Ethical Judgments: Re-Writing Medical Law 9781849465793, 9781509904136, 9781509904150

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ETHICAL JUDGMENTS This edited collection is designed to explore the ethical nature of judicial ­decision-making, particularly relating to cases in the health/medical sphere, where judges are often called upon to issue rulings on questions containing an explicit ethical component. However, judges do not receive any specific training in ethical decision-making, and often disown any place for ethics in their decision-making. Consequently, decisions made by judges do not present consistent or robust ethical theory, even when cases appear to rely on moral claims. The project explores this dichotomy by imagining a world in which decisions by judges have to be ethically as well as legally valid. Nine specific cases are reinterpreted in light of that requirement by leading academics in the fields of medical law and bioethics. Two judgments are written in each case, allowing for different views to be presented. Two commentaries—one ethical and one legal—then explore the ramifications of the ethical judgments and provide an opportunity to explore the two judgments from additional ethical and legal perspectives. These four different approaches to each judgment allow for a rich and varied critique of the decisions and ethical theories and issues at play in each case.

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Ethical Judgments Re-Writing Medical Law

Edited by Stephen W Smith, John Coggon, Clark Hobson, Richard Huxtable, Sheelagh McGuinness, José Miola, and Mary Neal

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The Editors The Editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) excepted where otherwise stated. All Eur-lex materials used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2015. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: PBK: 978-1-84946-579-3 ePDF: 978-1-50990-415-0 ePub: 978-1-50990-414-3 Library of Congress Cataloging-in-Publication Data Names: Smith, Stephen W., 1973– editor.  |  Coggon, John, 1980–editor.  |  Hobson, Clark, editor.  |  Huxtable, Richard, editor.  |  McGuinness, Sheelagh, editor.  |  Miola, José, editor.  |  Neal, Mary (Law teacher) Title: Ethical judgments : re-writing medical law / edited by Stephen W Smith, John Coggon, Clark Hobson, Richard Huxtable, Sheelagh McGuinness, José Miola, and Mary Neal. Description: Oxford ; Portland, Or. : Hart Publishing, An imprint of Bloomsbury Publishing Plc, 2016.  |  Includes bibliographical references and index. Identifiers: LCCN 2016034322 (print)  |  LCCN 2016034948 (ebook)  |  ISBN 9781849465793 (pbk. :alk. paper)  |  ISBN 9781509904143 (Epub) Subjects: LCSH: Medical laws and legislation—England—Cases. Classification: LCC KD3395 .E87 2017 (print)  |  LCC KD3395 (ebook)  |  DDC 344.4204/10264—dc23 LC record available at https://lccn.loc.gov/2016034322 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Dedication

To the judges, healthcare professionals, patients and their families who have to deal with these issues in practice.

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ACKNOWLEDGEMENTS

The editors would like to acknowledge the following people who were crucial in the completion of this collection. First and foremost, we would like to thank the contributors for their engagement with the project, as well as their excellent contributions both as judges and commentators. We would also like to thank the people at Hart Publishing who were instrumental in bringing this collection to print, especially Emily Braggins and Rachel Turner. We further thank Charlotte Elves, Harriet Fox, David Lawrence and Sarah Lonergan who provided much needed research assistance throughout the project. We are grateful also to the Wellcome Trust, which kindly awarded us a small grant to run a workshop, which allowed us to get a good number of the contributors together to discuss the judgments and commentaries. The exchanges which happened at the workshop undoubtedly made this a better collection. Thanks are also due to Jessica Bowen who provided invaluable administrative assistance for that workshop. Special thanks are due to the Feminist Judgments Project which provided us with inspiration and a roadmap for the project. We didn’t always follow directly in the footsteps of that project, but it was always a useful example. Finally, we would like to thank our families, friends and pets, for providing us with encouragement and support throughout the process. This project involved a great deal of consensus between the editors. However, as with any collaborative undertaking, not every view expressed is entirely shared by every member of the editorial team.

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TABLE OF CONTENTS

Acknowledgements��������������������������������������������������������������������������������������������������� vii Contributors������������������������������������������������������������������������������������������������������������ xiii Notice on the Order of Judgments�����������������������������������������������������������������������������xv Table of Cases��������������������������������������������������������������������������������������������������������� xvii Table of Legislation��������������������������������������������������������������������������������������������������xix

Introduction—Medicine in the Courtroom: Judges, Ethics and the Law�����������������������������������������������������������������������������������1 Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147�����������������������������9 Judgment 1—Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147������������������������������������������������������������������������������������������������11 Ost LJ (Suzanne Ost) Judgment 2—Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147������������������������������������������������������������������������������������������������18 Huxtable LJ (Richard Huxtable) Legal Commentary—Twisted Reasoning: Disentangling Matters of Law, Conjoined Embodiment, Life, and Death����������������������������24 Kirsty Moreton Ethical Commentary—Conjoineds, Care, and the Question of Identity: Some Reflections on the Ethics of Re A����������������������31 Jackie Leach Scully R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin)����������������������������������������������������������������������������������38 Judgment 1—R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin)������������������������������������������������39 Herring J (Jonathan Herring) Judgment 2—R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin)������������������������������������������������45 Biggs J (Hazel Biggs)

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Table of Contents Legal Commentary—Axon and Autonomy: A Missed Opportunity?�����������������������������������������������������������������������������������51 Elizabeth Wicks Ethical Commentary—Axon, Autonomy and Confidentiality��������������������������57 David Archard

Airedale NHS Trust v Bland [1993] AC 789����������������������������������������������������������64 Judgment 1—Airedale NHS Trust v Bland [1993] AC 789��������������������������������65 Lord Smith of Erie (Stephen W Smith) Judgment 2—Airedale NHS Trust v Bland [1993] AC 789��������������������������������71 Lord Jones of Anscombe (David A Jones) Legal Commentary—Living and Letting Die: Harmful Intentions and the Best Interests of Anthony Bland��������������������������������������77 Hazel Biggs Ethical Commentary: The Ethical Acceptability of Discontinuing Artificial Nutrition and Hydration for Patients in a Permanent Vegetative State���������������������������������������������������84 James F Childress R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151��������������������������������������������������������������������������91 Judgment 1—R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151�������������������������������������������������������92 Laurie J (Graeme Laurie) Judgment 2—R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151�������������������������������������������������������98 Jackson J (Emily Jackson) Legal Commentary: R v Human Fertilisation and Embryology Authority, ex parte Blood��������������������������������������������������������������������������������104 Mary Neal Ethical Commentary—Beyond Law: An Ethical Critique of Blood����������������111 Heather Widdows Bolitho v Hackney Health Authority [1998] AC 232������������������������������������������117 Judgment 1—Bolitho v Hackney Health Authority [1998] AC 232������������������119 Lord Montgomery of Botley (Jonathan Montgomery) Judgment 2—Bolitho v Hackney Health Authority [1998] AC 232������������������125 Lord Miola of South Leicester (José Miola)

