Journal of Medicine and Philosophy, 39: 430–443, 2014 doi:10.1093/jmp/jhu022 Advance Access publication June 27, 2014
On Omissions and Artificial Hydration and Nutrition
*Address correspondence to: Bryan C. Pilkington, PhD, Department of Philosophy, Aquinas College, 1607 Robinson Road SE, Grand Rapids, MI 49506, USA. E-mail: [email protected]
Understanding what sorts of things one might be responsible for is an important component of understanding what one should do in situations where the administration of artificial hydration and nutrition are required to sustain the life of a patient. Relying on work done in the philosophy of action and on moral responsibility, I consider the implications of omitting the administration of artificial hydration and nutrition and instances in which the omitting agent would and would not be responsible for the death of the patient. I am primarily interested in arguing against those who wish to seat responsibility for the death of a patient in an underlying pathology, even when the underlying pathology is not the cause of the patient’s death. Keywords: artificial hydration and nutrition, moral responsibility, omissions I. Introduction In a paper published in the Journal of Medical Ethics in September 1979, Colin Honey writes: In practical decision-making there remains an important difference between acts and omissions. No amount of philosophical discussion obscures the fact that it is a common-sense guide in many cases. But there are complexities, too—and the distinction cannot thoughtlessly be applied in all cases. Nevertheless, for ordinary moral thinking it may prove to be a valuable rule-of-thumb. (Honey, 1979, 143–4)
Honey’s analysis is more nuanced than the common-sense guideline he supports, but even in its qualified manner it is confused. It continues the mistakenly strict dichotomy between what we do and what we fail to do, which, © The Author 2014. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: [email protected]
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Bryan C. Pilkington* Aquinas College, Grand Rapids, Michigan, USA
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II. A Recent Papal Allocution and the Ensuing Discontent In March 2004, Pope John Paul II made the following statement regarding AHN: The administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use furthermore should be considered in principle ordinary and proportionate, and as such morally obligatory insofar as and until it is seen to have attained its proper finality, which in the present cases consists in providing nourishment to the patient and alleviation of his suffering…. The evaluation of probabilities, founded on waning hopes of recovery when the vegetative state is prolonged beyond a year, cannot ethically justify the cessation or interruption of minimal care for the patient,
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as a result, leads us away from serious thought about this dichotomy and erroneously affords us an easy fallback position. In a more recent article in the Journal of Medical Ethics, John Coggon writes, “When considering the moral nature of an agent or his behaviour, our concern is with all he does and does not do given what he could do. To exclude what he did not do, or to subcategorize it, is not obviously helpful or right” (Coggon, 2008, 576–9). In this paper, I consider the relationship between omissions and moral responsibility1 and how such consideration should shape our understanding and evaluation of the administration of artificial hydration and nutrition (AHN). I hope to shed some light on the paramount question in these situations: when is the administration of AHN morally required? The strategy of this paper is as follows. First, I shall briefly mention one point of contention over AHN regarding death by starvation, which was raised in a recent papal encyclical. Consideration of this point of contention suggests that two issues must be addressed: in failing to administer AHN, is the administering agent morally responsible for the death of the patient, and is what he does wrong? After laying the groundwork for a discussion of omissions in the third section, heavily reliant on some recent work on omissions in the philosophy of action, I take up the first of these issues in earnest in the fourth section. Next, I consider and evaluate a few situations, including a case of cancer and a case of a person in a permanent vegetative state, in which the administration of AHN might be morally required. I argue that those who claim that omitting administration of AHN to a patient in persistent vegetative state (PVS) is permissible because an underlying pathology (and not the omission of nutrition and hydration) causes the patient’s death are mistaken. This is not true of the particular case of cancer that I discuss, and the difference between the cases is due to a difference between the causal efficacy of actions and omissions and the differences in the transmission of responsibility to the outcomes in each case. Finally, I address some implications of the argument and briefly return to the second issue—the moral evaluation of the action— suggested in the second section.
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including nutrition and hydration. Death by starvation or dehydration is in fact the only possible outcome as a result of their withdrawal. In this sense it ends up becoming, if done knowingly and willingly, true and proper euthanasia by omission... Besides, the moral principle is well known according to which even the simple doubt of being in the presence of a living person already imposes the obligation of full respect and of abstaining from any act that aims at anticipating the person’s death (John Paul II, 2004, pt. 4, no emphasis added).
III. Omissions First things first: what is an omission? An omission is a failure of some kind; it is a failure to do something. There are, of course, many ways to fail to do something. Kent Bach (2010) suggests four: “(trying and) not succeeding, refraining, omitting, and (some cases of) allowing.”5 I want to focus on intentional omission.6 Intentionally omitting to do something requires three things: (1) a decision not to do something, (2) the decision has a relevant connection to the agent’s not doing it, and (3) what the agent fails to do is something the agent is supposed to do (in some qualified sense).7 For my purposes here, I assume that (1) and (2) are clearly understood and do not require support. I write that (3) must be qualified in some way because in many cases what it is that the agent is supposed to do may be at issue; (3)
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This statement sparked much controversy over the moral obligatoriness of AHN. It also led to the raising of many questions regarding the status and interpretation of papal allocutions, their translation,2 and where this teaching fits within the history of Catholic thought. Many answers, though disputed, have been given. I am not interested in these questions here, but rather in the role that omissions play in the moral evaluation of the administration of AHN. To address the proper role of omissions in deliberation about the administration of AHN, we must focus on a different question: by failing to administer artificial nutrition and hydration, is the relevant agent killing the person in need of nutrition and hydration? Given the situations in which AHN is often considered, this question can (often) be stated as: by failing to administer artificial nutrition and hydration, does a doctor, a family, or the patient himself3 kill the patient? “Killing” is a harsh and morally loaded term. It suggests the two points at issue for our discussion: is the relevant agent responsible for the death of the patient and, if he is, has he done something wrong?4 In what follows, I focus on the first issue and only briefly return to the second at the close of the paper. In order to address the points at issue, we must first understand omission and its connection to moral responsibility. Although philosophical thought on omission extends beyond the past two decades, the last 20 years have seen a great deal of insightful work on the subject. It is to this recent work that I now turn.
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allows us to take account of particular roles and special obligations, which might change our understanding of particular omissions and our moral evaluations of them. For example, one’s occupation as a firefighter or doctor might increase the number of things that one might be supposed to do in an emergency. Consider the following example.
Now, I might have forgotten to raise my hand. I might have been too tired or too lazy to raise my hand. I might have torn my rotator cuff and so been unable to lift my arm. Each of these would explain my not raising my hand and not blocking her shots during the game. However, as you and your friend both know, I am intentionally omitting to block the shots. I decided not to block the shots. My not blocking the shots gives the ball a chance to go into the basket. I do this even though blocking shots in the game of basketball is something an opponent is supposed to do. Roughly, this is what I take to be happening when someone intentionally omits to do something. This illustration also helps clarify the point of the “supposed to do” qualification. With respect to the game of basketball, a player defending his basket against an opponent is supposed to (attempt to) block her shots. My omitting to raise my arm is a failure to do something I am expected to do. If I had teammates, I very well might have failed in my responsibilities to them. However, we understand that given the context it might be the right thing for me to do.8 Intentional omissions are most relevant to the question at hand because most decisions not to administer AHN are conscious and purposeful. It is generally not the case that the agent forgot, fell asleep, became distracted, or was physically barred from administering AHN. This gives us at least a rough and ready idea of what an intentional omission is, and I think most of us have an intuitive idea of what these omissions look like. Having addressed what intentional omissions are, we can move to consider our responsibility for them. IV. Responsibility for Omissions We can be held responsible for our intentional omissions.9 We can also be held responsible for the results of our intentional omission: their outcomes.10 If I sit idly by as something very bad happens to you, something that I could
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BASKETBALL: I want to give my younger sister a chance to beat me in a game of basketball, so I omit to raise my hand to block her shots. You and a friend are watching the game. You and the friend know, as do I, that my sister has a superb shot and, if left unblocked, it will go in. Before the game, I inform both of you that I want to give her a chance to win and that, since she is shorter than me, blocking shots would severely hurt her chances. I inform you and the friend that I have decided not to block any of her shots. You think this is the right thing to do in order to increase her understanding of the game. Your friend thinks it is wrong because by doing so my sister will not learn to shoot over blockers.
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TR (Causal): An agent’s responsibility for X transmits to an outcome Y if X causes Y (and the required provisos are met).13 NA (Causal): An action can cause an outcome even if the outcome would still have occurred in the absence of the action. By contrast, an omission cannot cause an outcome if the outcome would still have occurred in the absence of the omission.
