Many books have been published about physician-assisted death. This book offers a comprehensive and in-depth examination of that subject, but it also extends the discussion to a broader range of end-of-life decisions including suicide, palliative care and sedation until death. In every jurisdiction that has laws permitting some kind of physician-assisted death, a central point of controversy is whether such assistance should only be available to dying patients, or to everyone who wants to end his life. The right to determine (...) the manner and time of one's own death, however, does not necessarily mean that physicians should be permitted to cooperate in ensuring a quick and peaceful death. In this book, Govert den Hartogh considers the fundamental and practical matters-including concrete issues of legal regulation-related to end-of life decision making. He proposes a two-tiered system. Everyone should have access to humane means of ending his life, if his decision to end it is voluntary, well-considered and durable. But doctors should only participate in a joint action of ending the patient's life on his request if they also are convinced of acting in the patient's best interests, in particular by ending intolerable and unrelievable suffering. And perhaps there is reason to restrict that second service to dying patients. The whole argument, however, depends on the extent to which, in both tiers of the system, we can design legal safeguards that will enable us to trust judgments about the requesting person's request and about his suffering. The book considers much new evidence in regard to this issue. What Kind of Death will appeal to researchers and advanced students working in bioethics, applied ethics, philosophy of law and health law. (shrink)

In recent years a large empirical literature has appeared on suffering at the end of life. In this literature it is recognized that suffering has existential and social dimensions in addition to physical and psychological ones. The non-physical aspects of suffering, however, are still understood as pathological symptoms, to be reduced by therapeutical interventions as much as possible. But suffering itself and the negative emotional states it consists of are intentional states of mind which, as such, make cognitive claims: they (...) are more or less appropriate responses to the actual circumstances of the patient. These circumstances often are such that it would rather be a pathological symptom not to be sad and not to suffer. Suffering, therefore, is sometimes and to some extent a condition to be respected. Although I do not dispute that the alleviation of suffering is the main aim of palliative care, in pursuing that aim we should acknowledge a constraint of realism. (shrink)

On the standard view we assess a person’s competence by considering her relevant abilities without reference to the actual decision she is about to make. If she is deemed to satisfy certain threshold conditions of competence, it is still an open question whether her decision could ever be overruled on account of its harmful consequences for her (‘hard paternalism’). In practice, however, one normally uses a variable, risk dependent conception of competence, which really means that in considering whether or not (...) to respect a person’s decision-making authority we weigh her decision on several relevant dimensions at the same time: its harmful consequences, its importance in terms of the person’s own relevant values, the infringement of her autonomy involved in overruling it, and her decision-making abilities. I argue that we should openly recognize the multi-dimensional nature of this judgment. This implies rejecting both the threshold conception of competence and the categorical distinction between hard and soft paternalism. (shrink)

The law persists because people have reasons to comply with its rules. What characterizes those reasons is their interdependence: each of us only has a reason to comply because he or she expects the others to comply for the same reasons. The rules may help us to solve coordination problems, but the interaction patterns regulated by them also include Prisoner's Dilemma games, Division problems and Assurance problems. In these "games" the rules can only persist if people can be expected to (...) be moved by considerations of fidelity and fairness, not only of prudence.This book takes a fresh look at the perennial problems of legal philosophy - the source of obligation to obey the law, the nature of authority, the relationship between law and morality, and the nature of legal argument - from the perspective of this conventionalist understanding of social rules. It argues that, since the resilience of such rules depends on cooperative dispositions, conventionalism, properly understood, does not imply positivism. (shrink)

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In suicidology, the common view is that ‘rational’ suicides occur only rarely, because the competence of people who want to end their lives is compromised by mental illness. In the Netherlands and Flanders, however, patients’ requests for euthanasia or assistance in suicide are granted in 5300 and 1400 cases a year respectively, and in all these cases at least two doctors have confirmed the patient's competence. The combination of these two findings is puzzling. In other countries one would expect at (...) least some of these people to end their own lives. The article argues that we can distinguish between two types of suicide with clustering characteristics. In cases of the first type, the agent doesn't carefully plan his action, doesn't communicate his plans to relatives or others, and uses violent means. In such cases it is reasonable to presume lack of competence. The other type has the opposite characteristics. The most plausible explanation of our problem is that suicides of the second kind are invisible to suicidology, because they tend not to be registered as suicides at all. (shrink)

