Across the rubicon: medicalisation, natural death and euthanasia

Monash Bioethics Review Vol. 20 No.4

ARTICLES

7 October 2001

Across the rubicon:medicalisation, natural death andeuthanasiaMALCOLM PARKER

Senior Lecturer in Ethics III Professional Development.School of Medicine, University of Queensland,

ABSTRACTThe recently published BMA Guidelines on Withholding andWithdrawing Medical Treatment encourage a balance betweenderiving maximal benefit from medical treatment, and achievingas natural a death as possible in the circumstances. I argue thatthe concepts of burdensomeness, natural death and medicaliseddeath are of greater fundamental importance than that ofintention, and do not help constitute a moral distinction betweenwithdrawal of treatment and active assistance to die. Nor shouldthey continue to ground the corresponding legal distinction. In thesituations of both treatment withdrawal and active assistance todie, disease causation, human agency and moral responsibilityare related in the same way. In both situations, we can intendthat a person die for the right reasons, based on a concern fornatural death.

However, the law is reluctant to impose positive"obligations on people, in contrast to the protection of negativerights. For example, the Northern Territory's Rights of theTerminally Ill Act (1996) provided for assisted death as a lawfulexception to an otherwise unlawful act, rather than as anenforceable right like the right to refuse unwanted medicaltreatment. Nevertheless, that the enforceability of a positive rightto assisted death is difficult to conceive, is itself the product of aparticular historical/moral/ religious frame of reference currentlyunder deconstruction. Genuine natural death statutes wouldconsolidate the important principles supported here, and couldapply uniform safeguards to all death-hastening decisions.

INTRODUCTIONAt a recent international colloquium concerning the future of

empirical research into the end-of-life, delegates agreed that, even if allthe countries represented were to pass legislation allowing foreuthanasia/physician-assisted suicide, this would probably affect thedying process of only about 5% of terminally ill patients. 1 They

Monash Bioethics Review Vol. 20 No.4 8 October 2001

concluded that there is a much greater need for further research, andfor clear policies and guidelines, with respect to withholding and/ orwithdrawing life-sustaining medical treatment (LSMT) from terminallyill patients, and that this-would improve the dying process of manymore patients.

There is little doubt- this need exists. _In a recent NSW casetreating medical staff had withheld intensive treatment from a patientwho had sustained a heart attack following a heroin overdose. Thefamily pleaded with the court to overrule the withholding of treatmentand order its recommencement on the basis of the family's assessmentthat the patient's condition was considerably better than the basicbrain functioning which the doctors had claimed warranted palliativecare only. O'Keefe J referred to the need for guidelines, and for criteriaaccording to which life and death decisions should be made.sGuidelines can help to• facilitate the understanding and alignment of goals of treatment;• base decisions on good medical evidence concerning risks, benefits,

and burdens of treatment;• support the perception that treatment is not justified in the absence

of probable/demonstrated benefit;• ensure proper processes for and documentation of decisions and

outcomes.Doctors also remain in doubt over the legal status of the actions theymay need to take in withdrawing LSMT, despite considerable legislativeactivity and a certain amount of case law in this area in recent years.For example, despite a careful emphasis in the Powers of Attorney Act1998 (Qld) s 37 that the Act's provision for writing Advance HealthDirectives, which may be used to refuse LSMT in advance of incapacity,has nothing to do with euthanasia, many doctors have hesitated inbecoming involved in helping patients write directives, and somedoctors and health care institutions have apparently not adhered totheir legal duty to implement them.> These observations almostcertainly reflect the continuing perception on the part of some doctorsthat their primary duty is to treat patients and prolong their lives, and/ or that doctors remain at legal risk for failing to do this, even in theface of statutory protections, because they may still be perceived tohave been responsible for a patient's death. But they also suggest thatit would be a mistake (indeed it will be impossible) to ignore issuesconcerning euthanasia/physician-assisted suicide when consideringthe withdrawal of LSMT.

This paper examines the issues of causation, natural death andthe medicalisation of dying from ethical and legal viewpoints andacross the range of end-of-life care including palliative care, withdrawaland withholding of LSMT, and actively assisted deaths. I argue againstthe conventional intuition that both the withdrawal of LSMT and theprovision of palliative care offer more natural and less medicalised waysof dying than active assistance, by exploring the meanings ofburdensomeness, natural death and ·medicalisation. I examine factualand legal causation in the different contexts, and establish conceptual


connections between causation, natural death and medicalised death.I apply this analysis to the issue of the legalisation of actively assisteddeath and the possibility of a legal right to assistance to die.I draw the following conclusions:• Writing guidelines for withholding and withdrawing . LSMT

necessarily involves continuing consideration of the empirical,conceptual, ethical and legal issues surrounding euthanasia andphysician-assisted suicide.

• The concepts of burdensomeness, natural death and medicaliseddeath do not help to constitute a moral distinction between thewithdrawal or withholding of LSMT and active assistance to die;nor can a legal distinction be based on these considerations.

• The distinction between factual and legal causation of death appliesin the same way, and has the same implications, across the rangeof end-of-life decisions such as withdrawal/withholding of LSMT,palliative care and active assistance to die.

• While there are apparently persuasive jurisprudential reasons whythe right to an actively assisted death cannot be legally enforcedwhile the right to refuse LSMT can be, counter-arguments exist forthe enforceability of both rights.

In certain cases of treatment abatement, palliative care, and activeassistance to die, our causal and moral responsibilities are aligned.The law should recognise this equivalence in order to afford as naturala death as possible 'to all people in the various 'contexts in which theywill end their lives.

PART ONE BRINGING ABOUT NATURAL DEATHWithholding and Withdrawing Life-prolonging MedicalTreatment: the BMA Guidelines

Following the reasoning of Goff .L in the UK case of AnthonyBland.s the British Medical Association (BMA) has recently introducedcomprehensive guidelines- which identify the crucial questionconcerning treatment withdrawal to be whether an existing or proposedtreatment is likely to confer a net benefit on the patient. Since theprimary goal of medicine is to benefit the patient, there exists nojustification for continuing or initiating medical treatment if it providesno benefit.e

The BMA concedes that net benefit and best interests are nowmore widely construed than the person's best medical interests, andconcludes that the prolongation of life in all circumstances will notalways serve best interests." Life-prolonging treatment is also widelydefined to include all treatment which has the potential to postpone thepatient's death. 8

The determination of net benefit is often uncertain, and theguidelines recommend that in cases of genuine doubt, it is generallybetter to treat, and to subsequently withdraw the treatment if it isfound to be harmful, inappropriate, or of no benefit.? Indeed, theguidelines claim that "withdrawal of life-prolonging treatment is often


safer than withholding it", because the "beneficial effects of suchtreatment cannot be foreseen, making it inappropriate to withholdtreatment."10

Here the guidelines eschew a commonly held intuition thatwithdrawing treatment can be more like abandoning the patient thanwithholding it . "Abandoning" a patient by withdrawing treatment isless emotionally and psychologically comfortable than withholdingtreatment, since it can be more easily construed as causing thepatient's death, even though both withholding and withdrawal of lifeprolonging treatment must, by definition, lead to death. For manypeople, it is easier to perceive withholding treatment than withdrawingtreatment as an omission, and that in the case of an omission, it is thedisease which .causes the patient's death. I I In contrast, the BMAsupports a trial of treatment which might later need to be withdrawn,because it perceives the disease as the cause of death in bothwithdrawing and withholding treatment. The BMA thus believes thatwithholding and withdrawing treatment are fundamentally morallyequivalent, but that circumstances will sometimes dictate that atrial oftreatment should occur.

