The Doctrine of Double Effect

In order to fully discuss this question, the definitions of both double effect and euthanasia must be established and the medical, moral and legal aspects compared. Lord Edmund Davies surmised how these aspects may lead to radically different interpretations when he stated that "killing both pain and patient may be good morals but it is far from certain that it is good law"1. In light of this it is fundamental that it is established whether or not euthanasia has become a legalised tenet of British justice "by the back door" so to prevent miscarriages of justice in a medico-legal sphere.

It is worth including here the plea by Pope John Paul II in his encyclical Evangelium Vitae: "I renew the appeal that I made in the Encyclical to the whole Church: to scientists and doctors… especially to jurists and lawmakers. It will be through everyone's commitment that the right to life will be concretely applied in this world. Only in this way will we overcome that sort of silent, cruel selection by which the weakest are unjustly eliminated.

"2 Indeed, the Hippocratic Oath swears that "I will neither prescribe nor administer a lethal dose of medicine to any patient even if asked nor counsel any such thing nor perform the utmost respect for every human life from fertilization to natural death"3. This stance will be challenged in the body of the essay. Double Effect Historically, double effect is closely associated with the Roman Catholic Church and Thomas Aquinas.

The doctrine itself may originate in a letter of Saint Paul although it is widely believed that the principle of double effect originated with Thomas Aquinas' discussion of the permissibility of self-defense in the Summa Theologica4. Aquinas observed that "Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention"5. The rule of double effect is a conceptually and psychologically complex doctrine that distinguishes between permissible and prohibited actions by relying heavily on the clinician's intent.

More recently the doctrine has become has been seen as being relevant to the discussion of Medical Ethics and the legal implications of administering pain relief in terminally ill patients. Although higher than usual levels of pain relief can be tolerated by totally conscious and competent patients, opium derivates have a side effect of reducing breathing, thus hastening death. In R v Adams in 1957, Hedley J stated that "He [the Doctor] is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life"6.

As can be established from Hedley J's quote, double effect, especially when seen through the prism of medical ethics requires a distinction between foreseeing an outcome and intending it in order for double effect to be legally sound. As one will appreciate, this distinction, legally, is of paramount importance. Lord Goff summarised in Airedale v Bland that "such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful.

Moreover, where the doctor's treatment of his patient is lawful, the patient's death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable. "7 Nicholas Pace discusses the legal implications in his essay "Withholding and Withdrawing Medical Treatment" saying that "The acceptance in law of double effect does not rest on the "no intention" point of view, but instead would be based on "no causation" so that the cause of death is disease rather than the drug"8.

The importance of this distinction and the legal tenets of justice surrounding the doctrine of double effect have given rise to four necessary points which are generally seen as the authority for practice9. These points are outlined below: 1. The nature of the act performed must be morally indifferent 2. Only the good effect is intended by the agent. 3. There must be a proportionate reason for allowing the expected bad effect to occur. 4. The good effect must not be performed by means of the bad effect; there must be a distinction between the two.

It can therefore be seen that there are many problems with the doctrine of double effect. These mainly arise through the morality of the act which is at best subjective when the issue of intention is raised. The distinction between a directly intended and a merely forseen consequence comes down to looking at: a) whether a clear distinction can always be drawn between consequence that an agent directky intends and those merely forseen and 2) Is the distinction morally relevant in itself?

10 For example the administering of the analgesic may kill the patient and the medical practitioner is almost certain to know this. Can it thus be argued that it is done with the right intention? It may mask an (immoral) intention to kill the patient. Indeed Dr Timothy Quill admits the difficulty when the patient starts talking about wanting to die. In this case, he argues, can you still say that you're not intending to help them to die when that is one of their main purposes in taking a higher dose of medicine?

11 Attention is drawn to R v A where the religious and moral objections by parents in separating their conjoined twins were debated in court. Although the defence argued that the principle of double effect would negate the surgeon's criminal responsibility, the judge stated that it could have "no possible application"12 as the surgeons could in no way be acting in good faith towards one twin even if it benefited the other. It was noted in the judgement that in 1977 a similar case arose in Philadelphia.

The catholic nurses received comfort based on the double effect doctrine believing that one of the conjoined twins was, by its very nature, sacrificed for the benefit of the other. The carotid artery was tied, not to terminate the life of the sacrificed twin but to preserve the life of the other. This is a tenuous sequence of thought which has had no application to the principle of double effect in the United Kingdom. Double effect in the United Kingdom relates to the patient's comfort rather than his or her premature death13.

Thus it philosophically relates to the terminally ill patient whereas euthanasia relates to both the terminally ill patient and the incurable patient. Euthanasia Debate about the morality and legality of euthanasia is, for the most part, a phenomenon of the second half of the twentieth century. Certainly, the ancient Greeks and Romans did not consider life needed to be preserved at any cost and were, in consequence, tolerant of suicide in cases where no relief could be offered to the dying or, in the case of the Stoics and Epicureans, where a person no longer cared for his life.

In the sixteenth century, Thomas More, in describing a utopian community, envisaged such a community as one that would facilitate the death of those whose lives had become burdensome as a result of 'torturing and lingering pain'14. On the 6th June 2003, Lord Joffe's Patient Assisted Dying Bill was debated in the House of Lords. This bill hoped to "enable a competent adult who is suffering unbearably as a result of a terminal or a serious and progressive physical illness to receive medical help to die"15. However, the bill was defeated at the second reading.