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Ignoring the moral and intellectual shape of the law after Bland: the unintended side-effect of a sorry compromise

Published online by Cambridge University Press:  02 January 2018

John Coggon
John Coggon*
Affiliation:
Cardiff Law School
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Abstract

In this paper, I explore the sanctity of life doctrine and consider the scope of s 4(5) of the Mental Capacity Act 2005, a provision designed to give statutory effect to the sanctity principle. Rather than question the intellectual validity of the doctrine, I examine the legal and practical problems created by this limited section. I argue that it necessarily creates dilemmas for medical practitioners, which could only be avoided by a wholesale adoption of the principle. I conclude, therefore, that the provision fails to ensure a coherent moral and intellectual shape to the law.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 1 , March 2007 , pp. 110 - 125
Copyright
Copyright © Society of Legal Scholars 2007

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References

1. Euthanasia can be taken to have various meanings. Helpful definitions are used in Keown, J Euthanasia, Ethics and Public Policy – An Argument Against Legalisation (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar: voluntary euthanasia is killing a patient with his consent; non-voluntary euthanasia is killing a patient without his consent; and involuntary euthanasia is killing a patient against his wishes. Each of these may be passive or active euthanasia depending on whether it is killing by an omission or an act. The press is often rather less worried about such coherent taxonomy and it is arguable that some concerns are no more than hyperbole.

2. See, eg, I Duncan Smith ‘It looks like euthanasia to me’ The Spectator 23 October 2004 at 18; Anon ‘Living Will’ Proposals Revealed, available at http://news.bbc.co.uk/1/hi/health/4788730.stm; Anon ‘Undermining the sanctity of human life’ Daily Mail 10 March 2006, available at http://www.dailymail.co.uk/pages/live/articles/news/newscomment.html?in_page_id=1787&in_article_id=379455.

3. Re T (Adult: Refusal of Treatment)[1993] Fam 95. See also Hornett, S Advance directives: a legal and ethical analysis’ in Keown, J (ed) Euthanasia Examined – Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University Press, 2001) p 297.Google Scholar

4. Section 4 applies to anyone with decision-making powers under the Act. For the purposes of this paper, I focus on physicians making decisions under s 4.

5. In this paper I use the pronouns ‘he’, ‘his’ and ‘him’ as shorthand for the more cumbersome ‘he or she’, etc. They can be read as ‘she’, ‘her’ and ‘her’ if that is preferred.

6. There are various plausible interpretations of Roman Catholic doctrine on end-of-life decision making: M Panicola Catholic Teaching on Prolonging Life: Setting the Record Straight Hastings Center Report 31, No 6 (2001) pp 14–25. For the purposes of this paper, I follow the ethical position advocated by (among others) John Keown, which accords with the Vatican’s Sacred Congregation for the Doctrine of the Faith – Declaration on Euthanasia available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19800505_euthanasia_en.html (accessed 8 March 2006). See the section on The Sanctity of Life below.

7. See the debates from 25 January 2005 and 15 March 2005: Hansard HL Deb, vol 668, cols 1143–1181, 25 January 2006 and Hansard HL Deb, vol 670, cols 1275–1299, 15 March 2006.

8. Ibid; see especially Hansard HL Deb, vol 670, cols 1290–1294, 15 March 2006.

9. Hansard HL Deb, vol 670, col 1293, 15 March 2006.

10. Airedale NHS Trust v Bland [1993] AC 789 at 887. Those in favour of legalised, active medical killing use this observation to support an assertion that there is no good principle to prevent such killing, as its unlawfulness rests on an arbitrary point or a ‘distinction without difference’ (per Lord Lowry at 877), namely the legal distinction between acts and omissions. Those opposed to any medical killing use it to highlight the wrongful basis of the House of Lords’ decision, arguing that an intentional killing by omission is just as wrong as it would by some commission.

11. Keown, J Restoring moral and intellectual shape to the law after Bland ’ (1997) 113 LQR 481 Google ScholarPubMed; ; ;

12. R v Cox (1992) 12 BMLR 38; Pretty v United Kingdom (2002) 35 EHRR 1.

13. Airedale NHS Trust v Bland, above n 10.

14. I use the word ‘suicidal’ without attaching values to it. Clearly, some would be uncomfortable with describing, for example, a Jehovah’s Witness’ decision to refuse a blood transfusion as suicidal. In as much as the decision will result in his death, it is suicidal, even if he has no suicidal inclinations. This does not affect the argument here: notwithstanding cases such as this, the law also permits suicidal (in its value-laden sense) refusals of treatment by competent adults, and it is an assault and battery to defy them.