Together, the two principles give us the new asymmetry between actions and omissions: NA: An agent’s responsibility for an action can transmit to an outcome even if the outcome would have occurred anyway in the absence of the action. However, an agent’s responsibility for an omission cannot transmit to an outcome if the outcome would have occurred anyway in the absence of the omission.
Sartorio argues that causation is the most plausible candidate for the type of dependence that transmits an agent’s responsibility for her actions and
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easily prevent with little or no cost to myself, you would blame me. That is, you would hold me morally responsible. For what would you hold me morally responsible? This depends on the details of the case. You might blame me for doing something other than helping you. You might blame me for not caring (enough) about you or for ignoring your needs. You might blame me for whatever I have done to become the kind of person that I am, the kind of person who would not help you in this situation. All of these are plausible targets of blame. (If, however, you came to realize that through no fault of my own I did not realize you needed help, you may very well no longer blame me.11 You may no longer hold me morally responsible.) However, what I believe you blame me for (among other things) is my failure to help you. You hold me morally responsible because if I act, you can forgo this very bad thing. I also believe you hold me (at least partially) morally responsible for the bad thing’s occurrence. This is because I have causally contributed in some relevant way to the occurrence of this very bad thing. Again, if I had acted, you would not have undergone this very bad thing. Thus, I claim that you hold me responsible both for my omission and for the outcome of my omission. Now I have just engaged in a fair bit of intuition mongering. I think that there is intuitive appeal for the claim that I am morally responsible for my omissions and the outcomes of those omissions, and that is because, for the latter, I causally contribute to them by means of the former.12 In this section, I explore these ideas. Understanding them more fully will help us to appreciate more deeply what goes on when we omit administering AHN. Here, I rely heavily on the work of Carolina Sartorio. The goal of this section is to make the aforementioned claims intuitively plausible. In an insightful paper, Sartorio (2005, 468–70) argues for a new asymmetry between actions and omissions. In that paper, she argues in favor of two principles relevant to our discussion:
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omissions to their outcomes. (Consider TR (Causal).) She also argues that this causal dependence does not hold in certain situations involving omissions, specifically when the outcome would have occurred in the absence of the omission. (Consider NA (Causal).) I do not reconstruct the argument for TR (Causal) and NA (Causal) here.14 For the purposes of this paper, I rely on their intuitive appeal and the force of a few examples. Sartorio contrasts two cases of a surgeon failing to perform a cut that would allow for the removal of a tumor in a patient’s brain. In “Drunken Doctor,” because he is inebriated, a doctor misses making the necessary and sufficient cut to remove the tumor and the patient dies because of the tumor. In “Lucky Doctor,” the doctor negligently fails to make the necessary cut to remove the tumor, but (as is later found out) the tumor in this case was in too deep and even making the necessary cut would not have saved the patient. NA suggests the correct evaluations of these cases. The drunken doctor is blamed both for missing the cut and for the death that results, but the lucky doctor is blamed only for the missed cut and not for the death. The difference here is that the outcome would have occurred anyway in the absence of the omission.15 The fact that an outcome was going to happen anyway deprives an agent’s omission of causal power but does not similarly deprive an agent’s action of causal power. Omissions do not promote existing threats or introduce new threats, as actions do, which is not to say that letting a process develop cannot be sufficient for causing an outcome.16 This is intuitively plausible and, I believe, correct. Suppose I feed a starving child. I have performed some action the outcome of which I am responsible for. I am responsible for the child not starving. Even if it were the case that someone else would have come to the aid of the child later on and fed the child, I am still responsible for the child not starving. Similarly, if I had shot and killed the child—suppose I had no food and thought that considerations of mercy required me to put the poor child out of her misery—I would be responsible for the death of the child. Even if it were the case that someone else had a similar idea but arrived late on the scene, I still killed the child.17 Regardless of our evaluation of my or the latecomer’s actions, I am responsible for the child’s death. The latecomer did not kill her; she was already dead. This (intuitively) is not the same for omissions. Suppose the amount of food I have is not enough to prevent the child from starving and, knowing this, I do not give her food. I have not caused the child’s death. I am not responsible for the death because what I omitted to do makes no difference to the outcome. If these cases are persuasive, and I believe they are, we are responsible for the outcomes of our intentional omissions unless the outcome would have occurred in the absence of the omission.18 To further support this, recall BASKETBALL. Notice that you supported my omitting to block my sister’s shot and your friend did not. Whether or not omitting to block the shot was the right thing to do, it is appropriate for you to praise or blame
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me for denying my sister a chance at a basket. Both you and your friend agree on this, though you evaluate my omission differently. If someone were to ask you later about your disagreement over my omission (hopefully out of earshot of my sister), somewhere in your response you would mention that I was responsible for letting the shot go in.19 However, consider a variant case:
We respond differently to cases like SOCCER than to cases like BASKETBALL. “She is too good!” or “Nothing you could do, Jack!” might be heard from the stands after Jen scores. This is because there was nothing that Jack could have done to stop Jen from scoring. Although he failed to guard her as he should have, she would have scored anyway. We hold Jack responsible for his omission, not guarding her, but not for giving up a goal. Consider a variant case involving an action in which had Jack not stopped Jen, the goalie, Charlie, would have stopped the shot. In this variant, if Jack makes a play on the ball and stops Jen, we hold him responsible, even though Charlie would have stopped the ball. We have seen that NA is intuitively plausible. It is supported by a number of examples. In the next section, I apply NA and insights from this section to cases of AHN with the hope that it will further our understanding of these very challenging cases in medicine. V. Some Cases Consider the following to cases offered by Fr. Kevin Flannery (2010).20 CANCER: An 80-year-old man with lung cancer had undergone chemotherapy over a period of two to three years, but has been told that the cancer has come back. Undergoing another round of chemotherapy will be physically difficult and entail intensive medical attention and considerable expense. He has recently lost his wife and, though his insurance will cover the chemotherapy, he wonders whether it is worth it and at some moments even says to himself that he really wants to die. The man wonders if, by refusing further treatment, he is killing himself. PVS: Due to an injury, a woman is in a vegetative state.21 She has been in this state for just over two years. Her family and doctors are considering whether to omit further artificial nutrition and hydration. They wonder if, by omitting AHN, they are killing her.
Flannery argues that nutrition and hydration must be administered, even by artificial means,22 and that to do so does not constitute a medical act.23
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SOCCER: Jen is dribbling the ball up the field and puts a great move on Jack. She beats him, fires a shot from midfield, and scores. Jack underestimated Jen’s skill, so he did not guard her closely. Because he omitted guarding her closely, something he should have done, Jen was able to make the move and score the goal. However, if he had guarded her closely, she had another move which was good enough to beat Jack’s close guard. Thus, regardless of Jack’s omission, Jen would have scored.
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MED MACHINE: A patient is hooked up to a machine that analyzes health needs and provides the relevant treatment26—be it vitamins, medication, et cetera. The machine can be preprogrammed such that if a person were unable to press the “administer” button to initiate the treatment each day, the machine would automatically do so. A patient has cancer. He pushes the button each day for a number of days. He receives chemotherapy treatments and his cancer goes into remission. In case anything happens to him in the future, he preprograms the machine. He wonders, if he were ever in a PVS, whether he should program the machine to administer food and hydration and for how long? He decides both not to press the button to continue his chemotherapy in the event that his cancer comes back and not to preprogram the machine to feed and hydrate him automatically for more than a year if he is in a vegetative state.
Why would the patient’s decision about the cancer be acceptable, but not his decision about PVS? Recall the new asymmetry between action and omission: NA: An agent’s responsibility for an action can transmit to an outcome even if the outcome would have occurred anyway in the absence of the action. However, an agent’s responsibility for an omission cannot transmit to an outcome if the outcome would have occurred anyway in the absence of the omission.
