Doctrine of double effect
It is inevitable that we cause our patients harm during our attempts to deal with their disease or symptoms. Obvious examples of harm are incision, amputation, organ removal, cellular poisoning or irradiation; all of which would be criminal acts outside the control of the clinical regulators. This dilemma of a double effect, where harm coexists with benefit, is stark when considering the use of powerful analgesics for pain relief. Palliation of pain is essential for the patient’s well being, but it is foreseeable that due to the palliation, the patient’s life may be shortened.
In 1957, Dr Bodkin Adams was charged with the murder of one of his patents by administration of morphine. She was an elderly lady who had suffered a stroke. Dr Adams had administered increasing doses of opiates, to ‘relieve her sensation of pain’. The judge held that doctors could take all necessary steps to relieve pain and suffering, even if the measures taken may incidentally shorten life. The jury acquitted Dr Adams, presumably because they found that he was seeking only to relieve pain, only incidentally accelerating death.
Thirty five years later, Dr Cox, treating a patient who was ‘…terminally ill with rheumatoid arthritis, in considerable pain, if not agony…’ had administered two ampoules of intravenous undiluted potassium chloride a minute or so before she died. During his trial for her homicide, the judge told the jury that it was plainly the doctor’s duty to do all that was medically possible to alleviate pain and suffering. His defence asserted that this was an unorthodox method of relieving pain and suffering; which the patient’s suffering fully justified.
The doctor was convicted.
The defence had failed to convince the jury that Dr Cox’s intention had solely been to relieve his patient’s suffering. It can be deduced from the conviction that they believed he intended to kill her. If he had chosen a conventional analgesic, both the prosecution and the conviction would have been unlikely.
The core requirement of the doctrine of double effect is the absence of an intention to kill. If such an intention is present, the motivation of the clinician is irrelevant. Irrespective of the desire to abbreviate suffering, this beneficial motivation is washed away by the law’s insistence that a person who carries out their intention to kill (outside the lawful excuses that would include warfare) must face the charge of murder.
Unsurprisingly, critics of the doctrine assert that it is impossible that a clinician could ignore the foreseeable consequences of administering an opiate: Notwithstanding the relief of suffering, death due to respiratory depression would surely be predictable? Accordingly, how can we distinguish foresight from intent? Why wouldn’t the malicious clinician, privately intending death, conceal his motive by asserting the obvious defence of double effect?
In the trial of a man for murder, (he had, in furious temper, thrown his baby onto a hard surface; fracturing the skull fractured, killing the infant) it was held that a consequence (death) could be said to be intentional if the defendant foresaw it was ‘virtually certain’ that it would arise.
Applying this to clinical law, it can be seen that no reasonable doctor or nurse would administer a drug or a dose which they considered (with virtual certainty) would lead to the patient’s death.
Accordingly, since in reasonable clinical practice the foresight of death due to the administration will not approach the threshold of ‘virtual certainty’, legal academics, doctors and judges now agree that the doctrine of double effect is manageable in the courts.
We remain unfettered in our ability to palliate pain, provided we have no intention whatsoever to end the patient’s life in doing so. But as soon as an intention to kill is allowed to subvert the intention to palliate, murder ensues.
Department of clinical law