Hard cases make bad law

[liv]

There's a really sad story in the news here at the moment: it concerns a premature baby, whom the medical team had decided couldn't be saved so they agreed to turn off the life support. They followed normal procedures and sedated the baby so she wouldn't experience distress, but the dose was miscalculated and the baby died from the sedative. The consultant responsible for the overdose has been arrested and imprisoned, facing charges of euthanasia, ie murder because euthanasia is not legal under any circumstances in Sweden.

Even if it transpires that the doctor deliberately gave an excessive dose and killed the baby, there doesn't seem to be much moral logic in punishing her for ending the baby's life a little faster than she was planning to end it, legitimately, anyway! Every step leading up to the doctor being in prison is perfectly reasonable, but they add up to horrible unintended consequences.

I think it's right to prohibit euthanasia, because although in theory I accept that it can be moral for a doctor to assist a patient to commit suicide, in practice there is no way to enforce the law to prevent its abuse by those who want to murder "undesirables". In a society where people with disabilities, poor people, and old people were fully valued, legal euthanasia would be morally good, but we're a million miles from such a society. I think it's right that causing death by giving the wrong dose of sedatives should classify as murder (or manslaughter depending on intent). I even think it's right that the accused doctor has been temporarily imprisoned; the Swedish legal system jails people arrested on a murder charge, purely in order to take witness statements without the suspect interfering in any way. Once this process is complete, the doctor will be released on bail and await a full trial like any other criminal defendant.

It seems likely that the doctor will be found innocent when the case does come to trial. If not, I foresee a new unintended consequence: doctors in an end of life situation may be reluctant to give adequate pain relief in case they are held criminally responsible for hastening the patient's death. There has to be a distinction between active killing, and simply ceasing treatment (otherwise doctors would have to go to extreme lengths to save patients in every case, and nobody could ever be removed from life support). The problem is that dividing line is ludicrously fine in practice.

When I was a kid we had a neighbour who was found to be carrying a foetus with spina bifida. Being Catholic, she would not consider abortion, but when the child was born, simply didn't feed her until she died. I can't help thinking that it would have been "kinder" for the baby (if you believe that an unborn child has the status of a baby) to be killed by a lethal injection at an early stage in pregnancy, than to be brought to term and then starved to death. Similarly with this case: surely being put to sleep with an excessive dose of sedatives involves less suffering than being taken off a ventilator. Yet, on a technicality at least, the crueller alternative avoids active killing.

Comments

[leora.livejournal.com]

I was under the impression that not feeding a baby is generally deemed to be child abuse and is illegal. I understand euthenasia, and I actually support it. But it should be done with careful consideration and then done kindly.

People with spina bifida often post to the disability communities I read. Spina bifida can be horrible, and I have no problem with someone aborting a pregnancy over it. But killing a baby that has it? That is going way too far for my tastes. And I think the mentality that can justify keeping your child when you intend to let it die has a problem. She could have given her baby up for adoption, that wouldn't even have been a sin, as far as I'm aware, in her religion.

As to the doctor, well, I have no problem with euthenasia, so I have trouble being upset with the doctor. I do think it should, at most, be medical malpractice / accidental manslaughter. This doesn't strike me as a deliberate murder. But since they haven't had a trial yet, that does make sense. I do worry about the unintended consequences though of not giving enough pain medication to those who are suffering.

[lavendersparkle.livejournal.com]

Not feeding a baby is deemed to be child abuse and therefore illegal unless the baby is severely disabled, in which case it can be classified as 'withdrawal or withholding of treatment' and is legal if the doctors and parents agree that it is in the best interest of the baby. So in England euthanasia is illegal but we get around it by starving babies to death (well I presume that the babies die of dehydration before they die of starvation). Adults are also sometimes starved to death in the same way if it is deemed to be in their best interest, there was a case in the news recently where a man with a degenerative disease was trying to find a way of legally ensure that food and water would never be withheld from him. I can't find details of the most recent case, here's (http://news.bbc.co.uk/1/hi/england/lancashire/3514725.stm) a very similar case from five years ago. As that piece highlights, in a society where ablism is endemic, the judgement of able bodied doctors about what constitutes a low enough quality of life for the withdrawal of food to be justified can very easily be set too low. There's also a lack of oversight. If the parents of a baby and their doctors agree that starvation is in the babies best interest, there's no third party oversight unless someone else reports it to the police for investigation see here (http://www.nuffieldbioethics.org/go/browseablepublications/criticalCareDecisionFetalNeonatalMedicine/report_581.html).