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Relying on Thomas Aquinas, Flannery argues that we can be responsible for omissions that can be traced back to our wills, even without explicit knowledge of the action’s morality. He clarifies this point through analogy. The pilot of a ship is still responsible for a ship sinking even if he never entertains the thought that he will not go to the helm, which may be required for the ship’s staying afloat. If the pilot were to fall asleep, he would still be responsible for the sinking of the ship. However, if he “could not have been” or “was not obliged to be” at the helm, then he is not culpable. We can see a connection between these claims and the aforementioned “supposed to do so” qualification.24 In light of this understanding, his evaluations of CANCER and PVS diverge. He claims that administration of nutrition and hydration is required in PVS, whereas continuance of chemotherapy in CANCER is not. According to Flannery, what kills the man in CANCER is the cancer and not the failure to undergo further chemotherapy. To return to the metaphor, the man allows the ship to go down, whereas a much younger person would sink the ship by failing to do the same. However, the woman in PVS could continue to live a healthy life unless she is denied nutrition and hydration. One might wonder, though, with respect to the relevant omissions, is there really a difference in these two cases? Before considering omissions and NA, two clarifications are necessary. First, it is important for Flannery’s argument that AHN is not a medical act, but I do not take up this issue here.25 Second, there is an important difference between the two cases. In CANCER, the patient makes the decisions, but in PVS, the patient does not. In order to avoid any complications due to this difference, let us focus on the following case:
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VI. Some Implications I would like to highlight a few points from our consideration of omission and its relation to contentious cases that are worth emphasizing. First, those who argue that omitting administration of AHN to a patient in PVS is permissible because an underlying pathology (and not the omission of nutrition and hydration) causes the patient’s death are mistaken. As we have seen in MED MACHINE, one can omit chemotherapy and not be responsible for this omission because one’s omission cannot cause an outcome that would take place in the absence of that omission. However, this does not hold true for
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Applying NA will help us answer this question. The death, which inevitably ensues from the patient omitting to push the button for chemotherapy on the machine (and receive treatment), is not something the patient is responsible for because the patient’s responsibility for that omission cannot transmit to outcome (death by cancer) because it would have occurred anyway in the absence of the omission. This is different from the patient omitting to push the button for continued nutrition and hydration if the patient ends up in PVS. This is because in the absence of this omission, the patient would not have died of dehydration or starvation. Thus, even though both patients are responsible for their omissions to press the button for treatment (or preprogrammed treatment), only the patient who ends up in PVS is responsible for the outcome, death by starvation and dehydration. In employing NA in cases of AHN, it is important to understand the outcomes. Failure to do so could result in a mistaken understanding and evaluation of cases. To borrow an example from Flannery, contrast CANCER with the case of a much younger person omitting cancer treatment due to depression regarding something else in his life. NA may seem to vindicate him from moral responsibility because the outcome will occur anyway in the absence of the omission. However, this is only if we mistakenly take the outcome to be merely “death due to cancer.” The outcome must be described in more detail. Consideration of the age, circumstances, life expectancy, and expected quality of life are all things that might be taken into account when describing the outcome. I have offered neither an exact nor an exhaustive list of what might need to be taken into account in adequately describing an outcome. I have also neither offered any moral evaluation regarding the situations of the older and the younger person with cancer nor claimed that NA supported such an evaluation. Rather, I have claimed that the person in PVS is morally responsible for her death if she omits AHN, whereas the person in CANCER is not. I have also claimed that a full and careful understanding of outcomes is necessary in order to understand what an agent is morally responsible for, especially in cases of AHN administration. It is necessary to describe these situations fully.27
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Notes 1. From here on I use responsibility to mean moral responsibility. 2. For an interesting discussion of the translation of the Pope’s statement from Italian into English, see Harvey (2006). 3. This may be the case, depending on how one understands living wills and their moral implications. 4. I do not take killing to fall exclusively within the realm of actions, nor do I take it always to be wrong. If one prefers, “causing the death of” could be substituted for killing, as could “intending to kill” or “aiming to kill.” The important thing is to keep in mind both the causal and moral evaluative
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the omission of nutrition and hydration for a patient in PVS. The omission in this case is the cause of the outcome. Second, I have not entered into a discussion of what counts as ordinary versus extraordinary means. This is an interesting and important question in considering cases involving AHN. Taking up this question in earnest, as well as what constitutes a medical act, is a worthwhile endeavor. However, if what has been said so far about omissions is correct, one may not claim that something other than the omission of nutrition and hydration caused the death of a person in PVS. Relying on the distinction between ordinary and extraordinary means might (and, most likely, will) affect our moral evaluations of the relevant omission but should not affect our understanding of moral responsibility for that omission. Third, proponents of the moral permissibility of omitting AHN often appeal to the similarity between it and assisted respiration. Given this similarity, they argue that if one is permissible, so is the other. Since the omission of assisted respiration is often taken to be permissible, they conclude that so, too, should the omission of AHN. I do not have room here to explore fully this interesting and important case. Very briefly, if we rely on NA, the relevant agent is morally responsible for the omission of artificial respiration, like omission of AHN, unless the outcome would have occurred anyway in the absence of the omission.28 I would like to close this paper by offering a few words on the metaphor of the ship from Aquinas, and taken up by Flannery. If we accept NA, and I think we should, we must accept that there are causal differences and differences in moral responsibility between omissions of chemotherapy and of the administration of AHN and artificial respiration. However, that we are morally responsible for some outcome does not yet specify whether we are blameworthy or praiseworthy for it and to what degree. Unlike the spectators in BASKETBALL, I have not yet offered an evaluation. This is why the metaphor of the ship, and its lack of specificity, captures quite well the situation we are in with respect to these challenging cases.29 Ships inevitably go down; tattered and damaged, they sink into the sea. What we should do or not do to keep them afloat—and at what cost, and in what state—is a question that has not yet been decisively answered.
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questions. For ease of language, I use “killing.” This usage also captures Pope John Paul II’s usage when he discusses “euthanasia by omission” (see the aforementioned quotation). 5. Bach points out that there are even more ways than these not to do something. 6. There is some conceptual overlap between intentional omission and the other kinds of failure, especially refraining. None of the claims made in this paper hangs on intentional omissions being explicitly distinct from the other categories of failure. 7. I rely heavily on Bach here, but these ideas are reflected throughout the literature. Bach uses the first two to describe refraining, generally, and the last to describe omitting, in particular. Bach qualifies the idea that intentional omissions involve a failure to do something you are “supposed to do,” saying such in a “conveniently broad and vague sense” (6). Bach offers many examples to help explain this. The examples fall into categories, such as neglecting to execute a step in a procedure, not fulfilling a duty or responsibility, and even, in some cases, not fulfilling a mere expectation. See also Williams (1995) and Clarke (2010). 8. This is the case even if I would be culpable for the same kind of intentional omission given a different context, for example, if I were playing in the final of the NCAA tournament for the great University of Notre Dame women’s basketball team. Considerations of (3) will affect our moral evaluation of an omission because consideration of things we are supposed to do is relevant to such evaluation. Although I have not yet entered into serious consideration of moral evaluation, I want to head off the objection that what is different in evaluations of my omission is the difference between moral rules as opposed to basketball rules. (3) captures the idea that, generally and loosely speaking, when you play basketball you should block shots, just as you should dribble, shoot, rebound, and score. Those are the sorts of things you are supposed to do (and claims about these things carry with them a certain degree of intuitive force). To suggest that I violate the rules of basketball and uphold the rules of morality is mistaken because generally things are not so clear-cut; however, to show this requires argument far beyond the scope of this paper. Fortunately, this is not necessary. Recall that you and your friend offer different evaluations of my omission and that those evaluations are rooted in the fairness of the game and in how best my sister will learn to play the game, respectively. Even if we grant the moral-basketball divide, it is not clear that either evaluation is solely rooted in moral or basketball rules. 9. Questions about responsibility for omissions in general will yield more, and more nuanced, answers. We need not worry about these answers here because intentional omission is what is at issue in the administration of AHN. 10. Outcomes are various and might be complex. I say a bit more about outcomes later on in this paper. However, I think we have an intuitive idea of what outcomes are. They are—at least—the results or effects of our actions or omissions that are connected up in the right way with those actions and omissions. Surely, there might be some results or effects that are not properly our outcomes (the results may not be connected to us in the right way and so we might not be morally responsible for them). Also, it may be the case that we are responsible for outcomes that are caused by our actions or omissions. On this last point, see Sartorio (2004). 11. Attributions of blame are complicated and your appropriately blaming me in this situation might need to take into account my occurrent awareness of your situation or whether you are able to trace back to a previous action, omission, or state for which I was morally responsible and which led (was connected in the right way) to my not helping you in the current situation. 12. I have already noted that outcomes are complicated notions. I do not have space to discuss them fully here. There are additional conditions that will hold when we assess an agent’s culpability, for example, there may be extenuating circumstances that excuse the agent. See endnote 10. 13. The required provisos involve things such as foreseeability; see Sartorio (2005, 464). 14. See Sartorio (2005) for this argument, especially pp. 466–72. Very briefly and crudely, she argues that causation is the most plausible candidate for the type of dependence that transmits responsibility of agents’ actions and omissions to outcomes because counterfactual dependence fails. She offers the following case to illustrate this. A train is moving down a track. I can switch it from Track A, where it will hit Victim, to Track B or Track C. B merges back with A and the train will still hit Victim; C does not. I choose to switch to B, but if I had chosen C a neuroscientist would have forced my hand to switch the train to B. This case has the same structure as Fischer and Ravizza’s (1998) famous Sharks case, in which I deliberately fail to save a drowning child, but if I had attempted to save the child, sharks would have prevented me from doing so. In the train case, I could not have saved the Victim (because of the neuroscientist), but the victim’s death counterfactually depended on my flipping the switch. Thus, counterfactual dependence does not transmit responsibility. Sartorio also offers a variant of Sharks, Planted
