Double Effect and its Critics: Beyond the Basics

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Double Effect and its Critics Beyond the Basics

• David Cummiskey, PhD
• Medical Ethics Consultant
• Professor of Philosophy
• Bates College
• dcummisk_at_bates.edu

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Research Funding

• Research Supported by
• Mellon Foundation
• Bates College Faculty Development Grants
• No Commercial Interests

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Moral and Conceptual IssuesA Philosophers
Journey
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Outline of Presentation

• The Basics What is the Doctrine of Double
  Effect? Distinction between Intended and Foreseen
  Effects
• Ambiguity of Intentions Intended or Foreseen?
• Experimental Philosophical Research
• Causing Death Killing Letting Die
• Moral Intuitions about Trolley Cases
• Framing Effects
• The Knobe Effect
• Palliative Care and the Doctrine of Double Effect

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The Doctrine of Double Effect

• Saint Thomas Aquinas
• Summa Theologica
• (II-II, Qu. 64, Art.7)
• Nothing hinders one act from having two
  effects, only one of which is intended, while the
  other is beside the intention. Accordingly, the
  act of self-defense may have two effects one,
  the saving of one's life the other, the slaying
  of the aggressor. Therefore, this act, since
  one's intention is to save one's own life, is not
  unlawful, seeing that it is natural to everything
  to keep itself in being as far as possible.

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Four Essential Elements

• The Doctrine of Double Effect (or DDE)
• The action done for the end in question is
  justified, good, or at least not wrong in-itself.
• The harm caused, and foreseen, is not itself
  intended.
• The foreseen harm is instead a mere by-product
  (in some sense that needs to be explained) of the
  intended result.
• AND the Principle of Proportionality

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Proportionality Constraint

• Aquinas And yet, 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.

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Proportionality Constraint

• Classic case
• Strategic bombing in a just war may be justified
  but the good that is intended and likely must
  sufficiently outweigh the harm that is foreseen.

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Other Examples of DDE

• 1. Abortion when necessary to save the life of
  the mother
• (Sister Margaret McBride v. Bishop Olmstead)

• 2. Highway construction
• (and other mundane examples)

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Palliative Care DDE

• End of life care that relieves suffering but may
  also hasten death palliative (terminal)
  sedation
• Death is foreseen but not intended
• Thus palliative care is permissible even when it
  is likely (or certain) to hasten death.
• Common contrast with Euthanasia death is
  intended and not merely foreseen.
• The claim that morphine often hastens death is
  common but controversial.

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The Take Away Today

• The Doctrine of Double Effect (DDE) is in fact
  conceptually problematic, controversial, and
  widely rejected.
• DDE judgments often seem to be post hoc (after
  the fact) rationalizations of prior and
  independent moral intuitions (that is, gut
  reactions to moral dilemmas).
• The Doctrine of Double Effect (DDE) does NOT
  justify a moral distinction between permissible
  palliative care, withdrawing care, and
  impermissible euthanasia.

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Defenders of DDE

• Catholic and Islamic Medical Ethics
• Life and death are in Gods hands No Playing
  God
• Some Medical Ethicists, for example
• Edmund Pellegrino (Georgetown)
• Daniel Sulmasy (St. Vincents Hospital, NY)
• American Medical Association
• Intuitively, it is indeed a very compelling
  principle!

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Critics Focus on 2 and 3

• The action done for the end in question is itself
  justified and permissible.
• The harm caused and foreseen is not itself
  intended.
• The foreseen harm is instead a mere by-product -
  in some sense that needs to be explained.
• Proportionality Constraint

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Problem of the Means

• 3 The foreseen harm is instead a mere by-product
• Common Interpretation
• The unintended, foreseen, bad effect cannot be a
  means to the good effect
• Problem
• Aquinas on Self-Defense the slaying is the
  means
• Surgery, Chemotherapy causing harm is often a
  necessary means to the good in ways that are not
  problematic
• In what sense precisely, must the harm not be a
  means?

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Quinns (re-)interpretation

• DDE prohibits using other persons in ways that
  subordinate the victim to purposes that he or she
  either rightfully rejects or cannot rightfully
  accept, thereby violating the victim's right not
  to be subordinated in this way. (Warren Quinn
  1991, p. 511)
• Relevance to DDE
• Good - BUT Voluntary Active Euthanasia does not
  subordinate the patient to the ends of others at
  all.
• Also DDE is now itself subordinate to rights
  claims that are prior to DDE and independently
  justified.

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Problems of Detail

• 2 The harm caused and foreseen is not itself
  intended.
• How do we distinguishing intentional and
  non-intentional elements of an action?
• For example, consider Beauchamps case
• When the light switch also turns on the ceiling
  fan, I do not necessarily intend both.
• In a case of Voluntary Active Euthanasia Why
  claim that the goal of relieving suffering
  includes an intention that the patient die? Why
  is the death not merely foreseen? If I could
  relieve suffering without killing the patient, I
  would!
• In a case of Letting Die (Allowing Natural
  Death) when withdrawing life-support will surely
  result in death, is the death not also intended
  in this case?