[leora.livejournal.com]

Oh, I'm aware of doing that in hospitals. What I am not aware of is a legal way of taking your baby home and not feeding it. I thought such methods of letting someone die had to be supervised. I am fine with letting people die, although I would prefer euthenasia (obviously you can come up with cases in which I'm not okay with it, but I'm okay with the idea). What I find deeply disturbing is an unsupervised version of this.

I also think it's irresponsible to do it for something like spina bifida.

Honestly, I don't mind so much, because I don't thing just born babies are very much people. Except that I think it's a terrible precedent and think birth makes a very good cut-off for avoiding slippery slope issues. As such, I would much prefer someone get an abortion.

However, if they're going to let a baby die, I do not think anyone should be allowed to do it unsupervised. And I think you should be required to provide things that lessen the suffering.

It's got to be horrible for the baby. I once found a litter of kittens abandoned by their mother. I don't know why she abandoned them. But they were well and truly abandoned. I didn't know much at the time and my attempts to save them may have hastened their death, although I probably could not have saved them regardless. But I am glad that I gave them some warmth and comfort before they died. Just leaving them alone and afraid would have been awful. And those were kittens. We owe humans even more than we owe kittens. But while I couldn't save them, they did seem happier when they were snuggled against my hand. They at least felt less abandoned.

There are better and worse ways to let someone or something die. And someone who can bring a baby home and not feed it strikes me as someone who isn't making that baby feel safe and loved. I can't imagine being able to let a newborn die like that.

[liv]

Sorry, I didn't make it clear: my neighbour starved her baby to death in hospital, with the full agreement and supervision of the doctors. She was able to baptise the kid, and kept her warm and dry and hydrated and gave her lots of affection, just no food, until she died.

[leora.livejournal.com]

Oh, okay. That makes more sense then.

And from a religious point of view, probably does make sense to baptise the child first, which is hard to do in the womb. But from my point of view, I definitely think that an abortion would have been kinder. But I am glad the baby at least was reasonably cared for other than being killed.

[liv]

Yeah, this is exactly the moral issue I had in mind. Euthanasia is illegal, which seems on balance right. Withdrawing treatment is legal, which seems on balance right. But there is this awful situation where feeding sometimes counts as treatment, and that, like all other aspects of medicine, is made even worse by the ableism of society and the medical establishment. In some ways, I'm inclined towards the idea that if there's ever a situation where the right thing to do is to stop treating someone and let them die, then surely it's right to minimize their suffering. Yet it's not possible to permit that without effectively permitting euthanasia, which I don't want to do.

I guess the first thing I want is a society which doesn't buy into this awful "better off dead" meme. In that society, people who actually genuinely wanted to die, or people who really can't be saved, could be killed in a quick, merciful way instead of being starved to death. I do wonder about ableism in the case of my neighbour's baby with spina bifida, since I know that isn't necessarily fatal.

[lavendersparkle.livejournal.com]

I think in the UK there's a bit of wiggle room. I'm pretty sure that if someone has a terminal illness, doctors are allowed to administer pain relieving drugs even if the dose necessary to deal with the pain is likely to shorten the patients life (obviously with informed consent etc).

I found a rather interesting interview about the issue of euthanasia of disabled people here (http://www.bbc.co.uk/ouch/interviews/assisted-suicide-for-and-against.shtml). Liz Carr raises some very interesting issues. She points out that the media tends to concentrate on people with severe disabilities who want to kill themselves rather than people with disabilities who enjoy being alive. I got really angry at the way that when Daniel James died so many journalists jumped at the chance to say write about how they'd much rather be dead than require around the clock care. They might have thought they were being oh so compassionate but the message they were propagating is that certain people's lives aren't worth living and maybe, just maybe, rather than a load of able bodied journalists writing about how awful it must be to be disabled they could have asked someone who was severely disabled to write about their life and how valuable they found it.

