This article is by Shivi Khanna, a student of the School of Law, Sushant University, Gurugram. This article is an attempt to understand the doctrine of double effect and its impact on English and Indian Law.

It has been published by Rachit Garg.

Introduction

Although the terms ‘ethics’ and ‘morality’ take on a synonymous meaning when used by laymen, these terms do in fact have different connotations. Morality is more inclined towards a person’s unique and individual outlook on what constitutes ‘good or bad.’ Whereas, ethics is the benchmark or standard by which the community or society determines what constitutes good or bad. Therefore, there is a possibility that ethics and morality may come into conflict in case of inconsistency.

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For example, a patriarchal society may view women as inferior and subservient to men. Based on the ethics of the patriarchal society, a woman venturing out of the house to work in an office instead of staying home and looking after the children is considered bad. Whereas, an individual in the community may have the personal belief that impeding the empowerment of women is against his morals.

Therefore, we can see that the scope of morality applies to a narrower, individualistic level. On the other hand, ethics is determined by the community or society as a whole. Another example being that society as a whole considers the act of looting and killing as morally bad acts. However, a thief or murderer may not consider committing the aforementioned crimes as against his/her morals.

Morality has often been linked to religious themes and theology. Whereas, ethics has been applied to secular fields such as law, medicine and business. Ethics determines the code of conduct for these professions, creating a standard for what is considered correct and ethical to do. The doctrine of double effect is a concept that is relevant to both morality and ethics, and is most frequently used in medical cases where doctors often have to make difficult decisions with respect to the patient’s comfort versus the patient’s life.

Historical background of the doctrine of double effect

Sir Thomas Aquinas had propounded that the killing of one’s assailant in an act of self-defence was justified. This is because any action could have more than one effect, despite the intention of the person making the action. Similarly, self-defence would result in the intended effect of managing to preserve one’s life, while the side-effect would be to take the assailant’s life. However, Aquinas also laid down the condition that for self-defence to be lawful, it must not be in excess or inappropriate. For example, if the assailant has already been sufficiently subdued that he cannot attack again, it is not justifiable to continue to inflict fatal injuries upon him. Therefore, key elements of the doctrine of double effect come about – the action must not be in excess and the action should not be inappropriate with respect to the context of the situation.

Later, as the understanding of the doctrine evolved, it came to be understood as the side-effect caused as a result of a morally good action. However, the morally good action should not have been caused by means of the morally bad side-effect. It is still unlawful to do something that is morally bad with the justification that the result would be morally good. For example, robbing from the rich and giving to the poor would not be able to use this doctrine as justification. 

What is the doctrine of double effect

According to the doctrine of double effect, if a person’s behaviour or conduct is intended to achieve a goal which is morally good, however, as a result, there is a morally bad side-effect, then it is still acceptable to make that particular behaviour or conduct. Even if the person anticipated that his decision would result in the morally bad side-effect, his decision is still considered ethically acceptable.

Let us look at a few simple examples to understand the application of the doctrine of double effect:-

  • ‘B’ and ‘C’ are married couples. ‘A’ becomes aware of the fact that ‘B’ is committing adultery with ‘D’ and ‘C’ has no knowledge of it. ‘A’ with the intention of preventing ‘C’ from continuing to be deceived tells ‘C’ about ‘B’s’ adultery. ‘A’ has a morally good intention. However, as a result of his informing ‘C’ about ‘B’s’ adultery, the morally bad side-effect is that the couple gets divorced.
  • ‘X’ is driving ‘Y’s’ car. In order to avoid hitting ‘Z’ who suddenly appears on the road, ‘X’ swerves and hits a tree on the pavement. ‘X’ has achieved the morally good goal of saving ‘Z’s’ life but the morally bad side-effect is that ‘Y’s’ car ends up damaged.

The doctrine of double effect is closely tied to the fields of law and medicine. For example:-

  • If a doctor has to amputate a patient’s limb which has been infected in order to save the patient’s life.
  • A doctor prescribes certain drugs to terminally ill patients, which may provide some relief for their discomfort and pain. However, a side-effect of the medicine is that the patient’s body gets damaged or the patient’s life expectancy is negatively impacted.