Opt-out systems of postmortal organ procurement are often referred to as ‘presumed consent’ systems. A presumption directs us, in a case in which no compelling evidence is available to hold that P, nevertheless to proceed as if P were true, unless there is sufficient evidence that it is false. It is recommended to presume consent in this case, because, in the absence of registered objections of the deceased, it is held to be more probable that she consented than that she (...) did not. Whether this suggestion makes sense, however, turns out to depend on the proper interpretation of the concept of ‘consent’. On a mental state conception of consent we are allowed to presume it if we have reason to suppose the deceased to have been in favour of donation. However, we should rather understand consent to be a public action of authorisation. On that view consent cannot be presumed, and the opt-out systems as we presently know them on the European continent and elsewhere do not satisfy the requirement that the deceased should have consented to the removal of his organs. (shrink)

In almost all opt-in systems of postmortal organ procurement, if the deceased has not made a decision about donation, his relatives will be asked to make it. Can this decision power be justified? I consider three possible justifications. (1) We could presume the deceased to have delegated this power to his relatives. (2) It could be argued that, if the deceased has not made a decision, a proxy decision has to be made in his best interests. (3) The relatives could (...) have a standing of their own because they are singled out from the parties whose interests are being affected by the decision by the special relation they had to the deceased. None of these arguments turns out to be convincing. (shrink)

I argue that the concept ‘physician-assisted suicide’ covers two procedures that should be distinguished: giving someone access to humane means to end his own life, and taking co-responsibility for the safe and effective execution of that plan. In the first section I explain the distinction, in the following sections I show why it is important. To begin with I argue that we should expect the laws that permit these two kinds of ‘assistance’ to be different in their justificatory structure. Laws (...) that permit giving access only presuppose that the right to self-determination implies a right to suicide, but laws that permit doctors to take co-responsibility may have to appeal to a principle of mercy or beneficence. Actually this difference in justificatory structure can to some extent be found in existing regulatory systems, though far from consistently. Finally I argue that if one recognizes a right to suicide, as Oregon and other American states implicitly do, and as the European Court of Human Rights has recently done explicitly, one is committed to permit the first kind of ‘assistance’ under some conditions. (shrink)

When a severely suffering dying patient is deeply sedated, and this sedated condition is meant to continue until his death, the doctor involved often decides to abstain from artificially administering fluids. For this dual procedure almost all guidelines require that the patient should not have a life expectancy beyond a stipulated maximum of days (4–14). The reason obviously is that in case of a longer life-expectancy the patient may die from dehydration rather than from his lethal illness. But no guideline (...) tells us how we should describe the dual procedure in case of a longer life-expectancy. Many arguments have been advanced why we should not consider it to be a form of homicide, that is, ending the life of the patient (with or without his request). I argue that none of these arguments, taken separately or jointly, is persuasive. When a commission, even one that is not itself life-shortening, foreseeably renders a person unable to undo the life-shortening effects of another, simultaneous omission, the commission and the omission together should be acknowledged to kill her. I discuss the legal and ethical implications of this conclusion. (shrink)

