Death Benefits: Clinically Assisted Dying, Best Interests, and the Problem of Justification
with Dr Mary Neal, Senior Lecturer in Law, University of Strathclyde
Moral philosophers have long wrestled with the ‘problem of posthumous harm’; namely, the question of whether it can be harmful to do certain things in relation to deceased people, even if we presume that such people no longer exist. In this paper, I argue that debates around physician-assisted dying must grapple with this perplexing issue from the opposite direction and deal with the im/possibility of posthumous benefit. I begin by noting that any intervention by a healthcare professional on a patient requires to be justified, and that healthcare law recognises a limited number of ways of justifying healthcare interventions. Then, I introduce a spectrum of various categories of ‘proper medical treatment’, and suggest that the concept of ‘best interests’ performs an essential role in justifying all interventions in the healthcare setting except those that are only ‘liminally-proper’. Unless it can be established that an intervention to end life is in the ‘best interests’ of a patient, it will be at best a liminally-proper intervention. Such interventions can be justified on social or ‘public good’ grounds, but this involves a parallel (e.g. statutory) system of justification that is external to (and could potentially create tensions with) the common law framework. Having considered the role (or lack of a role) of ‘best interests’ in the justification of assisted dying as a healthcare intervention, I explore some practical implications, and offer a limited defence of the current law against charges of discrimination and inconsistency. I do not address wider questions of justice directly.
Respondent: Annie Sorbie
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