Joint Ethico-Medical Committee
of
The Catholic Union of Great Britain
and
Guild of Catholic Doctors
Submission to the
Select Committee of the House of Lords
on Medical Ethics
The lettering (a to i) in the following text refers seriatim to the list of issues at item 2 in the 'Special Report' of the Select Committee, as published on 9th March 1993.
2.a. The Judaeo-Christian moral tradition celebrates life as God's gift. This life is a sacred trust over which we have stewardship and not dominion. Throughout the ages Christians have sought to foster and sustain innocent life.
The right to life is the most fundamental of all human rights from which other rights spring. We are justly proud of our laws which offer protection of life to all.
There is no conflict between the sanctity of life and personal autonomy. Sanctity of life forbids us to take the innocent life of another, or of ourselves, and is based on our belief in God as Creator and to whom we are all responsible. Nevertheless God has given us free will so we have the autonomy to disregard his ethical and moral laws if we so wish: the fact that we do so in no way undermines the principle of the sanctity of life, which remains inviolable. A patient may in good conscience weigh the benefits and burdens of treatments, choosing simple palliative measures, but may not choose suicide, even less require others to carry it out.
2.b. The duty of care which the doctor or nurse owes to the patient extends to preserving and maintaining his life and health whenever possible, but does not require the use of heroic or disproportionate measures when the patient's life is nearing its end.
A duty to care for ourselves is laid upon us all but not all remedies need to be employed in all circumstances to preserve life. There is a moral obligation only to seek ordinary or proportionate means which offer reasonable hope of benefit.
There remains a duty for carers always to offer basic measures of food and hydration, nursing and symptom relieving drugs. This care is owed out of respect for the human dignity of the patient and the carers.
Analgesic drugs at the end of life can be used even if they secondarily and unintentionally may shorten life. Clinical experience, however, suggests that analgesics properly used may actually have the opposite effect, improving both the quality and duration of remaining life.
2.c. The withholding or withdrawal of treatment in order to end life would be euthanasia - no less so than a positive intervention. However, there must always be a proportion between the foreseen outcome (benefit) of a treatment and the burden which its use imposes, not only on the patient but even on the carers. Furthermore, in considering the withdrawal of treatment the views of a conscious patient should always be taken into account.
The duty of care to the unconscious and those in the so-called persistent vegetative state raises issues not yet wholly resolved by the Catholic Church. We lend support, however, to the United States Bishops' Committee for Pro-life Activities who in their document of 1992 stated: 'We reject any omission of nutrition and hydration intended to cause a patient's death. We hold for a presumption in favour of providing medically assisted nutrition and hydration to patients who need it, which presumption would yield in cases where such procedures have no medically reasonable hope of sustaining life or pose excessive risks or burdens.' This duty should have applied in the case of Tony Bland since he was not dead by any current criteria (including those of the Royal Colleges concerning brain-stem death).
We are also concerned that in the case of Airedale NHS Hospital Trust v Bland the Law Lords, or at least a majority of them, seem to have accepted the proposition that those who have the care of patients in a condition such as the judges had described might rightly adopt a pattern of care with the intention, purpose or aim of terminating the lives or bringing about the deaths of those patients. ("the proposed conduct has the aim... of terminating the life of Anthony Bland...","the conduct... is intended to be the cause of death" (Lord Mustill at 35, 44): "the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland" (Lord Browne-Wilkinson at 28): "the intention to bring about the patient's death is there" (Lord Lowry at 23).)
Medical treatment has as its end the maintenance or restoration of health: nutrition and fluids have as their end the support of life. Nutrition and hydration, whether provided in the usual way or with medical assistance, do not of themselves remedy underlying disease and are a normal expression of our solidarity with the helpless. The adoption of a pattern of care with the intention of ending life is contrary to Catholic teaching. Elderly and disabled people, some suffering from progressive diseases which may cloud their minds, must be assured that the care they receive will be adequate and in their best interests. Parliament must never endorse proposals which would endanger their lives or the care to which they are entitled.
If a dying person does not desire food or drink or is unable adequately to ingest them, then they should be offered what they want by mouth; all other comforts including companionship and spiritual support should never be abandoned.