[liv]

OK, giving a potentially lethal dose of painkillers is another means of killing without active killing. If there really is informed consent and / or absolutely no chance of improving things for the patient, painkillers seems like a much better means of bringing about death than ceasing feeding. However, it's possibly even more open to abuse; starvation takes a long time, which prolongs the patient's suffering, but also allows time for a legal appeal to reverse the decision. Drawing the legal line between "likely to shorten life" and "definitely lethal" doesn't feel very logically consistent, but morally it may be the best compromise.

I completely agree with you that the media coverage of assisted suicide is absolutely horrible. I hate seeing reports from random journalists speculating about how horrible a particular level of impairment might be. And I hate the fact that the response to James' situation was "how can we help him die painlessly?" instead of "this person is severely depressed, how can we give him psychological help?" I'm sure the same is true for many newly disabled people with suicidal feelings, and it really, really bothers me. (I'm not sure if it's useful to have a debate between someone who likes her life with disabilities and someone who wants to die, though; most people would agree that it's down to an individual's choice and what's true for one disabled person isn't going to apply for another.)

[adrian-turtle.livejournal.com]

There is a disturbing difference between talking about ending the life of an infant (as in the news report you started with) and ending the life of an adult (as most of the vivid examples seem to be discussing.)

OK, giving a potentially lethal dose of painkillers is another means of killing without active killing. If there really is informed consent and / or absolutely no chance of improving things for the patient, painkillers seems like a much better means of bringing about death than ceasing feeding.

An adult can consent. An adult who is too ill, or too severely disabled, to give informed consent at the moment of life-or-death decision, may well have expressed strong opinions about the matter beforehand. An infant can never give meaningful consent. Legally and morally, parents are responsible for their children--they care for them, they represent their interests before the children are capable of speaking for themselves. There isn't really another way to look at the situation.

But it's different to say, "I think my grandfather would not want to live in this much pain anymore, when he's never even going to be able to care for himself" than to say, "I think my baby would not want to live in this much pain anymore, when he's never even going to be able to care for himself." The baby can't possibly have told the parent anything about his values or priorities. And the parent's fears that the child will always be very dependent...part of that is a fear that the parent will always have a profoundly dependent child.

These are all fascinating and disturbing stories, so of course people tell them over and over, and they spread even faster with modern media attention. With the story you just told, it's easy to identify with the poor doctor who meant so well, and is in such trouble over a little mistake that didn't even change the outcome. More often, healthy people think about how terrible it would be to be in such terrible pain, or to be so severely disabled as to consider death. Those are scary, but they're easier to think about than being dead. For all those stories about dying or disabled infants, I suspect a great many readers identify with the worried parents, more than with the [nonverbal] babies.

I don't mean to suggest that anybody makes this kind of decision for selfish reasons. Only that the tangled mess of ethics and psychology surrounding questions of abortion, infant euthanasia, and treatment of disabled infants, is not directly comparable to the tangled mess surrounding questions of terminal illness, disability, and euthanasia in adults.

[leora.livejournal.com]

Personally, I don't understand how you can be against euthenasia and for letting someone starve to death. I think if you're against euthenasia, you have to not be okay with withdrawing food and water from anyone. And if you are okay, in some cases, with not feeding people, then you should be okay with killing them quickly and painlessly. To me, it's that fundamental disconnect - it's okay to let you die a certain slightly slower less pleasant death but not a faster, easier one that I feel creates the problems in cases like this.

[liv]

I don't think anyone much is upset with the doctor; from what I've picked up, she has nearly universal public sympathy. People are upset with the law for putting someone in jail just for doing her best to do a really hard job. My argument here is that, unfortunate though it is, the law pretty much has to be that way to prevent evil doctors from poisoning patients they don't want to deal with, and then claiming it was accidental or a mercy killing. I can think of cases where this has happened.

