure’ - which relies on an assumed ability to make judgements as to consciousness and ‘absolute quality of life’. |
There are a number of issues subsidiary to the main argument of this thesis which, for reasons of clarity, have been assigned to separate appendices:
|
Appendix A |
Studies on the misdiagnosis of PVS |
|
Appendix B |
Borthwick’s criticism of the definition of PVS |
|
Appendix C |
Relevant Legal Judgements |
|
Appendix D |
Phillipa Foot’s analysis of the ethics of euthanasia |
|
Appendix E |
The development of euthanasia in pre-war Germany |
|
Appendix F |
Some modern definitions of personhood. |
[i] Samuel Beckett, Murphy, p.67.
[ii] Jennett and Plum in their 1972 paper (which named the syndrome ‘Persistent Vegetative State’ as such) opted for ‘persistent’ rather than ‘permanent’; see Jennett and Plum, ‘Persistent Vegetative State after Brain Damage - a syndrome in search of a name.’ The Lancet 1972. The Multi-Society Task Force on PVS - reported in ‘Medical Aspects of the Persistent Vegetative State’ (First of Two Parts) The New England Journal of Medicine (1994) - draw a distinction between ‘Persistent Vegetative State’ and ‘Permanent Vegetative State’ when they state: “Persistent vegetative state is a diagnosis; permanent vegetative state is a prognosis.” In contrast, the BMA [The British Medical Association] has recently decided to continue to use the term ‘persistent’ rather than ‘permanent’ when speaking of the vegetative state. (Reported in ‘BMA Guidelines on Treatment Decisions for patients in Persistent Vegatative State’ The Medico-Legal Journal of Ireland, (1996) at p. 58)
[NB. I have adopted an abbreviated reference system for footnotes which gives sufficient information to enable the full reference to be found in the bibliography.]
[iii] The definition of PVS given by Sir Thomas Bingham, MR, in Airedale N.H.S. Trust v Bland, [1993] AC 789 at 806:
“P.V.S. is a recognised medical condition quite distinct from other conditions sometimes known as ‘irreversible coma’, the Guillain-Barré syndrome’, ‘the locked-in syndrome’ and ‘brain death’. Its distinguishing characteristics are that the brain stem remains alive and functioning while the cortex of the brain loses its function and activity. Thus the P.V.S. patient continues to breath unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is incapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and can thus feel no emotion, whether pleasure or distress.”
was adopted by Lynch J. (In the Matter of a Ward of Court High Court unreported at p.2)] and by Denham J. in the Supreme Court (In the Matter of a Ward of Court [1995] 2 ILRM 401 at p.447).
The case ‘Airedale N.H.S. Trust v Bland’ is cited hereafter as ‘The Bland Case’.
[iv] In the Matter of a Ward of Court, unreported judgment of Lynch J. delivered on 5.5.1995.
[v] In the Matter of a Ward of Court [1995] 2 ILRM 401 at p.447.
The case ‘In the Matter of a Ward of Court’ is cited hereafter as ‘The Ward Case’.
[vi] It has been suggested that the diagnosis of ‘near-PVS’ was in fact the result of a compromise between the views
of the doctors - who argued that the Ward was PVS - and the nursing staff who
were of the view that the Ward had some degree of awareness. [This view is
based on a conversation between Dr. Dolores Dooley of UCC, and a consultant neurologist
who gave testimony in the Ward case.]
[vii] A tentative definition of the term ‘conceptual structure’ is the system of concepts, and the propositions linking these concepts, within which a problem is placed. These ideas are discussed later in this introduction.
[viii] Herbert Marcuse in his book on Soviet Marxism employed this terminology when he used the concepts employed by Marxism as the very tools with which to analyse, and criticise, the theory of Soviet Marxism itself. Such a method is essentially one of analysing a theory for internal consistency.
[ix] Chris Borthwick,
(1995a) ‘Persistent Vegetative State; A Syndrome in Search of a Name, or a Judgement in Search of a Syndrome’ Monash Bioethics Review 1995
(1995b) ‘The Proof of the Vegetable; A Commentary on Ethical Futility’ Journal of Medical Ethics 1995
(1996) ‘The Permanent Vegetative State; Ethical Crux, Medical Fiction?’ Issues in Law and Medicine. 1996.
[x] More commonly known as ‘Locked-in Syndrome’.