15. Ms B v An NHS Hospital Trust [2002] 2 All ER 449; Re T (Adult: Refusal of Treatment), above n 3.

16. See, eg, Biggs, H A pretty fine line: life death, autonomy and letting it B ’ (2003) 11 Feminist Legal Studies 291.CrossRefGoogle Scholar

17. See, eg, Keown, J The case of Ms B: suicide’s slippery slope?’ (2002) 28 J Med Ethics 238.CrossRefGoogle Scholar

18. Airedale NHS Trust v Bland, above n 10, per Lord Goff of Chieveley at 864.

19. J Keown and L Gormally Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides? (1999), available http://webjcli.ncl.ac.uk/1999/issue4/keown4.html.

20. R (Oliver Leslie Burke) v The General Medical Council [2005] EWCA Civ 1003, [2005] 3 WLR 1132.

21. Suicide Act 1961.

22. Keown, J European Court of Human Rights: death in Strasbourg – assisted suicide, the Pretty case, and the European Convention on Human Rights’ (2003) 1 International Journal of Constitutional Law 722 CrossRefGoogle Scholar. Whilst I agree that s 1 of the Suicide Act 1961 did not create a right to commit suicide, I do not find plausibility in Keown’s stronger claim that suicide is still unlawful. This seems to be based on nothing stronger than an acknowledgement that there is such a thing as civil law. Pointing to the existence of unlawful contracts that have nothing to do with the criminal law, as Keown does, seems to be nothing more than a diversion. Keown does not tell his readers how suicide marks a breach of the civil law: see Keown, above n 1, pp 64–66. Nor is the reasoning of Lord Denning MR in Hyde v Tameside AHA (1981) LEXIS, which Keown also cites, sufficient to support the assertion that suicide is unlawful. The judge notes that ecclesiastical law is part of English law, but this is not evidence of itself that suicide is unlawful. It must be shown what law is breached. Lord Denning MR cites Blackburn L in Mackonochie v Lord Penzance[1881] 6 AC 424, who held at 446 that ‘ecclesiastical law of England is not a foreign law. It is a part of the general law of England – of the common law’. Lord Denning MR provides good authority for ecclesiastical law’s place in English law then, but the judge’s authority for suicide’s unlawfulness seems merely to be Hamlet (Act V, scene I, 1), which is clearly not binding.

23. The extent of medical life-shortening is difficult to gauge. A recent study suggested it was not inconsiderable: Seale, C National survey of end-of-life decisions made by Uk medical practitioners’ (2006) 20 Palliative Medicine 3 CrossRefGoogle ScholarPubMed. But note this paper has met some scepticism:

24. R v Adams [1957] Crim LR 365.

25. On double effect, see Price, D Euthanasia, pain relief and double effect’ (1997) 17 LS 323.Google Scholar

26. Airedale NHS Trust v Bland, above n 10, per Lord Goff of Chieveley at 867.

27. R v Woollin [1999] AC 82.

28. Re A (Children) (Conjoined Twins: Medical Treatment) [2000] HRLR 721, Robert-Walker LJ (obiter), at 828; see also the evidence of the Attorney-General to the House of Lords Select Committee in their report on the Assisted Dying for the Terminally Ill Bill 2004, at para 15, where he said it is not murder ‘where a doctor acts to do all that is proper and necessary to relieve pain with the incidental effect that this will shorten a patient’s life’; available at http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/86i.pdf (accessed 12 March 2005).

29. See Hornett, above n 3.

30. HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), [2003] 2 FLR 408 at [20].

31. Ibid, at [39] and [42].

32. Mental Capacity Act 2005, s 25(5) and (6). In this paper I use the terms ‘advance directive’, ‘advance refusal’ and ‘advance decision’ without meaning to imply any particular significance or imply any distinction between them. In the Act, the chosen term is ‘advance decision’.

33. Ibid, s 9.

34. For example Harris, J The Value of Life (London: Routledge and Kegan Paul, 1985)Google ScholarPubMed. For proposed legislation to allow physician-assisted suicide for terminally ill adult patients, see the Assisted Dying for the Terminally Ill Bill 2005, available at http://www.publications.parliament.uk/pa/ld200506/ldbills/036/2006036.htm (accessed 12 March 2006).