The spina bifida thing, I (obviously) don't know the medical details of this case. So I don't know where the balance was between hastening the death of a child that was definitely non-viable and killing a child because of ableist prejudices. It's just that if killing really was medically necessary, somehow emotionally I feel that abortion was less bad than starvation. I don't think adoption was a reasonable alternative here; I imagine it would be all but impossible to find parents willing to take on a spina bifida child.

[naath.livejournal.com]

I'm find it really hard to imagine how someone could calmly decide that starving someone to death was *less wrong* than killing them with sedative drugs. Saying "all killing is always wrong" is at least a pov that I can understand even if I disagree with it, but I think that if you have accepted that it is OK to kill certain people in certain circumstances then I think that under those circumstances those people should, if killed, be killed in the most humane possible way.

There are circumstances in which I would rather be dead, and in those circumstances I would like an overdose of a painkilling drug please. Starvation/dehydration is traumatic.

[liv]

Thing is, I don't think anyone did calmly decide that starving someone to death was *less wrong* than killing them with sedative drugs. That conclusion is an unintended consequence of otherwise reasonable (albeit arguable) positions. A) Killing is wrong, even if the patient wants to die. B) You don't have to make unlimited effort to keep someone alive when there's no hope of improvement. C) If someone is so severely disabled that feeding them is a major medical effort, feeding is a kind of treatment. I have serious problems with C, and some problems with A, but none of them is obviously ludicrous.

I think almost everybody would prefer to be killed with high doses of painkillers rather than starved. (AFAIK people don't get deliberately dehydrated, because although starvation is slower it's also reckoned to be less traumatic.) But nobody is making that choice in a vacuum, it's not like the stupid philosophy problems with trains and branching tracks. You're choosing between the risk that someone might one day decide that you weren't worth saving and therefore poison you even though you want to live, and the risk that if things are absolutely hopeless and there's nothing that can be done to help you, you get a slow, traumatic death instead of a rapid and relatively painless one. The second risk may be more horrifying, but the first risk is I think more probable. Perhaps not so much for you personally because you're middle class and white and young and able-bodied (though the last two could change). I'm in the same situation, but I have loved ones who aren't. So although I think euthanasia is acceptable in the abstract, I don't want it to be legal until society starts treating disabled people as fully human.

[naath.livejournal.com]

I think you're right that the risk of people getting killed because they are the "wrong sort of person" is also horrific and wrong. So I think you are correct that legalizing euthanasia is something that it would be too hard to get *right*. Indeed the circumstances under which it is permitted to remove treatment (including feeding) are IMO in some cases too broad (I don't think it's OK to kill someone because they have Spina Bifida, although we don't have the details of that so perhaps in that case it was obvious that it would be fatal shortly in any case), especially as regards disabled people.

I'm kinda conflicted, but mostly in a "life has no intrinsic value but suffering is evil" way. I think maybe that is a BAD AND WRONG way of thinking about it.

Relatedly I'm also not certain that we have (currently) the correct outlook where 'correct' is viewed as 'best compromise between the two terrible things you describe'. This is because I think that if I made a sincere and deliberate attempt on my own life without assistance from others... that I would have a strong chance of waking up chained to a hospital bed because "obviously" I am insane and can not be trusted to make my own choices. Now, obviously, in cases of *assisted* suicide there are difficult questions about how to correctly ensure consent has actually been given and not made-up or coerced or so forth... but I think we (society) still cling to this idea that ending a life is always and forever WRONG. Which (if you didn't spot *grin*) is an idea I absolutely disagree with.

I have an absolute terror of having my ability to choose what to do with myself taken away, and I generally regard death as a Final Resort that is there if I need it. I find myself equally horrified by legislation that permits others to have me incarcerated for mental illness (without any crime being committed, I am in favour of incarcerating people who commit crimes) and the possibility that when I am too old and infirm someone else might decide to kill me when I still desire to cling to life.

