The theoretical tenability and legal practicability of double-effect reasoning in health care.

摘要

Double effect reasoning (DER) has been the object of particularly intense criticism in contemporary bioethics discourse. The distinction between intention and foresight, which it embodies, has been attacked as both theoretically untenable and impractical in its application to concrete clinical cases. This dissertation defends the role DER plays in medical decision-making and argues that it provides a solid basis for the legal regulation of the practice of medicine at the end of life.; First the nature and scope of DER are established. Chapter 2 provides a comprehensive history of the development of DER within Catholic moral theology. The relationship between the traditional four conditions of DER and St. Thomas treatment of the fontes moralitatis is established. Chapter 3 provides a detailed analysis of DER's application by traditional contemporary Catholic theologians to resolve concrete clinical cases. This analysis discloses both agreement on the importance of the intention/foresight distinction and disagreement on the criteria to be adopted in distinguishing an intended means from a foreseen side-effect. Finnis' subjectivist understanding of intention is adopted as the most authentic interpretation of St. Thomas.; Chapter 4 argues for DER's adoption for public policy purposes. In particular, it defends DER in the judicial forum where most controversial bioethical issues are resolved. Case law shows that DER is already an accepted mode of judicial reasoning. It is argued that the judicial adoption of DER should reflect a principled shift in the understanding of mens rea and not be an ad hoc solution to hard cases which leaves the law theoretically misshapen. The chapter argues for judicial adoption of Finnis' understanding of intention which allows for a coherent and comprehensive integration of DER into the Common Law.; Chapter 5 focuses on how DER can and should be applied by the Courts to evaluate the particularly controversial treatment option, terminal sedation. Applying DER, terminal sedation, even when accompanied by the withholding of life sustaining treatments, is permissible without violating the principle of the sanctity of life that has been the corner stone of both medical ethics and the Law.