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HEALTH ETHICS TODAY
Volume
12, Number 1, Fall/November 2001
Robert & Tracy Latimer
Alister Browne, PhD
Chair, Department of Philosophy
Langara College, Vancouver, BC
Robert Latimer and Paul Bernardo each committed acts of premeditated
homicide. In the eyes of the law, there is no difference between what
they did. Some think this is exactly right; others, that one must be
morally blind to fail to see a difference. I will argue that compassionate
homicide ideally should not be criminally proscribed, and until this
ideal is realized, the laws prohibiting it should not be rigidly enforced.
Let us take the need for law reform first. The Canadian Paediatric
Society holds that decision-makers must always act in the best interest
of children; that sometimes death is preferable to life; and that when
it is, life-support may be terminated.1 All this seems right, and is
in accordance with common medical practice and the law. But to draw
the line of when death can be brought about here discriminates against
those who are living lives which are more burdensome than beneficial
and do not require life-preserving interventions. For instance, if
a child's quality of life failed to meet the Canadian Paediatric Society's
criteria of a life worth living, and the child were on a ventilator,
the ventilator could be removed; if the child required surgery to preserve
her life, the surgery could be withheld; but if the child did not require
anything, she would have to endure. Since the need for life-support
is not a morally relevant difference, that is discrimination, and we
thus have a case for changing the law to allow for active euthanasia.
This suggestion immediately provokes objections; two in particular
deserve consideration. First, one may argue that there is a morally
relevant difference between withholding or withdrawing life support,
on the one hand, and injecting a lethal dose on the other. But why
one should think this is not clear. Withdrawing life-support and injecting
a lethal dose both cause death. The only difference is that the former
does so by taking away something, the latter by putting in something,
and that does not seem morally relevant. Withholding life-sustaining
treatment is different from both in that it does not cause death. But
it is not obvious why a deliberate omission should be treated as morally
different from a deliberate deed when the outcomes are forseen to be
the same.
Second, one may argue that liberalising the law opens the door to
error and abuse. There will be mistakes; deaths will be brought about
to relieve burdens to families rather than children; persons who are
disabled will be disvalued and put at risk. If opening the door to
these possibilities is the worry, then the law allowing forgoing life-support
should likewise be found objectionable, for that poses the same risks.
It is not clear why the safeguards in place to protect against wrongful
forgoing of treatment would not be sufficient to protect against wrongful
active euthanasia. And to rest opposition to law reform on the ground
that this will adversely affect the interests of the disabled sins
against the Canadian Paediatric Society's claim that we must always
act in the interest of the patient. For that view entails that the
interest of the patient can never be sacrificed, as the slippery slope
argument sacrifices it, to the interest of a class of persons.
I now turn to the injustice of applying the current law to Mr. Latimer.
Let us begin by trying to see the matter as he presumably did. Tracy
was a quadriplegic with cerebral palsy and the mental capacity of a
4 month old baby. Tracy enjoyed things such as music, bonfires, being
with her family, and the circus. She could recognize family members,
and loved being rocked gently by her parents. On the other hand, she
was believed to suffer serious and constant pain, which everyone agreed
could not be left untreated. Palliation could not be achieved by way
of medication because that conflicted with her anti-seizure drugs,
despite which she suffered 5-6 seizures daily. A feeding tube may have
allowed for more effective medication, but surgical palliation was
the chief hope. Tracy had undergone numerous surgeries in her lifetime,
including two to cut stronger muscles and tendons to balance weaker
ones, and another to implant rods to support her spine, all of which
imposed painful recoveries. One left her in a cast from chest to toes
for 6 months. The surgery now contemplated involved removing her upper
thigh bone, which would leave her lower leg loose. The anticipated
recovery time was one year; the procedure would cause pain; there was
no guarantee that the surgery would succeed in controlling the pain;
the doctors suggested that further surgery would be required in the
future to relieve the pain emanating from various joints in Tracy's
body.2 The Latimers perceived the proposed surgeries as torture and
mutilation, and Mr. Latimer formed the opinion that it was not in Tracy's
interest to face that future. Given this opinion, it is understandable
that a loving parent would take matters firmly in his own hands rather
than pursue medical treatment.
But there was no shortage of critics. Those who pointed to cases where
parents persevered and disabled children flourished, or to Stephen
Hawking or lesser lights who live eminently worthwhile lives, missed
the point, for there is no parity between these persons and Tracy Latimer.
Likewise missing the mark are critics from the disability community
who contend that any mercy shown Mr. Latimer strikes at them. Disability
was only contingently connected to the condition that rendered Tracy's
life intolerable. She could have just as easily been in an unacceptable
condition because of an accident or acute illness. Exempting Mr. Latimer
from the full force of law gives one no more grounds for thinking less
of the disabled than for thinking less of persons with failing kidneys.
One may suggest that people nonetheless will draw that conclusion.
