Introduction

Thomas Riisfeldt’s essay1 is a valuable contribution to the literature on palliative sedation, appropriately titrated administration of opioids (ATAOs) and euthanasia. In this response, I will not deal with the author’s empirical claim about the relationship between opioid use, palliative sedation and survival time. Rather, I will briefly critique the author’s discussion of doctrine of double effect  (DDE) and its application to palliative sedation and opioid use at the end of life. That is, I will focus on the ethical claims made by the author. Riisfeldt argues that DDE is incompatible with both Kantian deontology and Millian consequentialism. Yet, I will argue that the DDE is coherent and defensible when interpreted from the perspective of the philosophy of Thomas Aquinas, the theorist who first proposed the doctrine. I will also argue that Riisfeldt mischaracterises ATAOs and palliative sedation as procedures that hasten death as a means to relieve pain. While death may indeed be hastened by ATAOs and palliative sedation, it is not at all clear that clinicians intend to hasten death as a means to relieve pain. Indeed, clinical guidelines explicitly prohibit the intentional hastening of death.

Mill and Kant versus Aquinas on double effect

Riisfeldt provides a brief summary of the DDE. He describes DDE as a ‘strange hybrid of four principles’. He lists the four criteria that must be met for an act with a good and a bad effect to be permissible. These criteria are the ‘intention and means criteria’ and the ‘intrinsic and proportionality criteria’ (p.127).

The author uses Kant and Mill as lens through which to highlight a tension between the intrinsic and proportionality criteria of DDE. The author claims that ‘the intrinsic criterion is derived from deontology, the predominant form of which is championed by Kant’, and that ‘the proportionality criterion is derived from consequentialism, the predominant form of which is the "classical utilitarianism" championed by Mill’ (p.128).1 These statements are anachronistic. For the DDE was proposed well before Mill and Kant. The author has some awareness of this, as he acknowledges the origins of DDE in the writings of Thomas Aquinas (p.126). He nevertheless chooses Kant and Mill as interlocutors for his discussion of DDE.

The author rightly argues that DDE is incompatible with both a Kantian and Millian ethical framework. On a Kantian framework, the right making feature of an action is whether it is in accord with moral ordinances issuing from practical reason.2 The good outcomes of an action are irrelevant. Therefore, it is incoherent to talk of the rightness or wrongness of an action being contingent on outcomes. It is incoherent to suggest that the permissibility of actions is contingent on outcomes if we hold that some acts are intrinsically bad.

On a Millian utilitarian framework, in contrast, the rightness or wrongness of actions just is a function of the good or bad outcomes of that action.3 No act is intrinsically good. An act is only good insofar as it has good outcomes that outweigh any bad outcomes. If the state of affairs produced by an act is one in which there is a surplus of happiness or pleasure, then the act is permissible (perhaps even obligatory). If there is a net deficit of happiness or pleasure, then the act is impermissible.

The intrinsic and proportionality criteria, then, would appear to contradict each other, at least insofar as we adopt a Kantian and Millian framework for interpreting these two criteria.

Yet, a modern philosophical hermeneutic is not the only way to understand DDE. There are very good exegetical reasons to consider how DDE would be explained in terms of the philosophy of Thomas Aquinas. Crucially, on a Thomistic framework, the object or character of an act, the circumstances of an act and the end or motive of an act are all relevant to evaluating its moral goodness or badness.4 This contrasts with Kantian approach to ethical evaluation, which focuses solely on whether an act is in accord with the maxims of practical reason. It also contrasts with a classical utilitarian approach to moral evaluation, which focuses solely on the maximisation of utility.

Before considering how we should understand DDE on a Thomistic framework, it is appropriate to clarify how a classical Thomist would evaluate moral action. The object or character of an act refers to what an act is. For example, the object of lying is the telling of a falsehood; the object of stealing is the theft of someone else’s goods; the object of murder is taking the life of an innocent human being and so on. The object of an act is, on a classical Thomistic framework, the primary right making feature of an act. That is, principle right or wrong-making feature of an action is whether it promotes some basic human good or whether it constitutes a direct attack on a basic good. Lying, theft and murder are wrong because they constitute a direct attack on the human goods of truth, property and life.

