Hard cases make bad law - Livre d'Or








Miscellaneous. Eclectic. Random. Perhaps markedly literate, or at least suffering from the compulsion to read any text that presents itself, including cereal boxes. * Blogroll * Strange words * More links * Bookies * Microblog * Recent comments * Humans only * Second degree * By topic * Cool posts * Writing * New post

Tags

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *



livredor
Hard cases make bad law
Thursday, 19 March 2009 at 09:07 pm
Tags:

Previous Entry Next Entry


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.


Whereaboooots: Älvsjö, Stockholm, Sweden
Moooood: sadsad
Tuuuuune: Hem: The part where you let go
Discussion: 38 contributions | Contribute something
Tags:

Previous Entry Next Entry




Contribute something
View all comments chronologically



leora: ouroboros
From:leora
Date:March 19th, 2009 08:54 pm (UTC)
42 minutes after journal entry, 12:54 pm (leora's time)
(Link)
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.
(Reply to this comment) (Thread)
lavendersparkle: modest me
From:lavendersparkle
Date:March 19th, 2009 10:07 pm (UTC)
1 hours after journal entry, 10:07 pm (lavendersparkle's time)
(Link)
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 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.
(Reply to this comment) (Up thread) (Parent) (Thread)
(no subject) - leora (3/19/09 10:22 pm)
(no subject) - livredor (3/20/09 10:07 am)
(no subject) - leora (3/20/09 05:31 pm)
(no subject) - livredor (3/20/09 10:02 am)
(no subject) - lavendersparkle (3/20/09 10:39 am)
(no subject) - livredor (3/20/09 02:32 pm)
(no subject) - adrian_turtle (3/22/09 09:50 pm)
(no subject) - leora (3/20/09 05:34 pm)
livredor: ewe
From:livredor
Date:March 20th, 2009 09:41 am (UTC)
13 hours after journal entry, 09:41 am (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)
(no subject) - naath (3/20/09 01:49 pm)
(no subject) - livredor (3/20/09 06:52 pm)
(no subject) - naath (3/20/09 08:50 pm)
(no subject) - livredor (3/21/09 07:52 am)
(no subject) - pw201 (3/21/09 05:25 pm)
(no subject) - livredor (3/22/09 08:25 am)
sea_bright: default
From:sea_bright
Date:March 19th, 2009 09:26 pm (UTC)
1 hours after journal entry
(Link)
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...
(Reply to this comment) (Thread)
livredor: words
From:livredor
Date:March 20th, 2009 10:24 am (UTC)
14 hours after journal entry, 10:24 am (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)
(no subject) - midnightmelody (3/20/09 11:25 am)
(no subject) - livredor (3/20/09 07:02 pm)
(no subject) - midnightmelody (3/20/09 10:35 pm)
(no subject) - sea_bright (3/20/09 11:32 am)
(no subject) - pplfichi (3/20/09 01:36 pm)
(no subject) - livredor (3/20/09 07:07 pm)
zeightyfiv: default
From:zeightyfiv
Date:March 19th, 2009 10:19 pm (UTC)
2 hours after journal entry
(Link)
I've never really understood that quote... Isn't it bad law that makes hard cases?
(Reply to this comment) (Thread)
livredor: geekette
From:livredor
Date:March 20th, 2009 10:31 am (UTC)
14 hours after journal entry, 10:31 am (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)
blue_mai: birds
From:blue_mai
Date:March 19th, 2009 11:32 pm (UTC)
3 hours after journal entry, 11:32 pm (blue_mai's time)
(Link)
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.
(Reply to this comment) (Thread)
livredor: portrait
From:livredor
Date:March 20th, 2009 10:38 am (UTC)
14 hours after journal entry, 10:38 am (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)
(no subject) - leora (3/20/09 05:53 pm)
ajollypyruvate: Gromit
From:ajollypyruvate
Date:March 20th, 2009 12:30 am (UTC)
4 hours after journal entry, March 19th, 2009 04:30 pm (ajollypyruvate's time)
(Link)
"...the crueller alternative avoids active killing."
I am not sure that I agree that denying food and water aren't also 'active killing'. Hmmm.
(Reply to this comment) (Thread)
livredor: ewe
From:livredor
Date:March 20th, 2009 10:43 am (UTC)
14 hours after journal entry, 10:43 am (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)
(no subject) - ajollypyruvate (3/20/09 05:53 pm)
(no subject) - livredor (3/22/09 08:14 am)
beckyzoole: default
From:beckyzoole
Date:March 20th, 2009 06:28 pm (UTC)
22 hours after journal entry, 12:28 pm (beckyzoole's time)
(Link)
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?
(Reply to this comment) (Thread)
livredor: ewe
From:livredor
Date:March 20th, 2009 07:10 pm (UTC)
22 hours after journal entry, 07:10 pm (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)
friend_of_tofu: default
From:friend_of_tofu
Date:March 21st, 2009 02:44 am (UTC)
1 days after journal entry
(Link)
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).
(Reply to this comment) (Thread)
livredor: ewe
From:livredor
Date:March 22nd, 2009 08:10 am (UTC)
2 days after journal entry, 08:10 am (livredor's time)
(Link)
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.
(Reply to this comment) (Up thread) (Parent) (Thread)



Contribute something
View all comments chronologically