ABSTRACT In a Living Donor List Exchange program, the donor makes his kidney available for allocation to patients on the postmortal waiting‐list and receives in exchange a postmortal kidney, usually an O‐kidney, to be given to the recipient he favours. The program can be a solution for a candidate donor who is unable to donate directly or to participate in a paired kidney exchange because of blood group incompatibility or a positive cross‐match. Each donation within an LDLE program makes an (...) additional organ available for transplantation. But because most of the pairs making use of the program will be A/o incompatible, it will also tend to increase the waiting time for patients with blood group O, who already have the longest waiting time. It has therefore been objected that the program is materially unjust, because it further disadvantages the least advantaged. This objection appeals to John Rawls’ difference principle. However, the context for which Rawls proposed that difference principle, is significantly different from the present one. Applying the principle here amounts to a lop‐sided trade‐off between considerations of need and considerations of overall utility. Considerations of formal justice, however, may lead to a stronger objection to LDLE programs. Such a program means that one O‐patient on the waiting list is exempted from the application of the general criteria used in constructing the list because he has a special bargaining advantage. This objection is spelled out and weighed against the obvious attraction of LDLE in a situation of (extreme) organ scarcity. (shrink)

The common objection to opt-out systems of postmortal organ procurement is that they allow removal of a deceased person's organs without their actual consent. However, under certain conditions it is possible for ‘silence’—failure to register any objection—conventionally and/or legally to count as genuine consent. Prominent conditions are that the consenter should be fully informed about the meaning of his or her silence and that the costs of registering dissent should be insignificant. This paper explicates this thesis and discusses some possible (...) objections to it: it cannot possibly be guaranteed that each citizen is aware of the meaning of silence; and the system is slightly manipulative because it exploits a common defect in autonomous decision-making. (shrink)

It has often been proposed to restrict access to postmortal organs to registered donors, or at least to give them priority on the waiting list. Such proposals are motivated by considerations of fairness: everyone benefits from the existence of a pool of available organs and of an organised system of distributing them and it is unfair that people who are prepared to contribute to this public good are duped by people who are not. This paper spells out this rationale and (...) goes on to discuss the main principled objections that have been brought forward to such proposals. The most fundamental objection is that healthcare resources should be allocated in accordance with need, not with merit. The reply to this objection is that the principle of allocation according to need only holds in cases in which the provision of such resources and the fair distribution of the burdens of contribution are independently secured, as they are in an obligatory insurance system. (shrink)

Volume 19, Issue 10, October 2019, Page 48-50.

It has been proposed that an old and ill person may have a ‘duty to die’, i.e. to refuse life-saving treatment or to end her own life, when she is dependent on the care of intimates and the burdens of care are becoming too heavy for them. In this paper I argue for three contentions: You cannot have a strict duty to die, correlating to a claim-right of your relatives, because if they reach the point at which the burdens of (...) care are larger than you can reasonably expect them to take, the natural conclusion is that their duty ends. They may be prepared, however, to go on caring for you beyond that point. In that case your responsibility for their wellbeing may require you to refuse this care, even if this results in a situation for you in which death will be preferable to continued life. If this is the correct understanding of your responsibilities, the objection that in the context of family life the burdens of care attached to one family member’s valued existence can never be ‘too heavy’, fails. It postulates unlimited concern on one side and a total lack of concern on the other. (shrink)

Opt-out systems of postmortem organ procurement are often supposed to be justifiable by presumed consent, but this justification turns out to depend on a mistaken mental state conception of consent. A promising alternative justification appeals to the analogical situation that occurs when an emergency decision has to be made about medical treatment for a patient who is unable to give or withhold his consent. In such cases, the decision should be made in the best interests of the patient. The analogous (...) suggestion to be considered, then, is, if the potential donor has not registered either his willingness or his refusal to donate, the probabilities that he would or would not have preferred the removal of his organs need to be weighed. And in some actual cases the probability of the first alternative may be greater. This article considers whether the analogy to which this argument appeals is cogent, and concludes that there are important differences between the emergency and the organ removal cases, both as regards the nature of the interests involved and the nature of the right not to be treated without one’s consent. Rather, if opt-out systems are to be justified, the needs of patients with organ failure and/or the possibility of tacit consent should be considered. (shrink)

In a substantial number of cases, dying patients are brought into a state of lowered consciousness and kept in it until they die in order to prevent or stop severe suffering. Many guidelines and position statements have been published in recent years on sedation until death, as I will call this policy. Some have been published by professional organisations and are meant to be binding for their members, others are the work of task forces and merely aim at providing medical, (...) moral, and legal guidance.1 These guidelines all take the following positions: the patient’s consciousness should not be lowered more than is necessary for preventing her from suffering; it must be impossible to alleviate the suffering in any... (shrink)

