'Double effect': getting the argument right.

In its 1997 decisions denying that Americans have a constitutional right to physician-assisted suicide (Quill v. Vacco and Washington v. Glucksberg), the United States Supreme Court recognized the moral distinction between actively helping patients to kill themselves, on the one hand, and, on the other, withholding treatment from a terminally ill patient, thereby permitting death. In so doing, the Court gave legal standing to the ethical principle of double effect. Briefly stated, the principle holds that an act intended for a morally good purpose may have an unintended but permissible bad effect.

For most informed Catholics and for many others, including secular ethicists, this recognition was a welcome development. For centuries, ethicists and moral theologians have accepted the validity of the principle and have applied it in many areas of ethical decision making, including warfare and medical care. Caregivers and patients of all religions rely on the principle to resolve problem cases - for example, to justify the use of powerful pain-relieving drugs in the care of terminally ill patients, despite some risk that the drugs may hasten death. Pastors and chaplains reassure patients and families that relieving pain is part of compassion, that what is intended determines what is morally right in specific actions, and that we are not required to undergo unduly painful treatments that may bankrupt our families. Though human life is sacred, we may ethically place our lives at risk to serve even higher values.

But the decisions in Quill and Glucksberg do not mean that the campaign in favor of assisted suicide has met anything like final defeat. (Note, most recently, the failed attempt in last November's election to legalize it in Michigan, and Dr. Jack Kevorkian's made-for-television euthanizing.) The Supreme Court placed no bar against state legislation giving physicians license to honor patients' requests for help in ending their lives, and the first Oregonians have already taken advantage of the state's legalization of the practice, even as pharmacists argue about whether it is morally licit to fill prescriptions for lethal drugs. The Court record in Quill suggests, moreover, that several justices might be willing to reconsider the question of assisted suicide if there is not widespread improvement in the provision of palliative care for the terminally ill. That nudge to policy makers and the public constitutes a significant challenge to the nation.

The decision itself has brought a sort of backlash. Though the more thoughtful advocates of assisted suicide concede that it should be a last resort, they are lobbying, state by state, to give the practice status before the law. That entails working to discredit the principle of double effect and to eliminate the distinction between actively aiding death and passively allowing it to occur. Of two commentaries appearing in the widely read New England Journal of Medicine for October 23, 1997 - four months after the Quill decision came down - one praised it for recognizing the crucial distinction and for supporting improved palliative care for the terminally ill. But the other writer, after pointing out that sedation can be prescribed without the patient's knowledge or consent, likened it to slow euthanasia. The writer expressed unwillingness to trust physicians' good intentions, and argued that assisted suicide offers less risk of abuse because it demands action by the patient.

In its issue of December 11, 1997, the same journal published a critique of double effect that supported providing patients with death-producing agents which they themselves take. The senior author, Dr. Timothy Quill, was the unsuccessful plaintiff in the New York case ruled on by the Supreme Court. The principle of double effect, he contended, cannot be used to justify sedation in terminal cases because if other life-prolonging therapies are withdrawn, the physician may be covertly seeking to hasten death. Dr. Quill said that if a patient requests withdrawal of some heroic type of therapy, such as a mechanical ventilator for advanced emphysema, in the hope of being able to live awhile unencumbered by medical technology, that good intention would satisfy the requirements of double effect. But if the patient or doctor requests withdrawal, intending to reduce suffering by hastening death, the principle of double effect would not be applicable, because its validity rests on a good intention.

Dr. Quill damned double effect on other grounds as well. He worried that physicians will be confused trying to read patients' minds and to determine their real intent. He argued that because the principle arose and was refined within the context of a particular religious tradition (Christianity), we in America ought not apply it across our society. He noted that under our legal system, individuals, including physicians, are responsible for all reasonably foreseeable consequences of action, not just those intended. He suggested that physicians who justify the use of sedatives in the care of terminal patients under the protective umbrella of double effect may violate the right of patients to act autonomously. Finally, he indicted double effect by implying that its absolute prohibition against directly causing death makes physicians reluctant to honor patients' requests to withdraw life-sustaining therapy.

Dr. Quill, with co-authors Dan Brock and Bernard Lo, recycled these arguments in another article published December 17, 1997, in the Journal of the American Medical Association. They again faulted double effect as an ethical basis for palliative sedation in terminal cases because it depends on accepting the intention of the patient and physician to alleviate suffering rather than purposefully to shorten life. Patients' wishes, they argued, should trump physicians' intentions as a moral basis for action. And they suggested that physician-assisted suicide is the most honest and open way to address end-of-life dilemmas.

These writers and other proponents of assisted suicide continue to misinterpret (and cloud) the distinction between causing death and allowing it to occur. As Daniel Callahan has pointed out (The Troubled Dream of Life, 1993), to equate allowing to die with killing places an overwhelming moral burden on people. It tries to move death out of the realm of the natural and make it a medical responsibility. Put a healthy person on a ventilator and then remove it. Nothing happens. Absent underlying pathology, allowing someone to die is impossible. Doctors have long stopped treatments not judged to be working. It is a cynical distortion to say that they thereby intend death. If it is true that double effect is subject to abuse by patient or doctor or both, as Dr. Quill & Co. suggest, surely the same is doubly or triply true of physician-assisted suicide. These authors simply assume good faith on the part of all participants in PAS, while putting in question the honesty and/or competence of physicians, patients, and family members who concur in the substitution of palliative care, including sedation, for failed or overly onerous therapies.

Proponents of assisted suicide need to attack the principle of double effect because if it is seen as valid, then palliative care has a strong ethical basis and greatly weakens the case for assisted suicide. Control of pain and suffering is an important part of good palliative care. Not incidentally, a lesson learned from hospice care has been that the brain's respiratory centers become tolerant to opiates and sedatives, so that patients receiving these drugs for pain and anxiety rarely sustain respiratory suppression.

The principle of double effect is an ethical pillar of therapy for terminal illness, and validating it promotes humane care for the dying. The more broadly it is grasped and practiced, the less attractive will be the vision of physicians erasing the most basic commandment of their profession: "First, do no harm."

Kevin P. Glynn, M.D., is president of the medical staff at Mercy Hospital in San Diego, and was founding chair of the hospital's biomedical ethics committee.