[liv]

I do value life more highly than you do, I think, but certainly "preserve life at all costs" is an untenable moral position. Just as I don't know how to define what counts as reasonable intervention to prevent someone dying from natural causes or external trauma, I don't know what counts as reasonable intervention to prevent someone committing suicide. Certainly some people attempt suicide in a moment of panic or despair and don't actually want to die, and some depression is treatable.

In the end it does partly boil down to consent; one of the pervasive social ills as I see it is the assumption that anyone with any mental illness or intellectual disability is incapable of making decisions. (Some end of life situations involve someone who can't communicate, and then the family or medical team have to decide on their behalf, but that's different.) But a decision that somebody wants to die should be respected even if you think they're "crazy", as long as it is a clear and positive decision. And a decision that somebody wants to live should be respected even if you can't possibly imagine wanting to live in the situation that person is in.

[nameandnature]

But a decision that somebody wants to die should be respected even if you think they're "crazy", as long as it is a clear and positive decision.

But what of the decision of a disabled person who wants to die, but can't do it without help? That seemed to be the case with Daniel James, who'd apparently made unsuccessful suicide attempts.

I think if a person determinedly wants out, but needs help, it shouldn't be illegal to give it to them. What's harder is when they cannot express their wishes.

[liv]

This circles back to the original problem with euthanasia in the first place. Although in theory, people who truly want to die and need physical help should be able to get that help, in practice that system is far too much open to abuse for me to feel comfortable saying it should be legalized.

The James case is an example where consent was certainly abundantly clear, though it wasn't true euthanasia, I think. (His injury was not fatal on any reasonable timescale, so it wasn't a matter of medical support for a quick death to forestall a slow, agonizing one, it was a matter of medical support for an actual suicide because he didn't want to live with his impairments.) The problem I have here is not the assistance he was given in Switzerland, it's the way the case was reported, with journalists and bloggers gleefully celebrating what a good thing it was that James had the means available to end his life, and wouldn't it be wonderful if all disabled people could have that option.

The other thing is, when my brother was in hospital recovering from an injury similar to James', he was really shocked to find that there was absolutely no psychological support for his fellow patients. They were given lots of physical therapy and occupational therapy, but not even the least token attempt at counselling, though they were dealing with the massive trauma of sudden, total loss of mobility, and many of them were bereaved on top of that, having received their injuries in road accidents that killed their loved ones. Being my brother, he ended up running informal peer counselling sessions, just creating a space in which people could talk about everything from whether impotence made them less than real men, to the theological implications of their accidents. I don't know how much that helped, but it's very worrying to me that someone like James can express suicidal tendencies and the response is to send him to Switzerland to get help with dying, whereas an able-bodied 23-year-old who tried to kill himself would certainly be given emergency treatment for depression. I wonder if James might have learnt to live with his injuries if he'd been given adequate support and if he hadn't lived in a society that hates disabled people so much.

[sea-bright.livejournal.com]

From the Catholic moral theology I've read (which is a reasonable amount, as I've had to teach a couple of tutorials on this stuff), not feeding the baby would generally be considered on a par with having an abortion. Obviously I don't know the details of your neighbour's case, but from what you've said it doesn't sound as though the route she chose would have been officially sanctioned, even if she managed to justify it to herself.

Interestingly, the Catholic approach would hold the doctor who administered the sedative blameless unless her intention was to kill. Even if she'd known there was a serious risk that dose would end the baby's life, that would still be OK, as long as her intention was to prevent distress rather than to kill: intention is absolutely central in Catholic ethics.

The problem is, as you say, that so often the rights and wrongs of the situation turn on incredibly fine distinctions (I think it's even finer than that between killing and ceasing treatment, as ceasing treatment if there's a good chance someone might recover would usually count as culpable negligence), which are hard enough to make in the comparatively detached setting of a medical ethics tutorial, let alone in the high pressure environment of a hospital...

[liv]

Input from an actual theologian always welcome, thank you! The picture I've painted of my neighbour's moral choice is filtered through a childhood memory of listening to adult conversations, so I'm absolutely certain that I'm missing theological nuance here.

