Edwin Stevens Lecture
73
weaknesses, especially mental ones, is essential to support apparatus could lawfully be switched off if there was no reasonable possibility of her emerging the dignity of the sick and the dying. The preservation of the relationship between from her prolonged comatose condition. There lies on the threshold a problem which the husband and wife has much to do with personal dignity, and here again comes in the problem of lawyers have wisely left the doctors to decide, who should know. A husband may always have namely, what is 'death'? We were formerly inwished to spare his wife, and to keep from her the structed that the stopping of both heart and lungs knowledge of his impending end may seem to him were its unmistakable indicia. But many doctors the last thing that he can do for her. In other now regard as dead a patient who is in a state of circumstances a wife may wish to continue to carry deep and irremediable unconsciousness, even to the end all things for him, and will insist that he though his heart still beats and he still draws should not be told the whole because she believes breath. One day the doctors will have to make up that he could not accept it. Even if both in fact their minds about the matter, otherwise the Courts know, believing that the other does not may allow will have to decide the dispute for them. And that both of them to feel that they are each helping the would be a hideous task. As Mr Ian Kennedy has other, thus maintaining their relationship and their said, 'It would be a brave judge who would personal dignity, and enabling them to carry on contemplate with equanimity the headlines of the conversations and discussions in a normal manner. next day's press proclaiming "Judge orders burial Others, greatly privileged, may feel that the rich- of man with beating heart" (Kennedy 1975)'. But this evening we are not called upon to decide ness of their relationship would be debased by what is 'death'. We are to contemplate a patient other than total candour between them. Finally, for some, the point is reached when the who, though undoubtedly alive, is in an advanced only thing left to them on this earth is the hope that and irremediable state of terminal illness and may the memory they leave behind will be unblemished, be longing to die, and to ask what the law demands their own kind of dignity is all. Here we can help by of his doctor. Lord Hailsham seemingly has no reassuring them that we can do much to ensure doubts on the matter, for he recently said: 'The law at the moment is perfectly plain: if you have got a that they will die well. living body, you have to keep it alive, if you can' (Hailsham 1976). But some lawyers regard that Lord Edmund-Davies unqualified pronouncement as acceptable only in the sense that to set out to kill a patient is to set out to murder him, be he healthy or near death. Even if Legal Aspects the patient begs to be relieved of his grievous In my youth I was taught to be cautious. And long suffering, the doctor may not lawfully supply the experience in the law has reinforced the wisdom of fatal dose, and if he does and the patient dies the such an attitude. There are two particular reasons doctor renders himself liable to imprisonment up why caution should be maintained in responding to 14 years (Suicide Act 1961). But is it the law that the doctor must in all to the invitation by which I am honoured this evening. First, the legal issues involved are, lit- circumstances prolong his patient's life to the erally, matters of life and death. And, secondly, for utmost? Or, to put the same question in its baldest obvious reasons, I speak in a strictly extrajudicial form, may the current of the life-maintaining way and am free to express only my purely machine never lawfully be switched off? Lord personal views. Horder said that, 'The good doctor is aware of the My deep regret is that I am obliged to be difference between prolonging life and prolonging tentative, and this despite the understandable need the act of dying', but how does this work out in of medical men to be told with some assurance practice? In the Dr Bodkin Adams' Case (Criminal what is the law. But in this country we have no Law Reports 1957), Devlin J, having told the Jury machinery for obtaining abstract judicial guidance that the severe pain or helpless misery of the on problems which may arise in some future case patient vests the doctor with no special defences, but which have not yet come up for decision. went on to say: 'Law', it has been said, 'does not search out as do 'If the first purpose of medicine - the restoration of science and medicine.... The problem must health - can no longer be achieved, there is still much for arise ... before the law reacts to provide a sol- the doctor to do, and he is entitled to do all that is proper ution. Here is where science and law differ' (Bur- and necessary to relieve pain and suffering even if the ger, quoted in Canadian Bar Review 1968). Unlike measures he takes may incidentally shorten life.' [italics the judges of New Jersey, our Courts have not yet mine] had such a case as that of Karen Quinlan, and we Some lawyers have been puzzled by those conhave therefore had no occasion to consider cluding words, and one wonders how Lord Hailwhether they were right in holding that her life- sham regards them. Is the doctor free to administer
74
Proc. roy. Soc. Med. Volume 70 February 1977
a dose sufficiently large to kill the pain even though he knows it is also likely to kill the patient? At present, I see no answer to the comment of Professor Glanville Williams that: 'There is no legal difference between desiring or intending a consequence as following from your conduct and persisting in your conduct with the knowledge that the consequence will inevitably follow from it, though not desiring that consequence. When a result is foreseen as certain, it is the same as if it were desired or intended. It would be an undue refinement to distinguish between the two (Williams 1958).'