The guidelines view artificial nutrition and hydration (ANH) asmedical treatment (again, following the judgement in the Bland case);and therefore as requiring justification for continuation according tothe fundamental principle of net benefit as the proper goal ofmedicine. 12 The BMA considers that not all cases need be the subject ofthe Bland judges' recommendation that decisions to withdraw ANH besubject to court review and declaration, but recognises that manypeople regard ANH as basic care rather than treatment, andrecommends additional safeguards for the withdrawal of ANH. In casesof persistent vegetative state (PVS) or near-PVS states, in England,Wales and Northern Ireland, the BMA recommends that legal adviceand a court declaration be sought.P In other cases, where it is thoughtthat withdrawal or withholding ANH is in the best interests of thepatient (assuming the patient's wishes are not known), while judicialreview is not required, extra safeguards including second opinions,recording and auditing decisions are urged.

The recognition of ANH as basic care rather than medicaltreatment is well illustrated in the case of a Greek patient whosechildren's request for the withdrawal of ANH from their semi-comatose(as a result of a stroke) 82 year old mother was rejected by theattending physician until a subsequent stroke rendered her profoundlyand irreversibly comatose, whereupon food but not fluid wasremoved.14 While Greek citizens' rights to "refuse any diagnostic ortherapeutic act" are legally protected, uncertainty surrounds theinclusion of ANH within this definition of rights in Greece, and a strongtradition prevails concerning the fundamental sustaining role and thesymbolic interpersonal expressive functions of food. IS In this case, thistraditional requirement for continuing ANH overrode the patient's priorand concurrently expressed wishes and actions indicating her refusalof continuing treatment. This is clearly problematic from the point of


view of patient autonomy, but it is also inconsistent with the BMAguidelines' emphasis on net benefit. If the symbolic weight borne byfood and fluid is constituted by such things as its fundamentalsustaining role, and if the provision of food and fluid is an expression ofcaring, then this must be caring in service to a dominating allegiance tothe sanctity of life principle. The BMA guidelines specifically rejectabsolute allegiance to this principle, since they recognise that whenmedicine cannot provide net benefit, it is no longer justified, and thatprolonging biological life alone does not fall within the definition ofproviding benefit.

The guidelines indicate that there is no obligation to providetreatment which will not achieve its aim or where the burdens oftreatment will outweigh the likely benefits, no obligation to providetreatment which is contrary to the patient's health interests, and noobligation to provide all treatment demanded or desired in the face ofthe requirements Of other patients where treatment would be of greaterbenefit.16

The guidelines cover considerably more than what I haveindicated here,but these particular principles are crucial for thethemes of this paper. To summarise, the guidelines:1. urge that no justification for continuing or initiating medical

treatment exists if it .will provide no benefit, and that there is noobligation to continue treatment when the burdens of treatment willoutweigh the benefits to be obtained.

2. view the withholding and withdrawing of treatment as morally andlegally equivalent;

3 . view artificial nutrition and hydration as medical treatment, and assuch, requiring justification for continuing to provide them.

They therefore sacrifice a strict sanctity of life principle infavour of a principle of quality of life, because they are asserting,through the above principles, that life ought not be prolonged in ' allcases. The guidelines seek to provide the maximum opportunity forpatients to benefit from medical treatment, but temper this imperativewith the need to provide patients with a death which, because it is notburdened by treatment, including ANH, is as natural as possible underthe circumstances.

Gillon has drawn attention to the fact that the BMA emphasisesthat its guidelines have nothing to do with euthanasia, since theintention of withholding or withdrawing life-prolonging treatment is torefrain from providing treatment that is of no benefit, not to kill thepatient (my emphasis), and that foreseeing inevitable death does notentail intending death. 17 However, I suggest that this distinction is notwhat we should be concerned about, when thinking about physicianassisted suicide, euthanasia or treatment abatement. We should beconcerned about precisely what the BMA guidelines appear to endorse,viz the intention to minimise burdens and make dying as natural aspossible.


Natural dyingJack McCue points out that art, literature and the social

sciences teach us that a good death can be a natural, courageous andthoughtful end to life. 18 Medically speaking, "Healthy very elderlypersons who do not develop acute or chronic debilitating diseaseseventually undergo irreversible fatal declines at about 100 years of age,near the estimated maximum human life span".19 We would have littledifficulty considering, in the case that one of our small band ofsurviving World War One veterans died peacefully in his sleep, that hehad died both a good and a natural death. For such people, naturaldying appears to be caused by age-related declines in cognition,function and the will to live.20 Part of this picture, though not alwaysthe case, can be a decline of thirst and hunger, resulting fromdegeneration of parts of the central nervous system. Some people alsoappear to choose to discontinue eating and drinking in the final phaseof life.21 Whether this occurs or not, very elderly people are often"ready" to die; having completed a full life, they can accept death.Their death is anticipated and seen as natural and good (at least in thesense of being appropriate), and its goodness is partly constituted byits naturalness.

Daniel Callahan has eloquently demonstrated that theacceptance of death is something which modem technological societieshave lost as a result of their increasing obsession with personalcontrol.22 Like others,23.24.25 Callahan sees death as having beenmedicalised, technologised, and distorted in its placement in our lives,but he also depicts our responses to these problems as similarly (andnot surprisingly) technological, and as limited in how well they canrestore what we have lost. For example, we have enacted statuteswhich protect people's right to refuse treatment.w developed guidelinesconcerning withholding or withdrawing futile treatment.s? and enabledadvance health directives to be written, but these provisions may beinfrequently used, perceived as uncertain and therefore unreliable, orto be both too simplistic and/ or abstract to be useful in the realworld.w According to Callahan, we attempt to manage death, but wehave yet to integrate an acceptance of death with what we canreasonably do to postpone it . This requires that, for the majority whosedying will be the culmination of some disease process necessitatinginvolvement with medical treatment and the medical system, we shouldtry as much as possible to fulfil the following conditions: we must learnto accept death; we should be conscious and aware as close as possibleto the time of death, minimally supported by medical care; and weshould die in the company of those we hold dear.

Part of Callahan's program is to "return death to disease", sinceour scientific medical progress, together with a more recent conceptionof ourselves as part of nature, have encouraged the belief that we andnot nature are responsible for death. For Callahan, we haveincreasingly conflated physical causality and moral culpability. Hisevidence for this includes our resistance to discontinuing treatment,the intuition which makes it easier to resist starting treatment rather


than withdrawing it (the intuition rejected by the BMA), construingdeath as a medical failure; resistance to withdrawal of food and fluidsbecause we see this as starving the patient (also rejected by the BMA),and the claim that there is no moral difference between killing andallowing to die.

Suggesting that we have conflated physical causality and moralculpability challenges our medical hubris. Callahan is surely correct toclaim that nature has not disappeared, and that "we may be heldresponsible for death only to the extent that we have erected uponnature a set of moral rules and principles to govern our conduct inmanipulating the biology of illness and death".29 This allows us to seenature as more important than we have allowed for in the manysituations where we have resisted death and sought to prolong life.The reinstatement of nature can deflate our presumptions concerninghuman responsibility for death when treatment is withdrawn.

