Alan Saunders: A recent study found that 36% of Australian surgeons reported giving drugs at doses higher than necessary to relieve suffering for terminal patients.

But as well as relieving suffering there was also an ambiguous intention in some cases to hasten death. In other words, a type of slow or passive euthanasia.

Alan Saunders with you for The Philosopher's Zone as we take on what's known in ethical circles as 'the doctrine of double effect', the morality of doing good, and perhaps bad, at the same time.

In the next sitting of the Australian Federal Parliament, Greens Senator Bob Brown is to introduce a private member's bill, which in a roundabout way is about our right to decide how we die.

You might remember that in the 1990s the Federal government infamously passed a law to stop the Northern Territory from allowing voluntary euthanasia. And now Bob Brown wants to overturn the law that itself overturned the right to die laws in the Northern Territory.

But today our focus is on what's going on right now in hospitals and hospices around the country, and we have two guests to help tease out these issues.

Dr Charles Douglas is a cancer surgeon from Newcastle in New South Wales. He's also a lecturer in Clinical Ethics and Health Law at the University of Newcastle.

Cameron Stewart is an Associate Professor in both the Law School at Sydney University and the University's Centre for Values, Ethics and the Law in Medicine. Thanks both of you, for joining us on the program.

Both: It's a pleasure thank you for inviting us.

Alan Saunders: Let's start with you, Cameron Stewart from the Centre for Values, Ethics and the Law in Medicine. The doctrine of double effect goes back a long way; it has its origins with the Catholic theologian and philosopher, St Thomas Aquinas in the 13th century. Can you run through his basic argument, and why he made it in the first place?

Cameron Stewart: Well the basic argument works to distinguish between foreseen consequences of action and intended consequences of action. So I may have an intention to perform a good deed, and the deed itself is good and it has goodness about it, and it can be achieved in a way which is also good or morally neutral. But it may be that in performing that particular deed, and seeking a particular good outcome, I risk a bad outcome. And under the doctrine, as long as I don't intend a bad outcome, and as long as I don't use immoral means to achieve the good outcome, I'm not responsible for the bad outcome.

Alan Saunders: So the action that I'm performing must be good in itself. It can't be a morally neutral, and it certainly can't be a bad action.

Cameron Stewart: It can be amorally neutral but it certainly can't be a bad one, and that comes from the idea that you can't achieve a good outcome using evil means.

Alan Saunders: And this would be contrary to say the view of St Augustine who took a much stricter view of what you were allowed to do.

Cameron Stewart: That's correct. And Aquinas and others in the Catholic tradition have used it to justify a whole manner of different types of behaviour. And it could be used also in other areas, like in just war theory. I may for example want to make the Holy Land safe for pilgrims, and to do that, I may go there to safeguard their passage to sacred sites. But at the same time I might risk inflaming the country into a civil war with the Muslims. And by doing that, it's not that I intend to do that, so I'm not responsible for creating a Holy War.

Alan Saunders: Of the relatively few studies there have been in euthanasia in Australia in a palliative care context, it becomes clear that people's deaths are being hastened by the use of sedatives and analgesics. It happens informally but when it does happen, death is mostly not the sole intention of the treating doctor. Now Charles Douglas, as well as being a cancer surgeon, you've done a couple of small studies on this issue, one of which revealed what I mentioned at the beginning of the show, that 36% of surgeons said they gave drugs at doses higher than necessary to relieve suffering, and with an intention to hasten death. Let's go into this: how did they determine with the patient that this was the appropriate course of action?

Charles Douglas: So that study was an anonymous mailout survey and of course the advantage of that is that you can survey a lot of people, but one of the disadvantages is you can't clarify a lot of these issues. So I can't tell you the answer to that question, except to say that there were other questions n the same survey that said 'Have you ever received an explicit request for euthanasia? And if so, have you ever acquiesced by giving a bolus lethal injection, meaning a single large dose to kill the patient. So only a very small proportion of people have actually given a bolus lethal injection, about 5% in that sample. And in fact, of those who said that they had given excessive doses, drugs to hasten death, with the intention of hastening death, more than half of those had never had an explicit request. So you can conclude from that that they hadn't had a request in that case. So clearly, these were instances which were different from voluntary, from explicitly voluntary euthanasia.