Many semantic solutions to this cruel dilemma have been advanced. For example, it is suggested that, while it is the duty of a doctor to prolong life, he need not arrest death, or, in the familiar words of Arthur Hugh Clough, 'Though shalt not kill, but need'st not strive officiously to keep alive'. And even some of the strongest opponents of voluntary euthanasia appear prepared to accept that a doctor, faced with the dreadful dilemma of doing nothing or killing both the pain and the patient who has only a short life to live, may properly adopt the latter course, on the ground that the patient's death is merely a secondary effect of the dose administered. This may be good morals, but it is far from clear that it is good law, though it has some powerful advocates. The Reverend Chancellor Garth Moore considers it with a caution understandable in one who is a lawyer as well as a cleric. He writes: 'It is still the duty of the doctor to do his best for the patient. In many cases the best will consist in the prolongation of life. But in some cases the prolongation of life is not the best. If one can argue that it is not the best for the patient in a permanent coma ... it follows that the doctor, while still debarred by law from killing, need no longer strive officiously to keep alive.... If death is better than an existence apparently without any capacity for consciousness, then, although the law does not permit a direct act of killing, it may be that it does permit the withholding of the means necessary to keep the patient alive, and there would seem to be no valid distinction in principle between these different means, whether they be nourishment, antibiotics, or the electric current which operates the apparatus for breathing (Moore 1966).'
The reverend and learned Chancellor is wise to hedge his views with ifs and buts, for the law is unfortunately vague as to what the doctor may do in the circumstances predicated. It is for this reason that the Law Commission, in its subsisting review of 'General Defences in the Criminal Law', will doubtless feel called upon to consider whether a restricted form of euthanasia may be regarded as falling within the common-law doctrine of 'Necessity'. That is in itself a difficult problem, if only because one of the basic conditions of the oper-
ation of that doctrine is that the evil averted must be greater than the evil performed, and many there are who urge that death is the worst of all evils. I am acutely aware that I have not answered the questions I have propounded. But neither has the Legislature. Euthanasia Bills were unsuccessfully introduced to Parliament in 1936 and 1939, and last year Sir Harold Wilson assured Cardinal Heenan that '. . . a policy of euthanasia would be wholly abhorrent and there is no possibility of this Government - or, I believe, of any Government ever giving it support' (Hansard 1976). Last January the Parliamentary Assembly of the Council of Europe recommended the Council of Ministers to invite the Governments of Member States to create national commissions of inquiry charged with setting out ethical rules for the treatment of the dying and to determine the medical principles and specialist methods of prolonging life. What response such recommendations will evoke has yet to be seen. Meanwhile, Baroness Wootton of Abinger gallantly tried last February to get the law of this country clarified and improved by her Incurable Patients' Bill, but it was refused a second reading. It may be, of course, that we who are laymen exaggerate the doctors' dilemma. Indeed, I know medical men of great distinction who prefer to continue dealing with such cases untramelled by the fixed rules of any legal code. That is understandable, though were I a doctor I think I should prefer to proceed within the known protection of the law rather than be left to act in the hope that those charged with law enforcement would turn a blind eye to what in mercy I felt compelled to do. And as a lawyer, I feel that the problem of deciding what may lawfully be done (or not done) for the patient lingering on in an incurable condition ought not to be left to an individual Judge haplessly called upon to decide how yet another harrowing case of 'mercy killing' should be dealt with. Of one thing, at least, I am clear. If the problem is to be dealt with at all, only the Legislature can do it, for the Judges are largely bound by legal principles established long before modem methods of resuscitation and prolongation of life were even dreamt of. REFERENCES Canadian Bar Review (1968) p 347 Criminal Law Reports (1957) 365 Hailsham (Lord) (1976) The Listener 8 July, p 15 Hansard (1975) 368, No 31, column 231 (12 February) Kennedy I (1 976) The Quality of Death. Templegate, Illinois; p 87 Moore E G (1966) Decisions about Life and Death Church Information Office, London; p 46 Suicide Act (1961) Section 2 (1) Williams G (1958) The Sanctity of Life and the Criminal Law. Faber, London; p 286
73
