¹ See Jennett, B. and Plum, F., ‘Persistent vegetative state after brain damage’, The Lance. (1 April 1972), pp. 734–737Google Scholar.

² See Airedale N.H.S. Trust v. Blan. [1993] 2 W.L.R. 316 (Fam.D.) and (C.A.)

³ See Airedale N.H.S. Trust v. Blan. [1993] 2 W.L.R. 316 (H.L.) at 368E–369C per Lord Goff: ‘Why is it that the doctor who gives his patient a lethal injection which kills him commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully—and will not do so, if he commits no breach of duty to his patient?… the reason is that what the doctor does when he switches off a life support machine “is in substance not an act but an omission to struggle and that the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case'”. This publication is henceforth referred to as H.L.

⁴ Ibid, at 372H per Lord Goff, at 378G–H per Lord Lowry and at 362C-D per Lord Keith.

⁵ Ibid, at 362E per Lord Keith, at 372E–F per Lord Goff and at 386H per Lord Browne-Wilkinson.

⁶ This should not be taken to imply that, for the Law Lords, culpability is not itself directly relevant to whether the withdrawal of life-sustaining treatment counts as murder (or manslaughter). On the contrary, as Lord Browne-Wilkinson makes clear at 383F, if there is a duty to treat because that is seen to be in the patient's best interests, and the patient dies as a result of the failure to treat, this omission to treat, being culpable, may count as murder (or manslaughter).

⁷ Ibid, at 379D–H, Lord Lowry attributes the following tentative critique of their Lordships' judgment to a ‘hypothetical non lawyer’: ‘The solution here seems to me to introduce what lawyers call a distinction without a difference… might it not be suggested… that this case [the withdrawal of life sustaining treatment from Bland] is, in effect if not in law, an example of euthanasia in action?’ At 381D, Lord Browne-Wilkinson acknowledges that some would see the distinction between it and taking active steps to end life as ‘artificial’. Lord Mustill, at 388H…389A, expresses ‘acute unease … about adopting this way through the legal and ethical maze’, and attributes his unease to ‘the sensation that however much the terminologies may differ the ethical status of the two courses of action [withdrawing life-sustaining treatment from Bland and ‘mercy killing’] is for all relevant purposes indistinguishable’. Their Lordships’ difficulty seems to spring from their view that when a doctor withdraws life-sustaining treatment from a PVS patient, such as Bland, thereby allowing him to starve to death, his intention can only be to terminate the patient's life (see Lord Browne-Wilkinson at 383E). Now the charge of murder (or manslaughter) partially rests upon this very presumption of an intention to terminate life, in a case, unlike Bland's, where a doctor deliberately withholds treatment from a patient knowing that it is in his best interests, and that he is likely to die without it. Why then should a similar charge not be applicable in the Bland case? Not all writers however agree that there is such an intention in a case, such as Bland's, and I discuss the issue below, pp. 115–118.

⁸ I have in mind the familiar system of duties and near absolute prohibitions, particularly those concerning the protection of innocent human life, which forms the background of current legal and ethical public debate.

⁹ See Lord Goff (H.L. 370C), who suggests that to allow a patient like Bland to die is ‘required by common humanity’.

¹⁰ Ibid, at 379H where Lord Lowry attributes the remark to Lord Mustill.

¹¹ Tooley, M. develops this position in ‘Abortion and infanticide’, in Singer, P. (ed.), Practical Ethics (Oxford University Press, 1988), pp. 57–86Google Scholar. We shall see below that most of the major discussions of acts/omissions are conducted in terms of the distinction between killing and letting die. This is unfortunate since ‘killing’ is ambiguous as regards whether there is an intention to bring about death, and this ambiguity obscures some key questions about the nature and justificatory role of the acts/omissions doctrine (see note 35 below). I have attempted as far as possible, and even at the cost of circumlocution, to remove this ambiguity where it arises. It is often however so deeply entrenched as to be ineradicable.

