The Devil's Choice: Re-Thinking Law,Ethics,and Symptom Relief in Palliative Care

Sophie's choice has not been confined to cinema: in August 2004, up to a dozen mothers were faced with Sophie's choice when Chechnyan rebels took control of a school in Beslan, North Ossetia, allowing a few mothers to leave, but taking only one child and leaving the others behind: Murphy K. , “Forced to Choose – Her Boy or Girl,” Sydney Morning Herald, September 4–5, 2004: 1.

Legge K. , “Abortion Case a Kafkaesque Nightmare,” Weekend Australian, March 26–27, 2005, at 1, 6.

Kennedy I. , “The Medical Frontier,” in Howe L. and Wain A. , eds., Predicting the Future (Cambridge: Cambridge University Press, 1993): 96–117, at 111. Kennedy continues: “Of course, when the courts do step in, the subtle and difficult question of whether the issue really does call for legal regulation becomes moot. The court is stuck with the problem and must make a decision. Public policy there will be and it will be law.”

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961.

Id., at 1006, per Ward LJ.

Id., at 1012 per Ward LJ; similarly, at 1029 per Brooke LJ. Cf. Robert Walker LJ, who relied on the doctrine of double effect to “prevent the doctor's foresight of accelerated death from counting as a guilty intention,” id., at 1063.

R v. Woollin [1999] 1 AC 82.

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, at 1016–1017 per Ward LJ.

Id., at 1051–1052 per Brooke LJ; at 1067, 1069–1070 per Robert Walker LJ.

Id., at 1070 per Robert Walker LJ.

Id., at 1051 per Brooke LJ.

See, e.g., State of Queensland v. Nolan [2001] QSC 174 (May 31, 2001).

Walker Robert did, however, appear to recognize the application of the doctrine of double effect (in addition to the defense of necessity), arguing that the doctor's foresight of Mary's death as an inevitable consequence of the surgery should not count as guilty intention since the purpose of the surgery was to restore bodily integrity and human dignity to her: Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, at 1069.

Dyer C. , “Conjoined Twins Separated After Long Legal Battle,” British Medical Journal 321 (2000): 1175.

See Quill T. Dresser R. Brock D. , “The Rule of Double Effect – A Critique of its Role in End-of-Life Decision Making,” New England Journal of Medicine 337 (1997): 1768–1772.

Magnusson R. , Angels of Death: Exploring the Euthanasia Underground (Hartford, Connecticut: Yale University Press, 2002): at 88.

Prominent contributions include: Billings J. and Block S. , “Slow Euthanasia,” Journal of Palliative Care 12 (1996): 21–30; Loewy E. , “Terminal Sedation, Self-Starvation, and Orchestrating the End of Life,” Archives of Internal Medicine 161 (2001): 329–332; Quill T. Lo B. , and Brock D. , “Palliative Options of Last Resort: A Comparison of Voluntarily Stopping Eating and Eating, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia,” JAMA 278 (1997): 2099–2104; Cherny N. , “Commentary: Sedation in Response to Refractory Existential Distress: Walking the Fine Line,” Journal of Pain and Symptom Management 16 (1998) 404–405; Hermsen M. and ten Have H. , “Euthanasia in Palliative Care Journals,” Journal of Pain and Symptom Management 23 (2002): 517–525; Tännsjö T. , “Terminal Sedation – A Possible Compromise in the Euthanasia Debate?” Bulletin of Medical Ethics, November 2000: 13–22; Quill T. Dresser R. Brock D. , “The Rule of Double Effect – A Critique of its Role in End-of-Life Decision Making,” New England Journal of Medicine 337 (1997): 1768–1772; Ganzini L. Goy E. Miller L. Harvath T. Jackson A , and Delorit M. , “Nurses' Experiences with Hospice Patients who Refuse Food and Fluids to Hasten Death,” New England Journal of Medicine 349 (2003): 359–365; Morita T. Hirai K. Akechi T. , and Uchitomi Y. , “Similarity and Difference Among Standard Medical Care, Palliative Sedation Therapy, and Euthanasia: A Multidimensional Scaling Analysis on Physician's and the General Population's Opinions,” Journal of Pain and Symptom Management 25 (2003): 357–362; Lo B. and Rubenfeld G. , “Palliative Sedation in Dying Patients: ‘We Turn to It When Everything Else Hasn't Worked,’” JAMA 294 (2005): 1810–1816.