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Sharks, in which I put the sharks in the water. In this case, I am responsible for the child’s death even though I am unable to save her because of the presence of sharks. This is because I am responsible for the sharks being put into the water in the first place. She correctly notes that I am responsible for the child’s death because I put the sharks in the water, bringing about the fact that I could not save her today. Additionally, it is not my omission to try to save her today that causes her death because I could not have done so. This supports NA. 15. Sartorio (2005, 473) writes, “Intuitively, when one merely redirects a train that was already going to hit and kill a person, one doesn’t thereby cause the person’s death; by contrast, when one shoots the bullet, one does cause the person’s death, even if the death would still have occurred had one not done those things.” 16. Sartorio (2005, 474) notes, “. . . if a mother doesn’t feed her baby when she could easily have fed him, and the baby starves to death, then the mother doesn’t just let the process of starvation develop, but, in addition, she causes the baby’s death.” 17. Philosophers have made much of shooting and sniper examples. Notice that in classic sniper cases, the first bullet may pierce the heart of the target mere seconds or milliseconds before the second bullet, the latter of which is from a second sniper. We may attribute a number of things to the second sniper, many of which are quite similar to (if not exactly the same as) the things we may attribute to the first; however, there is one thing we cannot attribute to the second sniper: he did not kill the target. 18. The reason for focusing on outcomes is to avoid certain infinite regress worries. For more on this, see Sartorio (2004), especially pp. 316–7. She notes, “The thesis that responsibility for outcomes requires causation is widespread among philosophers . . . . Clearly, we can only be responsible for what happens in the external world if we are hooked up to the world in some way. Now, the only way in which it seems that we could be hooked up to the world is by means of our actions and omissions” (316). 19. That this accords with our intuitions and experience and so offers some support for the argument, does not commit me to any more serious claims about reactive attitudes as the source of moral responsibility. 20. The importance of understanding omissions for moral evaluation, especially regarding life-anddeath decisions, was noted by Fr. Kevin Flannery in a paper delivered in 2010 at the 25th Annual Notre Dame Medical Ethics Conference. Flannery offered great insight into understanding the moral implications of AHN, the disciplines and practices involved in decisions regarding AHN, and the Catholic Church’s teaching on AHN. I take two examples from that paper—the first by paraphrase, the second by extrapolation, and by adding names for ease of reference. My references here refer to the then-unpublished Flannery (2010); it was later published as Flannery (2011). 21. Or, if one prefers, irreducible coma. I do not think anything, philosophically, relies on the use of this term. 22. (In claiming this, he follows Pope John Paul II and the Congregation for the Doctrine of the Faith.) Unless one of the following three conditions hold: (1) the situation under consideration is one of extreme poverty, where artificial administration is impossible; (2) the patient is unable to assimilate food or liquid, and so, the administration proves useless (or futile or is no longer proportionate and thus further administration of nutrition and hydration would fail to meet its proper finality); (3) in rare situations where such administration becomes “excessively burdensome” for the patient or “may cause significant physical discomfort” to the patient (Flannery, 2010, 5). 23. This is not a new claim. G. E. M. Anscombe in discussing the difference between omission, commission, and intent with respect to the management of severely handicapped children, wrote, “. . . For willful starvation there can be no excuse. The same cannot be said for failing to operate or to adopt some course of treatment” (Anscombe, 1981, 122). 24. Flannery’s (2010) analysis is quite helpful here. He writes, “Obligations the omissions of which are culpable are far-extending—extending, that is, as we have seen, even to events that have no real agents; but they are also limited: limited by the scope of the positive precepts of the discipline or practice to which they pertain, so that some omissions fall outside that scope entirely.” 25. This does not mean that, were it considered a medical act, the moral evaluation of the case must differ. It may be that the relevant practices and disciplines still allow for such distinctions. Rather, the kind of act AHN turns out to be matters because of the resources to which one can appeal, given the practices and disciplines to which the precept applies (and possibly even where the ultimate decision lies). There has been much debate on this point and I do not have space here to address it. This consideration involves challenging questions, in part, because the means involved in AHN are clearly medical. One must have knowledge and skill related to the medical profession in order to administer AHN. The
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Acknowledgments I would like to thank Alex Arnold, Kevin Flannery, Richard Kim, Gilbert Meilaender, Tom Mulherin, Brad Rettler, and David Solomon for helpful comments on this paper.
References Anscombe, G. 1981. Commentary 2 on John Harris’ “Ethical problems in the management of some severely handicapped children.” Journal of Medical Ethics 7:122–3. Bach, K. 2010. Refraining, omitting, and negative acts. In A Companion to the Philosophy of Action, eds. T. O’Connor and C. Sandis, 50–58. Malden, MA: Blackwell Publishing. Clarke, R. 2010. Intentional omissions. Nous 44:158–77. Coggon, J. 2008. On acts, omissions, and responsibility. Journal of Medical Ethics 34:576–79. Fischer, J. and M. Ravizza. 1998. Responsibility and Control. New York: Cambridge University Press. Flannery, K. 2010. Making Christian life and death decisions. Based on his 2010 paper given at the 25th Annual Notre Dame Medical Ethics Conference, Rome, Italy. ———. 2011. Making Christian life and death decisions. Christian Bioethics 17:140–52.
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possibility of success and failure will be best judged by someone with medical knowledge. The art of best administration has been discovered and continues to be taught and improved by those within the discipline. However, the aim is to feed. The aim is ordinary, normal, and fits best within an understanding of human concerns. However, this line of thought might prove to be problematic. If we can think of all acts and omissions in broad enough terms, every relevant precept might be a human precept or, at least, it is tough to see what room is left for any genuinely medical precepts, as distinguished from broader, human precepts. 26. I use “treatment” for ease of language. I am not claiming with this usage that AHN is a kind of medical treatment and, therefore, a medical act. 27. In addition to these considerations regarding outcomes, the agent also needs information about the effectiveness of a particular treatment. If, for example, the chemotherapy would have cured him, then the outcome would be different. To further complicate things, suppose the treatment would offer him another year of life. There, too, the outcome is different. However, if pressing the button would give him an extra second or minute, then it is not clear that this is a different outcome. Clearly, time is relevant. How close two outcomes can be in order to be the same or similar enough is a complicated question that requires much thought and might not admit of a clear-cut answer or standard. 28. It is worth emphasizing that this is a point about causation and, in turn, responsibility, but not yet about moral evaluation. It is also worth clarifying that there are different reasons for taking someone off of a respirator, and this increases the challenge of correctly distinguishing and assessing AHN and assisted respiration. It is important to describe the situation fully in this case. One may, for example, extubate a patient after surgery with the hope he will breathe on his own, but with the intent of reintubating him if he does not. This is different from the case in which one removes the respirator without any plans to reintroduce it if the patient is unable to breathe on his own. There are interesting epistemological questions, particularly in their relation to intention, which need to be answered here. What I take NA to show is that the relevant agent is morally responsible unless the outcome would have occurred anyway in the absence of the omission. Now, it is also important to note that if the outcome were different, say, a patient were to breathe on his own for a period of time and then require assistance, then one may make the determination that the outcome would occur regardless of the omission. In that case, the agent would not be responsible for the outcome. 29. I suspect that much disagreement over many of these challenging cases relies on competing conceptions of persons and what it is for human beings to live good lives. Commitments on answers to a number of sophisticated questions about these issues also contribute to the disagreement.
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Harvey, J. 2006. The burdens-benefits ratio consideration for medical administration of nutrition and hydration to persons in the persistent vegetative state. Christian Bioethics 12:99–106. Honey, C. 1979. Acts and omissions. Journal of Medical Ethics 5:143–4. John Paul II, Pope. 2004. Address of John Paul II to the participants in the International Congress: “Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas.” The Holy See. Available: http://www.vatican.va/holy_father/john_paul_ii/ speeches/2004/march/documents/hf_jp-ii_spe_20040320_congress-fiamc_en.html Sartorio C. 2004. How to be responsible for something without causing it. Philosophical Perspectives 18:315–36. Sartorio, C. 2005. A new asymmetry between actions and omissions. Nous 39:460–82. Williams, B. 1995. Acts and omissions, doing and not doing. In Making Sense of Humanity and Other Philosophical Papers, 56–64. New York: Cambridge University Press.
