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The sanctity of life principle absolutely prohibits conduct that intentionally ends life;

however, the principle of double effect (PDE), usually first credited to Thomas Aquinas (Bennet 1981), finds that voluntary lethal conduct may be acceptable in certain exceptional circumstances on the basis that there is no intention to kill. Aquinas observed of certain forms of voluntary lethal conduct, such as killing in self-defence, that the principle of double effect could operate so that such acts done without the intention to kill were not deemed to amount

in this thesis advances the PDE to justify certain forms of ‘life-shortening’ lethal treatment on the basis that such conduct is not intentional killing.³

The PDE applies where there are two (or more) consequences of an action which are certain to follow (to adjust Aquinas’ terminology of ‘effects’), one of which is the death of a person, but where only the non-lethal result is intended (Finnis 2011, 220ff.). Thus, in the context of

‘enabled dying’, this principle of double effect refers, broadly, to a situation where the death of the person is a ‘side-effect’ (eg Quinn 1993). The basis for the finding that a side-effect is unintended is disputed. A straightforward interpretation would be that the doctor’s ‘good’

motive to relieve a patient’s suffering is crucial to the permissibility of the doctor’s action (cf Gormally 1995, 134). However, Keown disagrees that motive is crucial to the PDE and instead seeks to defend the distinction between intentional killing and life-shortening treatment on the basis of intention and foresight. It is useful to expand upon this additional element of Keown’s argument in order to understand the development of the theorised sanctity of life position towards acceptance of a form of enabled suicide.

Keown finds that a ‘good’ doctor does not necessarily intend to kill or enable suicide where she provides life-shortening treatment, or ends a burdensome life-preserving treatment, because, while she foresees the lethal consequence of such conduct she does not intend to kill (2012, 141). It is viewed as implausible to draw a distinction not based on motive between such a ‘good’ doctor and a ‘bad’ doctor who does the same action but who wills the death of her patient when doing so because she wishes to facilitate his suicide (eg Price 1998). Price argues that Keown’s position, if it is not based on motive, must be understood to be based upon the quality of life of the patient (Price 1998, 627; Price 2007, 558). However, Keown rejects this analysis and argues that his position is consistent with the sanctity of life view that a suffering patient’s life cannot justifiably be ended on the basis of that he has a low quality of life (Keown 2006).

Keown’s response to Price’s criticisms of the sanctity of life position as regards life-shortening treatment/withdrawal is that it is only where the value of life is upheld as an

3Airedale NHS Trust v Bland [1993] AC 789.

absolute good in all circumstances that it would be impermissible to refuse to accept the permissibility of such conduct (a view he terms ‘vitalism’, see Keown 2002, 41). He accepts that life need not be artificially preserved at infinite cost to the patient, and that modern medicine provides for treatment options that would prolong life, but are so burdensome in terms of pain that it is asking too much of the patient to require him to undergo such treatment (eg Keown 2002, 231ff.). It is on this basis that he accepts that if a patient wishes for a form of treatment that treats the pain – even if death will thereby be hastened – rather than treatment that prolongs life, this should be permissible (Keown 2002, 39). A doctor understands that her conduct will bring the patient’s vital signs to an end and intends to do so, but she does not intend to kill him; under Keown’s view his life was brought to an end by the condition from which he is dying and suffering, and she merely foresees that her action which ameliorates his suffering will also hasten his death.

Keown maintains that such a position is not equivalent to the quality of life view espoused by Price, whereas Price argues that Keown’s stance becomes conflated with such a view (Price 2007, 556; cf Keown 2002, 44). Keown sets out his view of the distinction between the quantity, quality and sanctity views of the value of life in the following paragraph:

The SoL [sanctity of life], rejecting vitalism, holds that human life is a basic good but that it is not the highest good and that there is therefore no duty to preserve it at all costs. Rejecting the QoL [quality of life] approach, the SoL holds that human life is of intrinsic and not merely of instrumental value as a vehicle for a so-called ‘worthwhile’ life. (Keown 2002, 39)

It is on this basis that a doctor is justified in altering the treatment goal generally from curative to palliative:

…the distinction… is between… those who think that the lives of all patients are worthwhile but that not all life-saving treatments should be carried out because they offer little hope of benefit or impose excessive burdens and, on the other, those who think that certain patients are better off dead. (Keown

It is only in the context of non-curative palliative treatment that life-shortening treatment can be justified under this approach (life-preserving treatments could be permissibly withheld or withdrawn on this view outside that context; see next chapter, 8.2).

