The Medical Exception to the Prohibition of Killing: A Matter of the Right Intention?

• DOI: http://doi.org/10.1111/raju.12239
• Date: 01 June 2019
• Published date: 01 June 2019

Ratio Juris. Vol. 32 No. 2 June 2019 (157–176)

© 2019 The Authors Ratio Juri s published by Universit y of Bologna and John Wi ley & Sons Ltd

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The Medical Exception

to the Prohibition of Killing:

A Matter of the Right Intention?

GOVERT DEN HARTOGH

Abstract. It has long been thought t hat by using morphine to alleviate t he pain of a dying pa-

tient, a doctor runs t he risk of causing his death. I n all countries th is kind of kill ing is explicitly

or silently permitte d by the law. That permission is usu ally explained by appea ling to the

doctrine of double effec t: If the use of morphine shorten s life, that is only an uninte nded side

effect. The paper evaluates t his view, finding it flawed beyond repair and propo sing an alter-

native explanation. It is not the i ntention of the doctor that counts, but the availabilit y of an

“objective” palliative justification.

1. The Medical Exception and t he Problem of Explaining It

It has long been thought that by using morphi ne to alleviate the severe pain or dys-

pnoea of a dying patient, a doctor takes a risk of causing a r espiratory depression

and thereby the death of the patient. All legal syste ms permit such palliative actions

with a possible life-shorten ing effect and distingui sh them from physician-assisted

suicide and euthanasia.1 This i s true even of the Netherlands, Belgium, Luxembourg,

and Canada—count ries that also permit euthanasia u nder certain conditions. For in

these countries t he use of analgesics is considered to be a nor mal medical action

that, depending on the medical i ndications, is not only permitte d to the doctor but

may even be his professional duty, and the doctor has the authority to decide about

such actions without having to sati sfy any special requi rements of consultation or

reporting. The patient’s hastened death is then con sidered a “natural” one.

Euthanasia is diffe rent in all these respects.

The distinct ion is not only recognized by the law and by the ru les of professional

medical ethics: It is also psychologica lly deeply rooted. Dutch doctors have very

different feeling s about ending the life of a patient by using musc le relaxants than

about risking shorteni ng his life by increasing the dosage of morphi ne (Van Delden

et al. 2011, 134ff.; Van der Heide et al. 2012, 150–1).

1 The permission i s sometimes stated by a statute, e.g., in France (Art. L 1110-5 of the Code de la

Santé Publique) or South Australia (Section 17(1) of the Consent to Medical Treatment and

Palliative Care Act 1995). In other case s it is an unwritte n norm, usually confirmed by other

legal regulation s and court rulings (cf. n. 25).

Govert Den Hartogh158

Ratio Juris, Vol. 32, No. 2© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

For the last twenty years, however, the view of experts has been t hat if you are

using morphine in t he correct way, increasing dosages in accordance w ith observed

symptoms, you will never risk causing a respiratory depre ssion. That risk occurs

only when you administer large overdosages (Dah ani, Aarts, and Smith 2010; Sykes

and Thorns 200 3).2 Because pain and other kind s of suffering may themselves have

adverse effects on survival, it may even be the case t hat the relief of suffering by an

adequate use of morphine somewhat postpones t he moment of death (Gutstein and

Akil 2002). Most experts hold the same view about the appropriate use of ben zodi-

azepines in deep a nd continuous sedation, in particular when t his use is titrated, i.e.,

adapted to symptoms (Sykes 2013).3 So my discussion in thi s paper can be a con-

tribution to counterfactua l medical ethics and law only.4

However, even in that case it would not be without practical intere st. If doctors

were to have professionally legitimate reasons for usi ng morphine or dormicum in

dosages with a life-shorten ing effect and acted on them, they would have nothing to

fear from the crim inal law, but if they administered barbiturates or muscle relax ants

to their dying patients in order to ter minate their suffe rings by ending their l ives,

in most countries they would be liable to be prose cuted for murder or another form

of homicide. It is a remarkable fact in itself that the cr iminal law makes the first an

exception to the general prohibition of homicide everywhere, and t he second almost

nowhere. Is there any morally relevant difference bet ween these actions? It is under-

standable that proponents of the legalisation of euth anasia and physician-assiste d

suicide often argue that there i s not (for example, Frey 1998; Harris 1995; Kamm

1999; Sumner 2011, chap. 3; and Thomson 1999).

Following an influent ial statement by Pope Pius II made in 1957, palliative action

with a life-shorten ing side effect is usually justified by an appeal to t he doctrine of

double effect (Pius XII 1957, 147). Indeed, as we shall see, it is widely believed that

by making the very di stinction we are disc ussing, the law already comm its itself

to that doctrine. That, however, is a mistake: The doctr ine gives us only one possi-

ble interpretation of the moral relevance of the di stinction, an inter pretation that is

characterised by its foc us on the intention of the agent.

After a short exposition of the doct rine (Section 2) I will star t my argument by

asking what its rationale could be. The most plausible rationale proposed poi nts

to differences in t he relation between the agent’s will and the ef fects he expects to

cause (Section 3). This consideration is clearly relevant to our moral evaluation of

the agent, but it can be questioned whether it is also relevant to the a ssessment of

the permissibil ity of his action (Section 4). In order to answer that question, I w ill

consider two well-known problems in the doct rine of double effect: the problem of

identifying the proper ob ject of the permis sible intention (Section 5), and the prob-

lem of explaining why we cannot simply aggregate t he foreseeable good and bad

2 These findi ngs have been contested, e.g., by Rady and Verheyde (2010).

3 Remarkably, some guidelines for pall iative sedation refer to the doctrine of double ef fect as

justifyi ng the practice, even though these same g uidelines consider a life-shor tening effect of

proper sedation practices i mprobable: See Den Hartogh 2016.

4 Legally, it might be of some interest to expla in why a doctor who erroneously believes that

by using morphine he h astens the death of hi s patient is not even guilt y of attempted

homicide.