In New Zealand, there is a legal distinction between active and passive forms of euthanasia. Passive euthanasia (PE) are forms of hastening death by withdrawing treatment or nutrition, or by sedating the patient until their terminal illness claims their life. Active euthanasia (AE), by contrast, involves administering a lethal substance to bring about death. For legal and theoretical purposes, the distinction between them hinges on the duty of a physician to never intentionally acting in a way that causes harm. Thus, PE navigates around this problem by stating that the omission or failure to act is a morally acceptable means of hastening the death of a patient. This distinction is regarded by some as a bright line that demarcates AE from PE. In this essay, I argue that this act-omission distinction has no basis in objectivity but is instead rooted in an intuitive aversion to being positively instrumental in the harm of another.
1 No Objective Illumination
Despite the legal distinction between AE and PE in New Zealand, public support for the legalising of the former stands at around 66-75% of the population.
By contrast, a recent survey has shown that only 37% of New Zealand physicians support such a move.
Thus, if a bright line exists then it seems physicians have found it. One of the reasons given in that survey was that it was not a proper
role for physicians to terminate the life of a patient. This is echoed in a recent opinion piece in the American Medical Journal where the authors stressed that physicians have a duty never to “…use their skills and powers to do harm”
In line with the act-omission distinction, this shows that many physicians see that it is only a violation of duty to be the direct cause of harm. In the following sections, I will show that this argument is understandable yet somewhat flimsy.
1.1 What is a duty?
Kant defined a duty as a “necessity of acting from respect for the law”
For our purposes, we can consider the “law” that binds physicians to be as basic and uncontroversial as: Never intentionally cause harm to a patient
. The power of this statement consists in the concepts of intention and causation; however, we shall see that these have no moral import.
Intention as a distinctive moral variable seems obvious. If I ran over my neighbour’s cat by accident, I am likely to be judged less severely than if I did so intently. However, A physician causing harm without intent is of little moral consequence to the patient. Consider the case of Willie King who underwent surgery to remove a diseased leg, only for the surgeon to realise he was removing the wrong leg halfway through surgery.
It could be argued that the surgeon made a mistake and was only following what was written on the board in the operating theatre. In other words, he was not responsible
for intentionally causing harm. This addition of responsibility is problematic. The experiments of Stanley Milgram have shown us how easily responsibility for causing harm can be conveniently distributed to avoid feeling guilty.
While it is true that from an objective standpoint we can argue that Milgram’s participants were responsible for the harm they thought they were committing, what matters is the subjective capacity to avoid feeling responsible at the time one decides to act. I am sure that physicians have sufficient insight to avoid falling prey to the phenomenon Milgram describes, but my point is that they do not have objective hindsight prior to dealing with a patient.
Furthermore, James Rachels’ argued that PE necessarily entails the possibility of increased harm to the patient, and this may be inevitably torturous in cases of withdrawal of nutrition to hasten death.
The act-omission distinction, and the law of the physician both operate on a discernible demarcation between acting and not acting, irrespective of the consequence. This hinges on what Bennett calls positive and negative instrumentality.
AE involves positive instrumentality, as a physician would coordinate their body in such a way as to administer a substance which causes death. Whereas PE is a case of negative instrumentality in that a physician ceases to coordinate their body to support the patient and death is the eventual outcome. Rachels argued that the manner of instrumentality was of no moral import. He posited two cases, one in which Smith drowns a child for material gain, and one in which Jones, with the same motive, fails to save a drowning child.
The point is that the manner of cause is irrelevant if someone wishes to bring about a certain state of affairs. I can bring about the death of my neighbour’s cat by either running it over with my car, or by failing to intervene when I see someone else about to do the same.
Despite this, I concede that there seems to be an intuitive difference between AE and PE that has not yet been described.
2 Subjective Illumination
To illustrate the perceptual difference between acting and omitting, consider the following scenarios.
§0 You are on a fishing trip with your friend Egbert, hundreds of kilometres at sea. Egbert reaches over to pull in his line and the boat is knocked violently, sending him overboard. Blood starts to rise to the surface and you notice the tail of a shark. There is a pistol on board and you reach for it, shooting the shark. You manage to identify Egbert in the water, and pull him up to the surface. He has been badly mauled and you both know that will die from his wounds. Through his screams of pain, Egbert asks you to end his torment.
§1 You look Egbert in the eye and hold the pistol to his head. You pull the trigger and he dies instantly.
§2 You let go of Egbert’s hand and he slips back into the water and he drowns within moments.
If you find an intuitive difference between §1 and §2 it may be because you find a reason to hesitate in §1, particularly when considering that you look Egbert in the eye when shooting him – despite this feature being morally irrelevant. While Rachels and his supporters may argue that there is no moral difference between these scenarios, an intuitive difference exists nonetheless. This is perhaps captured by what Gillett calls the “pause”.
When we find ourselves in scenarios that have irreversible and serious implications we may hesitate before acting, perhaps even finding ways to avoid being positively instrumental in the outcome. This omission bias
has some empirical support that shows that we may possess a subjective basis for the act-omission distinction.