There is therefore both a descriptive sense and a normativesense in which we can think about natural death. "Some people dienatural deaths, meaning that their death is apparently free of diseaseand is the result of normal ageing. But in the presence of disease, (andremembering that most of us will die as a result of some chronicdisease-s), the most natural death possible will be minimallymedicalised and managed, and where we clearly see the disease as thecause of death, even in cases where LSMT including ANH are removed.This normative sense of natural death is what Michael Ashby and BrianStoffell have in mind when they describe it as an ethico-legal constructwhich connects our appreciation of the workings of nature and thepowers of human artifice.s! They consider that the concept of naturaldeath is not about what happens without human intervention butabout what we think our deaths ought to be free from, and it will beserved if we identify and avoid the things which will make dyingburdensome. Futile, burdensome or intrusive treatment can obstructthe dying process, and these obstructions can be harmful. When weemploy a principle of minimising harm together with an emphasis onpersonal sovereignty, we can approach more closely the possibility ofnatural death.

I detect here a subtle distinction between Callahan's concept ofnatural death and that of these authors. While both emphasise theimportance of minimising the medicalisation of dying, Callahan'sprimary concern is to "return death to disease" by de-emphasisinghuman involvement. While Ashby and Stoffell accept that the cause ofdeath is disease, they appear less anxious to drive the 'human artifice'of our interventions with the dying process from view. This differenceis developed in the following discussion of conceptual, ethical and legalissues concerning causation. Prior to this, some elaboration of thenotion of burdensomeness is required.

Burdensomeness and medicalisationIt is a straightforward and generally agreed moral precept that

medical treatment should not be given if it will confer no benefit or


where the burdens of treatment will outweigh the likely benefits, even ifthis means that death will result. As we have already seen, this is thebasis of the BMA's justification for withholding and withdrawing oftreatment, but the BMA is not the first to follow this line. It has beenincreasingly recognised that life-prolonging medical treatment can beburdensome and therefore harmful, and where this is so, we talk ofdying having been medicalised, using that term as a moral pejorative.Considerable difficulty surrounds the concept and application ofburdensomeness. Different people will assess medical treatment andits effects as burdensome to different degrees. We do not want toburden our loved ones with unreasonable demands on their time,resources and energy and emotional reserves. Callahan argues thathumans inevitably and legitimately burden one another, and that theflight from dependency is a flight from humanity. According to him, ourneed not to be a burden on others is an instance of our obesssion withindividualism and independence. Yet he concedes that in some cases,the burdens of caring for family members who are ill can be destructiveof the carers, and that he personally does not want to be an undueburden on others (eg the cause of their financial or emotionalruiriationl .P .

But if it is a good thing to want to return death to diseasebecause that will help us to better accept death by seeing it as anatural part of life, and not as a failure of treatment, it follows that it isthe situation of the person which the disease brings about, whichshould be conceived as burdensome to different degrees according tothe facts of each case. What is the unacceptable burden is the totalstate of being in which the person finds himself, including the diseaseand its effects and meanings, any medical treatment occurring orproposed with its actual or implied costs, and the burdens placed onfamily and carers. The concept of medicalisation should not berestricted to the application ·of specific medical technologies andtreatments, but broadened to include any imposed (through medicaland social policy) prolongation of life beyond a point where it is deemed(not necessarily just by oneself deliberating in isolation but inconsultation with family, medical advisers etc.) that one can still die apeaceful and acceptable death.

We see no moral impediment to withdrawing (or withholding)burdensome medical treatment, with the result that the patient dies.More than this, we see it as morally obligatory, and we are legallyrequired to withdraw LSMT at the request of competent people. But ifburdensomeness and medicalisation are conceived more broadly inrelation to the overall situation and a general sense of inappropriateprolongation of life, then another group of people comes into view those who are afflicted with diseases which now impose unacceptableburdens, but who are not in a situation where the withdrawal ofburdensome medical treatment is applicable. For this group,medicalisation takes a different form, but is no different in principle.People who cannot request a withdrawal of LSMT, but who neverthelessare unduly burdened by their overall situation, must request more


active assistance to die, and a refusal to accede to their requests willconstitute unacceptable medicalisation for them, since, according tothe general concept advanced above, this is the way in which their livesare prolonged beyond a point where it is deemed that they can still diepeaceful and acceptable deaths. That this has traditionally not beenperceived as medicalisation is due to the fact that we usually conceivemedicalisation as the application of medical knowledge and technology,with the resulting harms of that application in prolonging life. Butdriving the application of medical technology is the power wielded byorganised medicine, on behalf of society. This more fundamentalconcept of medicalisation as social power is displayed in the continuingresistance on the part of organised medicine to requests for assistanceto die. Medicalisation and burdensomeness should not be -restricted toone group, if the fundamental meanings of these terms also apply toanother.

While the BMA and other supporters of a moral distinctionbetween withdrawal of treatment and active assistance to die continueto emphasise the different intentions of both practices - the intention ofwithholding life-prolonging treatment is to refrain from providingtreatment that is of no benefit, not to kill the patient, and foreseeinginevitable death does not entail intending death - the analysis abovesuggests that an intention to kill the patient will be necessary incertain cases to satisfy the same conditions concerning benefits,burdens and medicalisation as constitute the requirements oftreatment abatement decisions which lead to death.

CausationTraditionally, the moral distinction between euthanasia and

treatment withdrawal has been based on the causal distinctionbetween-acts and omisaionse> - the doctor causes death in the case ofeuthanasia and the disease causes death in the case of withdrawal.This causal distinction in tum is based on the kind of intentionaldistinction mentioned above - between the intention to kill and theintention to remove burdensome treatment. I have undermined thelatter distinction by calling attention to the fact that burdensomenessand medicalisation apply, for the same reasons, to the situations ofboth those who can call for treatment withdrawal and those whocannot. If we wish to make dying more natural for everyone, and if theresistance to active assistance in dying is a species of unjustifiablemedicalisation, then we should include active assistance as a means tothe end of natural dying. If we intend to minimise unreasonableburdensomeness and maximise natural death, some cases will entailactive killing or assisted suicide.

Does this claim stretch the meaning of 'natural' too far? On theconception of Ashby and Stoffell, the answer is no, since they focus noton freedom from human intervention, but on what we think our deathsought to be free from - avoiding what will make dying burdensome.While these authors do not go on to argue in favour of euthanasia, Ihave used their definition to do this. One could also enlist Callahan's


deflation of human responsibility for death and the return of death todisease in the same argument, since people who are candidates foreuthanasia are burdened by their disease situation. ButCallahan, ofcourse, is well known for his opposition to euthanasia. It is instructiveto further explore how he relates causation and moral responsibility inorder to support that position.

Recall that Callahan thinks that we have increasingly conflatedphysical causality and moral culpability, and the evidence he advancesfor this: for example, we inflate the role of human agency in manytreatment abatement situations, and some people also claim that thereis no moral distinction between killing and allowing to die. Callahanthinks that this latter claim constitutes evidence for our conflation ofphysical causality and moral culpability because he thinks that ourbelief that we are as responsible for letting die as we are for killing iswrong. But elsewhere he concedes that wrongful letting die placesdoctors in the same category as killers.>' Tom Beauchamp has pointedout that "letting die" can occur when medical treatment is refused, butthat the type of action - killing or letting die - depends entirely onwhether a valid refusal justifies the forgoing of medical treatment;without such valid refusal, the action is an unjustified killing.w Absentconsent, and one can kill a person by letting him die . One could alsounjustifiably kill a person, who is incapable of giving or refusingconsent, by withdrawing treatment which holds a reasonable prospectof benefiting the patient, eg by restoring his conscious awareness.