The justification behind a doctor prescribing pain-relievers such as morphine to terminally ill patients is that the doctor does not intend to kill the patient. In fact, the doctor merely intends to relieve the patient’s pain which may be the most humane action in the case of terminally ill patients who suffer excruciating pain. The harmful impact on the patient’s body or the patient’s quicker death is only the resulting side-effect.

Scenarios where the doctrine may be applied

The doctrine of double effect may come up in the following scenarios:-

  • An extremist regime carrying out ethnic cleansing is an intentional act of committing systematic mass slaughter through genocide, and cannot be justified. Whereas, special forces soldiers from the military carrying out raids in hostile territories for the purpose of hunting down organised crime groups such as drug cartels is justified. Even if the military anticipated that the raid may cause a small number of civilian deaths, this is merely a negative side-effect of the action to eradicate dangerous criminals engaged in the drug trade.
  • A firefighter entering a building on fire to save the lives of the residents trapped in the building is an act of self-sacrifice. The firefighter acts to save lives while foreseeing that his actions may lead to his death as an unintended consequence. However, when a person commits suicide by self-immolation, he intends to take his own life. Therefore, the act of risking your life in an effort to rescue others is justified, whereas, taking your own life through suicide is not justified.
  • A doctor prescribes heavy painkillers to reduce the pain of a patient while foreseeing that the drugs may reduce the patient’s life span. Another case is where the doctor prescribes heavy painkillers in order to kill the patient and end his suffering. The former can be justified by the doctrine while the latter cannot.
  • In the case of a doctor performing an abortion to save the life of a pregnant mother, the intention is to save the mother’s life while the death of the foetus would be a foreseen yet unintended consequence. However, simply performing an abortion when there is no foetal abnormality or danger to the life of mother and child, the doctrine does not apply.

Principles of the doctrine of double effect

The following are the principles of the doctrine of double effect:-

  • There should be no causal relationship between the good and bad result i.e. doing something morally bad with the intention of getting a morally good outcome is not acceptable.
  • The doctrine cannot be applied in situations where the action is in excess or inappropriate.
  • In the case of terminally ill patients, there must be a guarantee that their condition is ‘terminal’ or ‘fatal.’
  • The person doing the action has the duty to minimise the risk.
  • The doctrine of double effect has restrictions and cannot be applied to justify all controversial actions.

Elements of the doctrine of double effect

The doctrine of double effect has the following ingredients:-

  • The good result should not have a causal relationship with the bad result. To put it in simpler terms, the good result must not come about as a result or consequence of a morally bad action. For example, if a doctor prescribes a drug as a painkiller to a terminally ill patient. However, the only way the painkiller alleviates pain is by killing the patient, then the doctrine does not apply.
  • Even if prescribing painkillers or other heavy drugs is necessary for pain relief, then the doctor cannot go beyond the necessary dosage needed to alleviate pain. Prescribing drugs in a large enough quantity to make the patient overdose cannot be justified by the doctrine. The doctrine cannot be used as a justification for the doctor to overdo the dosage, or make any other inappropriate prescription. Essentially, the action cannot be in excess or inappropriate.
  • The correct medicine must be prescribed for the relevant disease or ailment. For example, drugs that prevent blood from clotting should not be prescribed to a patient with heavy wounds.
  • Other than treating the root cause of the disease or ailment, it is also important to provide the correct treatment for the symptoms. For example, prescribing a fatal dose of drugs to treat headache, when the patient was not suffering from headache but heavy bleeding.
  • The patient’s condition must be fatal i.e. without hope for recovery.

Misinterpretation

The doctrine has been misunderstood as a valid excuse to allow an individual to cause harm to others as long as his intentions were inclined towards achieving something morally good. However, the individual making the action also has the responsibility to minimise the risk of the negative side-effect. Furthermore, the doctrine has restrictions as well, such as not acting in excess, inappropriately or without just cause.