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The Ambiguity of Intentions

• Quills primary intention Diane was a friend
  as well as a patient. I wanted her to be able to
  live as long as she could find any meaning in her
  life and then to die as peacefully as possible.
  I had no desire to determine the time or to be
  the agent of her death and to say that I intended
  to kill her is outrageous. (1993 , 1040).
• Quill's additional intentions (i) to enhance her
  range of options and degree of control over her
  situation (ii) to offer her the comfort of
  knowing she could end her suffering (iii) to
  respect her right of self-determination.

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Broad v. Narrow Intentions

• Thomas Scanlon (Philosophy, Harvard)
• Intention is commonly used in a wider and a
  narrower sense. When we say that a person did
  something intentionally, one thing we mean is
  that it was something that he or she was aware of
  doing or realized would be a consequence of his
  or her action. But we also use intention in a
  narrower sense. To ask a person what her
  intention was in doing a certain thing is to ask
  her what her aim was in doing it, and what plan
  guided her action how she saw the action as
  promoting her objective. ( Scanlon, 2008, 10 )

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Application?

• Palliative (Terminal) Sedation Is death
  intended in the narrow or broad sense?
• Physician Assisted Suicide Is death intended in
  the narrow or broad sense?
• Voluntary Active Euthanasia Is death intended
  in the narrow or broad sense?
• In each case, if the good of the patient could be
  achieved without death, the physician would not
  alter the medical plan to kill the patient! The
  narrow intention is to respect the preferences
  and interests of others.

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NEXT Problems of Substance

• Cart before the horse Rather than shaping our
  moral judgments, the characterization of an
  action as intentional is shaped by ones prior
  moral judgments.

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Experimental Philosophy
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Moral Intuition Surveys

• Joshua Greene
• Harvard Moral Cognition Lab

• Jonathan Cohen
• Princeton Neuroscience Institute

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Doing and Allowing

• Classic Case a patient is suffering from a
  condition that would normally kill him, but he is
  attached to life support that prevents the
  condition from having its normal effect.  Then
  the doctor comes in and shuts off the
  respirator.  The patient immediately dies.

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Survey of Moral Judgments

• In the 'morally good' case, subjects were told
  that the patient wants to die and the doctor is
  acting in accordance with his wishes. 
• In the 'morally bad' case, subjects were told
  that the patient does not want to die but the
  doctor dislikes him and therefore detaches the
  machine anyway.

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Asymmetry in Causal Judgment

• In Experimental Studies reveal a striking
  asymmetry
• Subjects said the doctor killed the patient in
  the morally bad case but NOT in the morally good
  case.   
• Subjects said that the doctor caused the death in
  the morally bad case but NOT in the morally good
  case. 
• Conclusion
• Moral Judgments determine Causal Judgments, and
  not vice versa.

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Switch to Intention

• Judgments of causality ( killing v. letting
  die) seem to reflect whether or not one
  interferes with the patients preferences,
  combined with our view of whether the patient is
  harmed.
• If so, consent, beneficence, and non-malificence
  are doing all of the moral lifting. BUT these
  principles might also justify voluntary active
  euthanasia.
• THUS switch to DDE to explain intuitions
• Rather than focusing on causation, the
  doing-allowing (killing/letting die) distinction,
  we focus instead on the physician's different
  intentions.

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Intention v. Foreseen Effects

• Suggestion
• In the morally good case, the physicians
  intention is to respect the patients wishes, and
  thus permissibly lets the patient die. The death
  is foreseen but not itself intended. The
  intention is to respect the patients autonomy.
• In the morally bad case, the physician acts
  without regard for the patients wishes and the
  direct intention is to harm the patient.
• This brings us back to our topic DDE

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Trolley Dilemmas

• Joshua Greene
• Harvard Moral Cognition Lab

• Judith Jarvis Thomson
• MIT Philosophy

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Trolleys, DDE, Moral Intuitions

• Footbridge
• 69 No

• Switch
• 87 yes

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Trolley Puzzle Cases

• Add a Loop back to the 5
• 72 yes (confirm)

• Add a Remote Trapdoor
• 63 yes

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Salient Factor in Trolley Cases

• Intending v. Foreseeing, the Doctrine of Double
  Effect, is NOT the salient factor behind common
  moral intuitions.
• The major salient factor seems to be the physical
  contact and the direct aggression of pushing the
  person off the footbridge.
• Quinns version victim has a strict right not to
  be pushed. Rights claims are less clear in the
  other cases.

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Dual Processing Model

• fMRI studies of Trolley subjects also indicate
  that the Footbridge case excites a primitive
  emotional aversive response in the amygdala,
  which conflicts with more cortical moral
  reasoning.