On Omissions and Artificial Hydration and Nutrition
*Address correspondence to: Bryan C. Pilkington, PhD, Department of Philosophy, Aquinas College, 1607 Robinson Road SE, Grand Rapids, MI 49506, USA. E-mail: [email protected]
Understanding what sorts of things one might be responsible for is an important component of understanding what one should do in situations where the administration of artificial hydration and nutrition are required to sustain the life of a patient. Relying on work done in the philosophy of action and on moral responsibility, I consider the implications of omitting the administration of artificial hydration and nutrition and instances in which the omitting agent would and would not be responsible for the death of the patient. I am primarily interested in arguing against those who wish to seat responsibility for the death of a patient in an underlying pathology, even when the underlying pathology is not the cause of the patient’s death. Keywords: artificial hydration and nutrition, moral responsibility, omissions I. Introduction In a paper published in the Journal of Medical Ethics in September 1979, Colin Honey writes: In practical decision-making there remains an important difference between acts and omissions. No amount of philosophical discussion obscures the fact that it is a common-sense guide in many cases. But there are complexities, too—and the distinction cannot thoughtlessly be applied in all cases. Nevertheless, for ordinary moral thinking it may prove to be a valuable rule-of-thumb. (Honey, 1979, 143–4)
Honey’s analysis is more nuanced than the common-sense guideline he supports, but even in its qualified manner it is confused. It continues the mistakenly strict dichotomy between what we do and what we fail to do, which, © The Author 2014. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: [email protected]
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Bryan C. Pilkington* Aquinas College, Grand Rapids, Michigan, USA
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II. A Recent Papal Allocution and the Ensuing Discontent In March 2004, Pope John Paul II made the following statement regarding AHN: The administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use furthermore should be considered in principle ordinary and proportionate, and as such morally obligatory insofar as and until it is seen to have attained its proper finality, which in the present cases consists in providing nourishment to the patient and alleviation of his suffering…. The evaluation of probabilities, founded on waning hopes of recovery when the vegetative state is prolonged beyond a year, cannot ethically justify the cessation or interruption of minimal care for the patient,
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as a result, leads us away from serious thought about this dichotomy and erroneously affords us an easy fallback position. In a more recent article in the Journal of Medical Ethics, John Coggon writes, “When considering the moral nature of an agent or his behaviour, our concern is with all he does and does not do given what he could do. To exclude what he did not do, or to subcategorize it, is not obviously helpful or right” (Coggon, 2008, 576–9). In this paper, I consider the relationship between omissions and moral responsibility1 and how such consideration should shape our understanding and evaluation of the administration of artificial hydration and nutrition (AHN). I hope to shed some light on the paramount question in these situations: when is the administration of AHN morally required? The strategy of this paper is as follows. First, I shall briefly mention one point of contention over AHN regarding death by starvation, which was raised in a recent papal encyclical. Consideration of this point of contention suggests that two issues must be addressed: in failing to administer AHN, is the administering agent morally responsible for the death of the patient, and is what he does wrong? After laying the groundwork for a discussion of omissions in the third section, heavily reliant on some recent work on omissions in the philosophy of action, I take up the first of these issues in earnest in the fourth section. Next, I consider and evaluate a few situations, including a case of cancer and a case of a person in a permanent vegetative state, in which the administration of AHN might be morally required. I argue that those who claim that omitting administration of AHN to a patient in persistent vegetative state (PVS) is permissible because an underlying pathology (and not the omission of nutrition and hydration) causes the patient’s death are mistaken. This is not true of the particular case of cancer that I discuss, and the difference between the cases is due to a difference between the causal efficacy of actions and omissions and the differences in the transmission of responsibility to the outcomes in each case. Finally, I address some implications of the argument and briefly return to the second issue—the moral evaluation of the action— suggested in the second section.
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including nutrition and hydration. Death by starvation or dehydration is in fact the only possible outcome as a result of their withdrawal. In this sense it ends up becoming, if done knowingly and willingly, true and proper euthanasia by omission... Besides, the moral principle is well known according to which even the simple doubt of being in the presence of a living person already imposes the obligation of full respect and of abstaining from any act that aims at anticipating the person’s death (John Paul II, 2004, pt. 4, no emphasis added).
III. Omissions First things first: what is an omission? An omission is a failure of some kind; it is a failure to do something. There are, of course, many ways to fail to do something. Kent Bach (2010) suggests four: “(trying and) not succeeding, refraining, omitting, and (some cases of) allowing.”5 I want to focus on intentional omission.6 Intentionally omitting to do something requires three things: (1) a decision not to do something, (2) the decision has a relevant connection to the agent’s not doing it, and (3) what the agent fails to do is something the agent is supposed to do (in some qualified sense).7 For my purposes here, I assume that (1) and (2) are clearly understood and do not require support. I write that (3) must be qualified in some way because in many cases what it is that the agent is supposed to do may be at issue; (3)
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This statement sparked much controversy over the moral obligatoriness of AHN. It also led to the raising of many questions regarding the status and interpretation of papal allocutions, their translation,2 and where this teaching fits within the history of Catholic thought. Many answers, though disputed, have been given. I am not interested in these questions here, but rather in the role that omissions play in the moral evaluation of the administration of AHN. To address the proper role of omissions in deliberation about the administration of AHN, we must focus on a different question: by failing to administer artificial nutrition and hydration, is the relevant agent killing the person in need of nutrition and hydration? Given the situations in which AHN is often considered, this question can (often) be stated as: by failing to administer artificial nutrition and hydration, does a doctor, a family, or the patient himself3 kill the patient? “Killing” is a harsh and morally loaded term. It suggests the two points at issue for our discussion: is the relevant agent responsible for the death of the patient and, if he is, has he done something wrong?4 In what follows, I focus on the first issue and only briefly return to the second at the close of the paper. In order to address the points at issue, we must first understand omission and its connection to moral responsibility. Although philosophical thought on omission extends beyond the past two decades, the last 20 years have seen a great deal of insightful work on the subject. It is to this recent work that I now turn.
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allows us to take account of particular roles and special obligations, which might change our understanding of particular omissions and our moral evaluations of them. For example, one’s occupation as a firefighter or doctor might increase the number of things that one might be supposed to do in an emergency. Consider the following example.
Now, I might have forgotten to raise my hand. I might have been too tired or too lazy to raise my hand. I might have torn my rotator cuff and so been unable to lift my arm. Each of these would explain my not raising my hand and not blocking her shots during the game. However, as you and your friend both know, I am intentionally omitting to block the shots. I decided not to block the shots. My not blocking the shots gives the ball a chance to go into the basket. I do this even though blocking shots in the game of basketball is something an opponent is supposed to do. Roughly, this is what I take to be happening when someone intentionally omits to do something. This illustration also helps clarify the point of the “supposed to do” qualification. With respect to the game of basketball, a player defending his basket against an opponent is supposed to (attempt to) block her shots. My omitting to raise my arm is a failure to do something I am expected to do. If I had teammates, I very well might have failed in my responsibilities to them. However, we understand that given the context it might be the right thing for me to do.8 Intentional omissions are most relevant to the question at hand because most decisions not to administer AHN are conscious and purposeful. It is generally not the case that the agent forgot, fell asleep, became distracted, or was physically barred from administering AHN. This gives us at least a rough and ready idea of what an intentional omission is, and I think most of us have an intuitive idea of what these omissions look like. Having addressed what intentional omissions are, we can move to consider our responsibility for them. IV. Responsibility for Omissions We can be held responsible for our intentional omissions.9 We can also be held responsible for the results of our intentional omission: their outcomes.10 If I sit idly by as something very bad happens to you, something that I could
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BASKETBALL: I want to give my younger sister a chance to beat me in a game of basketball, so I omit to raise my hand to block her shots. You and a friend are watching the game. You and the friend know, as do I, that my sister has a superb shot and, if left unblocked, it will go in. Before the game, I inform both of you that I want to give her a chance to win and that, since she is shorter than me, blocking shots would severely hurt her chances. I inform you and the friend that I have decided not to block any of her shots. You think this is the right thing to do in order to increase her understanding of the game. Your friend thinks it is wrong because by doing so my sister will not learn to shoot over blockers.
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TR (Causal): An agent’s responsibility for X transmits to an outcome Y if X causes Y (and the required provisos are met).13 NA (Causal): An action can cause an outcome even if the outcome would still have occurred in the absence of the action. By contrast, an omission cannot cause an outcome if the outcome would still have occurred in the absence of the omission.