Yet, the circumstances of an act are also relevant to evaluating its permissibility. The circumstances of an act include factors such as who performed the act, where and when the act was performed, the means used to perform the act, the manner in which the act was performed and with what outcome.5 On a Thomistic framework, a morally neutral or morally good act may be made impermissible depending on the outcomes of an act. Thus, the act of going for a hike in the mountains is morally neutral. Yet, it may be morally bad if it involves leaving one’s young children at home for several days without care. Both the object of the act and the outcome of an act, then, are relevant to evaluating an act’s permissibility or impermissibility.

The tension between the intrinsic and proportionality criteria disappears if we interpret the criteria from a Thomistic perspective. For a Thomistic framework does not reduce the morality of action solely to the character of an act or its outcomes. Rather, it holds that both of these considerations are relevant. Consider, for example, the case of self defence (an example that Aquinas uses to justify DDE). Aquinas states,

…though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful…6

If I were attacked by an assailant while walking on the street, then I would be justified in defending myself. Yet, the extent to which I could permissibly harm my assailant would be contingent on the sort of threat he posed to my health and life. I may not, for example, be justified in seriously injuring him if he poses only a minor threat (eg, if my assailant is frail and weak and incapable of seriously harming me).

The DDE, then, is coherent when understood within the framework of the philosophy of Thomas Aquinas—the theorist who first proposed the doctrine. When DDE is understood in this way, it is wrong to say, as Riisfeldt does, that ‘the intrinsic and proportionality criteria (of DDE) do not sit well together and are not internally consistent’ (p.129).7 Riisfeldt has offered one interpretation of DDE, and shown that, from this perspective, the doctrine it is unsound. Yet, this conclusion does not apply to all variants of DDE.

The applicability of DDE to palliative sedation and analgesic use at the end of life

In the final section of his article (pp.129–130), Riisfeldt considers whether ATAOs and palliative sedation are justifiable in terms of DDE. He questions whether the administration of ATAOs and palliative sedation violates the means and intention criteria of DDE. Riisfeldt notes that the moral character of ATAOs and palliative sedation is unclear. For clinicians, he suggests, use ATAOs and palliative sedation to combat symptoms either directly, by relieving pain, or indirectly, by hastening the death of the patient (p.130). Riisfeldt’s argument is that ATAOs and palliative sedation may be considered impermissible if it relieves pain by means of hastening the death of a patient. For this would involve an intentional hastening of death for the sake of relieving suffering.

This analysis of DDE, ATAOs and palliative sedation is problematic. Specifically, it is misleading to suggest that doctors hasten the death of a patient as a means to relieve their pain. Certainly, this is something that is medically possible. Yet insofar as we are talking about ATAOs and palliative sedation as conventional practices in medicine, we should take account of the fact that guidelines regulating the use of these practices prohibit the intentional hastening of death. At least some guidelines on palliative sedation explicitly state that the procedure should not be used with the intention of hastening death. For example, the European Association for Palliative Care guidelines on palliative sedation state that the use of this procedure ‘with the primary goal of hastening the patient’s death…represent[s] an unacceptable, and often illegal, deviation from normative ethical clinical practice’.7 It is permissible, according to the guidelines, for death to be hastened as a side effect, yet death should not be used as a means to relieve pain. Similarly, British Medical Association guidelines on the use of analgesics at the end of life state that clinicians should not intend the hastening of death.

… the administration of drugs that may hasten death is lawful and ethical when the patient is terminally ill and the use of the drugs is in their best interest, provided that the intention of the doctor is the alleviation of suffering, and not the hastening of death. [p.7]8

If anything it seems that some doctors do not currently use analgesics when clinically indicated precisely because they are concerned about hastening the death of the patient.8

It is wrong, then, to characterise ATAOs and palliative sedation as procedures that hasten death as a means to relieve pain. Rather, palliative sedation and ATAOs are used with the primary intent of relieving pain by virtue of blocking pain signals to the brain or putting the patient into a reduced state of consciousness. The hastening of death is not used as a means to alleviate pain. Rather, it is a side effect of the procedure. Insofar as this is the case, Riisfeldt’s worry that ATAOs and palliative sedation violate the intention and means criterion—and Kant’s Formula of Humanity—is unfounded. These practices do not instrumentalise the life of a person for the sake of relieving suffering. Rather, suffering is relieved directly, by the interventions themselves.