2.d. Where a patient, who is legally competent and of sound mind, has expressed a wish concerning treatment this must be respected. Such respect for patient autonomy can in no way be allowed to override or coerce the conscience of the doctor. In the case of an irreconcilable conflict, the patient has a legal right to a second opinion. However, it does not make ethical sense to expect a doctor who believes something to be wrong to initiate referral to another doctor who is known to take the opposite view, since this would be to co-operate in the very thing considered evil.
The position of patients who are unable to express their own wishes in the matter would seem to us to be rather different. It may be that at some time they have expressed some wishes in an 'advance directive'. These we would hold to be of limited validity, since it is impossible to foresee the precise situation in which one may find oneself, and any decision based on speculation is liable to be wide of the mark. We feel that the doctor must always presume in favour of life saving measures in such a case, subject to what we have already said at 2.b.
2.e. We are doubtful of the validity of advance directives which, as we have said, must be drafted when the future events to be encompassed are inevitably unknown and unpredictable. Account should be taken of the reasonable wishes of the patient, but decisions made in advance, without foreknowledge of the conditions which may arise, cannot be determinative. In other words, advance directives can never reach the high standards of informed consent which are currently required in medical practice. Can we be sure the patient would have made this choice if he had known precisely what was going to occur? We are even less happy about the employment of proxy decision makers, except in order to suggest the wishes of the patient in the most general terms. Relatives and carers or anyone previously nominated by the patient while competent should normally be consulted over any treatment decisions when a patient is unable to take a decision themselves. A proxy, therefore, can be valuable but their decision should not alone be determinative. We cannot, of course, accept the right of one person to take a decision deliberately to end the life of another, let alone on the basis of conjecture.
If all advance directives and proxy decisions were to become legally binding they could place an intolerable burden on the consciences of health care workers even to the point of bringing them into conflict with the law. For example, a directive not to resuscitate could not bind health care workers in the event of someone making an attempt on their own life as a result of psychiatric illness. We believe there may be a place for an independent advocate or guardian to speak on behalf of the patient when he is unable to do so for himself and to place a 'brake' on the unfettered decisions of a proxy. Such guardians would need to be acceptable to the court, but more importantly should also truly reflect the moral tradition of the patients and their families.
For these reasons we are opposed to the proposal by the Law Commission (Consultation Paper No. 129; Mentally Incapacitated Adults and Decision Making: Medical Treatment and Research; Part III, Proposal 1.) that legislation should provide for the scope and legal effect of anticipatory decisions. Firstly we do not believe it is possible to draft an advance directive which could encompass all the possible situations in which the patient, once unconscious, might find him or herself without serious danger of impeding proper medical care and/or of facilitating involuntary euthanasia. We agree with the British Medical Association that 'mutual respect and common accord is better achieved without legislation' (ibid, p30). Secondly, if advance directives are to have legal power then the decisions of the caring team will be constrained by a document, the relevance of which to a particular situation may be uncertain, and which may even require legal clarification. In this latter situation the paradoxical outcome may be that burdensome measures may have to be instituted or continued, until the situation has been clarified, in order to avoid the possibility of litigation. We would not normally anticipate any conflict between the expressed wishes of a patient, whether written or verbal, even in the absence of legal enforceability, and the care that doctors and nurses would wish to give. We see no reason to argue, as the Commission seem to do, from the practice in other countries where the medico-legal environment is quite different, to proposing legal changes in our own.
2.f. The role of the courts in interpreting the law seems to us to be paramount. The role of law is to protect citizens, most especially the vulnerable. Moral principles are not determined by the law and we do not believe that a court can make a valid decision which contradicts them. We do not suggest that the law should enforce the whole of morality but we do believe that it should support and protect fundamental human rights and the basic principles of natural justice. Technologists cannot take over from the lawyer in interpreting the law: they cannot determine what the law is: they must submit their views for legal interpretation. The interpretation of the law in the light of changing medical technology is properly a function of the courts.
Health care personnel who might be asked to participate in a course of action they find immoral have a right to refuse to take part and their consciences and human rights must be respected without prejudice to their professional careers. Nor should such a doctor or nurse be required to involve others. They should not hesitate to enter into an honest dialogue with patients and their families outlining the duty of care they feel bound to give. This can only lead to better care based on mutual understanding, ensuring opportunities for people to express their physical, emotional and spiritual needs.
