Freedom and dignity, in life and in death

As submitted to The Daily Maverick

Professor Sean Davison returned to South Africa in mid-December last year, after the New Zealand high court revised his bail conditions and allowed him to return to his family and to his job at the University of the Western Cape. He is currently awaiting trial in a case of attempted murder, after he gave his mother a lethal dose of morphine four years ago, at her request.

His mother, Patricia, had been terminally ill from a cancer diagnosed in 2004, and no longer thought life worth living. She had tried and failed to starve herself to death, and eventually resorted to asking her son to kill her. But voluntary euthanasia is illegal in New Zealand, as it is in South Africa. It’s time for that to change, and Davison will be assisting in setting up Dignity South Africa with the goal of having the relevant legislation amended.

The legislation currently applicable is in some disarray, both philosophically – as is quite common in most of the world – as well as with regard to the legislative status of the draft bill on End of Life Decisions. The South African Law Reform Commission proposed and tabled this bill before Parliament in 1999, but it has yet to be debated.

In the meanwhile, organisations such as SAVES (the living will society of South Africa) operate in somewhat of a gray zone, where while South Africans are legally entitled to refuse medical attention even in cases where doing so would hasten death, doing so by so-called “advance directive” might not guarantee the outcome you desire. This is because there is no legislation in place that allows for your advance directive to be established as reliable, or composed under the required state of awareness of the consequences of that directive.

The reason that this situation is philosophically incoherent is that the distinction between passive euthanasia (withholding treatment) and active euthanasia (accelerating death through administering some agent, such as the morphine that Davison gave to his mother) relies on an emotional distinction rather than a morally principled one.

While the distinction between active and passive euthanasia is upheld in law and (officially) in medical practice, it ought to be discarded, as there is no moral difference between killing and letting die in the kind of situations at issue in medical practice. Most doctors seem to accept the idea that it is morally permissible to withdraw or withhold treatment in cases where the patient’s imminent death seems certain, but that it is not morally permissible to hasten that same patient’s death by measures such as administering a lethal dose of medication.

As an example, let us consider the patient who has terminal cancer, and who seems certain to die within hours if life-supporting treatment is withdrawn, and probably within days even if treatment is continued. In one possible scenario, Dr X believes that there is no hope of the patient’s recovery, and seeks the permission of the family before withdrawing treatment.

His desire to withdraw treatment is based on factors such as the certainty of the patient’s death, minimising the pain of watching somebody linger near death for an extended period, and the cost (financial and in terms of labour-hours) of keeping the patient alive artificially, when those resources could be used in helping patients who do have a chance of recovery. The family gives permission, and treatment is withdrawn.

The patient dies within hours, but it is clear to the doctor and to the family (who gathered around the hospital bed to be with the patient for his final hours) that the patient was enduring excruciating pain during those final hours. Medication was administered to alleviate the pain, but had no effect, as the strength of medication required to alleviate the pain was such that to administer it would have killed the patient, which is something the doctor could not do.

In an alternative scenario, the same patient is being treated by Doctor Z. He is motivated by the same factors as Doctor X, but believes that he can do most good and minimise the pain for all concerned by administering a lethal dose of medication to the patient. The patient dies within minutes of injection, and it is clear to the doctor and to the patient’s family that the patient’s last minutes were pain-free.

There is no reason for the death of the patient to be more traumatic for the family in the second scenario, and it was certainly less traumatic for the patient. Furthermore, the family were not deprived of valuable time with their loved one, as the patient was not even conscious of their presence due to the amount of drugs he had been administered and the ravages the illness had inflicted on his body and mind.

In this kind of example, it is difficult to see how killing the patient is in any way morally less justifiable than letting him die. It is true, as James Rachels points out, that killing often appears more reprehensible than letting die, but this is often only due to the nature of the killings, and what the notion of killing brings to mind. If we read of a gruesome murder in the newspaper, it would obviously seem worse than the newspaper article describing how a doctor turned off the life-support machines of a patient who was irreversibly comatose. But this does not mean that, within the medical context, killing is itself worse than letting die.