Alan Saunders: You've said that empirical research on doctors' intentions is fraught with difficulties. The distinction between intention and foresight for example is hard to pin down and multiple or ambivalent intentions make it hard to be precise about the doctor's intent.

Charles Douglas: Yes, I think there's no doubt about that in some cases. I think that it's clear in end-of-life decisions that sometimes it becomes, what a doctor is doing looks very much to an outsider, like euthanasia, and indeed sometimes the doctor himself or herself, feels this is what I'm doing is pretty close to euthanasia. You know I think that there is clear evidence from the research that I've done, that some doctors in those hard cases do find themselves in an area of ambivalence or ambiguity. I think that's true.

Alan Saunders: Do you find diversity in the way in which doctors themselves see the issue, where they see the lines drawn between things like intention and pain relief and hastening of death?

Charles Douglas: Yes. I think that one of the interesting things here is that I have, in the research that I've done, I have seen quite a significant difference in the approach of people who work more or less exclusively in palliative care, so whose whole job is to comfort dying patients, to help dying patients to live out the last few hours or days or weeks of their lives in the best way possible. There's a distinction between the way that those people view this issue, and the way that general physicians and surgeons view it.

With the generalists, people whose main focus is to try to cure patients, and often when they can no longer cure, they don't have a lot of good understanding about the dying process and often not a lot of sophistication about dealing with all sorts of issues of distress and grief and pain as well around that dying. And so I think we find that the people who are less experienced with managing dying, are the ones more likely to be ambiguous, and are more likely to think Well, you know, it's not right, it's not really clear whether I'm killing this patient or just keeping them comfortable.' Whereas the palliative care specialist whose focus as a profession, is to keep the patient comfortable, are much more clear in general about what they're doing, and that they're trying to keep the patient comfortable.

Alan Saunders: How are decisions made here? I mean do doctors talk about this with each other? Are there private ethical discussions that occur perhaps between the doctor and the patient, or the doctor and the patient's family?

Charles Douglas: So again, this probably varies a bit in the different areas of medicine. Ideally, and things are going to vary from the ideal, but ideally, there should be conversations between the doctor and the patient when that's possible, and also between the doctor and patient's family, particularly when it's no longer possible. And one of the things about dying is that gradually the dying patient loses the ability to be involved in these kinds of discussions. So it's actually not entirely surprising that some of these cases of ambiguity occur without much discussion with the patient, because the patient has already had such a deteriorating level of consciousness they're not able to participate. But yes, I think by and large, these end-of-life decisions are made in discussions with the patient if possible, and with the family otherwise.

Alan Saunders: But we are saying, are we, that doctors are giving higher than necessary doses. In other words, more than is required simply for pain relief.

Charles Douglas: There's no doubt that that happens, and as I said earlier, I think it happens more often amongst those who don't really know the best possible care for the dying patient. I think with palliative care specialists it probably doesn't happen very much, except in some hard cases.

Alan Saunders: Cameron Stewart, you've written that the positive side of the 'doctrine of double effect' is that it emphasises the need for a careful moral evaluation of a proposed action. And it's a doctrine that encourages medical professionals to distinguish between the intended ends of an action and the intended means to that end. However you've also suggested that the distinction between intended outcomes and foreseen but not intended outcomes may itself be morally dubious. So can you explain this to us?

Cameron Stewart: If we can encourage forms of moral reflection in the provision of pain relief, I think that is a good thing. The problem with it is that the double effects generally tend to lead to forms of specious reasoning. And the distinction that it makes between foresight and an intention is, as Charles has already pointed out, an extremely difficult one in cases where you're getting to the point, the edge of knowledge, where you're not quite sure what the effect of the next dose will be. And it's in that area that it provides I think, a crutch, a moral crutch for people.

Now that may be viewed as a form of surrender of moral responsibility, and in the example that I gave before, of not being responsible for war in certain circumstances, you can see that there's a form of moral surrender, that that form of thinking is specious and it allows you and excuses you from all sorts of behaviour because of that distinction between foresight and intention. And that's also reason I think why in law there isn't a distinction made between foresight and intention, because of that ability to surrender moral reasoning.