¹² These helpful terms were introduced by Malm, Heidi in ‘Killing, letting die and simple conflicts’, Philosophy and Public Affairs (1989); reprinted in Fischer, J. M. and Ravizza, M. (eds), Ethics, Problems and Principles (New York: Harcourt, Brace, Jovanovich, 1992), pp. 135Google Scholar.

¹³ ‘Active and passive euthanasia’, The New England Journal of Medicine, 292 (1975), pp. 78–80CrossRefGoogle Scholar.

¹⁴ See for instance Russell, Bruce, ‘On the relative strictness of negative and positive duties’, The American Philosophical Quarterly (1977), pp. 87–97Google ScholarPubMed.

¹⁵ Ibid. p. 95.

¹⁶ Ibid. p. 87.

¹⁷ See again for instance Rachels, ‘Active and passive euthanasia’ and Russell, , ‘On the relative strictness’ and also Tooley, M., ‘An irrelevant consideration: killing versus letting die’, in Fischer, J. M. and Ravizza, M. (eds), Ethics, Problems and Principles (New York: Harcourt, Brace Jovanovich, 1992), pp. 106–111Google Scholar.

¹⁸ Virtues and Vices (Oxford: Basil Blackwell, 1981), pp. 19–32Google Scholar.

¹⁹ Analysi. (1966); reprinted in Fischer and Ravizza, Ethics, Problems and Principle., pp. 93–105.

²⁰ Summa Theologic., XVII (Cambridge, England: Blackfriars, 1970), Ia2ae Q.6 article 3, pp. 15–16: ‘To be voluntary means to spring from the will. Now one may come from another in two ways … directly, when it proceeds from it precisely as agent, thus heating from fire … indirectly, when it proceeds from it precisely as not acting, thus a shipwreck from loss of helm … the result of a lack of action is not always to be brought home to the non-acting agent, but only when he could and should have acted … now there are cases when by its resolve and action the will can intervene to break the inertia with respect to willing and acting, and sometimes ought to do so. Then it can be held responsible, for the not willing and not acting are in its charge. Thus there can be voluntariness without an act…’

²¹ See Woozley, A. D., ‘A duty to rescue: some thoughts on criminal liability’, Virginia Law Review, Vol. 69 (1983), pp. 1273–1300, particularly p. 1297CrossRefGoogle Scholar.

²² Foot (‘Abortion’) herself seems at one point to appeal directly to a moral criterion. Thus she claims (p. 28) that for someone deliberately to allow a beggar to starve to death is the violation of a negative duty. This despite the fact that she had earlier (p. 27) observed that negative duties are typically fulfilled by refraining from the relevant actions and positive duties by performing them.

²³ See Bennett, ‘Whatever the consequences’, p. 94. ‘I want to see what difference there is between killing and letting die which might be a basis for a moral judgment.’

²⁴ ‘Actions, intentions and consequences: the doctrine of doing and allowing’, The Philosophical Review, 99 (1990), pp. 131–155Google Scholar. This article will henceforth be referred to as AI..

²⁵ ‘Killing, letting die, and withdrawing aid’, Ethics, 103 (January 1993), pp. 250–279CrossRefGoogle Scholar. This article will henceforth be referred to as KL..

²⁶ Quinn points to Foot as having first suggested such an underpinning for the doctrine. Foot's underpinning however was in terms of the distinction between positive and negative dutie., rather than positive and negative rights. For her, only negative dutie. are correlated with rights, since being owed to each and everyone, their fulfilment is a matter of justice. Positive duties belong merely within the sphere of beneficence: their fulfilment, not being owed to each and everyone, may not be claimed by each and everyone as his right.

²⁷ Both Quinn's and McMahan's accounts of the doctrine of acts/omissions have the singular attraction of explicitly attempting to link it with the general moral system of which they see it as an intrinsic part. Only utilitarians have so far spelt out how their approach to the doctrine (namely their opposition to it) is linked with the larger moral system that they endorse. For Quinn, the doctrine reflects a moral scheme in which the fundamental concern is rights, and in particular, the right to live one's life as one chooses. It further turns out that these rights, rather like Nozickian rights, are protections for the individual against unbridled utilitarianism. I am not convinced however that our ordinary morality, which Quinn so frequently appeals to when trying to determine our moral judgment of particular types of conduct, really is so systematically right-based.