It appears, then, that Callahan wants us to view nature moreimportantly than we do in legitimate cases of letting die (eg throughwithdrawing LSMT such as ANH), but in wrongful cases of letting die,full culpability obtains. But surely we are as fonnally responsible incases that are morally right as in those that are morally wrong: beingcondemned or approved are both ways in which we are heldresponsible. Inboth morally right arid morally wrong cases, we canview nature as the physical cause of death, but simultaneously viewhumans as being morally responsible for preventing/allowing thatcause to have its final effect. (Recall that Callahan has conceded thisby saying that we can be held responsible for death "only to the extentthat we have erected upon nature a set of moral rules and principles togovern our conduct in manipulating the biology of illness and death"36,but I suggest that his use of "only" serves the purpose of selectivelyobscuring the moral significance of the role of human agency). We cantake a similar view concerning active assistance to die: in thesesituations we can view nature as the cause of death, but humans canbe held morally responsible in relation to these deaths. Again, therewill be right and wrong instances of this kind of action, according toconditions such as valid consent or prospects of recovery.

Callahan's separation of moral culpability and physicalcausality depends on an a priori moral preference for letting die overactive assistance to die. He sees the drive to euthanasia as anessentially neurotic strategy put forward to prematurely solve ourinability to allow patients to die from their disease, and as part of our


continuing obsession with control, but this depends on aligning thedistinction between reasonable and obsessional practices with thatbetween letting die and killing. It seems to me that his ethicalintuitions about active assistance in dying drive his account of wherereason ceases and obsession begins, but that this gets things thewrong way round. Instead, we should be following practices whichapply our desire to make dying more natural and less medicalised. As Ihave shown, the need for this cuts across the activeassistance/ treatment withdrawal distinction.

Michael Ashby provides a better account of the relation betweenmoral culpability and physical causality. He argues that the balance ofcontemporary legal and political opinion concludes that palliative careinterventions and treatment abatement decisions can constitute theempirical cause of death, and that consequently palliative carepractitioners must meet the challenge of how their practice differs fromeuthanasia if this is SO.37 The empirical death-causing role of palliativecare is underpinned by the doctrine of double-effect, which (with theassociated distinction concerning intention mentioned above), isemployed to distinguish it from euthanasia. Palliative treatment, evenif it results in death, is accepted partly because it accords withgenerally accepted medical practice. Ashby notes that the CanadianSenate report into end-of-life issues, like many inquiries and casesbefore it, erred in thinking that palliative interventions. .particularly theadministration of morphine, often shorten life, but it is generallyaccepted that even if interventions do hasten death, this is morally andlegally acceptable on the basis of the intention to relieve sufferingrather than cause death. Of course, intention has formed the basis oflaw in the area of death causation.w

Ashby points out that it would be unethical to investigate thequestion of death causation by palliative interventions, because thiswould require withholding symptomatic treatment from. a controlcohort of suffering patients. He suggests we conceptualise palliativeinterventions or omissions as having "the capacity to alter the timing ofan otherwise inevitable death .... , causation being predetermined by theunderlying disease."39 Here he is suggesting that while an interventionor omission may well be the immediate cause of death, this is not themost significant factor amongst the multiple factors of which thedisease process is a prominent member. While Ashby, like Callahan,emphasises the role of disease in the causation of death, he does notspecifically attempt to minimise the role of human agency in associateddecisions. This is why he is more prepared to see the causation issueas a real challenge to palliative care, instead of utilising diseasecausation in :a predetermined moral program. This is a more openapproach, even if Ashby concludes that demonstrating narrowempirical causation in palliative care is an insufficient basis forjustifying euthanasia.

But now recall his description of the possible role of palliativeinterventions. Human agency can only alter the timing of the otherwiseinevitable death which is caused by the disease. Human agency, at


best, amounts to "narrow empirical causation". But how does thisdiffer from the situation of euthanasia? Here it would also seem thathuman agency will only alter the timing of an otherwise inevitabledeath. Why do we not similarly attribute the death in such a case tothe disease whose effects have prompted the request for assistance todie? In both kinds of cases, disease causation, human agency andmoral responsibility are related in the same way. I see no reason whythe distinction between empirical and legal causation, which Ashbyadvances, should not apply to both. This distinction says that the"but-for" (or the narrow empirical) cause of death can be overridden asa: cause of death if a society decides that the intervention or nonintervention in question should not be viewed as a cause of death inlaw. If so, and if we cannot distinguish between cases of treatmentabatement/palliative intervention and euthanasia on causal lines, thenthe but-for cause of death in the latter cases ought also be overridden.

In jurisdictions which have legislated for physician-assistedsuicide and/ or euthanasia, this has occurred, but only in the sense ofmaking active assistance to die under certain strict conditions a lawfulexception to the otherwise illegal practice of intentionally causing death.Because the sanctity of life and the wrongness of killing are so stronglyingrained in our culture and its legal tradition and institutions, wehave not been able to create a more positive regime. My argumentsconcerning natural death and medicalisation provide a basis for such aregime, because they indicate that what is important is not whether aperson dies as a result of active assistance, palliative intervention orhaving LSMT withdrawn, but whether a person's dying is as 'na tu ral aprocess as possible in the circumstances.

What I have argued to this point is that the ideas ofburdensomeness, natural death and medicalisation can be applied inthe same ways to the practices of withdrawal or withholding of LSMT,palliative interventions which are "narrow empirical" causes of death,and active assistance to die; the implication is that neither moral norlegal distinctions should be based on these considerations. Further,the distinction between factual and legal causation of death can beapplied in the same way, and has the same implications, across thisrange of end-of-life decisions. It is useful to consider these conclusionsin the light of James Rachels' concept of a "Principle of Agency".4oRachels' principle states that "If it would be good for a particular stateof affairs to occur 'naturally', without being brought about by humanaction, then it is permissible to act so as to bring it about"."! Rachelsconsiders that this principle ought to be self-evident, but notes thatmany people object to its application in areas such as euthanasia, IVF,cloning and preventive genetic selection. For example, the death of avery elderly person after a long illness will be considered a good thing,but if it is brought about by euthanasia, many will see this as bad.Rachels thinks this might be because people are nervous about theconsequences of human power, about what might happen if we assumecontrol over too many things. rNe are reminded here of Callahan'sconcerns regarding human control) . But in the specific instances of


the slippery slope implied by these fears, such as earlier predictions ofdire consequences of performing IVF, those who have mounted theslippery slope arguments do not withdraw their objections when thoseconsequences fail to materialise. Something more fundamental must liebehind the objections. According to Rachels, it cannot be the idea ofrights, since the Principle of Agency can accommodate the conditionthat nobody's rights be violated in the course of acting to bring aboutthe acknowledged good state of affairs. And it cannot be intentions,since if we act with the intention of bringing about the good state ofaffairs, then there can be no objection to the principle.

In the case of euthanasia, as we have seen, it is objected that itsintention is to kill the patient, whereas with treatment abatement, theintention is to refrain from providing treatment that is of no benefit,and foreseeing inevitable death does not entail intending death. But Ihave suggested that both kinds of intentions are underpinned by anintention of a more fundamental kind - the intention to make aperson's dying as natural and as least unacceptably burdened aspossible. · So an intention to kill the patient is an instrumentalintention, necessary in the circumstances to fulfil this morefundamental one. The fundamental intention is consistent with thePrinciple of Agency, and violates nobody's rights.

