The (unethical) Doctrine of Double Effect

The UK law distinguishes between lawful and unlawful life-shortening practices through the intentions of the medical practitioner who administered the life-shortening treatment. This deontological approach that the UK law takes to life-shortening practices places significant importance on the intentions of the practitioner administering the life-shortening treatment. [1] This is unjustified as it neglects the intentions and therefore autonomy of the patient. It is an accepted principle of law, that it can, potentially, be lawful to administer painkilling and sedative drugs which might also ‘hasten death’ or ‘shorten life’, if it is deemed a better consequence, known as the Doctrine of Double Effect. [2] With Lord Goff stating in Bland that:

"the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite that fact that he knows that an incidental effect of that application will be to abbreviate the patients life"

There is a distinction made between intended consequences and consequences foreseen as likely, but unintended. [3] In Cox, [4] a terminally ill status was held to be irrelevant to sentencing, when the death is a ‘primary result’ of the defendants actions rather than ‘incidental’. [5] Reenforcing the difference between the lawful Doctrine of Double Effect where an act incidentally results in death of the patient and unlawful euthanasia. This shows that the distinction the law creates between the lawful doctrine of double effect and unlawful euthanasia creates a complete disregard for patient autonomy.

Differing opinions

However, many believe that the doctrine of double effect is justified. It can be argued that putting the relieving of patient suffering first makes bad intentions impossible and ensures that it is in the best interests of the patient. It can also be argued that the doctrine of double effect is a core principle within medical ethics, and if it is unjustified in situations where the bad consequence is death, where does that end? For example, the prescription of an antibiotic might cause an allergic reaction, but the main intention of fighting the infection ‘is felt to outweigh the potential risk’. [6] Therefore the doctrine of double effect is justified.

In opposition, Williams argues that it is ‘too artificial’ [7] for doctors to only consider pain management and ignore that they know the administering of the drug will shorten life. [8] The doctrine simply becomes a way to legalise euthanasia by relying on the pretence that the human brain cannot have complex thoughts. Douglas furthers this argument, critiquing the ‘grey area’ [9] as the difference between the doctrine of double effect and euthanasia using pain relief medication is the mindset of doctor administering the medication. [10] But how does the law prove ones mindset against the criminal burden of proof? There will surely always be doubt, creating an incoherent and morally irrelevant distinction between ‘good’ and ‘bad’ intentions. This was shown in the aftermath of R v Adams. [11] Dr Adams argued for the continued lawfulness of the doctrine of double effect, arguing that doctors should be ‘entitled to do all that is proper and necessary to receive pain and suffering, even if the measures incidentally shorten life’. Significantly, this argument is unwelcome in the literature, as Richard Huxtable’s commentary on the case explains, it is an ‘ironic’ stance given that Dr Adams was later found to have inherited art least 132 wills from the patients who passed away under his care. [12] This opens the floodgates for arguments over if the oblique nature of the doctrine of double effect is being exploited and therefore if it truly can be justified when measuring the distinction the law makes between the lawful doctrine of double effect and unlawful euthanasia is so incoherent. [13]

The forefront of intent being the distinguishing factor between euthanasia and the doctrine of double effect is so insignificant that it creates the risk that doctors will be unwilling to provide adequate relief for suffering and therefore forcing patients to endure unnecessary suffering. [14] Therefore the laws focus on intention foresight renders current laws regulating life-shortening practices as unjustified.

References:

[1] Julian Savulescu, Domonic Wilkinson ’Consequentialism and the Law in Medicine’ [2019] Philosophical Foundations of Medical Law

[2] Pushpinder Saini ‘The doctrine of double effect and the law of murder’ 67(3) 1999 The Medico-Legal Society 106-120

[3] Pushpinder Saini ‘The doctrine of double effect and the law of murder’ 67(3) 1999 The Medico-Legal Society 106-120

[4] R v Cox [1992] 12 BMLR 38

[5] Richard Hamilton, ‘The law on dying’ 95(11) 2002 Journal of the Royal Society of Medicine, 565

[6] Hannah Faris, ‘Goods, causes and intentions: probelms with applying the doctrine of double effect to palletise sedation’ 22(1) 2021 BMC Medical Eithics

[7] Glanville Williams, The Sanctity of Life and the criminal law (1st edn, Faber & Faber Ltd, 1958) 286

[8] Williams G, The Sanctity of Life and the criminal law (1st edn, Faber & Faber Ltd, 1958) 962

[9] Charles Douglas, Ian Kerridge, Rachel Ankeny, ‘Managing intentions: the end-of-life administration of analgesics, and the possibility of slow euthanasia’ 2008 22 Bioethics 388-96

[10] E Jackson, Medical Law (6th edn, Oxford University Press, 2022)

[11] [1957] Crim LR 365

[12] Cameron Mitchell, ‘The case of suspected Irish serial killer Dr John Bodkin Adams’ (BBC, 2016) < https://www.bbc.com/news/uk-northern-ireland-35606070> accessed 18 May 2024

[13] Williams G, The Sanctity of Life and the criminal law (1st edn, Faber & Faber Ltd, 1958) 974

[14] Margaret Otlowski, Voluntary Euthanasia and the Common Law (1st edn, Oxford University Press, 2000)