Table of Contents

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Legal Commentary—Bolitho: Expertise, Law and Medicine���������������������������131 Nicky Priaulx, Martin Weinel and Chris Goldsworthy Ethical Commentary—Bolam, Bolitho and the Crisis of Legal Form�������������������������������������������������������������������������������������������������138 John Harrington R v Bourne [1939] 1 KB 687����������������������������������������������������������������������������������145 Judgment 1—R v Bourne [1939] 1 KB 687�������������������������������������������������������146 McGuinness J (Sheelagh McGuinness) Judgment 2—R v Bourne [1939] 1 KB 687�������������������������������������������������������151 Dellapenna J (Joseph Dellapenna) Legal Commentary—R v Bourne: A Historical Context����������������������������������157 Lois S Bibbings Ethical Commentary—Abortion and Physician Conscientious Action�������������������������������������������������������������������������������������164 Françoise Baylis Chester v Afshar [2005] 1 AC 134�������������������������������������������������������������������������172 Judgment 1—Chester v Afshar [2005] 1 AC 134����������������������������������������������174 Lord Heywood of Tameside Greater Manchester, (Rob Heywood) Judgment 2—Chester v Afshar [2005] 1 AC 134����������������������������������������������181 Lady Devaney of Preston (Sarah Devaney) Legal Commentary—Taking Autonomy Seriously? Loss of Autonomy as a Legal ‘Harm’�������������������������������������������������������������187 José Miola Ethical Commentary—Autonomy Rights and Duties: Ethical Issues in and around Chester v Afshar����������������������������������������������193 John Coggon R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38�����������������������������������������������������������������200 Judgment 1—R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38������������������������������������������������������������202 Lord Huxtable of Pen-y-bont ar Ogwr (Richard Huxtable) Judgment 2—R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38������������������������������������������������������������208 Lord Coggon of Bedmo (John Coggon)

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Table of Contents

Legal Commentary—Assisted Suicide: Unpicking the Warp and Woof of Politics, Ethics and the Law in Nicklinson���������������������214 Clark Hobson Ethical Commentary—Nicklinson and the Ethics of the Legal System�����������221 Stephen W Smith St George’s Healthcare NHS Trust v S [1999] Fam 26����������������������������������������227 Judgment 1—St George’s Healthcare NHS Trust v S [1999] Fam 26����������������229 Neal LJ (Mary Neal) Judgment 2—St George’s Healthcare NHS Trust v S [1999] Fam 26����������������235 Fovargue LJ (Sara Fovargue) Legal Commentary—Giving Birth, Foetal Subjectivity, and Harm����������������241 Sheelagh McGuinness Ethical Commentary—A Necessarily Feminist Critique of the Judgments�����������������������������������������������������������������������������248 Sorcha Uí Chonnachtaigh Conclusion—Medical Law Rewritten?���������������������������������������������������������������255

Glossary�������������������������������������������������������������������������������������������������������������������261 Index�����������������������������������������������������������������������������������������������������������������������281

CONTRIBUTORS

David Archard is a Professor in the School of Politics, International Studies and Philosophy at Queen’s University, Belfast. Françoise Baylis is Professor, Canada Research Chair in Bioethics and Philosophy at Dalhousie University. Lois Bibbings is Professor of Law, Gender and History at ­University of Bristol Law School. Hazel Biggs is Professor of Law at Southampton Law School, University of Southampton. James Childress is the John Allen Hollingsworth Professor of Ethics and Director of the Institute for Practical Ethics and Public Life at the University of Virginia. John Coggon is Professor of Law at the University of Bristol Law School. Joseph Dellapenna is Professor of Law at the Charles Widger School of Law at Villanova University. Sarah Devaney is Senior Lecturer in Healthcare Law at the University of ­Manchester, School of Law. Sara Fovargue is Reader in Law at the Lancaster University Law School. Chris Goldsworthy is a PhD candidate in the School of Social Sciences, Cardiff University. John Harrington is Professor of Global Health Law, Cardiff Law School, Cardiff University. Jonathan Herring is Professor of Law at Oxford University and the DM ­Wolfe-Clarendon Official Fellow at Exeter College. Rob Heywood is Professor of Medical Law of the University of East Anglia Law School. Clark Hobson is a Teaching Fellow at the Birmingham Law School, University of Birmingham. Richard Huxtable is Professor of Medical Ethics and Law and Director of the ­Centre for Ethics in Medicine at the University of Bristol.

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Contributors

Emily Jackson is Professor of Law at the London School of Economics and ­Political Science. David Jones is the Director of the Anscombe Bioethics Centre, Oxford, a Research Fellow at Blackfriars Hall, Oxford University and a Research Fellow at St Mary’s University, Twickenham. Graeme Laurie is Professor of Medical Jurisprudence at the University of ­Edinburgh and Founding Director of the JK Mason Institute for Medicine, Life Sciences and the Law. Jackie Leach Scully is Professor of Social Ethics and Bioethics and Co-Director of PEALS (Policy, Ethics and Life Sciences) Research Centre, Newcastle University. Sheelagh McGuinness is Senior Lecturer at the University of Bristol Law School. José Miola is Professor of Medical Law at the Leicester Law School, University of Leicester. Jonathan Montgomery is Professor of Health Care Law at University College ­London Faculty of Laws. Kirsty Moreton is Lecturer in Law at Keele Law School, Keele University. Mary Neal is Senior Lecturer at the University of Strathclyde Law School. Suzanne Ost is Professor of Law at the Lancaster University Law School. Nicky Priaulx is Reader in Law at the Cardiff Law School, Cardiff University. Stephen W Smith is Senior Lecturer in Medical Law and Ethics at the Cardiff Law School, Cardiff University. Sorcha Uí Chonnachtaigh is Lecturer in Ethics and Law, Keele Law School, Keele University. Martin Weinel is a Research Associate, IMGAME, at Cardiff University. Elizabeth Wicks is Professor of Human Rights Law at the Leicester Law School, University of Leicester. Heather Widdows is John Ferguson Professor of Global Ethics at the University of Birmingham.

NOTICE ON THE ORDER OF JUDGMENTS

In this collection, each case is taken in alphabetical according to legal convention, as opposed to chronological, order. There are two judgments for each case, followed first by a legal commentary and then by an ethical commentary. In legal cases, the first judgment is often ­considered more important and the ­‘majority’ opinion, whereas subsequent ­judgments are seen as concurring or dissenting judgments. In this collection, ­neither judgment should be seen as stating a majority or minority view. Instead, we have simply used reverse alphabetical surname order for the judgments.

