Prof Kamm s discussion

Transcription

1 Tse Chun Yan

2 Prof Kamm s discussion Justifies PAS by three arguments: The Four-Step Argument The Alternative Four-Step Argument The Eliminative Argument

3 Prof Kamm s discussion Disagrees with Gorsuch in his use of the Doctrine of Double Effect (in differentiating a right to refuse treatment and a right to PAS). It seems then that Gorsuch s two ways of defending a moral and legal distinction between intending death and only foreseeing it as a side effect do not succeed. (p. 29)

4 Theme of my discussion Intention matters" my arguments are not along the line of the Doctrine of Double Effect, but from the perspective of actual clinical practice. Not arguing against PAS in general. I am focusing on Prof Kamm's Four-Step Argument, leading to my view that "intention matters".

5 The Four-Step Argument Prof Kamm's 4th step: Therefore,... a doctor also has a moral right to intentionally cause death... when it [death] alone can stop pain. (p. 2) My comment: With modern palliative care and the multiple arrays of treatment modalities, it is quite rare that pain cannot be controlled.

6 Pro-euthanasia people Do not just ask for legalizing PAS when death is the only way to stop the pain. They ask for patient's choice. Jean Davis, "The Case foe Legalising Voluntary Euthanasia", in John Keown ed. Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University Press, 1995), 88.

7 Laws on physician assisted death Canada: experience unbearable physical or mental suffering... that cannot be relieved under conditions that you consider acceptable. Oregon: the attending physician must inform the patient of feasible alternatives... including comfort care, hospice care, and pain control.

8 Laws on physician assisted death The laws do not require that "death is the only way to stop the pain". Patients can decide NOT to choose other ways to stop the pain. Prof Kamm's Four-Step Argument as it is stated is not adequate to support the legislations in these places.

9 The Four-Step Argument Prof Kamm's 1st step: Doctors have a moral right to relieve pain in a patient (e.g., by giving morphine) even if they know with certainty that this will cause the death of the patient... (p. 1) My comment: this premise is definitely not true.

10 Side effects of morphine are dosage dependent When the intention of the doctor is to kill the patient and a lethal dose of morphine is given, the patient will die. However, when used appropriately for pain management in palliative care, morphine seldom shorten the patient's life. Daniel Azoulay, Jeremy M. Jacobs, Ron Cialic, Eliana Ein Mor, and Jochanan Stessman, "Opioids, Survival, and Advanced Cancer in the Hospice Setting," J Am Med Dir Assoc 12 (2011): ; Michaela Bercovitch, Alexander Waller, Abraham Adunsky, "High Dose Morphine Use in the Hospice Setting: A Database Survey of Patient Characteristics and Effect on Life Expectancy," Cancer 86 (1999):

11 Good clinical practice The dose of morphine must be titrated carefully according to the patient's symptoms and side effects. If morphine cannot adequately control the pain, other modalities of treatment will be considered, instead of blindly escalating the dose of morphine. A lethal dose will not be given for pain relief.

12 Morphine causing death with certainty? If a doctor intentionally gives a dose of morphine "with certainty that this will cause death", the doctor can be charged with murder. When properly used with the intention to relieve pain, there is NO situation where the use of morphine will cause the death of the patient with certainty.

13 Morphine having a significant chance of shortening life In a subset of very frail seriously ill patients, there can be a significant chance of shortening the patient's life. However, this significant chance in hastening death (unlike with certainty that this will cause death) cannot lead to justification of PAS through the Four- Step Argument.

14 Differences between the two Significant chance in hastening death, the patient still has a chance that her survival is not affected. A lethal dose of morphine, the patient will die.

15 Differences between the two Survival reduced from 4 weeks to 2 weeks, the patient lost 2 weeks of survival, but gained pain control in the remaining 2 weeks. A lethal dose is given, the patient will lose all 4 weeks, and will not have any pain free survival.

16 Differences between the two When the intentions are different, both the objective features (dose of morphine given), and effects (whether the patient will die or not) of giving morphine are NOT the same. The permissibility of using morphine for pain relief does not lead to permissibility of using morphine to kill. Thus, I say, "intention matters" in the use of morphine.

17 Overt and covert intentions It is possible that a doctor actually intends death, but because of legal restriction, he can only say that he intends to control pain, and he can only give a non-lethal dose, just hoping the patient will die.

18 The consideration of "intention" can be complex Prof Kamm: "actual intention" and "possible intentions Psychology and linguistics: "overt intention" and "covert intention"

19 Overt and covert intentions For that particular doctor the overt intention is pain relief, the covert intention is death of the patient.

20 Overt and covert intentions The overt intention can often be assessed objectively by the act carried out. In clinical practice, the features of an act arising from an overt intention are governed by professional codes and the law. Clinical guidelines and good practice models are drawn up with the overt intention as explicit goal.

21 Overt and covert intentions One cannot simply claim that morphine is given with the intention to relieve pain, but then gives a lethal dose. These duplicitous practices represent an unacceptable, and often illegal, deviation from normative ethical clinical practice." Therefore, "the overt intention matters". Nathan I. Cherny, Lukas Radbruch, and The Board of the European Association for Palliative Care, "European Association for Palliative Care (EAPC) Recommended Framework for the Use of Sedation in Palliative Care," Palliative Medicine 23, no. 7 (2009) :

22 Letting die" or "withholding/discontinuing life saving care" Prof Kamm criticizes Gorsuch's approach in using the Doctrine of Double Effect to defend the permissibility of discontinuing life saving care in comparison to PAS. During the discussion, Prof Kamm also talked about the use of morphine, without explicitly discussing the differences between discontinuing life saving care and the use of morphine. My comment: the significance of their differences warrants a separate discussion.

