Jocelyn Downie, Dying Justice: A Case for Decriminalizing Euthanasia and
Assisted Suicide in Canada. Toronto: University of Toronto Press, 2004. Pp. x,
201.
Pressure to permit voluntary euthanasia and/or physician-assisted suicide is
mounting in several jurisdictions around the world, not least ours. Much of that
pressure takes the form of academic opinion, both legal and philosophical. Professor
Jocelyn Downie’s Dying Justice reflects this trend. Professor Downie, Director of the
Health Law Institute at Dalhousie University, shines a Canadian perspective on the
subject, though her book will be of interest beyond Canada as the arguments she
advances reflect the arguments deployed elsewhere. Her volume could, however,
benefit from a more informed understanding of principle and practice.
In Part I, Downie paints an accessible picture of the current legal status of
euthanasia and assisted suicide in Canada. This picture provides a backdrop to the
author’s argument (in Parts II and III) in favour of relaxation of the law. The essence
of Downies position is that voluntary euthanasia and physician-assisted suicide
should be treated, in law, in the same fashion as the withholding and withdrawing of
life-sustaining treatment (47). For Downie, the promotion of autonomy is itself
sufficient to justify legalization (9-10). Abandoning restrictions commonly found in
contemporary proposals for reform (76-84)including terminal illness and
unbearable sufferingDownie argues that any voluntary request for assisted death
made by a competent individual should be honoured (12).
Downie argues that the principle of autonomy that justifies withholding or
withdrawing treatment also justifies voluntary euthanasia or physician-assisted
suicide. She rejects the argument that the intention behind the former and the latter
may be different (93-94) and asserts that the motive or goal of all forms of assisted
death is to alleviate suffering (93), whether the health care provider withdraws
treatment or injects a lethal dose of potassium chloride (93-94). Furthermore, she
reasons, in all of these practices the patient’s death is a foreseeable outcome (ibid.).
With respect, Downies argument betrays an elementary confusion. Even leaving
aside issues of causation, the crucial question is not whether death in both cases is
foreseen; it may well be. The question is whether death in both cases is intended, and
it may well not be. It is not sufficient to argue that the motive in both cases is to
relieve suffering. Dr. A and Dr. B may well share the same motive of putting an end to
the suffering of patient C, but if Dr. A intends to do so by administering morphine,
which merely foreseeably hastens death, and Dr. B does so by administering
potassium chloride, the cases are not morally (or, indeed, legally) equivalent. Indeed,
if there were no morally significant distinction between the actions of Dr. A and Dr.
B, there would hardly be a debate about legalizing voluntary euthanasia; there would
hardly be a distinction between Dame Cicely Saunders and Dr. Jack Kevorkian.
The distinction between, on the one hand, administering morphine to ease pain,
merely foreseeing that death will be hastened and, on the other, injecting potassium
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chloride with the purpose of ending the patients life, has long been accepted in
Western medical law and ethics. In recent years, the distinction has been reaffirmed
by the U.S. Supreme Court,1 the World Medical Association,2 and the House of Lords
Select Committee on Medical Ethics.3 It is accepted by the Dutch, whose definition of
euthanasia includes intended, but not foreseen, life shortening. Nor is it a
philosophically or legally abstruse distinction. Which patient would register with a
doctor who intended, rather than merely foresaw, the bad side effects of the drugs he
or she prescribed?
It is not until chapter 10 (entitled Invalid Arguments) that Downie considers
principled objections to euthanasia and assisted suicide, including the principle of the
sanctity of life (100-101). She confines herself to a consideration of the secular
version of the argument, which, by her account, holds that killing is wrong (101).
Downie claims that this principle is not absolute (ibid.) and cites a number of
examples, such as self-defence (ibid.). She goes on to suggest that the principle that
killing is wrong does not effectively distinguish between the withdrawal of
potentially life-sustaining treatment, on the one hand, and euthanasia and assisted
suicide, on the other (ibid.) and concludes that much more is needed than a simple
recitation of the principle (ibid.) to ground a prohibition of assisted suicide and
voluntary euthanasia.