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TABLE OF CASES A (Conjoined Twins: Surgical Separation), Re [2000] 4 All ER 961, [2001] Fam 147����������������������������������������������������������������������������������������������� 1, 5, 8–37, 258 A v Secretary of State for the Home Department [2005] 2 AC 68�������������������������������������215 Airedale NHS Trust v Bland [1993] AC 789���������������������������������������������������� 2, 3, 5, 8, 64–90 Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 (NZ)���������������������������������������������������������������������������������������������������������������81 B (Consent to Treatment: Capacity), Re [2002] 1 FLR 1090������������������������������������������2, 219 Birch v UCL Hospital Trust [2008] EWHC 2237����������������������������������������������������������������192 Birmingham City Council v H (A Minor) [1994] 2 AC 212������������������������������������������������26 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582���������������������������������������������������������������������������������������������� 74, 79, 117, 131–33, 135, 138–44 Bolitho v Hackney Health Authority [1998] AC 232���������������������������� 5, 74, 79, 117–44, 255 Burke v GMC [2005] EWCA Civ 1003����������������������������������������������������������������������������������73 Cattanach v Melchior (2003) 199 ALR 131 (Aust)��������������������������������������������������������������110 Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134��������������������������������������� 2, 5, 8, 172–89, 193–99 F (A Mental Patient: Sterilisation), Re [1990] 2 AC 1, [1989] 2 All ER 454�������������������������������������������������������������������������������������������������������������82 Fitzpatrick v White [2007] IESC 51�������������������������������������������������������������������������������������191 G (Adoption: Unmarried Couple), Re [2009] 1 AC 173�����������������������������������������������������215 Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112���������������������������������������������������������������������������������������� 38, 51–53, 55–61, 63, 140 Gregg v Scott [2005] UKHL 2����������������������������������������������������������������������������������������������190 Jones v Kaney [2011] UKSC 13��������������������������������������������������������������������������������������������136 MB (An Adult: Medical Treatment), Re [1997] 2 FLR 426, [1997] 2 FCR 541����������������������������������������������������������������������������������������������������������������27 McFarlane v Tayside Health Board [2000] 2 AC 59������������������������������������������������������������110 Montgomery v Lanarkshire Health Board [2015] UKSC 11���������������������� 133, 136, 144, 192 Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2010] EWCA Civ 79��������������������������������������������������������������������������������������������������������������������258 Parkinson v St James & Seacroft University Hospital NHS Trust [2001] EWCA Civ 530���������������������������������������������������������������������������������������������245 Pretty v United Kingdom (2002) 35 EHRR 1����������������������������������������������������������������������219 R (A Minor), Re [1991] 4 All ER 177�������������������������������������������������������������������������������������52 R v Adams [1957] Crim LR 365���������������������������������������������������������������������������������������������78 R v Bourne [1939] 1 KB 687, [1938] 3 All ER 615���������������������������������������� 5, 6, 145–71, 258 R v Gibbins and Proctor [1918] 13 Crim App Rep 134��������������������������������������������������������79 R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151������������������������������������������������������������������������������������5, 91–116, 258

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Table of cases

R v Instan [1893] 1 QB 453��������������������������������������������������������������������������������������������������193 R v Malcherek and Steel [1981] 2 All ER 422������������������������������������������������������������������������78 R v Woollin [1999] 1 AC 82����������������������������������������������������������������������������������������������28, 81 R (on the application of Axon) v Ministry of Health [2006] EWHC 37 (Admin)���������������������������������������������������������������������������������������������������5, 38–63 R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003����������������������������������������������������������������������������������������������������������������107 R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38����������������������������������������������������������������������������������������������������������5, 200–26, 255 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871�������������������������������������������������������������������������������������������������������������������133 St George’s Healthcare NHS Trust v S [1999] Fam 26����������������������������������������������5, 227–55 Superintendent of Belchertown State School v Saikewicz, 373 Mass 728 (1977)�����������������������������������������������������������������������������������������������������������80 T (A Minor) (Wardship: Medical Treatment), Re [1997] 1 All ER 906�������������������������������������������������������������������������������������������������������������������27, 28 T (Adult: Refusal of Medical Treatment), Re [1992] WLR 786����������������������������������243, 247 Thornton v NIHE [2010] NIQB 4���������������������������������������������������������������������������������������136 W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re [1992] 4 All ER 627��������������������������������������������������������������������������������������������������������52 Wednesbury�������������������������������������������������������������������������������������������������������������������141, 143 Whitehouse v Jordan [1981] 1 All ER 267���������������������������������������������������������������������������132 Wisniewski v Central Manchester Health Authority [1988] Lloyd’s Rep Med 223���������������������������������������������������������������������������������������������������������136

TABLE OF LEGISLATION Abortion Act 1967����������������������������������������������������������������������������������������������� 6, 53, 140, 158 Children Act 1989 s 1(1)������������������������������������������������������������������������������������������������������������������������������������24 Human Fertilisation and Embryology Act 1990����������������������53, 91, 104, 105, 107, 108, 111 s 2(1)����������������������������������������������������������������������������������������������������������������������������������108 Sch 3��������������������������������������������������������������������������������������������������������������������������104, 111 Human Rights Act 1998��������������������������������������������������������������������������������������������������������215 Infant Life Preservation Act 1929����������������������������������������������������������������� 161, 162, 164, 170 s 1(1)������������������������������������������������������������������������������������������������������������������159, 161, 162 Mental Capacity Act 2005���������������������������������������������������������������������������������������������������6, 82 s 2���������������������������������������������������������������������������������������������������������������������������������������197 s 3���������������������������������������������������������������������������������������������������������������������������������������197 s 4(6)����������������������������������������������������������������������������������������������������������������������������������243 Mental Health Act 1959��������������������������������������������������������������������������������������������������������140 Mental Health Act 1983����������������������������������������������������������������������������������������227, 250, 252 s 2�������������������������������������������������������������������������������������������������������������������������������227, 251 Offences Against the Person Act 1861����������������������������������������������������������������������������������145 s 58��������������������������������������������������������������������������������������������� 145, 158, 159, 161, 162, 164 Sexual Offences Act 2003 s 9�����������������������������������������������������������������������������������������������������������������������������������������52 Suicide Act 1961������������������������������������������������������������������������������������������������������������217, 219 s 2��������������������������������������������������������������������������������������������������������������� 200, 215, 217, 219 (1)��������������������������������������������������������������������������������������������������������������������������216, 219 (4)����������������������������������������������������������������������������������������������������������������������������������219 Stautory Instruments Civil Procedure Rules������������������������������������������������������������������������������������������������������������136 Pt 35.3������������������������������������������������������������������������������������������������������������������������������������136 European European Convention on Human Rights 1950 Art 8�������������������������������������������������������������������������������������������������������������������200, 215, 216 (1)��������������������������������������������������������������������������������������������������������������������������� 215–17 (2)��������������������������������������������������������������������������������������������������������������������������216, 217 Treaty of Rome 1957 Art 59�����������������������������������������������������������������������������������������������������������������������������������������������91 Art 60�����������������������������������������������������������������������������������������������������������������������������������������������91

xx 

Introduction—Medicine in the Courtroom: Judges, Ethics and the Law ‘[T]his is a court of law, not of morals’1

