Department of Health in 1998

"33 However, terminal sedation may be compatible with the rule of double effect if the medical profession intend only to relieve pain and suffering and to honour patients' informed refusal, assuming that the patients or their surrogates regard nutrition and hydration as unwanted therapies. However, it may be easier to use the principle of double effect when trying to account for the idea of terminal sedation. According to the principle of double effect, medics may take steps that might hasten the patient's death as long as the steps constitute a reasonable effort to treat the patient's suffering and the patient's death is not intended.

For example, it is permissible to give analgesics or sedatives to alleviate a patient's pain even if the drugs might halt the patient's breathing. However, the principle of the double effect justifies only the sedation that is part of terminal sedation. It is difficult to see how it justifies the withdrawal of food and water during terminal sedation, for that step does nothing to relieve the patient's suffering but only serves to bring about the patient's death.

If it is argued that the withdrawal of food and water is a permissible act, then the act constitutes either passive euthanasia or the premise that terminal sedation is permissible only because the patient's inability to eat or drink results from an underlying disease. What is Death or how can it be understood? Death is more complicated than one would first think. UK law generally holds that a person who suffers brain-stem death is dead, but some campaigners argue such a definition is defective.

For example, they argue, there is no agreed way to define when the brain is dead. And even if there were, why should the death of the brain count as death of the person if other organs – such as the heart – are still functioning? Up until the 1960's the cardio-pulmonary criteria of death was used whereby the death of a person was constituted by the irreversible cessation of breathing and heartbeat. However this has been undermined over the past 40 years but the development of medical technology i. e. assisted ventilation and heart bypass machines.

During the 1970's, the criteria used to establish death was the notion of "brain death" although in 1995 an article was published in the Journal of the Royal College of Physicians entitled "The Criteria for the Diagnosis of Brain Stem Death". This reinforced the idea that brain stem death was the correct term rather than brain death, explaining that: "It is suggested that 'irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe' should be regarded as the definition of death" 34. According to the Intensive Care Society, there are two ways that death can be determined.

For people suffering cardio-respiratory arrest (including failed resuscitation), death can be certified as usual by a registered medical practitioner following cessation of heart and respiratory activity. The doctor has to be certain that, in a normothermic patient, there has been inadequate circulation to the brain for long enough to ensure that there has been irreversible damage to the vital centres in the brain stem. 3536. In the case of determination of death by brain stem testing, medical practitioners must follow the Code of Practice issued by the Department of Health in 199837.

Brain stem death produces a state of irreversible loss of consciousness associated with the loss of central respiratory drive (apnoea). It was accepted as being equivalent to somatic death by the World Medical Association in 1968 as it represented a state when "the body as an integrated whole has ceased to function". In the UK this position was accepted in a 1976 memorandum from the Conference of the Medical Royal Colleges and their Faculties38. This allowed discontinuation of mechanical ventilation in patients whose brain stem had irreversibly ceased to function and also allowed organ donation from brain stem dead heart beating donors.

The criteria for the diagnosis of brain stem death have also been adopted by the courts in England and Northern Ireland for the certification of death. Despite all this, there are some aspects of the performance of brain stem testing that remain ambiguous. In these areas the ICS Working Group has come to a consensus that it is felt represents best practice in the current state of knowledge. Brain stem death is diagnosed in three stages: 1. It must be established that the patient has suffered an event of known aetiology resulting in irreversible brain damage with apnoeic coma, i.

e. the patient is deeply unconscious, mechanically ventilated with no spontaneous respiratory movement. 2. Reversible causes of coma must be excluded. 3. A set of bedside clinical tests of brain stem function are undertaken to confirm the diagnosis of brain stem death. "Morality" and right to life Another way of defending double effect is to argue that a physical harm is not always a moral evil. 4 It is the reason why harm is inflicted which determines whether it is a moral evil- the intention is either beneficence or non-malificence.

But the doctrine does not permit actions which would usually be wrong, because they are a means to a good end, in a particular situation. Opposition to euthanasia cannot be based on an objection to achieving good effects through bad effects. The second argument is that the patient's own ethical evaluation of a method or an outcome should determine whether it is good or bad. Advocates of euthanasia are subjective when defending the right off a competent patient while they use an impressionist argument when defending euthanasia in a patient who is mentally incompetent39.

In the British Medical Journals discussion paper "Euthanasia & physician assisted suicide: do the moral arguments differ? " it was stated that: "Ultimately we do not believe that the arguments are sufficient reason to weaken society's prohibition of intentional killing… That is the cornerstone of law and of social relationships. It protects each one of us impartially; embodying the belief that we all are equal… individual cases cannot reasonably establish the foundations of a policy which would have such serious and widespread repercussions.

We believe that the issue of euthanasia is one in which the interests of the individual cannot be separated from the interests of society as a whole"40. In most moral, social, and legal realms, people are held responsible for all reasonably foreseeable consequences of their actions, not just the intended consequences. The medical profession are not exempt from this expectation. This understanding of moral responsibility encourages people to exercise due care in their actions and holds them responsible for that which is under their control.

The important moral question is whether the risk of foreseeable harm is justified by an action's good effects. It is the principle of proportionality that determines when the risk of undesirable consequences is justified. Doctrines concerning how life should be treated cannot be easily be separated from the legal and sociological aspects of morality. Using morality in establishing normative law is a subordinate theorem. Lex injusta non est lex has been a principle, and a description, of natural law since common law and equity were separate concepts.