35. For example Secretary of State for the Home Department v Robb [1995] Fam 127; Ms B v An NHS Hospital Trust, above n 15.

36. On consequentialism, see Pettit, P (ed) Consequentialism (Aldershot: Dartmouth, 1993).Google Scholar

37. See Harris, above n 34, pp 43–45.

38. See Keown, ‘Restoring moral and intellectual shape to the law after Bland’, above n 11, at 482.

39. This view accords with arguments advanced by John Keown, Luke Gormally and John Finnis.

40. Biggar, N Aiming to Kill (London: Darton, 2004)Google Scholar chapter 3.

41. See the text to n 38 above.

42. For example, from Price, D Fairly Bland: an alternative view of a supposed new “Death Ethic” and the Bma guidelines’ (2001) 21 LS 618 Google ScholarPubMed;

43. Sacred Congregation for the Doctrine of the Faith – Declaration on Euthanasia (1980), available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19800505_euthanasia_en.html (accessed 8 March 2006).

44. This theological legitimacy does not, of course, necessarily provide legal legitimacy. Ecclesiastical law as understood in English common law is that body of law applicable only to the Church of England: AG v Dean and Chapter of Ripon Cathedral [1945] 1 Ch 239. Whilst the Roman Catholic Church has its own ‘ecclesiastical law’ (Code of Canon Law 1983, Book 1, Title 1), this is not ecclesiastical law as understood by English common law. The Canon Law of the Roman Catholic Church in English civil law is merely the consensual compact of a voluntary religious association and not part of the law of the land (as is the law applicable to the Church of England).

45. Or inviolable, if such terminology is preferred.

46. That is, disproportionate with regard to the benefits of the treatment weighed against its burdens.

47. For example, Quill, TE, Lo, B and Brock, DW Palliative options of last resort – a comparison of voluntary stopping eating and drinking, terminal sedation, physician-assisted suicide, and voluntary active euthanasia’ in Tännsjö, T (ed) Terminal Sedation: Euthanasia in Disguise? (Dordrecht: Kluwer, 2004) p 1.Google Scholar

48. L Gormally ‘Terminal sedation and the doctrine of the sanctity of life’ in ibid, p 81.

49. The Bill is available at http://www.publications.parliament.uk/pa/cm199900/cmbills/012/2000012.htm (accessed 12 March 2006).

50. See Keown ‘Beyond Bland: a critique of the BMA guidance on withholding and withdrawing medical treatment’, above n 11, at 84.

51. Ibid. Presumably here this is intended to counter the concern that a patient’s values might require intentional life-shortening, albeit by omission. If Keown thinks that would be consistent with the Bill, it seems hard to agree with him. If he thinks that best interests can be ascertained only by reference to the sanctity principle, he may misunderstand what he considers to have been the coherence in the law prior to Bland. We should note that the Mental Capacity Act 2005 requires medical practitioners to treat a patient in accordance with his values, insomuch as they may be reasonably ascertained: Mental Capacity Act 2005, s 4.

52. See Keown ‘A futile defence of Bland: a reply to Andrew McGee’, above n 11. A detailed defence of the Medical Treatment (Prevention of Euthanasia) Bill is provided in Keown, above n 1, chapter 21. We need not consider here every point made in that chapter, but will consider a couple of Keown’s contentions below.

53. JS Mill (edited by E Alexander) On Liberty (Broadview, 1999) p 52.

54. Re T (Adult: Refusal of Treatment), above n 3.

55. See, eg, the judgment of Dame Elizabeth Butler-Sloss in Re S (Adult Patient: Sterilisation) [2001] Fam 15.

56. Seeking Patients’ Consent: The Ethical Considerations GMC Guidance to doctors (November 1998), available at http://www.gmc-uk.org/standards/consent.htm (accessed 13 August 2005).

57. Mental Capacity Act 2005, s 4.

58. See Keown ‘Restoring the sanctity of life and replacing the caricature: a reply to David Price’, above n 11, at 116.

59. Ibid.

60. Assessing the justice of the situation requires further considerations, of course. It is arguable that a just result may be achieved by the doctor referring the patient over to another physician. This might work, but there is a case that this still makes a doctor complicit in the life-shortening, and thus his intent retains its relevance.

61. This is not to say that the doctor has caused the patient’s pain in the sense that he is the sole or main cause. It is beyond argument, however, that the doctor’s omission would be one cause of the patient’s condition, and we have seen that the sanctity doctrine provides culpability for omissions as well as acts.