Criticisms of the doctrine of double effect

The doctrine of double effect has been criticised on the following points:-

  • Just because an action or conduct has a morally good result does not absolve the individual from his liability when it comes to morally bad result. Being able to anticipate the consequences of your actions means that you must also take responsibility for them.
  • A school of thought believes that the intention of the doctor should not hold much weight. Some things are objectively right or wrong and the reasons or intentions of the person should not matter. This view is in contrast to the typical approach taken in criminal law where the intention of the accused is taken into consideration.
  • Another view contests the basis of the doctrine of double effect which assumes that death is a negative result. Sometimes, when taking a terminally ill patient’s point of view, being free from pain and agony is a good result. Therefore, this view challenges the basis of the doctrine.
  • The questions of morality with respect to the doctrine of double effect often yield unconventional results. For example, if a doctor aims to only relieve pain is compared to a doctor who aims to help the patient die faster, which one should be considered morally superior.

Sulmasy test

The doctor can check his intention by asking the question – after performing a set of actions, for example, prescribing a fatal dose of drugs, the patient miraculously survives. Would the survival of the patient lead the doctor to feel that his goal had not been accomplished?

The doctrine of double effect and war

War scenarios are inherently situations where common sense questions related to ethics and morality are subverted. Although it is understood as a part of international customary law that civilians of enemy countries should not be attacked, in the chaotic situation of fighting civilian fatalities inevitably do happen.

The doctrine of double effect is used to justify the military’s actions in cases where they do not directly target civilians but as a result of their actions civilians inevitably end up dying. For example, bombing a hostile military encampment leads to the death of civilians living in settlements nearby. The civilians’ deaths were merely a negative side-effect, thus, the military is not liable.

However, this doctrine does not condone weapons of mass slaughter such as nuclear, biological and chemical weapons – weapons that make no distinction between the target and civilians.

Doctrine of double effect and euthanasia

Euthanasia can be understood as the process of ending the life of a terminally ill patient suffering from the agony or pain of illness. Doctors can help the patient end their suffering by withdrawing life-support or prescribing drugs that relieve pain but hasten the patient’s death. In Vacco v. Quill (1997), the US Supreme Court observed that the doctrine of double effect can be used to give validity to the practice of prescribing painkillers to patients in palliative care and also the practice of terminal sedation.

In 1997, Oregon was the first state in the US to remove the practice of doctors euthanising patients from the category of criminal offences. Furthermore, in South Korea in 2009, in the case of a vegetative woman being removed from life-support, the right to die with dignity was recognised.

Active euthanasia is actively giving a fatal dose of drugs to terminally ill patients. Whereas, passive euthansia is withdrawing nutrition or life support to hasten the patient’s death.

The doctrine of double effect and English Law

Euthanasia has not received legal sanction in the United Kingdom. However, doctors are allowed to prescribe a fatal dose of painkillers to terminal patients. The key is that the doctor’s intention should be to relieve pain and the faster death of the patient should be a foreseen yet unintended consequence.

The doctrine of double effect and Indian Law

Article 21 of the Indian Constitution protects the individual’s life and liberty from encroachment by subjecting them to the procedure established by law. There has been some debate as to whether Article 21 encompasses the right to die with dignity.

In the Aruna Ramchandra Shanbaug v. Union of India (2011) judgement, a rape victim who had been in a vegetative state for decades had a petition filed on her behalf for euthanasia. The Supreme Court granted the appeal for euthanasia when passive euthanasia was legalised in India.

The decision to opt for passive euthanasia requires consent from parents, spouse, in their absence ‘next friend’. The court must also give its approval.

Conclusion

When it comes to ethics and morality, the waters run deep and murky, and the debate is endless. The doctrine of double effect has also been the subject matter of contention amongst scholars and philosophers – whether it holds weight as the justification for controversial actions taken in extreme scenarios. The doctrine of double effect and its validity with respect to justifying physician-assisted suicide and passive euthanasia also remains a topic of contention. 

References

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