Together, the two principles give us the new asymmetry between actions and omissions: NA: An agent’s responsibility for an action can transmit to an outcome even if the outcome would have occurred anyway in the absence of the action. However, an agent’s responsibility for an omission cannot transmit to an outcome if the outcome would have occurred anyway in the absence of the omission.
Sartorio argues that causation is the most plausible candidate for the type of dependence that transmits an agent’s responsibility for her actions and
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easily prevent with little or no cost to myself, you would blame me. That is, you would hold me morally responsible. For what would you hold me morally responsible? This depends on the details of the case. You might blame me for doing something other than helping you. You might blame me for not caring (enough) about you or for ignoring your needs. You might blame me for whatever I have done to become the kind of person that I am, the kind of person who would not help you in this situation. All of these are plausible targets of blame. (If, however, you came to realize that through no fault of my own I did not realize you needed help, you may very well no longer blame me.11 You may no longer hold me morally responsible.) However, what I believe you blame me for (among other things) is my failure to help you. You hold me morally responsible because if I act, you can forgo this very bad thing. I also believe you hold me (at least partially) morally responsible for the bad thing’s occurrence. This is because I have causally contributed in some relevant way to the occurrence of this very bad thing. Again, if I had acted, you would not have undergone this very bad thing. Thus, I claim that you hold me responsible both for my omission and for the outcome of my omission. Now I have just engaged in a fair bit of intuition mongering. I think that there is intuitive appeal for the claim that I am morally responsible for my omissions and the outcomes of those omissions, and that is because, for the latter, I causally contribute to them by means of the former.12 In this section, I explore these ideas. Understanding them more fully will help us to appreciate more deeply what goes on when we omit administering AHN. Here, I rely heavily on the work of Carolina Sartorio. The goal of this section is to make the aforementioned claims intuitively plausible. In an insightful paper, Sartorio (2005, 468–70) argues for a new asymmetry between actions and omissions. In that paper, she argues in favor of two principles relevant to our discussion:
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omissions to their outcomes. (Consider TR (Causal).) She also argues that this causal dependence does not hold in certain situations involving omissions, specifically when the outcome would have occurred in the absence of the omission. (Consider NA (Causal).) I do not reconstruct the argument for TR (Causal) and NA (Causal) here.14 For the purposes of this paper, I rely on their intuitive appeal and the force of a few examples. Sartorio contrasts two cases of a surgeon failing to perform a cut that would allow for the removal of a tumor in a patient’s brain. In “Drunken Doctor,” because he is inebriated, a doctor misses making the necessary and sufficient cut to remove the tumor and the patient dies because of the tumor. In “Lucky Doctor,” the doctor negligently fails to make the necessary cut to remove the tumor, but (as is later found out) the tumor in this case was in too deep and even making the necessary cut would not have saved the patient. NA suggests the correct evaluations of these cases. The drunken doctor is blamed both for missing the cut and for the death that results, but the lucky doctor is blamed only for the missed cut and not for the death. The difference here is that the outcome would have occurred anyway in the absence of the omission.15 The fact that an outcome was going to happen anyway deprives an agent’s omission of causal power but does not similarly deprive an agent’s action of causal power. Omissions do not promote existing threats or introduce new threats, as actions do, which is not to say that letting a process develop cannot be sufficient for causing an outcome.16 This is intuitively plausible and, I believe, correct. Suppose I feed a starving child. I have performed some action the outcome of which I am responsible for. I am responsible for the child not starving. Even if it were the case that someone else would have come to the aid of the child later on and fed the child, I am still responsible for the child not starving. Similarly, if I had shot and killed the child—suppose I had no food and thought that considerations of mercy required me to put the poor child out of her misery—I would be responsible for the death of the child. Even if it were the case that someone else had a similar idea but arrived late on the scene, I still killed the child.17 Regardless of our evaluation of my or the latecomer’s actions, I am responsible for the child’s death. The latecomer did not kill her; she was already dead. This (intuitively) is not the same for omissions. Suppose the amount of food I have is not enough to prevent the child from starving and, knowing this, I do not give her food. I have not caused the child’s death. I am not responsible for the death because what I omitted to do makes no difference to the outcome. If these cases are persuasive, and I believe they are, we are responsible for the outcomes of our intentional omissions unless the outcome would have occurred in the absence of the omission.18 To further support this, recall BASKETBALL. Notice that you supported my omitting to block my sister’s shot and your friend did not. Whether or not omitting to block the shot was the right thing to do, it is appropriate for you to praise or blame
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me for denying my sister a chance at a basket. Both you and your friend agree on this, though you evaluate my omission differently. If someone were to ask you later about your disagreement over my omission (hopefully out of earshot of my sister), somewhere in your response you would mention that I was responsible for letting the shot go in.19 However, consider a variant case:
We respond differently to cases like SOCCER than to cases like BASKETBALL. “She is too good!” or “Nothing you could do, Jack!” might be heard from the stands after Jen scores. This is because there was nothing that Jack could have done to stop Jen from scoring. Although he failed to guard her as he should have, she would have scored anyway. We hold Jack responsible for his omission, not guarding her, but not for giving up a goal. Consider a variant case involving an action in which had Jack not stopped Jen, the goalie, Charlie, would have stopped the shot. In this variant, if Jack makes a play on the ball and stops Jen, we hold him responsible, even though Charlie would have stopped the ball. We have seen that NA is intuitively plausible. It is supported by a number of examples. In the next section, I apply NA and insights from this section to cases of AHN with the hope that it will further our understanding of these very challenging cases in medicine. V. Some Cases Consider the following to cases offered by Fr. Kevin Flannery (2010).20 CANCER: An 80-year-old man with lung cancer had undergone chemotherapy over a period of two to three years, but has been told that the cancer has come back. Undergoing another round of chemotherapy will be physically difficult and entail intensive medical attention and considerable expense. He has recently lost his wife and, though his insurance will cover the chemotherapy, he wonders whether it is worth it and at some moments even says to himself that he really wants to die. The man wonders if, by refusing further treatment, he is killing himself. PVS: Due to an injury, a woman is in a vegetative state.21 She has been in this state for just over two years. Her family and doctors are considering whether to omit further artificial nutrition and hydration. They wonder if, by omitting AHN, they are killing her.
Flannery argues that nutrition and hydration must be administered, even by artificial means,22 and that to do so does not constitute a medical act.23
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SOCCER: Jen is dribbling the ball up the field and puts a great move on Jack. She beats him, fires a shot from midfield, and scores. Jack underestimated Jen’s skill, so he did not guard her closely. Because he omitted guarding her closely, something he should have done, Jen was able to make the move and score the goal. However, if he had guarded her closely, she had another move which was good enough to beat Jack’s close guard. Thus, regardless of Jack’s omission, Jen would have scored.
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MED MACHINE: A patient is hooked up to a machine that analyzes health needs and provides the relevant treatment26—be it vitamins, medication, et cetera. The machine can be preprogrammed such that if a person were unable to press the “administer” button to initiate the treatment each day, the machine would automatically do so. A patient has cancer. He pushes the button each day for a number of days. He receives chemotherapy treatments and his cancer goes into remission. In case anything happens to him in the future, he preprograms the machine. He wonders, if he were ever in a PVS, whether he should program the machine to administer food and hydration and for how long? He decides both not to press the button to continue his chemotherapy in the event that his cancer comes back and not to preprogram the machine to feed and hydrate him automatically for more than a year if he is in a vegetative state.
Why would the patient’s decision about the cancer be acceptable, but not his decision about PVS? Recall the new asymmetry between action and omission: NA: An agent’s responsibility for an action can transmit to an outcome even if the outcome would have occurred anyway in the absence of the action. However, an agent’s responsibility for an omission cannot transmit to an outcome if the outcome would have occurred anyway in the absence of the omission.