Rachels wonders why, if issues to do with rights and intentionsare not sufficient to reject the Principle of Agency,people continue toobject to it, and speculates that we see in nature a force which is"other" than humankind, and which has inherited the moral authoritywhich Christianity once attributed to God . Recall my claim thatCallahan's wish to restore death to disease and to deflate humanagency is compatible with euthanasia, since here what our agency.does is to allow the disease to have its final effect, just as withtreatment abatement. Why do Callahan and others not see things thisway? A reasonable speculation is that acting to bring about . thesituation which, if it occurred naturally, would be considered to begood, is to exceed a demand for a kind of passivity in the face ofnature, which an active or even vestigial religious worldview makes ofhumans, and which predetermines the morality of active intervention.Callahan rightly wishes to deflate human agency because the power ofmedicine has resulted in bad effects, such as prolonging life beyondthe time when the person may die a peaceful, natural death.Appropriate treatment abatement (of which we are presumably theagents) allows nature to take its course, but inappropriate abatementmay still be harmful. So it is the bad effects of agency, not agencyitself, which ought be rejected. Human agency is part of nature, andnatural death will be served by its proper engagement. Callahanclaims that euthanasia is improper because it holds out an illusorypromise of solving our problems of dying when the going gets too toughby absolutely burying the reality of suffering.s- Enough has been saidabout burdensomeness to indicate that this can also apply to cases oftreatment withdrawal. The proper engagement of human agency


transcends the boundary between actively assisting someone to dieand withdrawing treatment with the result that death occurs.

LEGALISING NATURAL DEATHAustralian jurisdictions have enacted a number of . legal

instruments which provide for the concurrent and advance refusal ofmedical treatment and palliative interventions which may have the"unintended" effect of hastening death.s- The incidental shortening oflife was accepted into English law in the case of R v Bodkin Adamsv'wherein Devlin L distinguished between common sense and technicalcauses of death. Appropriate medical treatment which incidentallycauses death is not the cause of death in law. The principle has beenendorsed in particular cases (below) as well as the legislation referredto and, of course, the doctor neglects his common law duty of care toany patient who is not provided with adequate pain relief when this isrequired.w- 46 In euthanasia, it is always claimed that the intention isto cause death, although I have depicted this intention as serving themore fundamental one of making a person's dying as natural and asleast burdened as possible, and it is mischievous for opponents ofeuthanasia to claim that its intention is the death of the patientsimpliciter, because this evades what is really at stake. Thosecommentators who claim that palliative sedation is a slow form ofeuthanasiast- 48 are resisted only by taking this evasive position.w Yetthis interpretation informs the law and underpins the perception thatenabling euthanasia would be to cross a legal Rubicon.s? I willexamine two well described legal cases in order to further demonstratethat intending death is not what is at stake, and that legal reformrequires this recognition. A model of reform which incorporated thisrecognition .would go beyond the kind which so far has enabledeuthanasia, such as the Rights of the Terminally Ill Act 1996 (NT)(ROTI), which provided for euthanasia as a lawful exception to thegeneral proscription on killing.

Legal cases1. Bland

In the previously mentioned case of Anthony Bland, who was in apersistent vegetative state following severe injuries in the Hillsboroughfootball ground disaster of 1989, and who could not make decisions forhimself, his interests were initially considered to be served best byinitiating LSMT, given that his chances for recovery were at firstunknown, but subsequently served best by the removal of nasogastrictube feeding, on the basis that the treating doctors were no longerunder a duty to continue it, once it was determined that it would conferno further benefit. With no duty to continue treatment, its removalconstituted no criminal offence, but this depended on the court'sdistinction between removal of treatment, which it defined as anomission, and the administration of, say, a drug, with the intention ofbringing about death.s! In opposing the hospital, the Official Solicitor


had argued that the removal of artificial nutrition would constituteactive steps to bring about Bland's death. Commentators have claimedthat describing the removal of treatment from Bland as an omission isa contentious legal premise,52 and that removal of treatment was, infact, intended to bring about Bland's death.s- It is also pointed outthat the case has been unhelpful for doctors because even within thejudgement, the difficulty in characterising the event is conceded.P anddoctors were advised to continue to apply for judicial declaration as tothe legality of treatment withdrawal decisions. If deciding whethercontinuing medical treatment will confer or not confer benefit on thepatient is a medical decision, the fact that judicial opinion was soughtsuggests that the distinction between acts and omissions in this area isirrelevant or at best dubious. After Bland's nasogastric feeding waswithdrawn, he took eleven days to die. 55 While this might reassuresome people that his condition, and not the withdrawal of treatment,caused his death, his dying was arguably less natural than what mighthave been achieved by giving him a lethal injection, in the sense beingemployed in this paper. While the element of personal sovereignty maynot be crucial, since Bland was in a persistent vegetative state withpresumably no awareness and expressible desires, the element of harmcould arguably have been reduced by active euthanasia, by minimisingfurther endurance by his family, and excluding any possibility at allthat Bland himself would suffer further.

2. MrLIn the case of Mr L, a sufferer of Guillain..Barre syndrome, Thomas

J in New Zealand's High Court determined that removal of ventilatorsupport from this patient would not contravene the requirement of theCrimes Act that persons responsible for supplying the necessaries oflife to those who cannot do so themselves, are in breach of the Act forfailing to do so, and are criminally responsible for so failing, in theabsence of lawful excuse.w Gillett, Goddard and Webb point to thedifferences in intuitions we may well have in attributing causationbetween .such a case (where death consequent upon withdrawal ofventilator support would be viewed as due to the disease) and ahypothetical case where the prognosis is not hopeless, where we wouldtend to view the withdrawal of LSMT itself as the cause of death.57

These authors prefer an approach which, instead of distinguishing anaccurate cause, looks to the goals of medicirie in restoring the sick orinjured person to health, and determines the cause of death to be themedical decision to the extent that the decision departed from normalmedical practice with that aim in view. This was the approach adoptedbyThomasJ.

He ·considered that ventilatory support in the case of Mr L couldnot be viewed as a necessary of life. He considered that withdrawal ofLSMT in this case could not be construed as the legal cause of death,because withdrawal simply allows the certain death, which LSMT hadtemporarily prevented, to occur.58 For Thomas J, good medical care,aimed at restoration of function, had ceased to be relevant, and


therefore there existed a lawful 'excuse to remove it . The focus herewas on a definition of good medical practice as not reasonablyincluding the requirement to prolong life where there is no reasonableprospect of the patient recovering his cognitive state, rather thanspecifying the treatment withdrawal as an omission. Mendelsondistinguishes the approaches of Thomas J and the House of Lords inBland respectively as respecting the autonomy and integrity of themedical profession, on the one hand, and wanting to avoid riskingidiosyncratic and unexamined determinations by doctors in suchdelicate cases, by maintaining , the requirement to seek judicialdetermination, on the other.59 The approach ofThomas J is supportedas more helpful to the medical profession and those who are affectedclosely by these decisions. Mendelson suggests that guidelines beintroduced to the Australian states which do not, unlike SouthAustralia, have natural death legislation, or existing guidelines (NSW).The other section of the Crime's Act which Mr L's treating doctorsperceived could provide difficulty was s 164 which indicates thatanyone who, by act or omission, causes the death of a person, even ifthe act or omission merely hastens the death of a person, kills thatperson. A withdrawal of treatment, by hastening death, was seen aspossibly implying liability for homicide.

