OTRAS CIRCUNSTANCIAS PARA APRECIAR EL MONTO DE LA CAUCIÓN

Opioids and Sedatives on Survival in an Australian Inpatient Palliative Care Population' (2005) 35 Internal Medicine Journal 512; Danuta Mendelson, 'Euthanasia' in Russell G Smith (ed), Health Care, Crime and Regulatory Control (Hawkins Press, 1998) 149, 150-151. Some palliative care specialists argue that good palliative care need never accelerate a patient’s death: see, eg, Michael Ashby, 'The Fallacies o f Death Causation in Palliative Care' (1997) 166 Medical Journal o f Australia 191.

death, usually by a matter of hours or days. The potential of hastening death was accepted as sometimes necessary to achieve symptom relief. For example, Dr Richards, another palliative care specialist, explained: ‘If the intent is to relieve suffering and the doses that are given are proportionate ... if it happens to hasten their life by a matter of hours or minutes or whatever, that’s perfectly fine.’36

The administration of drugs in these circumstances thus lacked the intent to cause death, one of the mental states that could constitute the crime of murder. Dr Sanger highlighted that it is the intention to cause death which would be problematic, remarking: ‘I recognise that there is that secondary effect of the morphine [to hasten death]. But if you’re giving it with the intention of also hastening death, then ... I don’t agree with that.’ Thus, hastening death was not their purpose in administering the drugs, but it was a foreseen - and sometimes probable - secondary effect.

V DOUBLE EFFECT REASONING

A Definition

In justifying their administration of pain relief which hastens death in such circumstances, the interviewees were implicitly drawing on double effect reasoning. According to this philosophical approach, it is morally acceptable to act in a way that one foresees will result in bad consequences provided that the following conditions are satisfied:

the bad consequences occur only as side-effects to the intended purpose (that is, whilst the actor must not intend the bad consequences, he or she may foresee them);

the intended purpose must itself be morally good or (at the very least) morally neutral; the bad consequences must not be a means of achieving the good end (that is the intended purpose); and

38

the bad consequences must not be so serious as to outweigh the good effect.

36 Interview with Elizabeth Richards (6 February 2008). 37 Interview with Simone Sanger (12 December 2007).

38 Double effect reasoning (sometimes referred to as ‘the doctrine of double effect’ or ‘the principle of double effect’) is usually attributed to Thomas Aquinas in his discussion of self-defence: see John Finnis, Aquinas:

Moral, Political and Legal Theory (Oxford University Press, 1998) 275-278. Despite its origins in Roman

Catholic moral philosophy, double effect reasoning is still relevant in contemporary secular societies: ‘double­ effect reasoning is not a religious doctrine. The ... intuitive support given double effect by common morality ...

TIhe last of these criteria requires that the bad consequences be proportionate to the good achieved. This involves a ‘weighing up’ of the consequences involved. When the good sought cannot justify or outweigh the bad effects of an action, then one should avoid acting even though the bad side-effects are unintended.

Sulmasy and Pellegrino explain that administering pain relief such as morphine with the foresight that it will hasten death is licit according to double effect reasoning because: it is not immoral to administer morphine; the morphine is administered with the intention of relieving pain (not with the intention of killing the patient); the morphine does not need to first kill the patient in order to relieve pain; and the relief of pain is a sufficiently noble end to justify the risk of hastening death.39

B The Distinction Between Intended and Foreseen Consequences

The distinction between intention and foresight of consequences - essential to double effect reasoning and central to the interviewees’ views on the use of pain relief - has been widely criticised. There is no scope here to offer a comprehensive defence of the distinction because the literature about double effect reasoning is complex and wide ranging.40 In essence, the distinction lies in the nature of one’s commitment to the consequences of one’s conduct:

One commits oneself to the intended results of one’s chosen actions or omissions in a way in which one is not in general committed to the foreseen consequences of one’s actions or omissions. It is in the nature of that commitment to be character-shaping and therefore of crucial moral significance.41

and the weight given to double effect by contemporary secular philosophers ... indicate its non-religious character. It is simply a non-consequentialist way of thinking about hard cases.’ T A Cavanaugh, Double-Effect

Reasoning: Doing Good and Avoiding Evil (Oxford University Press, 2006) 184-185. See also Daniel P

Sulmassy, ‘’Reinventing’ the Rule of Double Effect’ in Bonnie Steinbock (ed), The Oxford Handbook of

Bioethics (Oxford University Press, 2007) 114.

39 D P Sulmasy and Edmund Pellegrino, 'The Rule of Double Effect: Clearing up the Double Talk' (1999) 159

Archives o f Internal Medicine 545, 550. Cf. Roger Magnusson, 'The Devil's Choice: Re-Thinking Law, Ethics

and Symptom Relief in Palliative Care' (2006) 34 Journal o f Law, Medicine and Ethics 559, 561. 40 For a representation of the debate see the exchange between John Harris (who criticises double effect reasoning) and John Finnis (who defends it): John Finnis, 'A Philosophical Case against Euthanasia' in John Keown (ed), Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge University Press,

1995) 23; John Finnis, 'The Fragile Case for Euthanasia: a Reply to John Harris' in John Keown (ed),

Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge University Press, 1995) 46; John

Harris, 'The Philosophical Case against the Philosophical Case against Euthanasia' in John Keown (ed),

Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge University Press, 1995) 36.

41 Luke Gormally, 'The Living Will: the Ethical Framework of a Recent Report' in Luke Gormally (ed), The

Thus the law has long accepted a distinction between intended and foreseen consequences