²⁸ In order to keep McMahan's account simple, I have left out one further condition that he stipulates for the withdrawal of life-saving aid tocount as killing, namely that it should be ‘operative’ (KL., p. 261).

²⁹ McMahan's view of the role of causation in the acts/omissions distinction can be illuminatingly contrasted with that of Quinn's. For Quinn, causation is irrelevant to the distinction since according to him even a person who is inactive can nevertheless be said to cause, or to partially cause, death. For McMahan, on the other hand, not only is being the ‘primary cause’ (in the sense defined) of another's death necessary and sufficient for killing, but causation is necessarily ‘active’. Moreover he sees the key concern of ordinary morality as that of attributing moral responsibility to an agent as an active cause, rather than, as that of (pac. Quinn) ensuring that an individual's right to live his life as he chooses is respected. Although I believe that McMahan's is more plausible as an account of ordinary morality than is Quinn's, I do not think that causation, in this active sense, is the only criterion used in ordinary morality for determining whether an agent should be held to have killed someone. The intention to bring about death is also crucial; see below.

³⁰ See Lord Goff, H.L. 396D.

³¹ This is not to deny that self-preservation or fatigue also serve, after it has been established that he had no intention to bring about death, to exonerate the swimmer from not continuing to give aid.

³² See Lord Goff, (H.L., 367E)

³³ I here draw on a situation described by Lord Goff at 370C.

³⁴ One other legal possibility is suggested by Lord Browne-Wilkinson at 385—386: since legally a doctor may only continue with an intrusive life support system if it is in the best interests of the patient, if a responsible body of medical opinion should judge it not in the patient's best interests, the doctor must withdraw life-support if he is not to commit battery.

³⁵ McMahan (KL., p. 273) himself points out that ‘factors affect the moral status of a course of conduct that has lethal consequences other than the distinction between killing and letting die… the most commonly noted… is whether a person's death is an unintended effect of the agent's action’. But, as the medical examples show, discovering that death was not intended does not just affect our view of the ‘moral status’ of a course of conduct already established as a ‘killing’, rather it affects whether we cal. it ‘killing’. Though, therefore, I largely agree with McMahan's criteria for ‘letting die’—the relevant course of conduct being a candidate for certain characteristic types of justification, such as that the personal cost of acting would have been too great for the agent to bear, or that it involved contravening some other more stringent prohibition—I disagree with his criteria for ‘killing’. McMahan could distinguish between two types of killing, only one of which would be absolutely ruled out, namely where the intention had been to bring about death. But then it would have to be made clear that even conduct falling on the ‘killing’ side of the divide might conceivably turn out to be morally justified, namely where death was an unintended side effect of the pursuit of some other aim. These further determinations of moral status would now however fall outside the ambit of the acts/omissions doctrine, requiring appeal to double effect.

³⁶ Lord Browne-Wilkinson at 383E (H.L.) holds that such an intention must be imputed to the doctor in these situations. Gillon, R. however denies this in “Patients in the persistent vegetative state: a response to Dr Andrews”, BMJ, (Vol. 306, 12th June 1993), pp. 1602–1603CrossRefGoogle ScholarPubMed.

³⁷ Lorber, J., ‘Ethical problems in the management of myelomeningocele and hydrocephalus’, Journal of Royal College of Physicians, Vol. 10, No. 1 (Oct. 1975), pp. 47—60Google ScholarPubMed.

³⁸ H.L., at 372G per Lord Goff.

³⁹ H.L., 379.

⁴⁰ Lord Browne-Wilkinson refers to such a view at 381C—D.

⁴¹ See Warnock, M., A Question of Life: The Warnock Report on Human fertilization and Embryology (Oxford: Blackwell, 1985), 11.15, p. 62Google Scholar.