I.  Judicial Determinations: Legal, Not Ethical? In the ‘conjoined twins’ case, Re A, the Court of Appeal had to issue a judgment under the sharp glare of the global media spotlight, on a question both divisive and morally significant: could English law sanction the separation of two legally distinct but physically united babies, knowing that one would be killed and one saved by the operation, and in the face of a refusal to consent by the parents but with medical opinion that favoured the surgery? In the much-cited dictum that heads this introduction, Ward LJ denies the relevance of the moral or ethical dimensions of the case as a component of his legal determination,2 despite their obvious and urgent nature.3 His judicial reasoning, he suggests, draws purely from law. In conceptual legal jargon, he commits to a formalist position: judges should not bring extra-legal considerations to their decision-making, and by implication, can find all of the necessary answers to the question within the law itself. Re A presented a true moral dilemma: whichever decision was reached, one of the children would die earlier than she had to in order that the other might live longer. But even in less dramatic health care cases, the ethical elements will be apparent, and will invite critical examination from within and beyond legal scholarship. In recognition of the weighty ethical components of health care law, and the fact that so much medico-legal doctrine has been developed in the courtroom, this book calls for an examination of three related, overarching questions that are respectively doctrinal, methodological, and substantive in nature. First, have judges, in making key medico-legal decisions, drawn a clear and compelling conclusion based on what the law requires, or (pace Ward LJ) have they in reality drawn upon extra-legal factors, suggesting that more than one outcome could have

1 

Re A (Children) (Conjoined Twins: Medical Treatment) [2000] 4 All ER 961, 969, per Ward LJ. We will use ‘morals’ and ‘ethics’ interchangeably here. 3  J Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26 Legal Studies 185. 2 

2 

Introduction

been achieved? Second, in reaching a judgment, should judges embrace extra-legal modes of reasoning where the ‘right’ legal answer is either unclear or unacceptable? In particular, we wonder, how would judicial decision-making work if judges openly explained the ethical reasoning underpinning their decisions? And third, would a more overt engagement with ethical reasoning produce an improved or diminished medical law: should medical law be a field that is formally detached from medical ethics, or should the two, in practice and in form, be combined? Despite Ward LJ’s assertion, judges presiding over health care cases do sometimes dip their toes into ethical waters.4 We can wonder, however, whether they do so sufficiently deeply, or with sufficient skill.5 Understandings of concepts such as ‘welfare’, ‘autonomy’ and ‘dignity’ might be advanced without rigour or consistency, but might nevertheless help drive the eventual outcome.6 Grand ethical theories, such as deontology and utilitarianism, might be borrowed from in order to achieve a preferred outcome, without due regard for the nuances of these theories or how they might become incoherent if used in this way.7 Judges might also struggle to prioritise certain principles over others, or to identify ways of resolving apparent clashes between principles.8 It might even be said that judges are not necessarily any better at ‘doing ethics’ than the average person on the Clapham omnibus. These are not necessarily criticisms. As Ward LJ reminds us, courts are for law, not—or, perhaps, not necessarily—for morals, and judges are not appointed for their ability to engage in ethical reasoning. They are, first and foremost, lawyers, trained in the art of legal reasoning and interpretation. With luck, judges will have what Karl Llewellyn referred to as ‘horse-sense’ (‘common sense’ to the rest of us),9 but even that is not strictly a requirement. Since judges are not necessarily trained in ethical reasoning, it may be unfair (indeed, perhaps unethical) to expect them to be so skilled. Lack of engagement with ethical questions would be unproblematic except that, in relation to health care particularly, many of the cases that judges hear have

4  Eg In Airedale NHS Trust v Bland [1993] AC 789 (CA) 826A, Hoffmann LJ cites R Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (London, Harper Collins, 1993), as does Lord Steyn in the House of Lords in Chester v Afshar [2004] UKHL 41; and in Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449, [81]–[83], [94], Butler-Sloss P cites K Atkins, ‘Autonomy and the Subjective Character of Experience’ (2000) 17 Journal of Applied Philosophy 71. 5  Eg J Miola, Medical Ethics and Medical Law: A Symbiotic Relationship (Oxford, Hart Publishing, 2007). 6 A Bainham, ‘Handicapped Girls and Judicial Parents’ (1987) 103 Law Quarterly Review 334; J ­Coggon ‘Varied and Principled Understandings of Autonomy in English law: Justifiable Inconsistency or Blinkered Moralism?’ (2007) 15 Health Care Analysis 235; C Foster, Human Dignity in Bioethics and Law (Oxford, Hart Publishing, 2011). 7  Eg R Huxtable, ‘The Court of Appeal and Conjoined Twins: Condemning the Unworthy Life?’ (2000)162 Bulletin of Medical Ethics 13. 8  J Finnis, ‘Bland: Crossing the Rubicon (1993) 109 Law Quarterly Review 329; J Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland (1997) 113 Law Quarterly Review 482. 9  K Llewellyn, Jurisprudence: Realism in Theory and Practice (Chicago, University of Chicago Press, 1962) 249.