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful. It's like Jews and Muslims who think it's absolutely terrible and horrible to eat pork, but break all kinds of other religious laws all over the place because they aren't aware of their existence or don't care about them. I am reminded of the recent news story where the people involved in obtaining an abortion for the nine-year-old incest victim were excommunicated, whereas the person who raped her and all the murderers of born humans who happened to be around at the time don't even get a mention (I think, technically, they're in a state of mortal sin but have the ability to repent?). That leads people to conclude that the Catholic church cares more about abortion than all these other crimes.

I think secular law cares about intent too; if the overdose was an accident, it's manslaughter or medical negligence, whereas if she actually intended to kill the baby it's murder (though there are pretty strong mitigating circumstances here). Also a very good point that ceasing treatment can be morally and criminally wrong in some circumstances. I think that's the big problem in a lot of these "mercy killing" cases, where the medical team or relatives assume that a patient has low prospects for quality of life because of old age or disability, and they're just as culpable for not treating as they would be for actively killing.

[midnightmelody.livejournal.com]

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful

I don't know if I ever count as ordinary, but I would say that all of the decisions which reflect the absolute sanctity of life are equally important, if that helps. In general Catholic teaching (which I think of as slightly different from theology, because it tends to be less abstract) sanctity of life is a bigger deal than most other sins, because life itself is a bigger deal than most other things.

I am reminded of the recent news story where the people involved in obtaining an abortion for the nine-year-old incest victim were excommunicated

I have absolutely no idea what would have happened there if a typical parish congregation had made the decision rather than the Vatican. I think one of the reasons that Catholicism is so complicated is that it looks far more monolithic than it is - you have the Vatican, and then you have the church in different countries, and the religious orders, and then you have the pastoral decisions made by church officials, and that's before you even get to the congregations, and the lobbying groups, and so on. (Which is not hugely relevant to this, it's more a thought I keep having.)

[liv]

Very good point about Catholicism not being monolithic. Indeed, I don't know who made the theological judgement in my neighbour's case; was it just her, or did she consult her priest, or did it go higher up than that? Obviously it's totally unfair to blame individual Catholics if one doesn't agree with a simplistic understanding of a position taken by the Pope.

I can buy that abortion is worse than rape because rape at least leaves the victim alive. It's not my view, but it makes sense to me. I do have a harder time with the idea that making a 9-year-old girl go through with a double pregnancy, which has a very high chance of killing both her and the twins, is sanctifying life. But yeah, I'm pretty certain there was more going on with that excommunication than was reported in the popular press.

(I think that in the old days, excommunication was pretty close to being a death sentence without actually killing, mind you. If everybody the excommunicee interacted with took the excommunication seriously, the person would be literally removed from the community to the extent of not really being able to obtain food or shelter.)

[midnightmelody.livejournal.com]

I do have a harder time with the idea that making a 9-year-old girl go through with a double pregnancy, which has a very high chance of killing both her and the twins, is sanctifying life.

And this is where I get very avoidant and am glad I do not have to make those decisions, because absolutist positions and probabilities don't sit neatly together, and Catholic theology is very much more focused on intention than it is on strict utilitarianism. :(

I am very glad that excommunication is no longer an almost-death sentence. It should mean what it currently means, ie exclusion from sacraments and holding church offices, because it is a formal sign of division, but I am glad that excommunicated people can still go to mass and other such things. They are excluded from the church to the same extent (although for very different reasons!) as Anglicans.

[sea-bright.livejournal.com]

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful.

Unfortunately, I think that's true, at least for some people. By a tragic irony, however, I think that happens because the church makes a fuss about those issues, and doesn't make a fuss about rape and murder because pretty much everyone already agrees they're wrong. The impression this sometimes gives is of caring more about the former than the latter, when in fact the purpose of the fuss is to drive home the point that the former are considered as wrong as the latter.

[pplfichi.livejournal.com]

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful.