2.g It has been the consistent tradition of English criminal law that the intentional taking of human life is the crime of murder or voluntary manslaughter and that, even where intention per se cannot be shown, the taking of life is involuntary manslaughter. Not only does English law prohibit deliberate acts which take life, but also omissions (R.v.Instan 1893). The general principle that the taking of life in any of these situations is a crime was of course upheld in R.v.Cox (1992). Indeed, in Airedale NHS Trust v. Anthony Bland (1993) Bingham M.R. noted that "a profound respect for the sanctity of human life is embedded in our law and our moral philosophy..."
It is our submission that the consistent tradition, which is in accord with the Judaeo-Christian tradition, must be upheld. Both the ethical and legal traditions make no distinction between the value to be attached to the lives of different kinds of persons, and it is our submission that this must continue to be so. The law must not, for example, place a lesser value on the life of a handicapped or old person than on the life of others. The taking of all such lives must continue to be a crime. We would further submit that the decision in Airedale NHS Trust v. Anthony Bland does not by itself affect the position in criminal law: as Lord Mustill observed in that case the declaration granted "does not create an issue estoppel in the criminal courts and therefore does not form a conclusive bar to any future prosecutions".
We would further submit that, in addition to the inherent wrongness of the intentional taking of human life, there are grave practical difficulties in allowing, for instance, a doctor to practise euthanasia on a patient:
(a) The Suicide Act 1961 would need amending and in doing so it would be extremely difficult to distinguish between cases where assisting etc. a suicide was lawful (if it was desired to protect a doctor from prosecution) or unlawful (on the assumption that Parliament would still wish those who stood to gain under a person's will and who assisted that person to commit suicide to be guilty of a crime).
(b) If indeed the courts are to decide on the quality of particular types of lives then how can they do this? In Re C (A Minor) (Wardship: Medical Treatment) (1989) the court, in dealing with an application that a baby, born with very severe handicaps, should be provided with life sustaining treatment, came to no independent conclusion of its own on the moral issue of whether antibiotics ought to be given but adopted almost word for word the conclusions of a doctor who gave evidence. This is not to criticise the court here: it simply emphasises, in our submission, that the courts cannot, and should not, make judgments of this kind.
We believe that the only 'change' which might be necessary in the law would be to clarify its application to new situations. We do not believe there can be any change in the fundamental principles on which it is based. We are unaware of any well founded studies into the situation in this country which would justify any changes in the law.
We are concerned that so-called quality of life arguments may weaken the protection hitherto offered by law to all persons. Moreover, economic arguments, however persuasive, must not prevail over basic human rights.
2.h. The hospice movement, as is well recognised, has had a tremendous effect on the management of terminal cases, not only within the hospices themselves but also outside. The evidence from the hospice movement suggests that good palliative medicine already enjoys full public support. The advances in the care of the dying, particularly in the management of pain relief, should obviate any demand for euthanasia. At the same time, trust in the hospice movement, as indeed in the medical profession as a whole, would be undermined if it were once thought its members accepted the practice of euthanasia.
2.i. We are concerned by the American and Dutch experience. The American practice of overtreatment, for fear of litigation, has given rise to a call for, and indeed a legal requirement for, 'advance directives' but this situation does not apply to practice in this country. The Dutch practice has produced an inexorable slide from voluntary to involuntary euthanasia. Were advance directives to be made legally enforceable this would add constraints to the practice of medicine and new burdens to the task of practitioners caring for the sick and dying. It would be likely to result in a worse outcome for patients than they can expect at the present time.
If society should judge certain lives to be 'unworthy to be lived' then it should be said that not only do we have a most alarming demonstration, from earlier this century, of where this leads but also that there is no reason in logic why only those who request it should have their lives ended. For the perceived good of society or to relieve the burdens upon others, such medical killing could be laid as a duty upon the medical profession. We not only consider this morally repugnant but also object to such an abrogation by the medical profession of its time honoured principles.
May 1993
Signed by:
President of the Catholic Union of Great Britain
Master of the Guild of Catholic Doctors
Chairman of the Joint Ethico-Medical Committee