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Problem 2 Framing Effects

• Walter Sinnott-Armstrong
• Kenan Institute for Ethics at Duke

• Focus effects
• Order effects

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Relevance to DDE judgments

• If one focuses attention on the action of killing
  the patient, one has a strong intuition (gut
  reaction) that it is wrong.

• If one focuses attention on the action of helping
  the patient die with dignity, one is more likely
  to judge the action permissible.

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Problem 3 The KNOBE EFFECThttp//www.youtube.com
/watch?vsHoyMfHudaEfeatureplayer_embedded
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The Experimental Scenario

• The CEO of a company is sitting in his office
  when his Vice President of RD comes in and says,
  
• We are thinking of starting a new program. It
  will help us increase profits, but it will also
  harm the environment.
• The CEO responds, I dont care about harming the
  environment, all I care about is maximizing
  profits, so lets start the program.
• The program is carried out, profits are made and
  the environment is harmed.

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Did the CEO harm the environment intentionally?

• The vast majority of people (82) respond yes -
  the CEO intentionally harmed the environment.
• But what if the scenario is changed such that the
  word harm is replaced with help?
• In this case, the CEO says I dont care about
  helping the environment, all I care about is
  maximizing profits - and his actions result in
  both outcomes.
• Did the CEO help the environment intentionally?
  
• The vast majority (77) respond no

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Relevance to DDE

• This asymmetry in responses between the harm
  and help scenarios is known as the Knobe
  Effect.
• The Knobe Effect shows that the goodness or
  badness of an actions consequences influence
  judgments of the non-moral aspects of the action
  including whether someone did something
  intentionally or not
• Similarly, whether we view a particular effect as
  either intended or foreseen also depends on our
  prior view of the moral character of the action
  and consequence.

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Problem 4 DDE and Harms

• The Doctrine of Double Effect presupposes that,
• all things considered, the action in question is
• harming someone.
• It thus does not apply to Voluntary Active
  Euthanasia or Physician Assisted Dying, if all
  things considered death is a release, a relief,
  and not a harm at all.
• If one objects that death is always an all things
  considered a harm, then DDE would also prohibit
  withdrawing care and allowing natural death
• Note Philosophers USSC Brief on PAS

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Withholding Withdrawing

• If it is always harming wrong to intentionally
  hasten death, then why is it not also wrong to
  withhold or withdraw care, with the intention of
  letting the patient die?
• Pelligrino and Sulmasy argue that the
  justification for withdrawing care must be
  futility /or the disproportionate burden of
  continued treatment
• BUT this implies that the dying can be a net
  benefit.
• Why is net benefit ( consent) justification for
  passively hastening death but not actively
  hastening death?

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End of Life Legal Principles

• The Right to Refuse is based on the right not to
  be touched without consent an Anti-Battery
  principle
• NOTE This right includes a liberty right of
  competent patient to intentionally hasten their
  deaths by refusing life-prolonging interventions.
• Health care providers are permitted/required to
  provide comfort and palliative care to these
  patients, as they are allowed to die sooner
  rather than later.
• But they are not allowed to intentionally hasten
  death with an additional death causing agent.

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Review of Presentation

• The Basics The Four Elements of DDE
• The Problem of the Means
• Ambiguity of Intentions Narrow v. Broad
  Intentions
• Experimental Philosophy and Moral Intuitions
• Killing-Causing Death includes a Moral Judgment
• Trolley Cases the Variability of Moral
  Intuitions
• Framing Effects
• The Knobe Effect Harming-Helping Asymmetry
• Palliative Care and the Doctrine of Double Effect

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Conclusion The Take Away

• The Doctrine of Double Effect (DDE) is itself
  conceptually problematic controversial.
• DDE judgments often seem to be post hoc (after
  the fact) rationalizations of prior and
  independent moral intuitions (that is, our gut
  moral reactions).
• The Doctrine of Double Effect does NOT itself
  justify a moral distinction between permissible
  palliative care and impermissible (voluntary)
  euthanasia.

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Moral Factors in Palliative Care

• Patient-Centered
• Care of the patient
• Concern for the family
• The patient's perspective and preferences
• Finding Meaning in Dying
• Practice-Centered
• The broader effects of social policy
• The role of physicians at the end of life
• Concern for palliative care providers
• and NOT the Doctrine of Double Effect

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For more information

• Stanford Encyclopedia of Philosophy (on-line)
  http//plato.stanford.edu/entries/double-effect/
• Quill , Dresser, Brock, The rule of double
  effect a critique of its role in end-of-life
  decision making (New England Journal of
  Medicine 1997 337 1768-1771)
• Sulmasy and Pellegrino, The Rule of Double
  Effect Clearing Up the Double Talk (Archive of
  Internal Medicine 1999 159545-550)

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• Accepting death
• the impermanence of all things

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Thank you

• David Cummiskey
• Medical Ethics Consultant
• Professor of Philosophy
• Bates College, Maine USA
• dcummisk_at_bates.edu