Downies argument is undermined by her misinterpretation of the principle of the
sanctity of life. The principle (whether secular or religious) does not simply hold, as
Downie asserts, that killing is wrong. Rather, the core of the principle is its
prohibition against the intentional killing of the innocent (that is, those not engaged in
unjust aggression). In the medical context, the principle rules out any conduct that is
intended to hasten the death of a patient. The principle accepts as legitimate the
withholding or withdrawal of futile or excessively burdensome treatment (even
though death will foreseeably be hastened as a result) but prohibits the withholding or
withdrawal of medical treatment with the intention of shortening life. Although it may
be accurate to say, as Downie does, that self-defence is, indeed, a defence to murder
(101), she is wrong in thinking that this represents an exception to the principle of the
sanctity of life. She makes the basic mistake that the sanctity of life principle
prohibits all killing.
In chapter 11 (106-32), Downie gives the slippery slope argument against
legalization separate and extended (88) consideration, not only because so many
people find it compelling (ibid.) but also because of the serious concerns (ibid.) it
raises that must be taken into account by any regulatory regime. Her approach reflects
1 Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).
2 John R. Williams, Medical Ethics Manual (Ferney-Voltaire Cedex, France: World Medical
Association, 2005) at 57-60, online: World Medical Association
3 U.K., H.L., Report of the Select Committee on Medical Ethics (London: Her Majestys
Stationery Office, 1994).
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BOOK NOTE / RECENSION SIMPLE
2006]
the trend towards eschewing issues of principle in favour of the practical
considerations surrounding the regulation of assisted death. Downie correctly
recognizes the two forms of slippery slope argument: the logical and the
empirical (106-107). Her response to the logical arguments contentionthat
permitting voluntary euthanasia logically entails permitting at least non-voluntary
euthanasiais unconvincing. Her riposte is simply to assert, as a barrier (ibid.), the
need for a free and informed consent (ibid.). Plainly, this will not do. If death can
be a benefit for patients in condition X who can request it, why can it not equally
benefit patients in condition X who cannot request it? Surely, the professional duty of
the doctor is to act in the best interests of the patient. If this precept is accepted
(however wrongly) as justification for allowing them to dispatch patients who ask for
death to avoid unbearable suffering, why does it not allow them to put an end to the
suffering of their patients who cannot make a request? Why should a doctor deny a
patient a benefit because the patient is incompetent? Why does this denial not
discriminate against the incompetent? As Dutch court decisions justifying the
administration of lethal injections to disabled newborns have confirmed,4 the Dutch
are now realizing the logical implication of permitting voluntary euthanasia.
Downie gives greater weight to what she thinks is the more difficult (107)
empirical argument, drawing largely on the Dutch experience. Downie considers
some of the data from the Netherlands (109-31) and concludes that the evidence
does not provide a basis on which to conclude that assisted suicide and voluntary
euthanasia should not be decriminalized in Canada (110). Downies evaluation of
the Dutch evidence, however, lacks critical rigour. Her conclusion that there is no
evidence of extensive abuse is unsupported by her data. It now seems widely
acknowledged (by, for example, the UN Human Rights Committee)5 that there are
serious deficiencies in the Dutch system. For example, the fact that the vast majority
of cases have been suppressed by Dutch doctors, and the fact that thousands of
patients (mainly, but not always, incompetent) have been terminated without request,
refutes Dutch claims of effective control. That Downie does not evince more concern
about the persistent incidence of non-voluntary euthanasia is surprising, given her
argument that euthanasia is justified only by the patients request.
Downie rightly recognizes the inherent difficulties surrounding all decision
making at the end of life, and accepts that there are valid concerns about freedom,
competence, and equality (11) in the context of a patient’s right to refuse medical
treatment (96-99). Given her acknowledgement of concerns about pressure and abuse
in cases of treatment refusal (ibid.), her willingness nonetheless to call for the
4 Prins; Gerechtshof [Hof], Court of Appeal, Amsterdam, 7 November 1995, NJ 113 (Neth.);
Kadijk, Gerechtshof [Hof], Court of Appeal, Leeuwarden, 4 April 1996, Tijdschrift voor
Gezondheidsrecht 20 (Neth.).
5 Consideration of Reports Submitted by State Parties Under Article 40 of the Covenants:
Concluding Observations of the Human Rights Committee; Netherlands, UN, Human Rights
Committee, 72d Sess., Doc. CCPR/CO/72/NET (2001) at paras. 5-6, online:
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extension of patients rights to include voluntary euthanasia and assisted suicide
seems injudicious.
In sum, Downies book reflects the continuing importance of the debate about the
legalization of voluntary euthanasia. Whether it adds significantly to that debate is
another matter.
[Vol. 51
Wendy E. Hiscox*
* Ph.D.
