The Devil's Choice: Re-Thinking Law, Ethics and Symptom Relief in Palliative Care

Abstract

It is often assumed, explicitly or implicitly, that the role of medical law and of medical ethics is to guide us towards the "right choice". In this article, I introduce the notion of the "devil's choice": a choice that arises in circumstances where all the options available to the decision-maker are not only unpalatable and unwanted, but are morally perverse to a greater or lesser degree. I use the notion of the devil's choice to re-interpret the conventional legal and ethical account of the provision of symptom relief in palliative care, as illustrated by judgments from the United Kingdom and the United States. In particular, I am critical of the principle of double effect and the moral distinction it seeks to draw between foreseeing, and intending, the consequences of one's actions. The benefit of applying the devil's choice to palliative care is that it permits empathy with the dilemmas physicians face, while still acknowledging the extraordinary power that physicians have over the lives of their patients. Consistent with the devil's choice, I propose requirements for a legal defense of "necessity", where palliative interventions shorten a patient's life.

Keywords: pain, palliative care, sedation, criminal liability, double effect, intention, foresight,

JEL Classification: K14, K42, I12,