Alan Saunders: Let's look at the distinction between active and passive euthanasia. There's often a focus on the intention of the doctor, rather than simply the doctor's action. But is that a morally useful distinction? If a doctor's main aim is to relieve suffering, but the path they take to doing this hastens a patient's death, is this morally permissible?

Cameron Stewart: I don't believe the acts and omissions distinction in the end can survive any pressure put on to it by the modern practice of death management. And the reason I say that is that in the past, our technology was such that you could have omissions, and they were very clear in medicine, and they would clearly lead to death. But in modern medicine where we have a whole heap of forms of intervention from very simple to incredibly complicated interventions for people who are dying, the question of what is an act and what is an omission completely breaks down.

So what is it when someone is turning off the ventilation support, what's that? Is that a form of omission or is it an act? It's an act from one view, because one's turning off a machine, but in another view it's considered to be omission, because you're withdrawing, or taking away something. So I don't think in the end acts and omissions is going to help us. I think we need to firmly grasp the metal and talk about what is a good outcome to achieve here and how is goodness generally figured in the equations for death management.

Alan Saunders: Charles Douglas, you're a cancer surgeon, so I'm not sure whether that means that you're having to confront these practical questions of pain relief for terminal patients, but have you at any time in your career directly faced these ethical questions?

Charles Douglas: Look in my current work I generally am dealing with patients at a much earlier stage of illness, and so no I don't generally now. But most doctors, probably all doctors, would face these kinds of issues at some stage in their career, at least in the early stages when they're working regularly in hospitals, for sure.

And I would endorse what Cameron says from a philosophical point of view. So for those who are interested in philosophy, this distinction between acts and omissions, and also the distinction between intending and foreseeing, on which the doctrine of double effect is based, both of these distinctions, they don't cut it as satisfying philosophy. They don't work to separate the world into good and bad.

However, from a moral psychology point of view, I think that they are nonetheless important. So when you get to the hard cases, they really don't help us very much. But in the vast majority of what we do, we need to have rules by which we live, and as Cameron says, at the very high tech level of medicine that we now have, it becomes very difficult to make any kind of sensible moral distinction based on acts and omissions. But in the vast majority of what we do, it's a very sensible distinction.

Alan Saunders: Charles, let's turn to something that you have already mentioned, boluses and infusions. In other words, the difference between providing slow release of analgesics or sedatives, and providing a fast-acting, and I guess lethal dose, a bolus. Do doctors think it's important to distinguish between minimally or dramatically shortening a person's life via sedatives and analgesics? Is time, the amount of time it takes, morally relevant here?

Charles Douglas: OK, so I have a couple of comments to make about that. First, again I would remind you the distinction that I mentioned before, that palliative care specialists approach this issue very differently to general physicians and surgeons. But if we say that we've got a doctor who actually perhaps has not got such a sophisticated understanding of end of life care, I think there's no doubt that some of those doctors put people on morphine infusions and escalate them, at least in the belief that they're killing someone, or hastening their death, and that psychologically that's kind of easier to do than to walk in and give them a bolus lethal injection.

Morphine, in fact, probably doesn't hasten those patients' death anyway. It's not a drug, mostly at the end of life (unless you're giving it in dramatically large doses and perhaps not even then) that really speeds up death and there's quite a lot of evidence that shows that. But certainly there has become within medicine, and maybe it sort of became a bit entrenched before good palliative care was widespread and education about good palliative care was widespread, but there has been this kind of putting patients on a morphine infusion almost as a rite of death, and just increasing the doses. And I think that people do that rather than euthanase them, perhaps because it's easier to do legally, but perhaps also because it psychologically feels less confronting.

Now I would say one other thing about the timing, and that is that there is actually a whole lot of different issues that are faced if you are dealing with a patient who is months away from death and a patient who is hours away from death. And I think when someone is in what doctors call the terminal phase, really in a irreversible dying process that's going to be finalised in the next few hours or days, probably we can all see that whatever you do isn't going to make a lot of physical difference there, and that takes a lot of the moral conundrum out of it. Whereas if you've got someone who's two or three months from death says 'I want you to kill me', that raises a whole lot of different issues.

Alan Saunders: In other areas of life, continuing with an action, even though you might foresee a hastening of death, is not necessarily morally acceptable. Is it different if we're dealing with a person who's close to death? Cameron.