Introduction

 3

undeniable ethical import. Sometimes, in such cases, the law is relatively clear (if nevertheless sometimes unsatisfactory). What may be unclear are the ethical issues associated with a particular problem. Failing to provide the necessities for life might amount to murder, but should this mean that life-supporting measures should, so far as possible, continue to be provided to an individual who is confirmed to be in a permanent vegetative state?10 Such questions, difficult as they are, are not—or, at least, are not solely—legal in nature. Rather, they invite us to consider what characteristics that we should aspire to possess individually and collectively, what obligations we should honour, and what should be the outcomes of the decisions we make. In short, insofar as we recognise that health care law raises ethical questions, we need to understand whether and how such questions should be answered in a process of legal determination. We have proceeded in this project with a healthy, inquiring scepticism that judges can avoid taking ethical positions when discharging their functions in cases such as those considered herein, whatever they might say to the contrary. Commentators have spilled much ink attributing one ethical standpoint or another to a particular judge or judgment. With occasional exceptions, however,11 judges themselves are rarely explicit about, or thoroughly reflective upon, their ethical orientations. As an extended thought experiment, this collection seeks to make the ethical questions, and the efforts to furnish them with answers, more explicit in the judging process. The collection therefore starts with a simple enough premise: what if the decisions in these sorts of cases require the decision of the judge to be ethically aware, as well as legally valid? In other words, in addition to whatever legal constraints that might exist in a particular case, what if the judges were required to acknowledge and work through their ethical positions? How might such an exercise impact upon the final decision? We ask these questions not only because we seek more explicit and defensible accounts of what judges might mean when they refer to ethically-laden notions such as ‘autonomy’, ‘dignity’ or ‘the sanctity of human life’, but also because such concepts and their deployment have real-world implications. To work in the world, judgments need at least to be capable of guiding people’s behaviour— they need, therefore, to be clear, consistent and predictable.12 Arguably, however, something more is also needed: a robust approach to the ethical questions which will fall within judges’ purview. If judges are called upon to decide legal questions with an inherently ethical dimension, and yet fail to address the ethical elements conscientiously and coherently, questions can then be asked about whether those entrusted with special roles in the (political) community have discharged their role legitimately.

10 

Bland (n 4). See, eg, the references in n 4. 12  Eg LL Fuller, The Morality of Law (New Haven, Yale University Press, 1969). 11 

4 

Introduction

This collection, then, involves an ethical re-writing of health care law. What has resulted is somewhat akin to a work in counter-factual history;13 a sort of ‘­alternate world’ opened up by asking ‘what if…?’

II.  Our Ethical (Re-)Writers and (Re-)Readers In planning the project, we sought to assemble a broad spectrum of ethical views, representative of robust but contradictory bioethical positions. Stephen Smith convened the core project team of editors, which comprises a group of medical lawyers who have, in their work, examined and disagreed forcefully on the doctrinal, methodological, and substantive questions this project raises, and how they should be answered. If asked, we would all place ourselves at different points on the spectrum from medical lawyer to medical ethicist, but all of us are primarily trained as lawyers. In honing our plan, we were mindful of the Feminist Judgments Project, also published by Hart.14 While we did not entirely follow its lead, that project (and before it the Women’s Court of Canada)15 broke new ground in emphasising the importance of judging as a collective and critical endeavour and asking ‘what if…?’16 In our own engagement with that question, we were clear that we did not want to elicit the views only of medical lawyers imitating judges. We also sought a varied range of ethical voices from which we could hear a diverse presentation of views about the cases that we selected for re-examination. To achieve the aims of the project, therefore, we have gathered together a group of over 30 academics: some lawyers, some ethicists, some social scientists, some overlapping two or more of these categories. Our contributors also come from different common law jurisdictions: England and Wales (the jurisdiction that forms the focus of this collection), Scotland, Northern Ireland, Canada and the United States, and represent different religious, theoretical, and moral traditions. It ought to be noted that although many of the writers in this volume have viewed the project as an opportunity to write the decision that they believe the original judge(s) ought to have reached, some of the new judgments do not necessarily represent the authors’ personal moral views, but simply ethical conclusions that the authors regard as theoretically plausible in light of the facts of the case and the law at the time. The end result is a collage of perspectives covering the

13  Eg N Ferguson (ed), Virtual History: Alternatives and Counterfactuals (New York, Basic Books, 1999); R Cowley (ed), What If? (New York, Berkley Books, 2000). 14  R Hunter, C McGlynn, E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010). 15  Decisions of the Women’s Court of Canada http://www.law.utoronto.ca/scholarshippublications/conferences/archives/rewriting-equality-08 (accessed 10 June 2016). 16 Indeed, this point was made by one of the editors of the Feminist Judgments Project; see E ­Rackley, ‘Why Feminist Legal Scholars Should Write Judgments: Reflections on the Feminist Judgments Project in England and Wales’ (2012) 24(2) Canadian Journal of Women and Law 389.

Introduction

 5

spectrum from ethically and legally conservative to radical, but united by the fact that they all strive to be ethically grounded and to embody an ethical coherence.

III.  (Re-)Writing the Judgments This volume is structured around nine cases that we have selected as broadly ­reflective of the wide range of ethical issues that are visible in the medical law context. The cases include issues relating to the beginning and end(ing) of life, to patients young and old, and to a range of professional obligations. They convey the complexity of the legal and ethical reflection required. Bourne concerns the question of whether or when a doctor can terminate a pregnancy,17 and Blood whether a woman might take her dead husband’s sperm and use it to conceive a child.18 The issue in Chester was how the law should respond to the failure of a surgeon to explain to the patient the risks inherent in an operation,19 while in Axon the Court had to consider in what circumstances patients younger than 16 could consent to abortions without the knowledge or consent of their parents.20 St George’s asked whether a pregnant woman should be able to refuse consent to a caesarean section, even if this meant that she and her foetus might die.21 Bolitho explored how the courts should treat medical expertise when contemplating clinical negligence, and the extent to which they should therefore involve themselves in clinical decisionmaking.22 In Bland, the Court was asked to determine whether life support could be removed from a patient in a persistent vegetative state.23 In Re A, judges had to decide whether it would be lawful to separate conjoined twins when it was certain that one of them would die if the procedure took place.24 Finally, in Nicklinson, the Court confronted a challenge to the law prohibiting assisted suicide.25 The cases have been approached via a two-stage process. First, two contributors (the ‘judges’) have written decisions, doing so with an eye to achieving ethical groundedness, rather than (merely) applying legal rules. This means that they were less formally encumbered by the law, although they were asked to follow a limited set of rules imposed by us as editors. To begin with, the decisions had to be written as judgments. As such, they had to have numbered paragraphs (for ease of presentation, we extended this requirement even to older cases), follow the referencing style of judgments (in-text citations) and the other accoutrements of

17 

R v Bourne [1938] 3 All ER 615. R Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151. Chester v Afshar [2005] 1 AC 134. 20  R (on the application of Axon), v Ministry of Health [2006] EWHC 37 (Admin). 21  St George’s Healthcare NHS Trust v S [1999] Fam 26. 22  Bolitho v Hackney Health Authority [1998] AC 232. 23  Bland (n 4). 24  Re A (conjoined twins: surgical separation) [2001] Fam 147. 25  R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38. 18  19 

