Los tribunales de la Competencia en las

There are two fundamental moral issues about physician-assisted hastening of death: Are physicians morally justified in complying with requests by patients who ask for assistance? Is there an adequate moral basis to justify the legalization of physician-assisted hastening of death at the patient’s request? Legal develop-ments in the United States have encouraged us to frame virtually all moral questions as ones of legalization. As important as legalization is, the question of whether physicians are morally justified in complying with requests for aid in dying presents the more fundamental moral issue. Accordingly, my concern is primarily with the moral justification of individual acts of hastening death.

The thesis that physician-assisted hastening of death is morally prohibited has commonly been grounded in the premises that there is a defensible and relevant distinction between letting die and killing and that physicians may let patients die but cannot kill them. I do not reject the distinction between killing and letting die;

indeed, I offer an analysis that makes sense of it. Nonetheless, this distinction is fatally deficient and flawed as a means of treating the major problems of physician-assisted death that face medicine and society today. Physician-physician-assisted hastening of death need not involve either killing or letting die; and even if an act is one of killing or letting die, it must be shown whether the act is justified or unjustified. The categories of “killing” and “letting die” therefore need to be redirected to the key moral issue that should drive discussions of physician-assisted death, which is the liberty to choose and the justification (if any) for limiting that liberty.¹

THE CONCEPTUAL FOUNDATION OF THE DISTINCTION BETWEEN KILLING AND LETTING DIE

In examining the conceptual foundation of the distinction between killing and letting die, the first question is whether physicians kill patients by causing their deaths either through interventions or through intentional noninterventions. In medical tradition, the term killing has understandably carried meanings of wrong-fulness and blameworthiness. However, in contexts external to traditional med-ical morality, “killing” does not imply wrongful behavior; it refers only to causal action that brings about another’s death. In settings both within and outside medicine, “letting die” refers to intentionally not intervening so that disease, system failure, injury, or circumstance causes death.

In ordinary discourse, medicine, and law, these conceptions are conspicuously vague. Some cases of letting die count also as acts of killing, thereby undermining the hypothesis that these terms distinguish two different sets of cases. For example, health professionals kill patients—that is, cause patients to die—when they intentionally let them die in circumstances in which a duty exists to keep the patients alive, such as a patient with pneumonia who could easily be cured and wants to be cured but is “allowed to die” by a physician who chooses not to

“intervene.” In much of the literature of medical ethics, it is unclear how to distinguish killing from letting die so as to avoid even this elementary problem of cases that satisfy the conditions of both categories.

A widely accepted account of letting die holds that intentionally forgoing a medical technology qualifies as letting die, rather than killing, only if an under-lying disease or injury is intentionally allowed to cause death when death might be delayed by employing that technology.² According to this view, if a medical technology is intentionally withdrawn or withheld, a natural death occurs when natural conditions do what they would have done had the technology never been initiated (i.e., when existing conditions take their natural, undeterred course). By contrast, killing occurs if an act of a person or persons, rather than natural conditions, causes an ensuing death.

This account misses its mark unless other conditions are added to it, but additional conditions threaten to undermine the very point of the account. One condition that must be added is that any withholding or withdrawing of a medical technology must be justified; an unjustified withholding or withdrawing that releases natural conditions is a killing. This condition brings a moral considera-tion of justified acconsidera-tion into the heart of the conceptual analysis of letting die. To see why this condition of justified withholding or withdrawing must be added, consider the case of a physician who either mistakenly (through negligence) or maleficently (through ill intent) removes a life-sustaining medical technology

from a patient who wants to continue living. This action lacks justification. We could not reasonably say, “The physician did not cause the patient’s death; he only allowed the patient to die of an underlying condition.” In this case, the physician did cause the death, and the physician did “let the patient die” in the sense normally meant in medical morality.

Now, change the patient’s wishes. Suppose that the patient autonomously refused the technology that sustains life. In this circumstance, it would not be correct to say that the physician caused the death. Whether the physician did or did not cause death is determined in these circumstances by whether the act was validly authorized. If the act is validly authorized, it is a letting die; if it is not validly authorized, it is a killing. The reason for forgoing a medical technology is therefore the key condition in conceptually distinguishing killing and letting die in cases of withholding or withdrawing life-sustaining interventions. A phy-sician lets a patient die if he or she has valid authorization for withholding or withdrawing treatment. “Letting die” is validly authorized nonintervention in circumstances in which patients die (when and in the precise manner they do) as a result. By contrast, a comparable action or inaction is a killing if:

the physician had a duty to treat,

the physician withheld or withdrew a life-sustaining technology without authorization, and

the patient subsequently died for lack of that technology.

Here a physician is the relevant cause of death and kills a patient if he or she has no valid authorization for withholding or withdrawing treatment, but the physi-cian lets the patient die if he or she does have valid authorization for withholding or withdrawing treatment. Of course, physicians also may kill in so-called active ways. I confront this problem in due course.

LETTING DIE BASED ON MEDICAL FUTILITY

Thus far I have argued that the following are conceptually (rather than causally) sufficient conditions of letting die in medicine:

1. the patient validly refused a medical technology that is essential to the patient’s continued existence,

2. the physician withheld or withdrew the refused life-sustaining tech-nology, and

3. the patient subsequently died for lack of the technology.