Even so, Mr. Latimer and his family should not be penalized for the
public's bad logic. To insist that Tracy be kept alive in an unacceptable
state so others will not be harmed is unfair to her, and to insist
that Mr. Latimer be punished for the same reason is unfair to him.
A more interesting line of criticism is that the decision to end Tracy's
life was premature. Some physicians weighed in with suggestions of
treatments they thought should have been tried; some challenged Mr.
Latimer's opinion of Tracy's quality of life and prospects. This criticism
provokes two difficult questions. The first is: When can we say that
a child's quality of life is so low as to make the life not worth preserving?
One response is that life is so precious that as long as there is any
possibility of a worthwhile quality of life emerging, the life must
be preserved. This standard would be defensible if treatment never
had adverse consequences. But treatment that may achieve the best outcome
may also incur the worst, and this makes the standard implausible.
A reasonable person may choose to forgo the best to avoid the worst
when those outcomes are equally probable and of equal but opposite
value. It could not therefore be wrong to choose this for those who
cannot decide for themselves. And if, as Mr. Latimer and others saw
it, the odds are greatly against a good outcome, and the worst outcome
is far more evil than the best is good, to try for the best is an unethical
gamble.
But others disagreed with how Mr. Latimer saw it, and this raises
the second question: How are such disagreements over quality of life
to be resolved? Sometimes closer inspection of the evidence and logic
can get at the truth. But sometimes it cannot, and opinion remains
divided. It is unacceptable to mechanically proceed on the most optimistic
opinion, for (as we have just seen) that may be an unethical gamble.
It is likewise unacceptable to act on whatever the majority thinks,
for it is unfair to give everyone an equal say in a decision when not
everyone will be equally acquainted with or interested in it, or have
to equally bear its consequences. The President's Commission's3 answer
is that when opinion is divided, the family, in recognition of its
special knowledge and concern, should be allowed to make the decision.
It is hard to see what answer could be better. But if we accept it,
then, in the absence of a more objective resolution than the courts
offered, it is Mr. Latimer's judgement that should carry the day.
There is thus reason to think Mr. Latimer acted reasonably in an unjust
legal situation. What then justifies punishing him? He does not deserve
punishment or stand in need of reformation. To punish him beyond what
he deserves to deter others is unjust. Fear of undergoing a judicial
ordeal similar to Mr. Latimer's is arguably as effective a deterrent
as fear of imprisonment. The claim that murder must be denounced is
undermined by the fact that analogous cases of euthanasia have resulted
in probation or a suspended sentence.4 Punishment would be apt only
if either Mr. Latimer acted negligently in forming his opinion that
Tracy's life was not worth living, i.e., did not carefully consider
or weigh the facts and options, or he knew that Tracy's life was worth
living and acted from other than altruistic motives. But there is no
coercive evidence in any of the trial transcripts in favour of either
of these. Everything in the appeal court's trial transcripts points
to Mr. Latimer acting on the basis of a conscientiously formed belief
and out of concern for Tracy. If this were the basis of his action,
then, even if the facts were other than he believed, or he erred in
forming his opinion that Tracy's life was not worth living, it is hard
to find a clear rationale for any punishment, let alone punishment
to the full extent of the law.
One who is sympathetic to the forgoing may nonetheless argue that
the law is the law, and nothing to save Mr. Latimer could have been,
or now can be, done. But this is not so. Prosecution is at the discretion
of the attorney-general, and Mr. Latimer need not have been charged;
a lesser charge could have been laid, as it has been in other similar
cases of euthanasia5 ; juries have a common law right (and arguably
moral duty even absent that) to bring in a not guilty verdict if they
think applying the law would lead to an unjust result; a Royal Prerogative
could now free Mr. Latimer. These expedients seem fashioned exactly
for this kind of case. But they all also call for courage and compassion,
and so far the only principal who has shown those qualities is Mr.
Latimer.
- Alister Browne, PhD
Chair, Department of Philosophy, Langara College; Ethics consultant
and Chair of the ethics committee, Vancouver Hospital & Health
Sciences Centre; Associate Clinical Professor, Department of Family
Practice, University of British Columbia; Member, ethics committees
of GF Strong Rehab & George Pearson Centres, BC's Children's
Hospital, Sunny Hill Hospital, and Burnaby Hospital.
References
1. Canadian Paediatric Society, Bioethics Committee. Treatment decisions
for infants and children. Canadian Medical Association Journal 1986;135:447-448.
2. As described in R. v. Latimer, (1997-12-01) SKQB QB97497, and R.
v. Latimer, 2001 SCC1, File No. 26980.
3. President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research. Deciding to Forego Life-sustaining
Treatment. Washington, DC: US Government Printing Office, 1983:214-223
esp.
4. R. v. Mataya; R. v. de la Roche; R. v. Myers; R. v. Brush. Cited
and described in R. v. Latimer, (1977-12-01) SKQB QB97497.
5. See note 4 above.
Contents
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