6 

Introduction

an actual legal judgment. Also, our judges were limited to 3,000 words. This was a considerable limitation, considering that some of the original judgments run far longer, and many of the contributors found this a particular challenge. Third, we required our judges to write their judgments as if they were a member of the highest court that decided the case. For some, that was a trial court. For others, it was the House of Lords or (nowadays) the Supreme Court. As a reward for their efforts, those participants who acted as judges had the privilege of picking their own titles. Finally, and most importantly, the decisions had to be made on the basis of the established facts of the case and the state of the law at the time. Thus, our judges in Bourne did not have recourse to the Abortion Act 1967, and those involved in older end-of-life decisions did not have the benefits or constraints of the Mental Capacity Act 2005. Mindful of the advanced age of some of these cases and that our judges would inevitably be influenced by developments (in the law or the surrounding literature) which post-dated the case, we allowed limited scope to include ‘editorial footnotes’ to reference material that judges felt bound to mention, but which was not available when their case was decided. We have endeavoured to keep such additional references to a minimum. Once written, the second stage of the process provided that the judgments were considered by two commentators; of whom one was asked to engage from a predominantly legal perspective and the other from a more overtly ethical point of view. Effectively, therefore, there are four different opinions on each case, with the contributions of the judgment-writers having been subjected to scrutiny in much the same way that they themselves had scrutinised the efforts of the original judges. We consider one of the most interesting aspects of this project to be its demonstration of how a single case can elicit such different responses from different people, all of whom share an overarching commitment to good quality care that respects both (health care) professionals and patients. Evidently, this shared commitment leaves ample room for discussion, disagreement and differences in general approach, as well as in matters of emphasis. The result is a varied set of opinions from contributors who all bring fresh perspectives to bear on these classic cases.

IV.  Approaching Ethical Coherence As noted already, we have chosen cases in which significant ethical questions arise. The task for judges in such cases is to consider how the law should be brought to bear on these complex questions. Many of the seven editors have written on the relationship between medical law and medical ethics.26 All of us have thought about it. 26  J Coggon, ‘Assisted Dying and the Context of Debate: “Medical law” versus “end-of-life law”’ (2010) 18 Medical Law Review 541; SW Smith, End-of-Life Decisions in Medical Care: Principles and

Introduction

 7

A couple of terminological clarifications are in order before embarking on the judgments and commentaries. ‘Ethics’, as understood in philosophy, can be seen as comprising four areas of inquiry: normative ethics, in which we see the creation and critique of normative theories of what we should do or who we should be; applied ethics, in which such theories are related to specific fields; meta-ethics, in which there is concentration upon the concepts in issue; and descriptive ethics, in which actual moral beliefs and practices are analysed.27 This collection is primarily an exercise in normative ethics, insofar as our judges are seeking to stipulate what should be the ethical judgment passed down in the case at hand. The exercise is, however, also one in applied ethics, insofar as we see particular normative positions being applied to health care, professional-patient interactions and, of course, to law. And, in issuing their judgments, our judges will occasionally have recourse to knowledge gleaned from descriptive ethics and meta-ethics. In passing their judgments, then, our judges are cognisant of the ‘real world’, but also of more abstract (albeit perhaps no less real) ethical theories, concepts and approaches. We also wanted our judges to strive for orderly ethical thinking: to aim for something approaching ethical coherence. In other words, we hoped that our judges would aspire to reason through their decisions clearly, in an informed and considered manner, and in a way that was informed by the rich history of ethical deliberation; we anticipated the influence of particular theories and approaches working their way down into the content of the judgments delivered. As such, the reader will sometimes observe particular theories or approaches influencing the judgments: perhaps a duty-based deontological approach, perhaps an outcome-oriented consequentialism, perhaps feminist ethics, narrative ethics, casuistry or principlism.28 We have not asked that judges tether their judgments too obviously to particular ethical traditions: as such, readers should not expect to see densely referenced judgments (or, for that matter, commentaries) wherein contributors explicitly advance their preferred ethical theory or theories. Rather, we have left it to our commentators (and to you, the reader) to draw out, commend or critique the ethical underpinnings that inform the judgments, or their application in the judicial decision. In short, our judges have been encouraged to reflect how moral theory might bear on how their case ought to have been decided; this is in line with our shared view that the practice of ethics is partly the result of internal reflection.

Policies for Regulating the Dying Process (Cambridge, Cambridge University Press, 2012); R Huxtable, ‘Friends, Foes, Flatmates: On the Relationship between Law and Bioethics’ in J Ives, M Dunn and A Cribb (eds), Empirical Bioethics: Practical and Theoretical Perspectives (Cambridge, Cambridge ­University Press, 2016, forthcoming); Miola, Medical Ethics and Medical Law (n 5). 27 W van der Burg, ‘Law and Ethics: The Twin Disciplines’, Erasmus Working Paper Series on J­urisprudence and Socio-Legal Studies No 10-02 (2010). Available at: http://ssrn.com/abstract (no = 1631720), 5. 28  Definitions of these terms, and many others, can be found in the Glossary.

8 

Introduction

What readers should expect to see, then, are judgments that are not entirely encumbered by professional or legal rules, but which will be informed by (and which may in turn inform) ethical discourse. In effect, the contributors—including­ the commentators—have been ‘let loose’ on the cases; left as free as possible, in other words, to disagree, discuss, and debate the issues in a way which draws upon their various perspectives, backgrounds, and experiences. We hope you will agree that this has given rise to some illuminating differences of opinion, and equally, in some instances, shows contributors reaching the same conclusion by different theoretical routes.

V.  Aims and Aspirations Our hope is that the judgments and commentaries in this volume provide an insight into some possible alternative interpretations of, and resolutions to, the cases that we have selected. We do not mean to claim that the judges who delivered the ‘real’ judgments were mistaken; apart from anything else, we recognise that they had to abide by the legal rules of the time (such as they may have been). Indeed, many of those who have contributed judgments and commentaries have a new-found respect and admiration for the judges who really did have to decide these difficult cases, and for the task of judging in general. That said, there are some cases in which the courts have seemed willing to twist the law in order to achieve their preferred result: Bland and Re A arguably do so through an expansive reading of existing rules; others, such as Chester, show the Court being more explicit about its willingness to modify the law. Nevertheless, the law is inevitably a constraining influence on judges, and it may well be that, were they able to contribute to this collection, the original judges too would have come to approach things differently. Ultimately, we hope that this collection will be useful to students and academics who want to think critically about the cases considered below, and the nature and processes of judicial decision-making more generally. Not only do the contributions provide alternative visions of what the outcomes might have been, they also help to shed some light onto what was actually decided. In other words, by providing alternative judgments, which are critiqued in their turn by the commentators, the thinking of the judges in the ‘real’ cases is brought doubly into focus. Instead of considering the original judgments in isolation, therefore, this volume invites readers to consider them as some possibilities among others. The ethical judgments are often markedly different to the real decisions, but they do not ignore the legal landscape of the time; they describe alternative outcomes which were realistically possible in the sense of being available to the original judges in the cases. We leave it to the reader to decide whether they find the original judgments or the alternative judgments more persuasive. Above all, we hope the perspectives presented here will inspire the reader to consider how they might have decided these cases, on what basis, and so to engage in ethico-legal reflection themselves.

Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147 Facts The applicants in this case were the parents of M and J, two twins conjoined at the pelvis. Of the two twins, J was the stronger, sustaining M’s life by delivering to her the oxygenated blood that M’s own heart and lungs were too weak to supply. Medical evidence suggested that should the twins remain conjoined, J’s heart would eventually fail under the strain of supporting them both and thus both twins would die. However, medical evidence also suggested that should the twins be separated, although M would die, J would survive to live a near normal life. The twins’ parents, being devout Roman Catholics, refused to consent to the separation. The hospital applied for a declaration that the surgery would be lawful. Granting the declaration, Johnson J found that, while regard ought to be had for the parents’ wishes, the separation should take place and could do so lawfully as the proposed operation was not a positive act, but rather was analogous to those situations in which a court authorises the withholding of nutrition and hydration.

Outcome (Court of Appeal): Appeal Dismissed The Court held that the proposed separation would constitute a positive act and therefore was not analogous to those cases in which a court authorises the withdrawal of life-support. Looking to the family law, the Court acknowledged that the parents’ wishes were entitled to great respect, but emphasised that the ­children’s welfare was the Court’s paramount consideration. Here, however, the Court ­recognised that it was dealing with two children, each of whose best interests had to be considered. In light of this, the Court sought to strike a balance between the interests of each child, taking into account the worthwhileness of the treatment, the condition of each child and the advantages and disadvantages that would flow from both the performance, and non-performance, of the separation. Here the Court concluded that the least detrimental choice was to permit the separation of the twins. Turning to the criminal law, the Court decided that separation would amount to murdering M, but that this was justified. The majority (Brooke and Walker LJJ) pointed to a (narrowly drawn) defence of necessity; Ward LJ a­ dditionally suggested there might be a defence of ‘quasi self defence’ of J.

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Re A (Conjoined Twins: Surgical Separation) [2001]

Judicial Makeup Ward LJ, Brooke LJ, Walker LJ. Appellate History Family Division; 25 August 2000 Re A (Conjoined Twins: Medical Treatment) (No 1) [2001] Fam Law 16. Keywords surgical procedure, children’s welfare, conjoined, intention, murder, parental rights, necessity, right to life.

Judgment 1—Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147 OST LJ (SUZANNE OST)

I. Introduction [1] We are asked to rule whether surgery to separate Jodie and Mary, conjoined twins joined at the pelvis, is lawful. The surgery is deemed necessary by the medical team caring for the twins in order to save the stronger twin, Jodie’s, life. Indeed, without surgical separation, both twins will die. However, an inevitable consequence of the operation is that Mary, the weaker twin, who depends for her survival on Jodie’s heart to circulate the blood around her body, will die within minutes of separation. Their parents refuse their consent to the surgery. [2] There is no getting away from the fact that this case is a tragedy. It is our responsibility to reach a judgment which reflects the reality of the case. It might be tempting to try and avoid coming to a decision that leads to the stark result of Mary’s death. However, it cannot be right to downplay the reality, to give ourselves false reassurance that letting things continue as they are could lead to a positive outcome for the twins. My learned friend Huxtable LJ questions the certainty of the expert opinion that the consequences of leaving the twins conjoined will be dire. But, with respect, the expert opinion is unanimous. Even if the undisputed prediction that the twins are most likely to die within six months (or, less likely, a few years) is wrong, Mary’s condition is not a prediction; it is a fact, here and now. In terms of the future, not only will she be unable to live a normal life because of her seriously impaired brain, heart and lungs, she will face the awful prospect of being dragged around by her twin as Jodie continues to develop normally. According to the medical evidence, because she will receive insufficient oxygen, this will progressively cause cellular damage and brain damage. As for Jodie, the surgeon has presented us with the reality of her future life if the twins are not separated: ‘she is not going to be able to walk or to stand, she is going to need to lie or to be carried wherever, and that will therefore limit her ability to develop as a normal child’. Jodie’s heart, effectively having to do the work of two hearts, will eventually fail. Whilst we may hope for a miracle, we cannot escape from this reality.

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Ost LJ (Suzanne Ost)

[3] I will conclude that although separating the twins will cause Mary’s death, and the surgeons foresee this, it is justified by the good intention of preserving Jodie’s life and is thus lawful. I rest my judgment on the doctrine of double effect (hereafter DDE) which, as my learned friend Walker LJ notes in his judgment, ‘has been debated by moral philosophers, as well as lawyers, for millennia’ (at [252]). I will draw an analogy with the situation where a doctor administers analgesics intending to relieve the patient’s pain in the knowledge that those drugs might also hasten death. Judicial brethren have recognised that this behaviour can be permissible at law if this is the only way to relieve the patient’s pain and suffering and this is the doctor’s primary purpose.

II.  Philosophy and Ethics Surrounding the DDE [4] The DDE emerged historically from Catholic moral theology and philosophical literature, with its origins resting in Aquinas’s justification of killing in selfdefence in Summa Theologica (ST II-II, Q. 64, Art 7). It is of relevance where a particular action has both good and bad effects and is designed to answer the question of whether the act can be justified. The doctrine is applicable where: (a) The bad effects are not narrowly intended. (b) The bad effects are not sufficiently bad to outweigh the good effects. (c) The action is not intrinsically bad/wrong (‘intrinsically’ here meaning ‘independently of its effects’). (d) The bad effects are not means of achieving the good effects. (S Sheldon and S Wilkinson, ‘Conjoined Twins: The Legality and Ethics of Sacrifice’ (1997) 5 Medical Law Review 149–71, at 160.) [5] The DDE can be applied in the medical context where, in attempting to comply with the ethical commitment to do no harm, one knows that a secondary effect of one’s care is that harm will come about.1 [6] Much (although not all) hinges on a core element of the doctrine: differentiating between intended and foreseen consequences. A bad effect that is foreseen but not intended may be permissible. However, beyond this commonly agreed element, there are numerous versions of the DDE, leading some to argue that it would actually be more appropriate to refer to double effect reasoning rather than a doctrine.2

1  See D Wenkel, ‘Separation of Conjoined Twins and the Principle of Double Effect’ (2006) 12(3) Christian Bioethics, 291–300 at 292 and T Beauchamp and J Childress, Principles of Biomedical Ethics, 7th edn (Oxford, Oxford University Press, 2013) 165–6. 2  TA Cavanaugh, Double-Effect Reasoning: Doing Good and Avoiding Evil (Oxford, Clarendon Press, 2006).

