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Malicious Seeds of Mischievous Doubt

Posted by Dr No on 24 October 2009

cleese.jpg“[Most] patients would much rather be a live problem than a dead certainty.”

—Lord Cohen

There are those who say that holocaust denial is a crime; and those who say that the BBC had no business allowing the BNP leader Nick Griffin space on Question Time. Giving air to vile thoughts, they say, allows those thoughts a legitimacy they do not deserve.

Dr No has no truck with such argument. He believes vile thoughts will always exist amongst us; and that it is better that they be seen and challenged in the light of day, lest they be pushed underground, and fester and corrupt in the darkness of the night.

And so he is all for the debate about KW taking on all comers. Chief amongst the combatants are the doctors, the lawyers, the ethicists and the priests.

The doctors are a divided camp. Some hold that their duty is to save life, and sod the law if it is at odds with this sacred duty, while others are of a more menial mind, and hold that the law is sacred, and sod the patient if the law demands that the patient should die.

The lawyers, of whom it must be remembered that, when a case goes to court, half will always be found wanting, frame all within the argument of law. There is an occasional bleat that they too have moral sensitivity, and that they too have sleepless nights as they agonise over the rights and wrongs of allowing a death, but come the morning, they will follow the legal compass.

And then there are the ethicists, with their argument and debate, and absence of conclusion, who all the while sow their malicious seeds of mischievous doubt.

And lastly there is the God Squad, who, naturally, of course have God on their side, and so argue from a position of moral certainty. They know, because Moses told them so.

These, then, are the combatants that are being tested in the furnace of debate. How, one wonders, is this debate being conducted? What, if anything, can be gleaned from a look at the processes of this debate, and at what lies behind that which is said?

Now, the first thing to note is that is that two of the main groups – lawyers and ethicists – are trained in the arts of argument and debate. Doctors, on the other hand, are not. One might suppose, therefore, that the doctors are at a disadvantage, and indeed they are; at least this one feels he is. Lawyers have a habit of tripping up doctors, and so Dr No is being careful where he treads.

All the more so because the lawyers – well – being lawyers, they might just introduce an element of cleverness into their arguments. There might even be some disingenuousness. And, as it happens, there is.

The first disinegenuity is that the lawyers are keeping mum. There is a striking lack of legal comment about the Wooltorton case. The lawyers are exercising their “right to remain silent”. There is, Dr No suspects, a reason why this normally notably vociferous group are staying quiet: they know that they are on a sticky wicket. They know they got the law wrong on this one, and most are keeping their heads down.

The second disinegenuity is, shall we say, not playing a straight bat. One of the very few legal opinions out there, and which has come to be seen as the definitive legal statement on Wooltorton’s case, has been written by a Professor Shelia McLean, a Professor of Law and Ethics in Medicine at Glasgow University.

Professor McLean, who has more letters after her name than a dog has hairs on its back, makes a robust statement that Wooltorton had capacity; and that therefore the doctors were right to allow her to die. What Prof McLean does not tell us in that piece is that, as it happens, she is also a so-called “Distinguished Supporter” (pity all those poor undistinguished supporters) of the British Humanist Association – an association that numbers amongst it main aims a campaign to legalise assisted suicide. Could it be that she is not entirely impartial on this matter; that she might be, as it were, batting for the other side?

In all likelihood, yes. She has even co-authored a book on euthanasia in which she argues “clearly and forcefully for the legalization of physician assisted suicide”.

The ethicists, on the other hand, appear to be playing a different game, a game of skirmishes on shifting sands, of shimmering chimeras, and arguments being popped out from behind bushes. As philosophers, they have mastered the unmasterable, and penetrated the impenetrable. They have even got their heads round the ideas of the likes of Kant and Heidegger, which enables them to explode the occasional deontological bomb when it suits them.

Now, the trouble with the ethical approach is that, as I have said before, it takes us to a place where the moral compass spins, anything goes, and nothing is beyond contemplation. Dr No does not have a problem with examining ideas, indeed he welcomes the process. In the safety of the debating chamber the compass can spin, and the world be turned inside out, just so long as we don’t export half-baked or chimerical ideas into the real world where they may mutate into doctrines of sinister lethality.

Whenever malicious seeds of mischievous doubt are sown, we should be on our guard. We must join the lawyers and the ethicists at their games, and play as hard as we can to ensure that those who are more skilled in the arts of argument and debate do not carry the day merely because of their greater skill in these arts.


Just found this.

"Sheila McLean, director of the Institute of Law and Ethics in Medicine at Glasgow University, says there are strong arguments for reform in Scotland. “Relatives and clinicians should be able to act on a competently expressed wish to have help in dying,” she says. “Doctors help patients to die all the time and they do it in ways sometimes where there has not been any consent, like when they are withdrawing nutrition and hydration from people in a permanent vegetative state. Although some people would say that is an omission and not an act, in the real world it is an act, and it could be just as culpable, but we choose not to render it as that.”

McLean wants Angiolini to clarify the fact that there is no crime of assisted suicide and on what basis prosecutions would proceed."

Interestingly Prof McLean avoids the word "suicide" completely in her review on KW's death in the BMJ. I wondered why at the time.

Also, contrary the view of some ethicists, she thinks that omission is, in fact, an act.

Well spotted, WD.

I suspect the omission of the word suicide was a deliberate act on Prof McLean's part. The word suicide is still stigmatising, and makes most people feel uncomfortable; so if the word can be replaced with something less upsetting, or avoided altogether, then it becomes easier to talk about, and thereby - and this is the crunch point, more acceptable. The Devil sounds bad; that cute little creature sitting in the corner in a red latex jumpsuit with horns and a tail sounds less so.

The crowning irony is that I can describe McLean's omission of the word suicide as a deliberate act is because she herself tells us that omissions are acts:

Although some people would say that is an omission and not an act, in the real world it is an act, and it could be just as culpable, but we choose not to render it as that.

What's sauce for the goose is sauce for the gander!

An example of omission being regarded as an act is the oath in court, 'The truth, the whole truth and nothing but the truth.' To deceive, you do not need to lie. All you need to do is withhold the truth. So the law regards omission as an act as well.

And well spotted Julie!

It does seem that the question of whether an omission can be an act (whether morally, legally, or in a common-sense sort of way) is central to the whole debate over KW, and by implication any other similar case..

The lawyers appear confused.

The philosophers flip-flop depending on which hat they are wearing (consequentalist (consequences matter most) or deontologicalist (rules matter most)) so we don't get a definitive answer from them either.

All the while, the rest of us have to get on with life (and, sometimes, death). Most of us appear to be consequentalists, and so, for most of us, an omission can be considered an act because of the consequences - in this case death at (not by) the hands of a doctor - of not acting.

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