weaknesses, especially mental ones, is essential to support apparatus could lawfully be switched off if there was no reasonable possibility of her emerging the dignity of the sick and the dying. The preservation of the relationship between from her prolonged comatose condition. There lies on the threshold a problem which the husband and wife has much to do with personal dignity, and here again comes in the problem of lawyers have wisely left the doctors to decide, who should know. A husband may always have namely, what is 'death'? We were formerly inwished to spare his wife, and to keep from her the structed that the stopping of both heart and lungs knowledge of his impending end may seem to him were its unmistakable indicia. But many doctors the last thing that he can do for her. In other now regard as dead a patient who is in a state of circumstances a wife may wish to continue to carry deep and irremediable unconsciousness, even to the end all things for him, and will insist that he though his heart still beats and he still draws should not be told the whole because she believes breath. One day the doctors will have to make up that he could not accept it. Even if both in fact their minds about the matter, otherwise the Courts know, believing that the other does not may allow will have to decide the dispute for them. And that both of them to feel that they are each helping the would be a hideous task. As Mr Ian Kennedy has other, thus maintaining their relationship and their said, 'It would be a brave judge who would personal dignity, and enabling them to carry on contemplate with equanimity the headlines of the conversations and discussions in a normal manner. next day's press proclaiming "Judge orders burial Others, greatly privileged, may feel that the rich- of man with beating heart" (Kennedy 1975)'. But this evening we are not called upon to decide ness of their relationship would be debased by what is 'death'. We are to contemplate a patient other than total candour between them. Finally, for some, the point is reached when the who, though undoubtedly alive, is in an advanced only thing left to them on this earth is the hope that and irremediable state of terminal illness and may the memory they leave behind will be unblemished, be longing to die, and to ask what the law demands their own kind of dignity is all. Here we can help by of his doctor. Lord Hailsham seemingly has no reassuring them that we can do much to ensure doubts on the matter, for he recently said: 'The law at the moment is perfectly plain: if you have got a that they will die well. living body, you have to keep it alive, if you can' (Hailsham 1976). But some lawyers regard that Lord Edmund-Davies unqualified pronouncement as acceptable only in the sense that to set out to kill a patient is to set out to murder him, be he healthy or near death. Even if Legal Aspects the patient begs to be relieved of his grievous In my youth I was taught to be cautious. And long suffering, the doctor may not lawfully supply the experience in the law has reinforced the wisdom of fatal dose, and if he does and the patient dies the such an attitude. There are two particular reasons doctor renders himself liable to imprisonment up why caution should be maintained in responding to 14 years (Suicide Act 1961). But is it the law that the doctor must in all to the invitation by which I am honoured this evening. First, the legal issues involved are, lit- circumstances prolong his patient's life to the erally, matters of life and death. And, secondly, for utmost? Or, to put the same question in its baldest obvious reasons, I speak in a strictly extrajudicial form, may the current of the life-maintaining way and am free to express only my purely machine never lawfully be switched off? Lord personal views. Horder said that, 'The good doctor is aware of the My deep regret is that I am obliged to be difference between prolonging life and prolonging tentative, and this despite the understandable need the act of dying', but how does this work out in of medical men to be told with some assurance practice? In the Dr Bodkin Adams' Case (Criminal what is the law. But in this country we have no Law Reports 1957), Devlin J, having told the Jury machinery for obtaining abstract judicial guidance that the severe pain or helpless misery of the on problems which may arise in some future case patient vests the doctor with no special defences, but which have not yet come up for decision. went on to say: 'Law', it has been said, 'does not search out as do 'If the first purpose of medicine - the restoration of science and medicine.... The problem must health - can no longer be achieved, there is still much for arise ... before the law reacts to provide a sol- the doctor to do, and he is entitled to do all that is proper ution. Here is where science and law differ' (Bur- and necessary to relieve pain and suffering even if the ger, quoted in Canadian Bar Review 1968). Unlike measures he takes may incidentally shorten life.' [italics the judges of New Jersey, our Courts have not yet mine] had such a case as that of Karen Quinlan, and we Some lawyers have been puzzled by those conhave therefore had no occasion to consider cluding words, and one wonders how Lord Hailwhether they were right in holding that her life- sham regards them. Is the doctor free to administer
74
Proc. roy. Soc. Med. Volume 70 February 1977
a dose sufficiently large to kill the pain even though he knows it is also likely to kill the patient? At present, I see no answer to the comment of Professor Glanville Williams that: 'There is no legal difference between desiring or intending a consequence as following from your conduct and persisting in your conduct with the knowledge that the consequence will inevitably follow from it, though not desiring that consequence. When a result is foreseen as certain, it is the same as if it were desired or intended. It would be an undue refinement to distinguish between the two (Williams 1958).'