Some definitely do (though most Catholics I know think the Church's policy on condoms is stupid and have no problems with them personally). When topics such as this one have come up, I usually ask what the difference between this and euthanasia is, they can't really give me a good answer. I've noticed those that are dead against euthanasia decide that withholding food amounts to it and is now wrong, regardless of what their previous position was.

I like idea of euthanasia and assisted suicide in theory, I don't think our society I can't see our creating effective rules and safeguards that I would find acceptable, anyway.

Though, if someone is going to die^{* (#zsf1)}, killing them instantly has to be better then letting them starve, assuming the method chosen is reliable and painless. If only we could put in workable safeguards...

^{* ()}"Going to die", does not include people whose quality of life you judge to be so low you think they are better off dead!

[edit: Closing tag]

[liv]

I completely agree that euthanasia / assisted suicide are morally acceptable in theory, but not in our current society. And yes, absolutely, the difference between easing the suffering of someone who is actually dying, and deciding that someone with a long term but not immediately fatal condition is "better off dead" needs to be vastly, vastly clearer. Both in the popular view and in the understanding of the medical establishment.

[zeightyfiv.livejournal.com]

I've never really understood that quote... Isn't it bad law that makes hard cases?

[liv]

Hello, new person. Welcome. I think the point of the quote is that (at least in the Anglo-American legal system), legal decisions are heavily based on precedent. It's true that bad law may lead to cases which are hard to decide, but what the aphorism is saying is that when you have a case where every option is morally bad, and you have to make a law that encapsulates the least morally bad outcome, that law is not going to be a good law further down the line.

So here, we have a hard case, with a baby who has little or no chance of survival anyway. If we try to make it legal for the doctor to hasten her death and minimize suffering, we open the door for other future doctors to kill their patients because treating them is too expensive. If we follow the letter of the law as it now stands, the doctor, who everyone can see is morally in the clear, will end up in prison, and we risk future babies being killed by lung failure without sedation, which hardly seems desirable.

[blue-mai.livejournal.com]

last year i found out that having access to water is considered a basic right, but access to food is not. i may have that rather simplified, but it shocked me. my gran was bed-ridden and had to be tube-fed, but was otherwise stable. we (and the doctors, but the doctors generally do not seem to support prolonging the life of the very elderly) could decide to stop feeding her and let her starve. the deciding factor, which seems very difficult indeed, is to make a judgement on how much distress the person would suffer. this is really hard if communication is not clear.

[liv]

I am very sorry to hear about your gran; it must have been awful for your family to be faced with such a decision. The whole system of end of life care is in a mess, and one of the reasons is because of prejudice against old people. Another problem is that feeding mostly isn't medical treatment, but it gets defined as such if you need extraordinary levels of intervention in order for the person to get adequate nutrition. I can see both sides of the argument: providing a feeding tube is "like" providing life support or performing resuscitation, but equally, providing a feeding tube is "like" providing, well, food and water, which hardly counts as medicine. And yes, the decision about whether someone will experience more distress being kept alive at all costs, versus being allowed to die of starvation, is a really hard one, and even worse when you can't consult the person concerned.

[leora.livejournal.com]

I think one of the reasons we want to be able to do this is because sometimes people are gone long before they are dead. Too many families have dealt with members of their family mentally deteriorating to extreme points well before they die. We didn't end up doing anything in my grandmother's case, because she ended up dying before a decision was made (for which I am quite grateful as having to decide is not something I wanted my father to have to do), but she stopped knowing who people in her life were well before that point, she stopped being able to do the things she used to enjoy well before that point.

There is no way to know how much of herself was left at the end, but it really didn't seem like as much as there had been. Sometimes it's not just that you can't communicate because of whatever has them needing a feeding tube, but because their brain is no longer up for it.

I hear they're making progress on Alzheimer's. I would really, really like that. I'd love to solve such ethical issues by getting rid of the problem in the first place. I'd like for going through that to become a dim memory like my generation in the US has for polio. We've heard about it, but we don't tend to have it as part of our lives.