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Relying on Thomas Aquinas, Flannery argues that we can be responsible for omissions that can be traced back to our wills, even without explicit knowledge of the action’s morality. He clarifies this point through analogy. The pilot of a ship is still responsible for a ship sinking even if he never entertains the thought that he will not go to the helm, which may be required for the ship’s staying afloat. If the pilot were to fall asleep, he would still be responsible for the sinking of the ship. However, if he “could not have been” or “was not obliged to be” at the helm, then he is not culpable. We can see a connection between these claims and the aforementioned “supposed to do so” qualification.24 In light of this understanding, his evaluations of CANCER and PVS diverge. He claims that administration of nutrition and hydration is required in PVS, whereas continuance of chemotherapy in CANCER is not. According to Flannery, what kills the man in CANCER is the cancer and not the failure to undergo further chemotherapy. To return to the metaphor, the man allows the ship to go down, whereas a much younger person would sink the ship by failing to do the same. However, the woman in PVS could continue to live a healthy life unless she is denied nutrition and hydration. One might wonder, though, with respect to the relevant omissions, is there really a difference in these two cases? Before considering omissions and NA, two clarifications are necessary. First, it is important for Flannery’s argument that AHN is not a medical act, but I do not take up this issue here.25 Second, there is an important difference between the two cases. In CANCER, the patient makes the decisions, but in PVS, the patient does not. In order to avoid any complications due to this difference, let us focus on the following case:
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VI. Some Implications I would like to highlight a few points from our consideration of omission and its relation to contentious cases that are worth emphasizing. First, those who argue that omitting administration of AHN to a patient in PVS is permissible because an underlying pathology (and not the omission of nutrition and hydration) causes the patient’s death are mistaken. As we have seen in MED MACHINE, one can omit chemotherapy and not be responsible for this omission because one’s omission cannot cause an outcome that would take place in the absence of that omission. However, this does not hold true for
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Applying NA will help us answer this question. The death, which inevitably ensues from the patient omitting to push the button for chemotherapy on the machine (and receive treatment), is not something the patient is responsible for because the patient’s responsibility for that omission cannot transmit to outcome (death by cancer) because it would have occurred anyway in the absence of the omission. This is different from the patient omitting to push the button for continued nutrition and hydration if the patient ends up in PVS. This is because in the absence of this omission, the patient would not have died of dehydration or starvation. Thus, even though both patients are responsible for their omissions to press the button for treatment (or preprogrammed treatment), only the patient who ends up in PVS is responsible for the outcome, death by starvation and dehydration. In employing NA in cases of AHN, it is important to understand the outcomes. Failure to do so could result in a mistaken understanding and evaluation of cases. To borrow an example from Flannery, contrast CANCER with the case of a much younger person omitting cancer treatment due to depression regarding something else in his life. NA may seem to vindicate him from moral responsibility because the outcome will occur anyway in the absence of the omission. However, this is only if we mistakenly take the outcome to be merely “death due to cancer.” The outcome must be described in more detail. Consideration of the age, circumstances, life expectancy, and expected quality of life are all things that might be taken into account when describing the outcome. I have offered neither an exact nor an exhaustive list of what might need to be taken into account in adequately describing an outcome. I have also neither offered any moral evaluation regarding the situations of the older and the younger person with cancer nor claimed that NA supported such an evaluation. Rather, I have claimed that the person in PVS is morally responsible for her death if she omits AHN, whereas the person in CANCER is not. I have also claimed that a full and careful understanding of outcomes is necessary in order to understand what an agent is morally responsible for, especially in cases of AHN administration. It is necessary to describe these situations fully.27
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Notes 1. From here on I use responsibility to mean moral responsibility. 2. For an interesting discussion of the translation of the Pope’s statement from Italian into English, see Harvey (2006). 3. This may be the case, depending on how one understands living wills and their moral implications. 4. I do not take killing to fall exclusively within the realm of actions, nor do I take it always to be wrong. If one prefers, “causing the death of” could be substituted for killing, as could “intending to kill” or “aiming to kill.” The important thing is to keep in mind both the causal and moral evaluative
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the omission of nutrition and hydration for a patient in PVS. The omission in this case is the cause of the outcome. Second, I have not entered into a discussion of what counts as ordinary versus extraordinary means. This is an interesting and important question in considering cases involving AHN. Taking up this question in earnest, as well as what constitutes a medical act, is a worthwhile endeavor. However, if what has been said so far about omissions is correct, one may not claim that something other than the omission of nutrition and hydration caused the death of a person in PVS. Relying on the distinction between ordinary and extraordinary means might (and, most likely, will) affect our moral evaluations of the relevant omission but should not affect our understanding of moral responsibility for that omission. Third, proponents of the moral permissibility of omitting AHN often appeal to the similarity between it and assisted respiration. Given this similarity, they argue that if one is permissible, so is the other. Since the omission of assisted respiration is often taken to be permissible, they conclude that so, too, should the omission of AHN. I do not have room here to explore fully this interesting and important case. Very briefly, if we rely on NA, the relevant agent is morally responsible for the omission of artificial respiration, like omission of AHN, unless the outcome would have occurred anyway in the absence of the omission.28 I would like to close this paper by offering a few words on the metaphor of the ship from Aquinas, and taken up by Flannery. If we accept NA, and I think we should, we must accept that there are causal differences and differences in moral responsibility between omissions of chemotherapy and of the administration of AHN and artificial respiration. However, that we are morally responsible for some outcome does not yet specify whether we are blameworthy or praiseworthy for it and to what degree. Unlike the spectators in BASKETBALL, I have not yet offered an evaluation. This is why the metaphor of the ship, and its lack of specificity, captures quite well the situation we are in with respect to these challenging cases.29 Ships inevitably go down; tattered and damaged, they sink into the sea. What we should do or not do to keep them afloat—and at what cost, and in what state—is a question that has not yet been decisively answered.
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questions. For ease of language, I use “killing.” This usage also captures Pope John Paul II’s usage when he discusses “euthanasia by omission” (see the aforementioned quotation). 5. Bach points out that there are even more ways than these not to do something. 6. There is some conceptual overlap between intentional omission and the other kinds of failure, especially refraining. None of the claims made in this paper hangs on intentional omissions being explicitly distinct from the other categories of failure. 7. I rely heavily on Bach here, but these ideas are reflected throughout the literature. Bach uses the first two to describe refraining, generally, and the last to describe omitting, in particular. Bach qualifies the idea that intentional omissions involve a failure to do something you are “supposed to do,” saying such in a “conveniently broad and vague sense” (6). Bach offers many examples to help explain this. The examples fall into categories, such as neglecting to execute a step in a procedure, not fulfilling a duty or responsibility, and even, in some cases, not fulfilling a mere expectation. See also Williams (1995) and Clarke (2010). 8. This is the case even if I would be culpable for the same kind of intentional omission given a different context, for example, if I were playing in the final of the NCAA tournament for the great University of Notre Dame women’s basketball team. Considerations of (3) will affect our moral evaluation of an omission because consideration of things we are supposed to do is relevant to such evaluation. Although I have not yet entered into serious consideration of moral evaluation, I want to head off the objection that what is different in evaluations of my omission is the difference between moral rules as opposed to basketball rules. (3) captures the idea that, generally and loosely speaking, when you play basketball you should block shots, just as you should dribble, shoot, rebound, and score. Those are the sorts of things you are supposed to do (and claims about these things carry with them a certain degree of intuitive force). To suggest that I violate the rules of basketball and uphold the rules of morality is mistaken because generally things are not so clear-cut; however, to show this requires argument far beyond the scope of this paper. Fortunately, this is not necessary. Recall that you and your friend offer different evaluations of my omission and that those evaluations are rooted in the fairness of the game and in how best my sister will learn to play the game, respectively. Even if we grant the moral-basketball divide, it is not clear that either evaluation is solely rooted in moral or basketball rules. 9. Questions about responsibility for omissions in general will yield more, and more nuanced, answers. We need not worry about these answers here because intentional omission is what is at issue in the administration of AHN. 10. Outcomes are various and might be complex. I say a bit more about outcomes later on in this paper. However, I think we have an intuitive idea of what outcomes are. They are—at least—the results or effects of our actions or omissions that are connected up in the right way with those actions and omissions. Surely, there might be some results or effects that are not properly our outcomes (the results may not be connected to us in the right way and so we might not be morally responsible for them). Also, it may be the case that we are responsible for outcomes that are caused by our actions or omissions. On this last point, see Sartorio (2004). 11. Attributions of blame are complicated and your appropriately blaming me in this situation might need to take into account my occurrent awareness of your situation or whether you are able to trace back to a previous action, omission, or state for which I was morally responsible and which led (was connected in the right way) to my not helping you in the current situation. 12. I have already noted that outcomes are complicated notions. I do not have space to discuss them fully here. There are additional conditions that will hold when we assess an agent’s culpability, for example, there may be extenuating circumstances that excuse the agent. See endnote 10. 13. The required provisos involve things such as foreseeability; see Sartorio (2005, 464). 14. See Sartorio (2005) for this argument, especially pp. 466–72. Very briefly and crudely, she argues that causation is the most plausible candidate for the type of dependence that transmits responsibility of agents’ actions and omissions to outcomes because counterfactual dependence fails. She offers the following case to illustrate this. A train is moving down a track. I can switch it from Track A, where it will hit Victim, to Track B or Track C. B merges back with A and the train will still hit Victim; C does not. I choose to switch to B, but if I had chosen C a neuroscientist would have forced my hand to switch the train to B. This case has the same structure as Fischer and Ravizza’s (1998) famous Sharks case, in which I deliberately fail to save a drowning child, but if I had attempted to save the child, sharks would have prevented me from doing so. In the train case, I could not have saved the Victim (because of the neuroscientist), but the victim’s death counterfactually depended on my flipping the switch. Thus, counterfactual dependence does not transmit responsibility. Sartorio also offers a variant of Sharks, Planted