Many semantic solutions to this cruel dilemma have been advanced. For example, it is suggested that, while it is the duty of a doctor to prolong life, he need not arrest death, or, in the familiar words of Arthur Hugh Clough, 'Though shalt not kill, but need'st not strive officiously to keep alive'. And even some of the strongest opponents of voluntary euthanasia appear prepared to accept that a doctor, faced with the dreadful dilemma of doing nothing or killing both the pain and the patient who has only a short life to live, may properly adopt the latter course, on the ground that the patient's death is merely a secondary effect of the dose administered. This may be good morals, but it is far from clear that it is good law, though it has some powerful advocates. The Reverend Chancellor Garth Moore considers it with a caution understandable in one who is a lawyer as well as a cleric. He writes: 'It is still the duty of the doctor to do his best for the patient. In many cases the best will consist in the prolongation of life. But in some cases the prolongation of life is not the best. If one can argue that it is not the best for the patient in a permanent coma ... it follows that the doctor, while still debarred by law from killing, need no longer strive officiously to keep alive.... If death is better than an existence apparently without any capacity for consciousness, then, although the law does not permit a direct act of killing, it may be that it does permit the withholding of the means necessary to keep the patient alive, and there would seem to be no valid distinction in principle between these different means, whether they be nourishment, antibiotics, or the electric current which operates the apparatus for breathing (Moore 1966).'
The reverend and learned Chancellor is wise to hedge his views with ifs and buts, for the law is unfortunately vague as to what the doctor may do in the circumstances predicated. It is for this reason that the Law Commission, in its subsisting review of 'General Defences in the Criminal Law', will doubtless feel called upon to consider whether a restricted form of euthanasia may be regarded as falling within the common-law doctrine of 'Necessity'. That is in itself a difficult problem, if only because one of the basic conditions of the oper-
ation of that doctrine is that the evil averted must be greater than the evil performed, and many there are who urge that death is the worst of all evils. I am acutely aware that I have not answered the questions I have propounded. But neither has the Legislature. Euthanasia Bills were unsuccessfully introduced to Parliament in 1936 and 1939, and last year Sir Harold Wilson assured Cardinal Heenan that '. . . a policy of euthanasia would be wholly abhorrent and there is no possibility of this Government - or, I believe, of any Government ever giving it support' (Hansard 1976). Last January the Parliamentary Assembly of the Council of Europe recommended the Council of Ministers to invite the Governments of Member States to create national commissions of inquiry charged with setting out ethical rules for the treatment of the dying and to determine the medical principles and specialist methods of prolonging life. What response such recommendations will evoke has yet to be seen. Meanwhile, Baroness Wootton of Abinger gallantly tried last February to get the law of this country clarified and improved by her Incurable Patients' Bill, but it was refused a second reading. It may be, of course, that we who are laymen exaggerate the doctors' dilemma. Indeed, I know medical men of great distinction who prefer to continue dealing with such cases untramelled by the fixed rules of any legal code. That is understandable, though were I a doctor I think I should prefer to proceed within the known protection of the law rather than be left to act in the hope that those charged with law enforcement would turn a blind eye to what in mercy I felt compelled to do. And as a lawyer, I feel that the problem of deciding what may lawfully be done (or not done) for the patient lingering on in an incurable condition ought not to be left to an individual Judge haplessly called upon to decide how yet another harrowing case of 'mercy killing' should be dealt with. Of one thing, at least, I am clear. If the problem is to be dealt with at all, only the Legislature can do it, for the Judges are largely bound by legal principles established long before modem methods of resuscitation and prolongation of life were even dreamt of. REFERENCES Canadian Bar Review (1968) p 347 Criminal Law Reports (1957) 365 Hailsham (Lord) (1976) The Listener 8 July, p 15 Hansard (1975) 368, No 31, column 231 (12 February) Kennedy I (1 976) The Quality of Death. Templegate, Illinois; p 87 Moore E G (1966) Decisions about Life and Death Church Information Office, London; p 46 Suicide Act (1961) Section 2 (1) Williams G (1958) The Sanctity of Life and the Criminal Law. Faber, London; p 286