Cameron Stewart: Well I think in my discipline in law, generally if you foresee that your actions are going to cause death, then you're found to have an intention to kill, so yes, I think it's very important to look at the issue of foresight. And having said that, it's interesting though that the law, as Common Law, and that's Common Law here in Australia, but also in many other countries, has accepted the double effect as being a justified document.

Of course the problem with that is that no-one has ever satisfactorily explained how it could work, given our laws about intention, in intention to kill. So a classic example might be if you had an altercation in the bar, you left the bar, you got into a truck and you drove the truck through the bar, and you killed five people, and then you said, 'Well, I could foresee that I was going to kill someone, but I really didn't intend to kill someone', well we just would say that that's rubbish and we would say, 'Well you had an intention to kill.'

So when we take that thinking, we transplant it into the area of a doctor who's thinking, Well if I give another dose of morphine, or if I give another dose of sedatives and this person is going to stop eating and drinking, or their respiration will be depressed to the point where they'll stop breathing, they have a foresight, they know that it's more probable than not that this will kill the patient. But for some reason we say that it's morally acceptable to do that.

Alan Saunders: But if the consequences of my actions are foreseeable, whether I intend them or not, I am morally responsible for the consequences of those actions, am I not?

Cameron Stewart: Yes. And legally responsible too.

Alan Saunders: So Cameron and Charles, a final question for both of you: What do we do? Do we continue as we are with doctors individually making their own ethical decisions and coming up with their own moral distinctions in these difficult areas, or should we change things? Cameron.

Cameron Stewart: Well I think we need to change things. I think as a lawyer I would suggest some legal changes, firstly to provide some surety to doctors that are providing palliative care that they will face no criminal prosecution as long as they're acting in good faith, and in the best interests of their patients when they provide this care. That's the first thing. And many States in Australia have already done that. But the two most populous States in Australia, Victoria and New South Wales, have not. So that would be the first thing I'd suggest.

The second thing I'd suggest is that we go even further into allowing the question of what is good medical practice to be discussed. And we do that openly, and we do that with honesty in public policy. And it's very hard to get that. And so that's I think a bit of a pipe dream. But it would be nice to have a good policy that something like the NH&MRC could provide in terms of expressing what is appropriate in the areas of palliative care in terms of acceleration of death, and what is not appropriate in terms of acceleration of death.

And then we can, to a degree, forget about the acts and omissions distinctions, or the intention and foresight distinctions, and we can just get down to being honest. And I think the key issue from that will be proportionality. Proportionality will be the key concept, and that is the idea of balancing out the desires and the pain of the patient with the ethics and professionalism of the health provider, and having a proportionate response to the patient's desire for a particular type of death.

Alan Saunders: Assuming that the patient is able to express a desire.

Cameron Stewart: True.

Alan Saunders: Charles Douglas, do you want to see changes?

Charles Douglas: Look I think Cameron's mentioned a couple of changes; I think that something that has been very consistently shown is that the public would like to see the change in legislation, regarding the availability of voluntary euthanasia, or physician assisted suicide. And that's been very, very consistent.

As one of the palliative care specialists who spoke at the Royal Federation of Right to Die Society's in Melbourne a couple of weeks ago said, 'If you found this kind of consistent public support on any other issue, you'd say it was just so overwhelming, it had to change.' So you know, given that consistent level of public support, I guess I'd be surprised if there weren't at some stage a change in Australia in some of the legislatures to allow active voluntary euthanasia or assisted suicide.

But I think that is actually not going to change much about the kind of issues that Cameron's just raised about the way that people actually die. Because it's very, very few people who will want to be involved in those kind of voluntary assisted deaths, which will involve jumping through various bureaucratic hoops to prove that it's appropriate. The vast majority of people are still going to die not wanting to die, but in the care of hopefully good doctors who are hopefully helping them to die the way they want to and as comfortably as possible. So we're still going to have all these areas of grey and all these difficulties to deal with.

Alan Saunders: Well Professor Cameron Stewart and Dr Charles Douglas, thank you very much for tackling this extremely difficult issue with us.

Both: Thank you Alan.

Alan Saunders: And if you've got something to say about these issues, check out our website. The show is produced by Kyla Slaven; the sound engineer is Charlie McKune. I'm Alan Saunders. Back next week.