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Title: Double Effect and its Critics: Beyond the Basics


1
Double Effect and its Critics Beyond the Basics
  • David Cummiskey, PhD
  • Medical Ethics Consultant
  • Professor of Philosophy
  • Bates College
  • dcummisk_at_bates.edu

2
Research Funding
  • Research Supported by
  • Mellon Foundation
  • Bates College Faculty Development Grants
  • No Commercial Interests

3
Moral and Conceptual IssuesA Philosophers
Journey
4
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

5
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.

6
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

7
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.

8
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.

9
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)

10
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.

11
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.

12
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!

13
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

14
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?

15
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.

16
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?

17
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.

18
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 )

19
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.

20
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.

21
Experimental Philosophy
22
Moral Intuition Surveys
  • Joshua Greene
  • Harvard Moral Cognition Lab
  • Jonathan Cohen
  • Princeton Neuroscience Institute

23
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.

24
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.

25
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.

26
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.

27
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

28
Trolley Dilemmas
  • Joshua Greene
  • Harvard Moral Cognition Lab
  • Judith Jarvis Thomson
  • MIT Philosophy

29
Trolleys, DDE, Moral Intuitions
  • Footbridge
  • 69 No
  • Switch
  • 87 yes

30
Trolley Puzzle Cases
  • Add a Loop back to the 5
  • 72 yes (confirm)
  • Add a Remote Trapdoor
  • 63 yes

31
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.

32
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.

33
Problem 2 Framing Effects
  • Walter Sinnott-Armstrong
  • Kenan Institute for Ethics at Duke
  • Focus effects
  • Order effects

34
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.

35
Problem 3 The KNOBE EFFECThttp//www.youtube.com
/watch?vsHoyMfHudaEfeatureplayer_embedded
36
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.

37
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

38
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.

39
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

40
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?

41
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.

42
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

43
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.

44
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

45
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)

46
  • Accepting death
  • the impermanence of all things

47
Thank you
  • David Cummiskey
  • Medical Ethics Consultant
  • Professor of Philosophy
  • Bates College, Maine USA
  • dcummisk_at_bates.edu
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