Intentions and causesIt is difficult to argue that in both these cases, the death of the

patient was not intended. Only through a legal fiction (that thewithdrawal of LSMT from Bland was an omission and not an action)was it considered that the withdrawal was lawful, but this distinction isnot the crucial issue. There was no resort to this distinction at all inthe case of Mr L, but to what really also underpinned the Blanddecision, viz that continuing medical treatment would not achieveanything in the patient's interests. Not to prolong life is to hastendeath, by definition, since if it is within our power not to prolong life,and we exercise this power, death occurs earlier than otherwise.w If wechoose not to prolong life, and therefore choose to hasten death, it isevasive to claim that we do not intend death. But the important issueis the reason that we choose not to prolong life, not that doing someans that we intend death. We can have good or bad reasons for sochoosing. A failure to treat where the duty to treat -remain s , on thebasis of the real possibility that the patient may improve.s! can lead tocivil or criminal liability.62

So in these cases, it is not provocative to claim that the doctorsintended the death of the patients, even though their actions were notconstrued as the legal cause of their deaths. If we intend that a persondie for the right reasons, we should not be held legally accountable. Ifwe intend the same thing for the wrong reasons, we should be so held.These two cases, both widely supported as far as the results of thedecisions were concerned, suggest that the right reason for intendingthat a patient's death be hastened is that a stage has been reachedwhere the goals of medicine can no longer be achieved, and


consequently where continuing treatment would be an unreasonablemedicalisation of that person's remaining life.

The basis for the Bland decision in distinguishing acts andomissions, and the claim of the BMA guidelines that they are notrelated to euthanasia, (because intending to withhold or withdraw lifeprolonging treatment is to refrain from providing treatment that is of nobenefit, not to kill the patient), lose their significance when we considerthese cases in this light. I do not claim that the BMA guidelines areabout euthanasia, but that the distinction about intentions is not whatis of interest. What is of interest in the guidelines and in the casesdiscussed, is applicable to any case of justifiable hastening of death,where the justification lies in the reasons we offer for choosing thatcourse. But, since we can hasten death by way of euthanasia, andbecause the lawful excuse model developed above is based on thefundamental concerns about burdensomeness and medicalisationwhich were previously identified as being applicable to cases of activeassistance to die, I suggest that guidelines and enactments concerningjustifiable hastening of death and the pursuit of natural death shouldinclude consideration of euthanasia.

This would then be to amalgamate treatment abatement andeuthanasia decisions, and also voluntary refusals/requests anddecisions in non-voluntary situations, under this . one unifyingprinciple. Some will object that this blurs boundaries which have longstood and protected patients from exploitation and doctors fromliability. But we are now seeing calls for ensuring the competence ofpeople making treatment refusal decisions along the same lines whichwere written into the ROTI Act, so these boundaries are alreadybeginning to blur.63 Natural Death Acts allow patients to competentlyrefuse LSMT, which removes a doctor's liability for hastening deaththrough the removal of the treatment, but in South Australia's Consentto Medical Treatment and Palliative Care Act 1995 (SA), for example,there is also specific provision for double effect hastening of death insituations where a voluntary decision is not possible.s-

Enforceability and rightsA possible barrier to an amalgamation of treatment abatement

and euthanasia decisions into single statutes and/or guidelinesaccording to what has been argued here to be the significant principleunderlying all these decisions - the pursuit of the most natural deathunder the circumstances - lies in a distinction between the kinds ofrights it might be coherent to apply to refusal of treatment and activeassistance in dying. For example, Skene distinguishes requiringtreatment from refusing it, saying "Doctors always have a discretion todecide what treatment is appropriate for a patient. Thus, althoughdying patients may ask for extra pain relief, they have no more 'right' to

. be given itthan to be given any other treatment."65 Presumably, thisrefers to treatment in excess of that required to adequately relieve pain,and at present at least, provision of extra pain relief with the intentionthat this cause death is illegal. But Skene indicates that a putative


difference between positive and negative rights is also what stands inthe way of enacting any legislation which would provide a right toassistance to die in the same way as patients currently enjoy the rightto refuse medical treatment, including LSMT:

This is the difference between a patient's right to die 'by, refusingtreatment, which does not involve anyone else; and a right to dieby being given a lethal injection, which involves an act on the partof the doctor. The first is a 'real' right in that it can be legallyenforced, either prospectively by seeking an injunction to preventan unwanted invasion of the 'person , or retrospectively by seekingcompensation if the right not to be treated without consent isbreached. The second cannot be enforced. It is inconceivable thata court would order a doctor to administer a lethal injection to apatient in any circumstances, or award compensation to a patientwhose doctor would not accede to the patient's wish to be assistedin dying. .. . [T]he acknowledgment of a 'right' to be assisted indying, which necessarily involves compelling someone else toassist, is inconsistent with the law's reluctance to impose positiveobligations on people, especially where it involves an interferencewith professional judgement. Although this argument might bemet by a legislative requirement that no medical people can berequired to act against their conscience, this author maintains herargument that a right is not a true right unless it can be enforced.... [T]he 'right' to be assisted in dying is perhaps better understoodas a justification that, at least in some circumstances, makeslawful certain conduct that might otherwise be unlawful.66

Skene claims, in conjunction with the above, that there is no right tocommit suicide, since there are statutory and common law provisionsfor anyone to intervene to prevent a person from committing suicide.67

These claims imply a distinction between the kind of legislation whichallows the removal of treatment, and the kind which allows foreuthanasia, such as the ROTI Act 1996 (NT), which Skene describes interms of lawful justification.

Negative rights are traditionally conceived as those whichdepend on being left alone to pursue one's own plans eg the right toliberty, whereas a positive right is orie which makes a requirement orimposition on another to supply a need or respond to a request. Whilethe law is reluctant to impose positive obligations, there are difficultiesin differentiating coherently between positive and negative rights at theend of life. One of the criticisms of the judgement in the Bland casewas that it strained credibility to describe the removal of ANH as anomission. It is not straining credibility to assert that there was indeeda positive obligation imposed - to remove the treatment - and deathresulting from refusals of treatment and/or removals of treatmentclearly does involve various doings on the part of others. Further,professional judgement in these cases is an amalgam of clinicaljudgement and the assessment that death is appropriate. The law hasrecently been active in imposing on doctors obligations which have splitthis judgement into its medical and evaluative components (eg through


the common law right to refuse treatment, even against medical advice,and the statutes which support this right, referred to above).

The idea that a right to active assistance in dying cannot beenforced because it is inconceivable that a court would force doctors tocomply is compelling, but it should be noted that the force of the ideaderives from a frame of reference which is in the process of beingdeconstructed. It would certainly be psychologically difficult for manydoctors to comply, but this is because they have been trained within aconceptual system where the sanctity of life, albeit somewhatattenuated, remains strong, and fixes killing as wrong for a majority.Skene's claims concerning enforceability and her substitution of theidea of a right with that of a justification are clearly sensible pragmaticsfor those seeking reform, but the ROTI Act is an example of how suchpragmatics were employed in 1996, not of how things must remain aswe continue to witness the blurring of causal and intentionalboundaries at the end of life.

