The Intent to Kill

If a doctor gives increasing doses of morphine, over a period of time, to a cancer patient who is incurable and in great pain, and the patient dies as a result of that medication, it is very unlikely that the doctor's treatment will be questioned. But if that doctor gives the same patient one large dose of morphine which ends the patient's life, at the patient's request, then the doctor's actions are very likely to be questioned and he or she may even be prosecuted for murder.

Many of us have difficulty understanding why a doctor's intention when treating a terminally ill patient seems to be legally more important than the outcome of that treatment.

Put simply, the law accepts that the doctor may give analgesics (i.e. drugs which remove or relieve pain) that hasten the patient's death, and foresee that they will do so, but he or she must intend only to relieve pain, not to kill the patient, even if the patient has asked for help to die. This is known as the principle of double effect.

Opponents of voluntary euthanasia often argue that there is a clear moral difference between life shortening palliative treatment (i.e. treatment which may relieve suffering but which cannot cure) and active voluntary euthanasia. But Dr Roger Hunt *, Medical Co-ordinator of the Southern Community Hospice Programme in South Australia, disagrees. In a recent edition of 'General Practitioner' (21.9.94), Dr Hunt argues that "the moral 'rights and wrongs' are not clear cut because:

• The motivation in both practices is compassion, and the intention is to relieve suffering in a way desired by the sufferer. This is clearly different from murder, where sinister motives prevail and the person who is killed against his/her wishes is a victim of inhumane behaviour.
• The hastening of death is an outcome of both practices, except that it is slow with one and fast with the other. In terms of consequences, therefore, the two practices vary by degree rather than being morally distinct entities. Palliative sedation may be regarded as slow active euthanasia.
• To regard a death as 'unintended' denies that it may be desired (by the patient and some carers), and discourages the taking of responsibility for the outcomes of treatment - it is a form of death evasion."

Dr Hunt goes on to say: "It seems to me that the principle of double effect is a psychological construct, or a psychological defence mechanism, which enables clinicians to intervene in patients' suffering with life-shortening actions, while appearing to defend the sanctity of life principle..."

In his book 'Taming Death by Law' (Longman Professional, 1993), Professor David Lanham gives details of the leading court case in which the principle of double effect was established. But the law is only clear about the administration of strong medication to relieve pain. When the patient's suffering involves symptoms which do not include extreme pain, such as constant vomiting, difficulty in breathing or paralysis, the doctor may not be able to successfully argue that the treatment which hastened death was given only with the intent to relieve suffering.

Even in exceptional cases, when the strongest doses of analgesics bring no relief for a dying person, the law does not allow the intentional hastening of death. This was clearly demonstrated in the Nigel Cox case in England in 1992, where Dr Cox gave a terminally ill patient a lethal dose of potassium chloride, at her request and with the full agreement of her family, because her pain could not be relieved with even the strongest analgesics and she had only a short while to live. Dr Cox was found guilty, but he was given a deferred sentence and was not struck off the medical register.

Despite the limitations the law has placed on the alleviation of suffering, particularly where pain is not the primary cause, some people believe that it is unnecessary to change the law because doctors can, and do, provide assistance for incurably ill patients who wish to hasten their death. This help is possible without prosecution because no-one can read the mind of another, and so the doctor's intent can only be judged on what he or she says and does. Therefore, if the doctor and patient play a 'game' whereby the terminally ill person says: "My pain is unbearable", not "I want to die", the dose of pain medication can be gradually
increased until death results.

So, if patients can achieve help to die by playing this 'game', why does the law need to be changed?

Some of the reasons are:

• As previously stated, the law is only clear about the relief of pain, therefore the practice is discriminatory because doctors can only give assistance without fear of prosecution to those whose diseases include pain.
• The patient may not be able to be totally honest with his or her doctor. Rather than saying: "I want to die", the patient may feel it is necessary to play the 'game' alone and talk only about extreme pain. Not only is this stressful for the dying patient, but may lead to confusion and misinterpretation by the doctor.
• The doctor cannot give one large dose of medication without risking prosecution, therefore, death may be a slow process, particularly if the patient has built up a resistance to strong drugs.
• Because assistance to die is given under the guise of the principle of double effect, many patients do not know that some doctors may be willing to hasten death by using this principle. Consequently, they would never think to ask for help.
• Many patients may never actually need or want help to die, but they do seek reassurance that they would get help to die if their suffering became unbearable. This reassurance can only be given in a very limited way under the present law.
• The current laws are inhibiting some doctors from helping patients to die because those doctors fear prosecution, not because they are professionally or ethically opposed to giving such help. For example, in the 1987 Victorian and 1993 NSW surveys of doctors, 50% said that they would comply with a patient's request for help to die if it was legally allowed.
• Society has no way of accurately measuring the demand for, or the provision of, medically assisted dying. Therefore, there is no way of ensuring that appropriate help is available for those who seek it, or that inappropriate assistance, if any, is eliminated.

In the USA, the interpretation of 'suffering' has been extended further than pain. Last May, Dr Jack Kevorkian was acquitted of a criminal charge when he provided carbon monoxide to a terminally ill man who wished to commit suicide. Carbon monoxide is lethal and could not have been given to alleviate pain, yet the jury accepted Dr Kevorkian's plea that his intention was to relieve the man's suffering, not to kill him.

It is clear that the principle of double effect is an inadequate basis on which to form decisions which allow or prohibit the hastening of death. But there may be no change until we have more doctors, such as Dr Roger Hunt and our own Vice President, Dr Rodney Syme, willing to question it. We have yet to see how Australian courts would respond if a doctor was prosecuted for openly giving active help in dying, and it would be a brave doctor who would risk his or her liberty and career to test the law.

*For a more recent article by Dr Roger Hunt, read "The Limits of Palliative Care"

For more on the Principle of Double Effect, check out "The Rule of Double Effect - A Critique of Its Role in End-of-Life Decision Making", New England Journal of Medicine, 11 December 1997