The Legal Bounds of Physician Conduct Hastening Death

Buffalo Law Review

Posted: 21 Jan 2000

See all articles by Norman L. Cantor

Norman L. Cantor

Rutgers University School of Law

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School

Abstract

For a dying medical patient whose suffering and/or indignity have passed tolerable limits, a variety of modes of hastening death might seem appealing. These include cessation of life-sustaining medical intervention (once the patient is machine dependent), stopping of eating and drinking, use of pain relievers that might hasten death, terminal sedation, suicide, and euthanasia. The legal status of some of these modes is well established. Physicians may cooperate with rejection of medical intervention and may not assist a suicide or administer euthanasia no matter how dismal the patient's condition. The legal status of the remaining modes of hastening death is less examined and less well understood.

Popular wisdom says that risky analgesics and terminal sedation are lawful so long as the cooperating physician intends to relieve suffering rather than to cause the patient's death. That wisdom relies on the principle of double effect. This article vigorously contests the thesis that the physician's specific intent is the key determinant in shaping the legal status of risky analgesics and terminal sedation. Rather, principles of recklessness -- grounded in degree of mortal risk, nature of the palliative justification, and professional palliative care practices -- govern the legality of these disputed means of hastening death.

This article also discusses the implications of the recklessness framework for the crimes of assistance to suicide and euthanasia. In contrast to some commentary that finds the distinctions among various modes of hastening death to be utterly arbitrary, this article argues that plausible theoretical distinctions separate the currently licit from the illicit modes of hastening death. Nonetheless, the article finds tensions and anomalies within the existing legal structure and suggests that the impetus for death with dignity will eventually impel legal acceptance of currently prohibited modes of hastening death. At the same time, the article acknowledges that the bounds will not stop at physician-assisted suicide for competent dying patients. Expansion of the legal limits will ultimately encompass both euthanasia and non-voluntary euthanasia for some fatally stricken patients.

Suggested Citation

Cantor, Norman L. and Thomas, George C., The Legal Bounds of Physician Conduct Hastening Death. Buffalo Law Review, Available at SSRN: https://ssrn.com/abstract=206068

Norman L. Cantor (Contact Author)

Rutgers University School of Law ( email )

Newark, NJ
United States
201-653-4547 (Phone)

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

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