To say that these conditions are conceptually sufficient for letting die is not to say that they are either necessary conditions or the only set of sufficient condi-tions. Withdrawing or withholding a medically futile technology can be the main reason why we categorize an action as one of letting die. Accordingly, the following conditions form a second set of (conceptually) sufficient conditions of letting die in medicine:

1. a medical authority appropriately judged that a medical technology is futile to achieve the goals for which it was initiated (though it has to this point kept the patient alive),

2. the physician withheld or withdrew the futile technology, and 3. the patient subsequently died for lack of the technology.

A common, but incorrect, thesis is that letting die occurs in medicine only if

“ceasing useless medical technologies” eventuates in the patient’s death.³ This account rightly connects letting die to futility (as in 1’ through 3’) but wrongly assumes that in the circumstance of letting die, technologies must be futile.

As demonstrated in the previous section, medical futility is not a necessary condition of letting die. A patient’s valid refusal of a medical technology makes a circumstance one of letting die even if the technology is not futile.

In the case of1’ through 3’, the physician’s intention may also need to be of one type rather than another to qualify as letting die, but I will not here pursue this question about proper intention. What does need an additional comment is the language in1’ of “a medical authority appropriately judged that.” As the previous analysis suggests, in the medical context letting die is conceptually tied to acceptable acts, where acceptability derives either from a well-substan-tiated judgment of the futility of a technology or from a valid refusal of the technology. In the case of a valid refusal, there exists no problem about responsibility for the death because the refusal itself justifies the physician’s conduct; the refusal nullifies what would otherwise be an injury or maltreat-ment and makes the case one of letting die. A judgmaltreat-ment of futility does not as transparently provide justification, but a well-substantiated judgment of futility can be the basis of a justified act of withholding or withdrawing a technology.

The language of letting die is used in medical contexts to express a moral judgment. A letting die is a justified act; it is not morally neutral or unjustified.

Despite this general feature of medical discourse, it is an open question whether physicians kill or let die when they nonnegligently make a mistaken judgment about a patient’s condition (after which the patient refuses treatment) or about

the futility of a treatment. Assessment of such hard cases is likely to turn on special features of the cases. For present purposes, suffice it to say that a conscientious and knowledgeable physician who makes a reasoned and justifiable determination of futility in light of all the information that could be gained in the circumstances lets the patient die and does not kill the patient, even if the judgment of futility turns out to have been mistaken.

DO PHYSICIANS KILL PATIENTS WHEN THEY ASSIST IN HASTENING DEATH?

A necessary condition of killing a patient is that the actions or inactions of the physician cause the patient’s death. However, the criteria of causing death in the medical setting need clarification. The conscientious and informed physician who either makes a justifiable determination of futility or follows a patient’s valid refusal does not cause the patient’s death even if, in the circumstances, the technology withdrawn or withheld is causally necessary for the patient’s con-tinued existence. The physician’s act of withholding or withdrawing is a neces-sary (or “but for”) condition of the patient’s death as the death occurred, but the physician is not the cause in the pertinent sense, which is that of being causally responsible. A physician is not responsible for the consequences of withholding or withdrawing a technology the patient has refused, even if the physician is a contributing cause of those consequences. By contrast, the previously men-tioned physician who maleficently removed a medical technology from a patient who wanted to continue living is the cause of death, is causally responsible for the outcome, and indeed killed the patient.

Why is the first physician not the cause, whereas the second is the cause? “The cause” judgments (or singular causal judgments) are relative to the prevailing criteria in a given context of investigation. In the circumstance of physician-caused death, judgments of causation (and, derivatively, of killing) turn on whether a physician intervened in an unwarranted manner in a course of events that could reasonably have been expected to take place. When the physician has specific warrant for action or inaction (e.g., when the physician has a valid authorization from a patient) and the patient’s death is a consequence of acting or not acting, the physician is not the cause of death. Rather, the cause is disease, injury, system failure, or perhaps the decision of another party who authorized the physician’s conduct.

To illustrate these abstract points and make them more transparent, consider the following thought experiment: Two patients occupy a semiprivate hospital

room, both having the same illness and both respirator dependent. One has refused the respirator; the other wishes to remain on the respirator. A physician intentionally flips a master switch that turns off both respirators; the physician is aware that both respirators will shut down. The two patients die in the same way at the same time of the same physical causes and by the same physical action of the physician. (Thus, all variables are held constant except that one patient authorized the physician’s action and the other did not.) Although the two patients die of the same physical causes, they do not die of the same causes of interest to law, medicine, and morality, because the proximate cause—that is, the cause respon-sible for the outcome—is not the same in the two otherwise identically situated patients. Consistent with the analysis provided previously, this thought experi-ment shows that a valid authorization transforms what would be a maleficent act of killing into a nonmaleficent act of letting die.

From both a legal and a moral point of view, one reason why physicians do not injure, maltreat, or kill patients when they withhold or withdraw medical tech-nology is that a physician is morally and legally obligated to respect a valid refusal.