How counterintuitive is the idea of a legal (enforceable)obligation to actively assist someone to die? If the goals of medicineinclude avoiding premature death but pursuing peaceful death,68 thenthe idea of both a medical duty69 and a legal duty to actively assistsomeone to die surely comes into view. True natural death legislationwould embrace all the ways in which the bringing about of appropriatedeath operationalise the central principle of unobstructed death. In theabsence of a legally enforceable right to die, the same problem affectingthose whose needs were finally met with the strengthening of the rightto refuse life-prolonging treatment over recent years will continue toaffect the group requiring active assistance. That is the problem ofcoercion into a particular view of what constitutes a good death by apowerful social force. 70 It is important to emphasise here that I do notendorse active assistance to die and a legal duty to provide it just onthe basis of a bare principle of autonomous desires for death, for 'autonomy alone is never sufficient justification for any action,"! butenough has been said to show that the substantive content of the dutyis no different from the duty to remove futile/burdensome treatment or

.provide palliative interventions which hasten death.I . began this article by discussing the recently produced BMA

guidelines for withdrawing treatment. There is a particular ironyassociated with that project. Like other guidelines and statutesconcerning the withdrawal of treatment, they insist that they havenothing to do with euthanasia by pointing to the distinction betweenacting (killing) and refraining from providing treatment of no benefit.But why is there a need to insist that chalk is not cheese; ' unlesspractical, conceptual, social and even legal developments haverendered the claim less than self-evident? For example, why did thearchitects of the Powers of Attorney Act 1998 (Qld) have to include thenotation that providing for the writing of advance health directives(which enabled the advance refusal of life-sustaining treatment) did notamount to legalising euthanasia.t? unless there was a strongperception that refusal of life-sustaining treatment and euthanasia


were, for all practical purposes, the same? If they are as different aseuthanasia opponents claim, there would be no need to explicitlydistinguish euthanasia from refusal of treatment in the statute. Theinsistence on the distinction suggests that composite statutoryenactments, of the type I have suggested a theory for, are neitherconceptually, nor perhaps temporally as remote as we might think.

CONCLUSION: COMPREHENSIVE NATURAL DEATH STATUTESA true natural death statute would take as its point of

departure the goals of medical care in all end-of-life situations, andenunciate principles and objectives for compassionate care which seeksas natural a death as possible. Of course, the proper goals of medicineare constituted differently across different cultures and historicalepochs. Albert .lcinsen has described how fifteenth century Catholictheologians developed a casuistry around the various duties ofChristians, and included medical considerations under the heading ofthe Fifth Commandment (Thou shalt not kill) .73 In answer to difficultiesabout the extent of the Christian's duty to preserve and prolong life,they developed the distinction between ordinary and extraordinarymeans of preserving life, allowing futile, burdensome or unreasonablyheroic activities to be avoided. They also applied Aquinas's theory ofdouble effect to justify many otherwise unethical practices in pursuingthe prolongation of life. As we have seen, double effect is utilised inpalliative care (and arguably in treatment abatement) as a justificationfor treatments which will incidentally hasten death, with the protectionof a "normative causality" approach in contrast to a narrow empiricalor "but-for" causality approach in defining the legal cause of death.According to Ashby, this approach is not sufficient to justify activeassistance to die , and the distinction between active assistance andtreatment abatement/palliative interventions is preferable "for the sakeof social solidarity and the practice of palliative care".74 I have shownwhy the "but-for" idea of causation is equally applicable to the case ofactive assistance to die, so there can only be a historical/ culturalreason why it is claimed that social solidarity and palliative carepractice depend on maintaining the distinctiorr."

If one of the important goals of medicine is to provide all peoplewith as peaceful and natural a death as possible, this dependencemust COme to be seen as a cultural artefact, having its basis in acertain religious or religiously informed view, and it is only because weare governed by such a view that we cannot conceive an intention tokill as being an instrumental intention in some circumstances. Whenwe overcome the prejudice of this particular grand religious narrative,we will come to see that in some cases, the right to active assistance todie ought be as enforceable as the right to refuse treatment or haveburdensome treatment removed. True natural death statutes will thenoperationalise a more fundamental and therefore a more ethically andlegally justifiable intention, and, consistent with that, apply 'uniformsafeguards to all decisions which hasten death.tv


The Australian Association for Hospice and Palliative Caredefines euthanasia narrowly as "the deliberate action to terminate lifeby someone other than, and at the request of, ·the patient concerned".77

Ashby claims that it is this definition which is at stake in the ongoingsocial debate.ts but I suggest that what is really at stake is everythingwhich this definition leaves out. By paying attention to what is left out,we assure safe and justified passage across the Rubicon.

ENDNOTES

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Royal Netherlands Academy of Arts and Sciences 'Epidemiological and ClinicalAspects of end-of-Life Decision-Making' Colloqu ium, Amsterdam, 7-9 October 1999.Northridge v Central Sydney Area Health Service (2000) NSWSC 1241 (29 December2000).Voluntary Euthanasia Society of Queensland (2000) 13 Newsletter 7.Airedale NHS Trust u Bland (1993) 1 All ER 868.British Medical Association, 'Withholding and Withdrawing Life-prolonging MedicalTreatment' (1999) .Ibid 1-2.Ibid 43-45.Ibid 6 .Ibid 10-12.Ibid 11.As far as medicine is concerned, most people identify the distinction betweenactions and omissions as that between killing and letting die, criticised innumerous books and articles eg Helga Kuhse, 'The Sanctity of Life Doctrine inMedicine' (1987). However, the distinction is a general and arguably a relative one,and may be applied in other situations. While the withdrawal of treatment is oftenheld to be an omission when considered alongside active euthanasia, it may well beviewed as an action when considered alongside withholding treatment.British Medical Association, above n 5, 7-9.Ibid 53-59.Tina Garanis-Papadatos and Aristotle Katsis, 'The milk and the honey: ethics ofartificial nutrition and hydration of the elderly on the other side of Europe', (1999)25 Journal ofMedical Ethics 447-450.Ibid 448.British Medical Association, above n 5, 17-20 .Raanon Gillon, 'End-of-life decisions' (1999) 25 Journal ofMedical Ethics 435-436.Jack McCue, 'The Naturalness of Dying' (1995) .273 Journal of the American MedicalAssociation 1039-1043. Ibid 1039.Ibid 1039.Ibid .Timothy Quill, Barbara Coombs and Sally Nunn 'Palliative Treatments ·of LastResort: Choosing the Least Harmful Alternative: (2000) 132 Annals of InternalMedicine 488-493. .Daniel Callahan, 'The Troubled Dream ofLife: Living with Mortality' (1993).Ivan Illich, 'Limits to Medicine. Medical Nemesis: The Expropriation ofHealth' (1975) .Nancy S Jecker, 'Knowing When to Stop: The Limits of Medicine' (1991) 21:3Hastings Center Report 5-8.Renee Fox, 'The Medicalisation and Demedicalisation of American Society', in JohnH Knowles (Ed) 'Doing Better and Feeling Worse' (1977).In Australia, five jurisdictions have legislation, although the statutes vary eg interms of whether advance refusal of treatment may be made or not, and in otherways: Natural Death Act (NT); Consent to Medical Treatment and Palliative CareAct 1995 (SA) ; Medical Treatment Act 1988 (Vic); Medical Treatment Act 1994(ACT); Powers of Attorney Act 1998 (Qld).For example: Hastings Center, 'Guidelines on the Termination of Life-SustainingTreatment and the Care of the Dying' (1987); NSW Health, 'Dying With Dignity:Interim Guidelines on Management' (1993); British Medical Association,