It has long been thought that by using morphine to alleviate the pain of a dying patient, a doctor runs the risk of causing his death. In all countries this kind of killing is explicitly or silently permitted by the law. That permission is usually explained by appealing to the doctrine of double effect: If the use of morphine shortens life, that is only an unintended side effect. The paper evaluates this view, finding it flawed beyond repair and proposing an (...) alternative explanation. It is not the intention of the doctor that counts, but the availability of an “objective” palliative justification. (shrink)

The basic question concerning the compatibility of donation after circulatory death protocols with the dead donor rule is whether such protocols can guarantee that the loss of relevant biological functions is truly irreversible. Which functions are the relevant ones? I argue that the answer to this question can be derived neither from a proper understanding of the meaning of the term “death” nor from a proper understanding of the nature of death as a biological phenomenon. The concept of death can (...) be made fully determinate only by stipulation. I propose to focus on the irreversible loss of the capacity for consciousness and the capacity for spontaneous breathing. Having accepted that proposal, the meaning of “irreversibility” need not be twisted in order to claim that DCD protocols can guarantee that the loss of these functions is irreversible. And this guarantee does not mean that reversing that loss is either conceptually impossible or known to be impossible with absolute certainty. (shrink)

Bei der „terminalen Sedierung“ wird ein unheilbar kranker und schwer leidender Patient für den Rest seines Lebens in ein tiefes Koma versetzt. Das hierzu verwendete Morphin bzw. Midazolam kann lebensverkürzend wirken. Ist dies also eine Maßnahme, die das Leben des Patienten beendet, auf seinen Wunsch hin oder nicht? Gewöhnlich wird diese Frage mit nein beantwortet, wenn die lebensverkürzende Wirkung nur vorhersehbar, aber nicht beabsichtigt ist. Allerdings ist der Zugang der Menschen auch zu ihren eigenen Intentionen fallibel, so dass sogar ihre (...) Selbstangaben in komplexen Fällen nicht sehr zuverlässig sind. Wenn ein Arzt sagt, dass er „beabsichtigt“, das Leben eines Patienten zu verkürzen, meint er damit möglicherweise nur, dass dieses vorhersehbare Ergebnis ein erwünschtes ist. Diese Art der Einschätzung kann nicht als solche moralisch diskreditiert werden, weil sie bei anderen allgemein akzeptierten Entscheidungen unvermeidlich ist, z. B. von einer „vergeblichen“ Behandlung Abstand zu nehmen. Legitimerweise können wir von einem Fachmann erwarten, dass er begründet handelt. Deshalb sollte unsere Klassifikation von ärztlichem Handeln als „terminale Sedierung“ oder „Beendigung des Lebens des Patienten“ nicht von den Intentionen des Arztes abhängen, sondern von den in dieser speziellen Krankheitsphase bei diesem speziellen Patienten verwendeten Dosierungen. (shrink)

Bei der „terminalen Sedierung“ wird ein unheilbar kranker und schwer leidender Patient für den Rest seines Lebens in ein tiefes Koma versetzt. Das hierzu verwendete Morphin bzw. Midazolam kann lebensverkürzend wirken. Ist dies also eine Maßnahme, die das Leben des Patienten beendet, auf seinen Wunsch hin oder nicht? Gewöhnlich wird diese Frage mit nein beantwortet, wenn die lebensverkürzende Wirkung nur vorhersehbar, aber nicht beabsichtigt ist. Allerdings ist der Zugang der Menschen auch zu ihren eigenen Intentionen fallibel, so dass sogar ihre (...) Selbstangaben in komplexen Fällen nicht sehr zuverlässig sind. Wenn ein Arzt sagt, dass er „beabsichtigt“, das Leben eines Patienten zu verkürzen, meint er damit möglicherweise nur, dass dieses vorhersehbare Ergebnis ein erwünschtes ist. Diese Art der Einschätzung kann nicht als solche moralisch diskreditiert werden, weil sie bei anderen allgemein akzeptierten Entscheidungen unvermeidlich ist, z. B. von einer „vergeblichen“ Behandlung Abstand zu nehmen. Legitimerweise können wir von einem Fachmann erwarten, dass er begründet handelt. Deshalb sollte unsere Klassifikation von ärztlichem Handeln als „terminale Sedierung“ oder „Beendigung des Lebens des Patienten“ nicht von den Intentionen des Arztes abhängen, sondern von den in dieser speziellen Krankheitsphase bei diesem speziellen Patienten verwendeten Dosierungen. (shrink)