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Sharks, in which I put the sharks in the water. In this case, I am responsible for the child’s death even though I am unable to save her because of the presence of sharks. This is because I am responsible for the sharks being put into the water in the first place. She correctly notes that I am responsible for the child’s death because I put the sharks in the water, bringing about the fact that I could not save her today. Additionally, it is not my omission to try to save her today that causes her death because I could not have done so. This supports NA. 15. Sartorio (2005, 473) writes, “Intuitively, when one merely redirects a train that was already going to hit and kill a person, one doesn’t thereby cause the person’s death; by contrast, when one shoots the bullet, one does cause the person’s death, even if the death would still have occurred had one not done those things.” 16. Sartorio (2005, 474) notes, “. . . if a mother doesn’t feed her baby when she could easily have fed him, and the baby starves to death, then the mother doesn’t just let the process of starvation develop, but, in addition, she causes the baby’s death.” 17. Philosophers have made much of shooting and sniper examples. Notice that in classic sniper cases, the first bullet may pierce the heart of the target mere seconds or milliseconds before the second bullet, the latter of which is from a second sniper. We may attribute a number of things to the second sniper, many of which are quite similar to (if not exactly the same as) the things we may attribute to the first; however, there is one thing we cannot attribute to the second sniper: he did not kill the target. 18. The reason for focusing on outcomes is to avoid certain infinite regress worries. For more on this, see Sartorio (2004), especially pp. 316–7. She notes, “The thesis that responsibility for outcomes requires causation is widespread among philosophers . . . . Clearly, we can only be responsible for what happens in the external world if we are hooked up to the world in some way. Now, the only way in which it seems that we could be hooked up to the world is by means of our actions and omissions” (316). 19. That this accords with our intuitions and experience and so offers some support for the argument, does not commit me to any more serious claims about reactive attitudes as the source of moral responsibility. 20. The importance of understanding omissions for moral evaluation, especially regarding life-anddeath decisions, was noted by Fr. Kevin Flannery in a paper delivered in 2010 at the 25th Annual Notre Dame Medical Ethics Conference. Flannery offered great insight into understanding the moral implications of AHN, the disciplines and practices involved in decisions regarding AHN, and the Catholic Church’s teaching on AHN. I take two examples from that paper—the first by paraphrase, the second by extrapolation, and by adding names for ease of reference. My references here refer to the then-unpublished Flannery (2010); it was later published as Flannery (2011). 21. Or, if one prefers, irreducible coma. I do not think anything, philosophically, relies on the use of this term. 22. (In claiming this, he follows Pope John Paul II and the Congregation for the Doctrine of the Faith.) Unless one of the following three conditions hold: (1) the situation under consideration is one of extreme poverty, where artificial administration is impossible; (2) the patient is unable to assimilate food or liquid, and so, the administration proves useless (or futile or is no longer proportionate and thus further administration of nutrition and hydration would fail to meet its proper finality); (3) in rare situations where such administration becomes “excessively burdensome” for the patient or “may cause significant physical discomfort” to the patient (Flannery, 2010, 5). 23. This is not a new claim. G. E. M. Anscombe in discussing the difference between omission, commission, and intent with respect to the management of severely handicapped children, wrote, “. . . For willful starvation there can be no excuse. The same cannot be said for failing to operate or to adopt some course of treatment” (Anscombe, 1981, 122). 24. Flannery’s (2010) analysis is quite helpful here. He writes, “Obligations the omissions of which are culpable are far-extending—extending, that is, as we have seen, even to events that have no real agents; but they are also limited: limited by the scope of the positive precepts of the discipline or practice to which they pertain, so that some omissions fall outside that scope entirely.” 25. This does not mean that, were it considered a medical act, the moral evaluation of the case must differ. It may be that the relevant practices and disciplines still allow for such distinctions. Rather, the kind of act AHN turns out to be matters because of the resources to which one can appeal, given the practices and disciplines to which the precept applies (and possibly even where the ultimate decision lies). There has been much debate on this point and I do not have space here to address it. This consideration involves challenging questions, in part, because the means involved in AHN are clearly medical. One must have knowledge and skill related to the medical profession in order to administer AHN. The
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Acknowledgments I would like to thank Alex Arnold, Kevin Flannery, Richard Kim, Gilbert Meilaender, Tom Mulherin, Brad Rettler, and David Solomon for helpful comments on this paper.
References Anscombe, G. 1981. Commentary 2 on John Harris’ “Ethical problems in the management of some severely handicapped children.” Journal of Medical Ethics 7:122–3. Bach, K. 2010. Refraining, omitting, and negative acts. In A Companion to the Philosophy of Action, eds. T. O’Connor and C. Sandis, 50–58. Malden, MA: Blackwell Publishing. Clarke, R. 2010. Intentional omissions. Nous 44:158–77. Coggon, J. 2008. On acts, omissions, and responsibility. Journal of Medical Ethics 34:576–79. Fischer, J. and M. Ravizza. 1998. Responsibility and Control. New York: Cambridge University Press. Flannery, K. 2010. Making Christian life and death decisions. Based on his 2010 paper given at the 25th Annual Notre Dame Medical Ethics Conference, Rome, Italy. ———. 2011. Making Christian life and death decisions. Christian Bioethics 17:140–52.
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possibility of success and failure will be best judged by someone with medical knowledge. The art of best administration has been discovered and continues to be taught and improved by those within the discipline. However, the aim is to feed. The aim is ordinary, normal, and fits best within an understanding of human concerns. However, this line of thought might prove to be problematic. If we can think of all acts and omissions in broad enough terms, every relevant precept might be a human precept or, at least, it is tough to see what room is left for any genuinely medical precepts, as distinguished from broader, human precepts. 26. I use “treatment” for ease of language. I am not claiming with this usage that AHN is a kind of medical treatment and, therefore, a medical act. 27. In addition to these considerations regarding outcomes, the agent also needs information about the effectiveness of a particular treatment. If, for example, the chemotherapy would have cured him, then the outcome would be different. To further complicate things, suppose the treatment would offer him another year of life. There, too, the outcome is different. However, if pressing the button would give him an extra second or minute, then it is not clear that this is a different outcome. Clearly, time is relevant. How close two outcomes can be in order to be the same or similar enough is a complicated question that requires much thought and might not admit of a clear-cut answer or standard. 28. It is worth emphasizing that this is a point about causation and, in turn, responsibility, but not yet about moral evaluation. It is also worth clarifying that there are different reasons for taking someone off of a respirator, and this increases the challenge of correctly distinguishing and assessing AHN and assisted respiration. It is important to describe the situation fully in this case. One may, for example, extubate a patient after surgery with the hope he will breathe on his own, but with the intent of reintubating him if he does not. This is different from the case in which one removes the respirator without any plans to reintroduce it if the patient is unable to breathe on his own. There are interesting epistemological questions, particularly in their relation to intention, which need to be answered here. What I take NA to show is that the relevant agent is morally responsible unless the outcome would have occurred anyway in the absence of the omission. Now, it is also important to note that if the outcome were different, say, a patient were to breathe on his own for a period of time and then require assistance, then one may make the determination that the outcome would occur regardless of the omission. In that case, the agent would not be responsible for the outcome. 29. I suspect that much disagreement over many of these challenging cases relies on competing conceptions of persons and what it is for human beings to live good lives. Commitments on answers to a number of sophisticated questions about these issues also contribute to the disagreement.
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Harvey, J. 2006. The burdens-benefits ratio consideration for medical administration of nutrition and hydration to persons in the persistent vegetative state. Christian Bioethics 12:99–106. Honey, C. 1979. Acts and omissions. Journal of Medical Ethics 5:143–4. John Paul II, Pope. 2004. Address of John Paul II to the participants in the International Congress: “Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas.” The Holy See. Available: http://www.vatican.va/holy_father/john_paul_ii/ speeches/2004/march/documents/hf_jp-ii_spe_20040320_congress-fiamc_en.html Sartorio C. 2004. How to be responsible for something without causing it. Philosophical Perspectives 18:315–36. Sartorio, C. 2005. A new asymmetry between actions and omissions. Nous 39:460–82. Williams, B. 1995. Acts and omissions, doing and not doing. In Making Sense of Humanity and Other Philosophical Papers, 56–64. New York: Cambridge University Press.