[xi] i.e. using an inappropriate conceptual structure to analyse a problem.
[xii] Hubert Benoit, Zen and the Psychology of Transformation, at p.2.
[xiii] In discussing his concept of ‘private language’.
[xiv] Ludwig Wittgenstein, Philosophical Investigations Part 1[cited in future as ‘PI-1’], § 308.
P.M.S. Hacker (at p.7) quotes Wittgenstein as stating:
“One keeps forgetting to go right down to the foundations ... one doesn’t put the question marks deep enough down.”
a perception that is echoed by Marie McGinn (at p.113 - 4) when she suggests that Wittgenstein:
“ ... does not address the familiar doctrines of philosophy directly, but goes back to their roots in the first temptation to form false pictures of language or psychological phenomena, which the grammar of our concepts presents. ... It is not the philosophical accounts we construct which interests Wittgenstein, but the ‘ logical sleights-of-hand’.”
[xv] and to the propositions linking these concepts. The term conceptual structure is also used by P.F.Strawson. Strawson conceives the task of the philosopher as being to ‘lay bare’ the ‘massive central core of human thinking which has no history’. He describes the categories and concepts which make up this perennial structure of human thinking as ‘the commonplaces of the least refined thinking’ as well as the ‘indispensable core of the conceptual equipment of the most sophisticated human beings.’ see: Passmore p.504 and Strawson Individuals p. xiii
[xvi] Quoted by Gary Zukav, The Dancing Wu Li Masters, at p.35.
[xvii]BMA (1996) at p.58:
“In the BMA’s view, recoveries, where they can be verified, indicate an original misdiagnosis.”
[xviii] Maurice O’Connor Drury, who was a pupil of Wittgenstein’s and a medical doctor, has described some logical fallacies to which scientists, and in particular medical doctors, are prone. One of these he calls the ‘fallacy of the missing hippopotamus’ and describes it thus:
“We
are inclined to fall in love with an hypothesis, and so when facts begin to
tell against it, we invent a subsidiary hypothesis to save the face of the
first, and this process continues until without realising it our first
hypothesis has become so secure as to be irrefutable. ... The theory has become
‘fact proof’; it just cannot be refuted.
But that which cannot be proved wrong by any conceivable experience is
without meaning.”
M. O’C Drury, The Danger of Words and Writings on Wittgenstein, (eds.) D. Berman, M. Fitzgerald and J. Hayes, p.16.
[xix] Keith Andrews et al ‘Misdiagnosis of the Vegetative State: Retrospective Study in a Rehabilitation Unit.’ British Medical Journal (1996) at p.13
[xx] Assuming, for simplicity, the same target population and that ‘PVS’ and ‘non-PVS’ were equally likely conditions within that target population.
[xxi] Donald Tresch et al ‘Clinical Characteristics of Patients in the Persistent Vegetative State.’ Archives of Internal Medicine, (1991), at p.930.
[xxii] It could be argued that this is lack of confidence as to prognosis but the BMA guidelines that indicate that:
“In the BMA’s view, recoveries, where they can be verified, indicate an original misdiagnosis.”
[BMA (1996) at p.58]
[xxiii] Andrew Grubb et al Doctors’ views on the management of Patients in Persistent Vegetative State: A European Study, at p.32.
[xxiv] Imagine a child born to an extended family all of whom were blind, but not so the child. Imagine further the child growing up only amongst such adults so that the concept of ‘seeing’ was not utilised and not available to the child. Certainly the child would not have the concept of seeing but surely it could see?
A more realistic, but less striking,
example could be constructed from the experience of the neurologist Oliver
Sachs outlined in his ‘Island of the Colour Blind’.
The absence of the distinction between
‘having an experience’ and ‘having an experience and knowing it was an
experience of a particular type’ would also imply, for example, that a dog
could not be hungry since it has no concept
of hunger.
[xxv] Ronald Cranford, for example, notes:
“It would be dreadful indeed to stop treatment in patients who were thought to be unconscious but who could in fact experience thirst and hunger when treatment, including artificial nutrition and hydration, was stopped.”
Ronald Cranford ‘Misdiagnosing the persistent vegetative state’ British Medical Journal, (1996) at p.6.
[xxvi] The Ward Case, High Court, unreported judgement at p.21.
[xxvii] The Bland case at p.795 [emphasis added]
[xxviii] Andrews (1993a) at p.1600.