This paper explores the common argument proposed by opponents of the legalization of euthanasia that permitting ending a patient’s life at their request will lead to the eventual legalization of terminating life without request. The author’s examination of data does not support the conclusion that a causal connection exists between legalizing ending of life on request and an increase in the number of cases without request.

When the decision has been made to stop treatment of a newborn child with a bad prognosis, the child usually dies in a short time. Sometimes, however, gasping occurs, and although it is usually thought that this is not a sign of suffering, the parents can hardly fail to interpret it as such. Could that be a reason to administer muscle relaxants to the child? It would not harm the child and may greatly benefit the parents. So it seems the (...) humane thing to do. Legally, however, the action would count as killing, and the prohibition of killing normally implies a denial of the authority to decide on exceptions, which should be understood as a protection of public trust. I discuss three ways of arguing why the law, nevertheless, should allow for an exception in this case. The discussion identifies and describes this kind of conflict, and shows how to evaluate proposals for solving it, using a particularly clear exemplary case by way of illustration. (shrink)

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Can we face our own death? We all know, of course, that we will once die. But do we, can we, really face up to the fact, can we live in a way that really takes it into account? Many philosophers have doubted that we can. Some of them appeal to conceptual arguments, for example the Epicurean argument that we cannot attribute any personal value to the state of our non-existence, because it is not a state of us. Others appeal (...) to phenomenological arguments. At all other times when a possibility that we treasure is not actualized, we are left to deplore the fact, but this particular loss is more encompassing than any other loss. I argue that the conceptual arguments are interesting but in the end unconvincing. The phenomenological arguments, on the other hand, fail to show that it is impossible to live in full consciousness of our mortality, but they explain why it is so difficult for us. Finally, I consider what this tells us about the will to die. (shrink)

In 2015 Robert Veatch published the second edition of his Transplantation ethics, this time together with Lainie Ross. The chapters on postmortem organ procurement distinguish between ‘giving’ and ‘taking’ systems, and argue that ‘taking’ systems may promise a greater yield of organs for transplantation, but inevitably violate a requirement of respect for the deceased's autonomy. That argument has been very influential, and is also representative of a way of thinking that is widespread in the literature and in public debate. In (...) this paper I contend that it is conceptually flawed in a number of important respects. These concern the understanding of both the concept of ‘consent’ and the requirement of respect for autonomy, the role of the relatives in any procurement system, and the factors that actually determine the extent to which a system respects autonomy, under any interpretation of that requirement. (shrink)

The first question I discuss in this paper is whether we have a duty of rescue to make our organs available for transplantation after our death, a duty we owe to patients suffering from organ failure. The second question is whether political obligations, in particular the obligation to obey the law, can be derived from natural duties, possibly duties of beneficence. Such duties are normally seen as merely imperfect duties, not owed to anyone. The duty of rescue, however, is a (...) perfect one, mainly because it applies to us when we are in a unique position to provide urgent help to a person in need. The basic idea of a natural duty account of political obligation is that such unique positions can be artificially created by institutionalized coordination schemes. The remaining problem is how any particular coordination scheme could claim our allegiance rather than any other. This problem can be solved in different ways in the organ donation case, and in respect to a limited set of political obligations, mainly negative ones. A natural duty account is best seen as a constitutive part of a multiple principle theory of political obligation. (shrink)