But I'm not sure it makes sense to keep keeping someone alive in that situation. Also, when I was losing my memory, ability to think, ability to talk, ability to feel the passage of time, etc. due to something that turned out to be temporary what really frightened me was the idea of continuing like that - having people remember me like that, having their view of me contaminated by what I was becoming, and afraid that if it continued the way it was going to, I would be completely and utterly alone because the connection between inside my head and the ability to get anything out was breaking, and I was watching who I was diminishing and diminishing. It was terrifying and it was awful. And they say that people with dementia don't suffer from it, just those around them, but I don't believe them. I didn't appear to be suffering from those things, but I couldn't communicate it. (This is not a point I generally bring up though, as I can't say whether my cause which was different would have the same effects as someone else's and I don't want people feeling even worse about what their relatives go through that they cannot do much about.)

If it hadn't been temporary and treatable, I think death probably would have been better. It ranks as one of the worst experiences of my life and I don't say that lightly or without having had some pretty awful experiences. On the other hand, as the worst of it was temporary (I do still suffer from massive amounts of problems since then, but I'm obviously far more functional), I actually am kind of glad for the experience. It was fascinating. But to be stuck in that for ages with no hope of ever getting out... That's too painful to contemplate.

[ajollypyruvate]

"...the crueller alternative avoids active killing."
I am not sure that I agree that denying food and water aren't also 'active killing'. Hmmm.

[liv]

Well, they sort of are, except that you don't want to extend that to the logical conclusion that, for example, I'm a murderer for not giving all my spare income to feeding the starving. With a baby with severe developmental problems, it doesn't feel quite right to define it as murder to make the decision not to put the child through endless rounds of surgery with a low chance of success. Yet, without the surgery, the baby is going to die fairly soon; starving it means death will take a few days instead of weeks or months, whereas poisoning it would allow instant death. I don't think it's at all obvious where on that spectrum is the most ethical response to the baby's medical condition.

[ajollypyruvate]

There are plenty of cases, here, where someone has been charged and imprisoned for child/animal abuse/neglect for deliberately withholding food and/or water. So, to me, it's still active killing.

Myself, I would go with the path that offers least suffering. Starvation is still a terrible way to die. For these cases, I definitely favour euthanasia over death-by-hunger-so-great-it-attacks-your-internal-organs-in-an-attempt-to-survive. A few days is a long time, for a child. For a hungry one? Dunno. Maybe an eternity.

Dang, obviously I feel more strongly about this than I'd thought!

[liv]

I agree. I think when an ethical and legal system inadvertently leads to people being starved to death, that's a major failure mode. The system that is supposed to protect people from being murdered under the guise of mercy killing is leading to actual mercy killings being conducted in an unmerciful way. (I think a few people are in favour of it in the case of severe disability, but only if they are completely unable to empathize with a disabled person.)

[beckyzoole.livejournal.com]

I wonder why and how the doctor's miscalculation was reported in the first place. Did the baby's family disagree with the medical team's decision? Was there a zealous hospital employee? Or is it the hospital's policy to review all cases, and report and possible "euthanasia" to the police?

[liv]

Yeah, I wonder about that too. I haven't managed to work it out from snippets of half-heard news reports. I don't know how the criminal justice system ever got involved in the first place, and it's a big question.

[friend-of-tofu.livejournal.com]

Good title. Very true.

Can't be murder if the facts are as you've seen them reported, there simply isn't the necessary mens rea (unless the Swedish system is very unusual in this regard).

[liv]

Yeah, I think she's probably actually going to be charged with something like "unlawful killing" or "homicidal negligence" rather than murder, if charged at all. I'm used to reading legal news stories with a reasonable layman's grasp of the law (both my parents are lawyers), but here I'm totally ignorant.

I've been semi-following this news story for several days, but mostly in the popular press (soundbite news on trashy radio stations, and the free newspapers they give to commuters), because my Swedish isn't good enough for the kind of news outlet that does serious analysis. Broadsheets here are still broadsheets, they're not dumbed down like the English blacktops, and I struggle with the vocabulary and complex sentence structure, and I don't get more than the gist of the Radio 4 equivalent. So I am far from confident of the exact legal arguments going on with this doctor.