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'Withholding and WithdrawingLife-prolonging Medical Treatment' (1999).Hastings Center, 'Advance Care Planning: Priorities for Ethical and EmpiricalResearch', (1994) 24 :6 Special Supplement, Hastings Center Report.Callahan, above n 22, 83.Anthony McMichael and David Leon, 'Beyond Medicine: The Wider Determinants ofPopulation and Global Health' in Peter Baume (Ed) 'The Tasks of Medicine' (1998)183-186.Brian Stoffell and Michael Ashby, 'On Natural Death and Palliative Care' in LeilaShotton (Ed), 'Health Care Law and Ethics' (1997) 168.Callahan, above n 22 , 196.James Rachels, 'Active and Passive Euthanasia' (1975) 292 Journal of the AmericanMedical Association, 78-80.Callahan, above n 22, 79-80.Tom Beauchamp The medical ethics of physician-assisted suicide' (1999) 25Journal ofMedical Ethics 437-439.Callahan, above n 29 .Michael Ashby, 'Palliative care, death causation, public policy and the law' (1998) 6Journal ofLaw and Medicine, 69-77.Loane Skene, 'Law and Medical Practice: Rights, Duties, Claims and Defences'(1998) 217-244.Ashby, above n 37, 73 .James Rachels, The Principle of Agency'. (1998) 12 Bioethics 150-161.Ibid 154.Callahan, above n 22, 91 -119.See above n 26.R u Adams [1957] Crim LR 365.Edmund Pellegrino 'Emerging Ethical Issues in Palliative Care' (1998), 279 Journalof the American Medical Association, 1521 .Physicians allegedly remain hesitant to employ adequate pain relief due to moralobjections related to perceptions of causing death, fear of legal ramifications, andunwillingriess to share control of drugs with patients. See Melissa Buchan andSusan Tolle 'Pain Relief for Dying Persons: Dealing with Physicians' Fears andConcerns', (1995), 6 Journal ofClinical Ethics 53-61.David Orentllcher, The Supreme Court and physician-assisted suicide' (1997) 337New England Journal ofMedicine 1236-1240.Roger Hunt, 'Palliative Care - the Rhetoric-Reality Gap', in Helga Kuhse (Ed) 'Willingto Listen - Wanting to Die"(1994) .Pellegrino, above n 45 :Consider this statement of Pellegrino: "If the doses of narcotics necessary to relievepain are large enough to produce deep sedation, this too would be permissible, ifsuffering can be relieved in no other way . This is not, as one commentator argues,the same as "slow euthanasia" since the intent is not the death of the patient.Deep sedation is intended to relieve pain and suffering, not to cause the patient torefuse food and fluid and thus cause death. To hasten death by terminal sedationwould violate the rule of double effect, since the good effect - relief of pain - wouldbe achieved by deliberately accelerating death."The implication of this position is that only those patients who have physical painwill be able to be treated in a way which is helpful to them at this fmal stage of life.Goff L, Airedale NHS Trust v Bland. (1993) 1 All ER, at 867.This occurred in the case of Dr Nigel Cox, who administered potassium chloride tohis rheumatoid arthritis patient Mrs Boyes, after conventional analgesics had failedto relieve her pain. Because he knew that potassium chloride was not an analgesic,but a lethal drug, he was considered to have directly intended her death, and wastherefore convicted of attempted murder. See Andrew Grubb (1993) 1 Med LawReview 232.Danuta Mendelson, 'Legal and Ethical Ramifications of Withdrawal of Life SupportSystems from Incompetent Patients' Paper presented at the Law, Medicine andCriminal Justice Conference, Surfers Paradise, 6-8 July 1993, 11.Peter Singer 'Rethinking Life and Death' (1994),57-80.Mustill L, Airedale NHS Trust v Bland (1993) 1 All ER, at 399.


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Skene, above n 38 , 230.Auckland Area Health Board v Attorney-General (1993) 1 NZLR235.Grant Gillett, Lowell Goddard and Michael Webb, 'The Case of Mr L: A Legal andEthical Response to the Court-sanctioned Withdrawal of Life-support', (1995) 3Journal ofLaw and Medicine, 51-52.Thomas J, Auckland Area Health Board v Attorney-General (1993) 1 NZLR, at 254.Mendelson, above n 52,15.Brent Howard, 'Dr Brian Pollard and euthanasia', (1998) 17 Monash BioethicsReview 12.This was the alleged situation in the case referred to in note 2 above.Skene, above n 38.Christopher Ryan, 'Depression, decisions and the desire to die', (1996) 165 MedicalJournal ofAustralia 411 .Michael Ashby 'Of Life and Death: The Canadian and Australian Senates onPalliative Care and Euthanasia' (1997) 5 Journal ofLaw and Medicine 47-48.Skene, above n 38, 231.Ibid 233-234.Ibid 233.Hastings Center 'The Goals of Medicine: Setting New Priorities', (1996) 26 :6Hastings Center Report (Special Supplement). .Malcolm Parker 'Moral intuition, good deaths and ordinary medical practitioners'(1990) 16 Journal ofMedical Ethics 28-34.Bethne Hart, Peter Sainsbury and Stephanie Short, 'Whose Dying? A SociologicalCritique of the "Good Death" (1995) in 'Autonomy, Community and Justice inBioethics', Proceedings of the 4 th conference of the Australian Bioethics Association,Brisbane, 81-91. Hart et al demonstrate that we may uncritically accept notions ofwhat is a good death, including that supported and promoted by the hospicemovement. This is not to say that dying in the hospice setting is always a bad wayto die, but that it should not be assumed to be good for all people. This is anotherway in which dying can be medicalised according to a particular view of the goodand as a result of the exercise of socially entrenched power.John Safranek, 'Autonomy and Assisted Suicide: The Execution of Freedom', (1998)Hastings Center Report , 28:4, 32 -36 . Safranek demonstrates that "in the absenceof a substantive theory of the good, in neither a descriptive sense nor an ascriptivesense can the concept of autonomy distinguish those acts that should be morallyprohibited from those that may be permitted",Powers ofAttorney Act 1998 (Qld) s 37 .Albert Johnsen 'A Short History ofMedical Ethics' (2000) 48-49.Ashby above n 64, 47.Susan Wolff has argued that refusing to allow euthanasia . strengthens thecommitment to support those facing discomfort and death. See Susan Wolf,'Holding the Line on Euthanasia' (1989) Hastings Center Report 19:1 13-15. I haveargued that to say, as Wolf does, that permitting the "out- of euthanasia wouldhave lessened the pressure to make painful ends bearable, is to treat two logicallycompatible injunctions (we should optimise palliative care and legalise voluntaryeuthanasia for those who do not accept that care) as incompatible. See MalcolmParker, 'Inviting Clinicians to Kill ... ', (1990) Hastings Center Report 20 :2,51.Michael Ebum, 'Death Gives Birth to the Need for New Law: The case for law reformregarding medical end of life decisions', (1996) Presentation Papers, Tenth NationalBioethics Conference, Sydney, 35 -41. .Australian Association for Hospice and Palliative Care, 'Voluntary ActiveEuthanasia - Position Statement, 27 th October 1995. Perth.Michael Ashby, 'The fallacies of death causation in palliative care', (1997) 166Medical Journal ofAustralia, 176-177.

Across the rubicon: medicalisation, natural death and euthanasia

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