Kaldjian L. Jekel J. Bernene J. Rosenthal G. Vaughan-Sarrazin M. , and Duffy T. , “Internists' Attitudes Towards Terminal Sedation in End of Life Care,” Journal of Medical Ethics 30 (2004): 499–503.

Beauchamp T. L. and Childress J. F. , Principles of Biomedical Ethics (New York: Oxford University Press, 4th ed., 1994): at 207; Lo B. and Rubenfeld G. , “Palliative Sedation in Dying Patients: ‘We Turn to It When Everything Else Hasn't Worked’,” JAMA 294 (2005): 1810–1816, at 1812.

Sulmasy D. P. and Pellegrino E. , “The Rule of Double Effect: Clearing up the Double Talk,” Archives of Internal Medicine 159 (1999): 545–550, at 545.

Keown J. , Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (Cambridge: Cambridge University Press, 2002): at 20.

Smith McCall A. , “Euthanasia: The Strengths of the Middle Ground,” Medical Law Review 7 (1999): 194–207, at 206.

Smith As McCall says, “We live by moral metaphor, and the metaphor of helping, rather than killing, may be a valuable one to those whose duty it is to look after the terminally ill,” supra note 22, at 207.

Douglas C. Kerridge I. Rainbird K. McPhee J. Hancock L. , and Spigelman A. , “The Intention to Hasten Death: A Survey of Attitudes and Practices of Surgeons in Australia,” Medical Journal of Australia 175 (2001): 511–515.

Vacco v. Quill 521 U.S. 793 (1997).

Washington v. Glucksberg 521 U.S. 702 (1997).

Vacco v. Quill 521 U.S. 793 (1997), at 802–803. The majority opinion continued: “When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death…. His purpose, though, was to…liberate Europe from the Nazis,” id., at 803.

Vacco v. Quill 521 U.S. 793 (1997), at 802; cf, however, Washington v. Glucksberg 521 U.S. 702 (1997), at 750 per Stevens J.

Washington v. Glucksberg 521 U.S. 702 (1997), at 736–7 per O'Connor J.

Id., at 737–738 per O'Connor J.

Id., at 736–737 per O'Connor J; at 791–792 per Breyer J; at 789 per Ginsburg J., Souter J, at 781–782, and Stevens J, at 751–752 were less explicit but are arguably not inconsistent with this view either. For discussion, see Burt R. , “The Supreme Court Speaks,” New England Journal of Medicine 337 (1997): 1234–1236; McStay R. , “Terminal Sedation: Palliative Care for Intractable Pain, Post Glucksberg and Quill,” American Journal of Law & Medicine 29 (2003): 45–76, at 52–53; Smith G.P. II , “Terminal Sedation as Palliative Care: Revalidating a Right to a Good Death,” Cambridge Quarterly of Healthcare Ethics 7 (1988): 382–387.

See Huxtable R. , “Get Out of Jail Free? The Doctrine of Double Effect in English Law,” Palliative Medicine 18 (2004): 62–68.

Palmer H. , “Dr. Adams' Trial for Murder,” Criminal Law Review (1957): 365–377, at 375.

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, at 1029 per Brooke LJ, at 1063 per Robert Walker LJ; see also Airedale NHS Trust v. Bland [1993] AC 789, at 867, per Lord Goff.

R v. Woollin [1999] 1 AC 82.

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, at 1012 per Ward LJ.

The prohibition against intentional killing was confirmed, for example, by Pope John Paul II in 2004 in a Vatican-sponsored congress on the vegetative state: Address of John Paul II to the Participants in the International Congress on ‘Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas’, March 20, 2004, at <http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/march/documents/hf_jp-ii_spe_20040320_congress-fiamc_en.html> (last visited February 23, 2006); see also Tammeus B. , “Pope's Stance Puts Pressure on Hospitals,” The Kansas City Star, April 3, 2004, at A1.