One reason for the apparent desirability of passive over active euthanasia is rooted in the acts and omissions doctrine. According to this doctrine (as expressed in the American Medical Association policy statement) “the intentional termination of the life of one human being by another” (an act) is forbidden, while the cessation of treatment (an omission) is morally justifiable, as it is not “the intentional termination of the life of one human being by another”.

But it should be remembered that to omit to act is also (in this context) an action, as the doctor makes a conscious decision to withdraw or withhold treatment. As Rachels puts it: “what is the cessation of treatment, in these circumstances, if it is not ‘the intentional termination of the life of one human being by another’? Of course it is exactly that, and if it were not, there would be no point to it”.

Under ideal circumstances, no doctor and no person would want to be the cause of a patient’s death – especially perhaps the death of one’s parent, as in Davison’s case. It is sometimes felt that if the doctor opts for passive euthanasia, he could argue that he was not the cause of death in the way he would be if he opted for active euthanasia. But choosing to withdraw or withhold treatment is an action subject to moral appraisal in the same way as choosing to administer a lethal dose, as long as the motivations are the same in both cases.

In active and passive euthanasia, the patient dies from the illness itself – whether the doctor or son hastens that death does not appear to be morally relevant, at least not in cases where a person expresses a desire to die. It’s certainly true that not all cases are this simple, though – we could construct scenarios where a son insists that his parent wants to die, but there are plausible suspicions that an imminent inheritance, rather than the parent’s suffering, is the real motivating force for his desire to facilitate her death.

So, as with many such tricky cases in medical and other areas of ethics, we would need to develop rules around active euthanasia that would not encourage fears of a slippery slope, whereby we eventually find that all “undesirable” or even “unworthy” life is placed in jeopardy. And in practice, doctors regularly make these judgements and apply rules of this sort (whether entrenched in law or not) in cases of passive euthanasia.

And once it has been decided that the patient’s life should not be prolonged, what moral difference does it make if the patient dies through active or passive euthanasia? The fact that active euthanasia is at present forbidden by law seems to be the only reason that the active/passive distinction is currently relevant in medical practice. As Rachels says, “whereas doctors may have to discriminate between active and passive euthanasia to satisfy the law, they should not do any more than that. In particular, they should not give the distinction any added authority and weight by writing it into official statements of medical ethics”.

Furthermore, we should also work towards eliminating the distinction in law, at least for uncontroversial cases such as the Davison case, where there is evidence that an acceleration of death was requested by a compos mentis family member or friend. In doing so, we could still require that doctors or other agents need the permission of the patient, family, or a surrogate decision-maker before allowing active euthanasia. This would eliminate abuses of the practice, at least to the same extent as similar safeguards in place for passive euthanasia do.

Some objections to active euthanasia appeal to a possible erosion of our respect for human life as a reason to forbid it. However, while our Constitution affords us a right to life, it does not confer on us a duty to live. This is entrenched in law via the freedom we have to refuse treatment. If refusing treatment would lead to our death, and we are aware of this, it seems a gross disrespect of the life we have left to refuse us the choice to hasten that death, and to die in a manner of our choosing.

It is not at all clear that there are good reasons for maintaining a moral difference between killing and letting die, at least in situations encountered in medical practice. Rachels is correct in saying that the only difference between killing and letting die is the bare difference, and the bare difference does not make a moral difference. It’s about time that the draft bill on End of Life Decisions was debated in Parliament, and about time that people like Davison don’t have to fear legal repercussions for valuing his mother’s liberty.

By Jacques Rousseau

Jacques Rousseau teaches critical thinking and ethics at the University of Cape Town, South Africa, and is the founder and director of the Free Society Institute, a non-profit organisation promoting secular humanism and scientific reasoning.