62. See Price, above n 42, at 636.

63. See Keown ‘Restoring the sanctity of life and replacing the caricature: a reply to David Price’, above n 11, at 116.

64. Consider, eg, Lord Browne-Wilkinson in Bland, above n 10, at 884: ‘[T]he critical decision to be made is whether it is in the best interests of Anthony Bland to continue the invasive medical care involved in artificial feeding. That question is not the same as, “Is it in Anthony Bland’s best interests that he should die?” The latter question assumes that it is lawful to perpetuate the patient’s life …’; or Lord Donaldson MR in the case of Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 at 42: ‘What is being balanced is not life against death, but a marginally longer life of pain against a marginally shorter life free from pain and ending in death with dignity’.

65. R (Oliver Leslie Burke) v The General Medical Council, above n 20, at [51].

66. I do not here suggest that we pay no attention to things that might bear on a doctor’s decision making if our suspicions are aroused, for example, by the administration of an unusually high dose of morphine. Such a potentially guilty act, combined with, for example, knowledge that the doctor was aware he stood to benefit financially from the patient’s death, might warrant further investigation. In the case of unusual or ambiguous acts, then, we might be more wise to investigate the thought processes of the doctor, but as a rule, my assertion in this paragraph is surely correct.

67. If it is important to the doctor, it is unclear why he should be able to act in accordance with that moral perspective in breach of the harm principle.

68. The example of the driver seems not to provide an ideal analogy, because in that case the driver’s act is not motivated by anything within his control. The relevance to medical practice is that best interests are supposed to be objective. Again, then, the doctor should be free to feel what he likes so long as he is directed to what is objectively bound to happen in accordance with the law: desires do not bear in any relevant sense on the act.

69. The sanctity principle is an absolute moral theory: Gormally, above, n 48, p 83. At law, of course, it is not absolute: Bland, above n 10. Keown’s arguments subsequent to this case are that the Law Lords were wrong to subordinate the sanctity principle to other principles because they falsely understood sanctity, conflating it with vitalism. In the current argument, I contend that even if sanctity is properly understood, it does not form an absolute legal doctrine that everyone can be bound to follow.

70. Ms B v An NHS Hospital Trust, above n 15.

71. See Keown, above n 17, at 239.

72. See Keown ‘Restoring moral and intellectual shape to the law after Bland’, above n 11.

73. See nn 22 and 44 above.

74. Consider, eg, the works of RM Veach, such as his recent ‘Inactivating a total artificial heart: special moral problems’ (2003) 27(4) Death Studies 305.

75. ‘Moral relativism as standardly defined is not a view committed to “anything will do”; rather it is the view that moral claims are to be assessed internally, within the moral framework or perspective of a particular group, society, or culture. On this account, to be a participant in a society’s morality requires the adoption of that society’s moral framework. Relativism does not imply that “anything goes” in morality: moral relativists can easily justify the use of concepts such as “transgression” of moral rules, and practices such as punishment for those transgressions. A commitment to “anything goes” looks more like moral nihilism than moral relativism, and nihilism is, for well rehearsed reasons, a very unattractive position, and hence not one whose temptations we are likely to succumb to’: Dawson, A and Garrard, E ‘In defence of moral imperialism: four equal and universal prima facie principles’ (2006) 32 Journal of Medical Ethics 200 CrossRefGoogle ScholarPubMed at 202.

76. For reasons presented by Keown, not, of course, by virtue of the fact that it involves assistance by inaction.

77. Mental Capacity Act 2005 – Draft Code of Practice for Consultation (9 March 2006), available at http://www.dca.govuk/consult/codepractise/draftcode0506.pdf (accessed 13 March 2006).

78. Ibid, para 4.28.

79. Ibid.

80. Re A (Male Sterilisation) [2000] 1 FLR 549 at 560 per Thorpe LJ.

81. See the debate between John Finnis and John Harris in the opening six chapters of Keown, above n 3.

82. Mental Capacity Act 2005 – Draft Code of Practice for Consultation, above n 77, para 4.63.

83. See Keown ‘Restoring moral and intellectual shape to the law after Bland’, above n 11, at 487.

84. See, eg, the account of Nigel Biggar, above n 40.

85. See text to n 67 above.

86. See above n 52.

87. See Keown, above n 1, pp 263–264.

88. Ibid, p 264.

89. Ibid, p 272.

90. Ibid, p 63.