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@bates.edu

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

3. Moral and Conceptual Issues:A Philosopher’s 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 God’s 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. Quinn’s (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 Beauchamp’s 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 Quill’s 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 one’s prior moral judgments.

21. Experimental Philosophy

22. Moral Intuition Surveys Jonathan Cohen Princeton Neuroscience Institute Joshua Greene Harvard Moral Cognition Lab

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

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

29. Trolleys, DDE, & Moral Intuitions Switch: 87% yes Footbridge: 69% No

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. • Quinn’s 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?v=sHoyMfHudaE&feature=player_embedded

36. The Experimental Scenario The CEO of a company is sitting in his office when his Vice President of R&D 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 don’t care about harming the environment, all I care about is maximizing profits, so let’s 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 don’t 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 action’s 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: Philosopher’s 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; 159:545-550)

46. Accepting death & the impermanence of all things

47. Thank you David Cummiskey Medical Ethics Consultant Professor of Philosophy Bates College, Maine USA dcummisk@bates.edu