Since a valid refusal of treatment binds the physician, it would be unacceptable to hold that these legal and moral duties require physicians to cause the deaths of their patients and thereby to kill them.

Quite apart from killing by means of withholding or withdrawing a treatment, killing can and occasionally does occur through a physician-initiated “active”

means to death. Here is a conceptually clear case: Paul Mills was a patient in the Queen Elizabeth II Health Sciences Center in Halifax, Nova Scotia. Mills had undergone10 unsuccessful operations for throat cancer. He was dying, and a life-support system had been withdrawn at the request of his family. It was thought that he would die a natural death within a few hours. However, the heavy sedation he had been given was not having its intended effect. Mills was suffering from infection and experiencing “tremendous discomfort” and

“excruciating pain,” according to hospital officials. On November 10, 1996, Nancy Morrison, Mills’s physician, administered to Mills a dose of potassium chloride. Mills died shortly thereafter. His family was unaware of the injection.

On May 6, 1997, Dr. Morrison was indicted for first-degree murder; these charges were thrown out on February 27, 1998, for lack of legal evidence sufficient to sustain the charge of first-degree murder.⁴

Dr. Morrison did not, and would not, describe her act as “killing,” let alone as

“murder.” She viewed it as a compassionate act of assistance in dying. It may indeed have been an act of this description. However, Dr. Morrison had no specific authorization for her act of injecting potassium chloride, and she was the cause of Mills’s death in the way and at the time that his death occurred; she was causally responsible for the death, and she killed Mills. Whether she killed him justifiably is another matter, and one I will now consider.

IS KILLING BY PHYSICIANS MORALLY PERMISSIBLE?

I have proposed that in cases of killing a patient the physician is causally respon-sible (a proximate cause), and in cases of letting die the physician is not causally responsible (not the proximate cause). This proposal so far conforms to legal and medical traditions. Now, however, I depart from those traditions.

It does not follow from the fact that a physician kills a patient that the physician acts unjustifiably. Outside of traditional thinking about medical morality, it is clear that to correctly apply the label “killing” or the label “letting die” to a set of events cannot determine whether one type of action is better or worse than the other or whether either is acceptable or unacceptable.⁵Rightness and wrongness in killing depend exclusively on the merit of the justification underlying an act of killing, not on the type of action it is.

Outside of (and independent of) medical tradition, there are several generally accepted justifications for killing, including killing in self-defense, killing to rescue a person endangered by another person’s immoral acts, and killing by misadven-ture (accidental, nonnegligent killing while engaged in a lawful act). These excusing conditions establish that we cannot prejudge an action as wrong merely because it is a killing.⁶ I hereafter assume this morally neutral sense of

“kill” to see where it can and should take us in contexts of physician-hastened death.

Even though medical tradition has condemned physician killing, it is concep-tually and morally open to physicians (and society) to reverse tradition and come to the conclusion that medicine and the social context have changed and that it is time to permit certain forms of assisted death including some forms that involve killing.⁷Medical morality has never been self-justifying, and traditional practices and standards in medicine may, in the face of social change, turn out to be indefensible limits on the liberty to choose. Even if, in medicine, killing is usually wrong and letting die only rarely wrong, this outcome is contingent on the features of the cases that typically appear in medicine. The general wrongness of killing and the general rightness of letting die are not surprising features of the moral world inasmuch as killings are rarely authorized by appropriate parties and cases of letting die generally are validly authorized. Be that as it may, the frequency with which one kind of act is justified, by contrast to the other kind of act, is not relevant to the moral (or legal) justification of either kind of act.

The justifiability of any particular type or instance of killing is therefore an open question, and we cannot assert without looking at a particular case (or type of case) that killing is morally worse than allowing to die. The way to decide whether killing is wrong in the medical circumstance of a request for hastened death is to determine what makes it wrong in general. Causing a person’s death is wrong, when it is wrong, not simply because someone is the responsible (or proximate)

cause but because an unjustified harm or loss to the deceased has occurred—for example, the person has been deprived of opportunities and goods that life would otherwise have afforded. A person must unjustifiably suffer a setback to personal interests (a harm) that the person would not otherwise have experienced.⁸

It is a complicated question whether patient-authorized killing by physicians involves any form of harm to the patient, but we can here circumvent this question. It is a generally accepted principle even in Hippocratic medicine that physicians may, under various conditions, legitimately harm patients to avoid graver or more burdensome harms. Invasive surgery that requires recuperation is a paradigm case. Because death is sometimes the more inviting of two unwelcome outcomes, physicians may have sound reasons to help their patients by causing the lesser harm.⁹ If a patient chooses death as a release from a desperate and harmful circumstance, then killing at that patient’s request involves no clear wrong even if it does involve a harm. Shortening life can avoid a state of burdens to a patient that is virtually uncompensated by benefits.¹⁰

This form of aid to patients might harm society by setting back its interests, and this harm might constitute a sufficient reason not to legalize physician-hastened death. However, this consequence would not change the status of the act as a

This form of aid to patients might harm society by setting back its interests, and this harm might constitute a sufficient reason not to legalize physician-hastened death. However, this consequence would not change the status of the act as a