Can Facilitated Aid in Dying Be Permitted by 'Double Effect'? Some Reflections from a Recent New Zealand Case

Abstract

While the Doctrine of Double Effect (DDE) remains controversial in ethical circles, it continues to be recognised in common law courts. In 2015, the High Court of New Zealand became the latest to acknowledge the existence of the DDE, in a case that challenged the prohibition on physician assisted dying. In so doing, the possibility was raised that the DDE could potentially be used in an untraditional way to provide a prima facie justification of “facilitated aid in dying” (FAID) in some cases. In this article, we develop and offer justification for this line of reasoning. If it can be shown that FAID sometimes satisfies the conditions for DDE, this, we suggest, may have significant implications for the aid in dying debate, not only in New Zealand, but more widely. Even if all of the elements of the DDE are not met in such cases, though, we suggest that one of those elements – the doctor’s intent in providing FAID – may not always be such as to attract moral blame or criminal culpability.

Keywords: Doctrine of Double Effect, Criminal law, Facilitated dying, Ethical issues, Morality and the law

JEL Classification: K00, K14, K32