Keown’s identification of the value of life as distinct from the preservation of ‘vital signs’

departs from a straightforward conception of the ending of the life of a human moral subject, and requires elaboration. As discussed in chapter 2, the definition of the intrinsic good of human life under the sanctity of life theory relies on the unique human capacity for agency (eg Finnis 2011, 85ff.; see also 2.4). From this position it is defensible to treat the possession of ‘vital signs’ as only one element of a broad tableau of interests that human agents possess.

Keown’s conception of the value of human interests is premised on an interest-based view of natural law and is opposed to the protection of interests on the basis of individual freedom which is supported by the PGC (Keown 2002, 212ff.). However, individual expressions of autonomy by the patient remain of significant weight under the interest-based view, and, as human interests are increasingly degraded, due, for example, to the progression of a degenerative disease, then the basic good of preserving vital signs may increasingly have to be balanced against the deterioration in the capacity to experience other basic interests necessary for human agency (eg Keown 2002, 154). This means that a person, who is suffering unbearably in this way, and who has signalled his sincere desire to die, may be justifiably enabled to die by another without contradicting the sanctity of life stance because his life has not been devalued by doing so in this narrow circumstance (Keown 2012, 143ff.).

The application of PDE to life-shortening treatment is controversial, in terms of the sanctity of life theory, where a doctor is aware that she is administering such treatment to a suicidal patient who requests it, since that is tantamount to participating in a form of enabled suicide (Billings 2011, 440). Keown appears to accept that the patient’s suffering, his terminal illness and the patient’s desire to die, are relevant to the lack of intention to kill, and thus to the permissibility of life-shortening treatment (eg 2002, 20ff.). However, Keown does not accept that a patient’s suicidal purpose is thereby facilitated, but rather that his death is facilitated in order to ‘ease his passing’ (2012, 140ff.). He views the patient’s suicidal purpose as one of the patient’s fundamental interests that must inform a doctor’s decision, if that decision is to be arrived at in a ‘good’ way, but he does not deem that purpose to be decisive. If a doctor

were to be directed by the suicidal purpose of the patient then, on this view, the doctor’s actions would oppose the sanctity of life position.

The theorised sanctity of life approach to life-shortening treatment permits ‘enabled dying’

by life-shortening treatment in circumstances that are not dissimilar from the safeguards that may justifiably be enacted to restrict competent suicide under the PGC, discussed in chapter 5. These include extreme suffering (as a dialectically necessarily understandable reason for suicide), incurable and terminal illness (to evidence exhaustion of the agent’s capacity to recover from his state of suffering), and measures to verify that the agent has signalled his suicidal desire (see generally 5.4-5.6). The PGC does not distinguish moral responsibility for killing in the case of ‘life-shortening’ treatments, from other forms of voluntary lethal conduct (eg Gewirth 1978, 41), and therefore, since acting voluntarily to create a sufficiently foreseen effect is straightforwardly what is meant by an ‘intended’ action in Gewirthian theory (eg Gewirth 1978, 50-51), such conduct should be characterised as enabled suicide.

As discussed below, the law governing life-shortening treatment has developed towards an enabled suicide position to an extent, due to a recent emphasis on legal protection for patient autonomy. This interpretation of the legal developments is criticised as creating a ‘distortion’

of the sanctity of life position by theorists, such as Keown (2012, 240ff), but, obviously, from the perspective of the PGC such developments can be viewed as a step towards securing the generic right to enabled suicide.