[xxix] More accurately the ‘good death’ of the patient. The concept of ‘a good death’ is discussed in Chapter 9.
[xxx] Reported in The Times 22 April 1999 and also in The Guardian 23 April 1999.
[xxxi] Peter B. Lloyd in an article entitled ‘Which Beings should be Given Rights?’ Philosophy Now. (1993) (Internet Source, at p.3 of 4) argues that
“Euphemisms are appropriate for grieving parents, but not for bringing out the underlying moral factors.”
Noreen O’Carroll in an article ‘The Right To Die’ Studies, considers that the Ward case uses euphemistic language which functions to distance from the actual experience. She continues (at p.382):
“Corrupt language has one particularly grotesque characteristic, that is, it deceives and bewitches the intelligence of human beings, even such human beings as sit on the Supreme Court bench.“
[xxxii] The phenomenon of ‘death denial‘ will be discussed in Chapter 9.
[xxxiii] M. O’C. Drury The Danger of Words writes on the importance of using an appropriate nomenclature in medicine. He warns (at p.3) against the danger that from:
“... unsystematic nomenclature suppositions are drawn, which then become presumptions and only too easily pass over into established truths.”
He continues:
”[T]he chief danger of an unsystematic nomenclature is the danger of regarding its classification as mutually exclusive and completely exhaustive.“
[xxxiv] As reported in The Irish Times 17 August 1998.
[xxxv] Andrews (1996) at p.14-15.
[xxxvi] The patient in the Ward case was diagnosed as not ‘PVS’ but ‘near-PVS’ because she had some level of consciousness.
[xxxvii] The Ward case at p.8
[xxxviii] Ability to experience pain plays a similarly paradoxical role.
[xxxix] This is a simplification as the change in life expectancy must also be taken into account. These questions are discussed more fully in Chapter 7.
[xl] As occurred, for example, in Nazi Germany.
[xli] Dr Tom Stuttaford, the medical correspondent of The Times, in an article in that paper entitled ‘Final moments of old friend who 'died on end of needle'’ ( 26 February 2000) exemplifies such an approach; according to Dr Stuttaford:
“Ethically there is a great difference between the possible shortening of a life by the administration of analgesia, provided that the primary aim is to relieve pain, and the giving of an analgesic agent, not primarily to relieve pain but to hasten the patient's end, and assisted suicide in which the sole object of the ‘treatment’ is to kill. At no time in my 50 years in medicine has there ever, in approved medical practice, been any doubt that if a patient dies somewhat earlier as the result of drugs administered to relieve discomfort, it was an acceptable price to pay for a patient's peaceful end. This difference was well illustrated by a case when I was a GP in Norfolk in the 1960s. A colleague, who had greatly outlived his life expectancy, was dying from lung cancer. Each lunchtime we met for a beer, and every morning and evening I gave him his shot of heroin. The pain was beginning to break through, and one evening I met with his son, a fellow GP, and his son-in-law, a consultant, at a teaching hospital, and together we decided to increase the dose, by an agreed modest amount - not to kill him, but to relieve pain so that he could sleep, I gave him the injection. He lay back on the pillow, smiling peacefully. Suddenly he sat bolt upright, saying: "Tommy, you have overdone it, you have killed me." He collapsed back on the pillow - dead. This used to be known on the ward as having a patient who died on the end of the needle. It is unfortunate, but, so long as the only intention was to relieve pain, the outcome is not only legitimate, but good medical practice. “
[xlii] It is necessary to bear in mind that, in law, the motive for carrying out an act is not relevant in ascribing criminal responsibility.
[xliii] The patient in the Ward case itself had some level of awareness in that she was diagnosed as ‘near-PVS’ rather than ‘PVS’.
[xliv] The Ward case p.437.
[xlv] For example, the case Re B (a minor) (wardship: medical treatment) [1990] 3 All ER 927 concerned a Down Syndrome infant where the court ordered that treatment be withheld, thought this decision was overturned on appeal [see Appendix C, number 7]. The Attorney General referred to this case in his submissions in the Ward case:
“... and said that that case uniquely illustrates why quality of life should not be adopted as a test.”
[The Ward Case at p.449]
[xlvi] By ‘death is an evil, simpliciter’ I mean to speak of the unqualified proposition that ‘death is evil’. I do not seek to deny that certain types of death, or death in certain circumstances, could be classified as evil.