23 Use of morphine When morphine is used with an overt intention to relive pain, both objective features (dose of morphine given), and effects (whether the patient will die or not) of the act are NOT the same as when morphine is used with an overt intention to cause death. The permissibility of the former does not lead to permissibility of the latter.

24 Letting die A ventilator dependent patient: compare the acts "discontinuing his ventilator" and "giving him a lethal dose of medication". While the objective features of the acts are different, the effects on this patient are the same : the patient will die. Then, can the permissibility of "discontinuing life saving care" lead to permissibility of PAS?

25 "Philosophers' Brief by Ronald Dworkin et al Yes" because there is an intention of the doctor "to help the patient die.

26 Prof Kamm The alternative to letting die, [forcing treatment,] then, has such a morally objectionable feature... [that] we must terminate aid... The move from Cruzan's right to refuse treatment to the permissibility of assisted suicide is, therefore, not generally available. (Boston Review 1997) Letting die" is based on an intention "not to force treatment". The permissibility of PAS is thus not based on the permissibility of "letting die", but based on other reasons.

27 Not to force treatment" I mean not to give treatment in the presence of a contemporaneous or advance refusal of this treatment by a competent patient, or not to give treatment that is not in the best interests of the patient.

28 In "letting die" Both intentions, "not to force treatment" and "to help the patient die", can be present. Should we just look at the act itself without considering the intention? Prof Kamm: [we can] go directly from the objective features [of an act] to determining the permissibility or impermissibility of the act independent of agents intentions. (p. 34)

29 Letting die" in a ventilator dependent patient If "letting die" per se can be permitted regardless of the intention, Because, in some cases, an intention to cause death is present, would the "Philosophers' Brief" be correct to say that permissibility of "letting die" leads to permissibility of PAS? I would again say that "the overt intention matters".

30 Differences in the nature of the two overt intentions in general Not to force treatment respect a widely recognized standard principle in medical practice. a necessary consideration in caring for a dying patient in the presence of modern medical technologies. To help the patient die controversial and can lead to an act which is illegal in many parts of the world. alternatives (e.g. palliative care) are available.

31 Differences in implications beyond a patient dependent on life support Not to force treatment the survival of patients not dependent on life support would not be affected. To help a ventilator dependent patient die we cannot turn down a request to give a lethal drug. Then, PAS for terminally ill patients not dependent on life support would also be permitted. Then, the practice would go further down the slippery slope.

32 Slippery slope Prof Kamm discussed Gorsuch's view that, if PAS is legalized for the terminally ill, the requirement for equal protection would imply that PAS must be available for the non-terminally ill (p. 35). I would like to say that this has already happened, involving not only the non-terminally ill, but also those with non-physical suffering.

33 Slippery slope In the Netherlands, 6.8% of those who had physician assisted death were categorized as tired of living. Barron H. Lerner, and Arthur L. Caplan, " Euthanasia in Belgium and the Netherlands on a slippery slope?" JAMA Internal Medicine 175, no. 10 (2015): Psychiatric patients who had euthanasia carried out in Belgium included patients with depression, personality disorder and autism spectrum disorder. Lieve Thienpont, Monica Verhofstadt, Tony Van Loon, Wim Distelmans, Kurt Audenaert, and Peter P. De Deyn, "Euthanasia Requests, Procedures and Outcomes for 100 Belgian Patients Suffering from Psychiatric Disorders: A Retrospective, Descriptive Study," BMJ Open 5, no. 7 (2015). A Belgian who was granted euthanasia for unbearable psychological suffering because of a botched sex change operation. Bruno Waterfield, "Belgian Killed by Euthanasia after a Botched Sex Change Operation," The Telegraph, 1 Oct 2013.

34 Comparing the implications of the two overt intentions Euthanasia in Belgium and the Netherlands has been extended to those who are not dying and without physical suffering. In comparison, "letting die" from an overt intention "not to force treatment" would not lead to death of these people. Thus, "the overt intention matters".

35 The superior man must make his thoughts sincere 君子必誠其意 One may criticize that, having an overt intention not to force treatment but a covert intention to kill is hypocritical. According to Confucian teaching (The Great Learning 大學 ) "the superior man must make his thoughts sincere" 君子必誠其意. It is ideal that there is no underlying improper covert intention in any acts. But in actual clinical practice where there are professional codes and laws to govern one's acts, "the overt intention matters".

36 Conclusion Use of morphine When the overt intentions are different, both the objective features (dose of morphine given), and effects (whether the patient will die or not) of giving morphine are NOT the same. Letting die" The nature and implications of an overt intention "not to force treatment" has important differences from those of an overt intention "to help the patient die".

37 Conclusion Neither the permissibility of "using morphine to relieve pain" nor the permissibility of "not forcing treatment" lead to permissibility of PAS. In these issues, the overt intention matters. The justification for PAS has to depend on other arguments.

38 Thank you!