Cotton P. , “Medicine's Position is Both Pivotal and Precarious in the Assisted-Suicide Debate,” JAMA 273 (1995): 363–4, at 363.

Magnusson R. , supra note 16, at 87.

Id., at 88.

Loewy E. , “Terminal Sedation, Self-Starvation, and Orchestrating the End of Life,” Archives of Internal Medicine 161 (2001) 329–332, at 331; see also Syme R. , “Pharmacological Oblivion Contributes to and Hastens Patients' Deaths,” Monash Bioethics Review 18 (1999): 40–43.

See Vacco v. Quill 521 U.S. 793 (1997), at 801–802.

See Airedale N.H.S. Trust v. Bland [1993] AC 789, at 866, 887, 898–899. In Airedale, members of the House of Lords frankly admitted that the distinction between acts and omissions – applied in a case where a ventilator was removed from a patient in a persistent vegetative state – was “morally and intellectually dubious” (at 898), “illogical” (at 895), and hypocritical (at 865). In Re A, the English Court of Appeal quite properly rejected the argument that the operation to separate the conjoined twins should be categorized as an omission: Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, at 1003 per Ward LJ; at 1027 per Brooke LJ; at 1062 per Robert Walker LJ.

Quill T. Lo B. , and Brock D. , “Palliative Options of Last Resort: A Comparison of Voluntarily Stopping Eating and Eating, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia,” JAMA 278 (1997): 2099–2104, at 2102.

Id., at 2102.

Magnusson R. , supra note 16, at 149.

Id., at 137, 147.

Id., at 146.

Magnusson R. “‘Underground Euthanasia’ and the Harm Minimization Debate,” Journal of Law, Medicine & Ethics 32 (2004): 486–495.

Harvey J. , “The Technological Regulation of Death: With Reference to the Technological Regulation of Birth,” Sociology 31 (1997): 719–735, at 726.

See Keown J. , Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (Cambridge: Cambridge University Press, 2002): 29.

The principle of double effect, as traditionally outlined, requires that the worthy aim (relief of suffering) must not be brought about by means of the foreseen, yet unintended effect (death): see Sulmasy D.P. and Pellegrino E. , “The Rule of Double Effect: Clearing up the Double Talk,” Archives of Internal Medicine 159 (1999): 545–550, at 545. But this is irrelevant, since the issue was the plausibility of the physician's claim about what their intention was, not whether their action is excused by the principle of double effect.

Bruera E. and Kim Nam H. , “Cancer Pain,” JAMA 290 (2003): 2476–2479; Sutton L. Porter L. Keefe F. , “Cancer Pain at the End of Life: A Biopsychosocial Perspective,” Pain 99 (2002): 5–10.

Two studies of cancer pain that followed WHO-treatment guidelines reported that inadequate pain relief was achieved in a disturbingly large sample of patients: twelve and fourteen percent, respectively: Zech D. Grond S. Lynch J. Hertel D. and Lehmann K. , “Validation of World Health Organization Guidelines for Cancer Pain Relief: A 1-Year Prospective Study,” Pain 63 (1995): 65–76; Meuser T. Pietruck C. Radbruch L. Stute P. Lehmann K. and Grond S. , “Symptoms During Cancer Pain Treatment Following WHO-Guidelines: A Longitudinal Follow-Up Study of Symptom Prevalence, Severity and Etiology,” Pain 93 (2001): 247–257.

Morita T. Tsunoda J. Inoue S. and Chihara S. , “Effects of High Dose Opioids and Sedatives on Survival in Terminally Ill Cancer Patients,” Journal of Pain and Symptom Management 21 (2001): 282–289; Brownstein E. , “Pain Relief and Causation of Death in the Context of Palliative Care,” Journal of Law and Medicine 28 (2001): 433–459.

For full details of this account, see Magnusson R. , supra note 16, at 234–238.

See Beauchamp T. L. and Childress J. F. , supra note 19, at 209.

Kirby M. , “Contemporary Comment: The English Siamese Twins Case and Legal Doubts,” Criminal Law Journal 25 (2001): 157–159, at 158.

Magnusson R. , supra note 16, at 90.

See Washington v. Glucksberg 521 U.S. 702 (1997), at 750–751 per Stevens J.