Thus, it appears the source of an illumination for our bright line is an intuitive one, and it is easy to understand why physicians would prefer PE over AE. To violate one’s intuition, as seen in the Milgram experiments, leads to potentially damaging psychological consequences for the agent concerned. It is essential to recognise that it is the physician, rather than the logician, who must experience the consequences of terminating (or arranging the termination of) the life of a person in their care. This is perhaps why one physician who objected to AE remarked “And, like it or not, we are not going to be browbeaten into changing our minds by mere logic…”
3 Objections and Normative Implications
One could ask that, despite intuitively telling the difference between killing and letting die, why 37% of physicians in New Zealand agree with legalising AE. One thing we do know about omission bias is that it is both shaped and governed by social norms.
While historic surveys of physicians in New Zealand are not readily available, tracing the attitudes of the public is possible. One study has found a slight increase (3%) of support for AE between 2012 and 2015.
That same study has shown that support for AE has varied along factors such as religion and socio-economic status, which suggests a norm-governed response. It has also been suggested that an increase in media coverage, presumably over the last 10 to 15 years, has made an atmosphere ripe for meaningful discussion on the matter, thus promoting the normalisation of euthanasia.
Lastly, this account could be challenged on normative grounds. I have made the case that no physician should be made to violate their intuition. This should not be mistaken for a normative case, given that I have made the argument against any objective distinction. Therefore, it appears there is a gap between objective morality and intuition and I accept this point. Hume wrote that reason is “…the slave of the passions”
and it seems no less true in this case.
While it is outside the scope of this work, it is evident that more needs to be done to harmonise our objective reasons for AE with any intuitive objections. Peter Singer has suggested the use of the Rawlsian tool of wide reflective equilibrium
for this purpose and this seems to be a meaningful start.
4 Concluding Remarks
We have not been able to show that the act-omission distinction is demarcated by any objective criteria. While physicians appear to have a duty not to intentionally cause harm to an individual, both pain and immoral acts can result from an omission. However, we have also shown that the difference between killing and letting die depends on intuitive concepts of positive instrumentality and causation that is explained by an omission bias. We seem to be averse to feeling implicated in the death of another person. While such a bias should not play a normative role, I have suggested that the prevalence of the bias may diminish over time given its governance by social norms. Lastly, I suggested that this distinction between intuition and objective reasoning gets to the heart of the Humean distinction between reason and the passions.
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New Zealand House of Representatives Health Committee, "Petition 2014/18 of Hon Maryan Street and 8,974 Others," (Wellington, New Zealand: New Zealand House of Representatives, 2017), 15.
Pam Oliver, Michael Wilson, and Phillipa Malpas, "New Zealand Doctors’ and Nurses’ Views on Legalising Assisted Dying in New Zealand," New Zealand Medical Journal
130, no. 1456 (2017): 4.
Y Tony Yang and Farr A Curlin, "Why Physicians Should Oppose Assisted Suicide," Journal of the American Medical Association
315, no. 3 (2016): 247.
Immanuel Kant, "Fundamental Principles of the Metaphysic of Morals," in Collected Works of Immanuel Kant
(East Sussex, United Kingdom: Delphi Classics, 2016), 2288.
Associated Press, "Doctor Who Cut Off Wrong Leg Is Defended by Colleagues," The New York Times
Stanley Milgram, "Behavioural Study of Obedience," Journal of Abnormal and Social Psychology
67, no. 4 (1963).
James Rachels, "Active and Passive Euthanasia," The New England Journal of Medicine
292 (1975): 78.
Jonathan Bennett, "Morality and Consequences," in The Tanner Lectures on Human Values
(Brasenose College, Oxford University 1980).
Grant Gillett, "Euthanasia, Letting Die and the Pause," Journal of Medical Ethics
14, no. 2 (1988).
Mark Spranca, Elisa Minsk, and Jonathan Baron, "Omission and Commision in Judgment and Choice," Journal of Experimental Social Psychology
T. B. Brewin, "Voluntary Euthanasia," Lancet
M. D. Hauser, F. Tonnaer, and M. Cima, "When Moral Intuitions Are Immune to the Law: A Case Study of Euthanasia and the Act-Omission Distinction in the Netherlands," Journal of Cognition and Culture
9 (2009); Pascale Willsemsen and Kevin Reuter, "Is There Really an Omission Effect?," Philosophical Psychology
29, no. 8 (2016).
Carol H J Lee, Isabelle M Duck, and Chris G SIbley, "Demographic and Psychological Correlates of New Zealanders' Support for Euthanasia," New Zealand Medical Journal
130, no. 1448 (2017): 13.
Phillipa Malpas, Kay Mitchell, and Heidi Koschwanez, "End-of-Life Medical Decision Making in General Practice in New Zealand-13 Years On," ibid.128, no. 1418 (2015): 35.
David Hume, A Treatise of Human Nature
, 2nd ed. (Nidditch, Oxford: Clarendon Press, 1975), 415.
Peter Singer, "Ethics and Intuitions," The Journal of Ethics