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III.  The Law and the DDE [7] Elements of the DDE have been judicially endorsed, although I note that there has been no explicit application of the doctrine in any previous case. That said, the case often cited as introducing the doctrine into English law is that of R v Adams [1957] Crim LR 365, in which Devlin J famously directed the jury as follows: If the first purpose of medicine—the restoration of health—can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if measures he takes may incidentally shorten life (at [375]).

[8] Devlin J’s direction offers a somewhat abstruse reflection of the circumstances in which the doctrine may apply (that is, when an action has both a good and bad effect), and he alludes to the doctor’s (proper) purpose. In fact, Devlin J did not explicitly state that he was applying the DDE, although it is generally assumed that he was.3 [9] More recently, consideration was paid to reaching a decision about medical treatment on the basis of a child patient’s best interests which, as a side effect, hastens death in Re J [1991] Fam 33, where Lord Donaldson of Lymington MR commented that: What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental (at [46]).

[10] Notably, Lord Donaldson had in mind a situation involving one child and, therefore, one set of best interests to evaluate. I will return to the matter of best interests later because of the significant difference in the case before me, where we are faced with two patients and thus two potentially conflicting sets of best interests. [11] In the same year as the judgment in Re J was handed down, at Dr Nigel Cox’s trial for attempted murder, Ognall J directed the jury that they should not find the doctor guilty if his primary purpose in administering potassium chloride to his patient was to relieve her suffering rather than to cause her death, ‘even though he recognised that in fulfilling that primary purpose, he might or even would hasten the moment of her death’ (R v Cox (1992) 12 BMLR 38).

3  See eg H Biggs, Euthanasia, Death with Dignity and the Law (Oxford, Hart Publishing, 2001) 55; R Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (Abingdon, Oxon, Routledge-Cavendish, 2007) 87–88.

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Ost LJ (Suzanne Ost)

[12] Two years later, in Airedale NHS Trust v Bland [1993] AC 789, Lord Goff of Chieveley noted the existence of: the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect… will be to abbreviate the patient’s life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful (at [867]).

[13] My learned friend Ward LJ notes that it may be difficult to reconcile the DDE with R v Woollin [1999] 1 AC 82, in which the House of Lords confirmed that the jury is entitled to find the necessary intent for murder if the defendant foresees death or serious bodily harm as a virtually certain consequence of his actions (at [199]). However, in that case, the wording used (an entitlement to infer intent, per Lord Steyn at [96]) indicates that the jury has the discretion not to find intent on the basis of such a secondary foreseen purpose. It may be true that an application of the DDE means that the jury should not find intent, thereby removing the discretion confirmed in Woollin. However, this does not make the DDE and the reasoning in Woollin wholly inconsistent and, certainly, as I see it, there is no automatic position at law that foreseeing death or serious bodily harm as a virtually certain consequence of one’s actions must amount to the mens rea for murder. My survey of the relevant common law thus leads me to the view that a legal rule based on the DDE can operate to permit an action that has this negative, foreseen effect.

IV.  Applying the DDE to the Proposed Surgery [14] Counsel for the Trust and Jodie have both argued that the DDE could be applicable, although they appear to be of a different view as to how to view the surgeons’ intention. Counsel for the Trust argued that the crucial matter is the surgeons’ primary purpose. Referring to Ognall J’s direction to the jury in R v Cox, he sees Mary’s death as an unintended side effect of the separation rather than the surgeons’ primary purpose. Counsel for Jodie, choosing to rely on Kennedy and Grubb’s text, Medical Law: Text with Materials, 2nd edn (London, Butterworths, 1994), argued that the intention to cause Mary’s death is in fact present. However, in Kennedy’s and Grubb’s words, ‘the intention is not culpable and the cause is not blameworthy because the law permits the doctor to do the act in question’ (p 1207). For reasons that will become apparent, I am persuaded by Counsel for the Trust’s position: the surgeons do not intend to kill Mary but, rather, foresee her death will be the result of their actions. [15] I am not the only judge in this case who considers that the DDE is applicable. Having briefly explained the doctrine earlier in his judgment (at [251]), my learned friend Walker LJ’s conclusion appears to be based on an application

Judgment 1—Re A (Conjoined Twins: Surgical Separation)

 15

of core elements of the DDE, although he does not make this explicit. However, ­consider his view that the proposed operation: … would involve the positive act of invasive surgery and Mary’s death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie’s life. But Mary’s death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable (at [259]).

[16] I agree with the points that my learned friend makes, however, as my application of the DDE is overt and the crucial foundation of my judgment, I must delve further into the doctrine’s requirements that the bad effect cannot be intended and must not be a means to achieving the good effect. For, if Mary’s death is the intended means to achieve the saving of Jodie’s life, it will not be permitted under the fourth element of the DDE. It cannot be argued, for instance, that a doctor does not intend to kill X, but rather, merely to save Y’s life by removing X’s heart for transplantation.4 To answer the question of whether Mary’s death is an intended means to save Jodie, I must ask what exactly the medical team intend to do to save Jodie and whether Mary’s death is genuinely incidental to this.5 To my mind, it seems that the only possible answer to this is that it is the surgery which will clamp the twins’ shared artery which is the means to achieving Jodie’s survival. So is this clamping of the shared artery and killing Mary one and the same; that is, are they the same intended means to save Jodie? In my view they are not. This can be seen, first, by the fact that whilst clamping the artery is necessary to save Jodie, Mary’s death is not necessary to achieve this end. In fact, the medical team would undoubtedly consider their intervention successful if the seemingly impossible occurs and Mary does not die. The necessary intended act is separating the twins by way of a ‘morally direct action’, of which Mary’s death is a morally indirect effect (F Meehan, ‘The Siamese Twin Operation and Contemporary Catholic Medical Ethics’ (1978) Linacre Quarterly, 157–64, 158 and 163), not a means to an end. Second, we should consider the order of the occurrence of events. Mary’s death occurs after the clamping of the artery, albeit almost immediately after. Since it is not possible for an effect to precede its cause, and ‘given that means are causes of their ends, [Mary’s] death cannot therefore have been a means of ’ saving Jodie (S Wilkinson, ‘Palliative Care and the Doctrine of Double Effect’ in D Dickenson, ML Johnson and J Katz (eds), Death, Dying and Bereavement, 2nd edn (London, Sage, 2000) 299–302, 302). [17] An analogy can be drawn with the cases in which there appears to have been an application of elements of the DDE where a doctor administers analgesics to a patient who is suffering at the end of life; the intention is to relieve suffering,

4  S Uniacke, ‘Was Mary’s Death Murder?’ (2001) 9 Medical Law Review 208–20, 219; C Foster, J Herring, K Melham, and T Hope, ‘The Double Effect Effect’ (2011) 20 Cambridge Quarterly of Healthcare Ethics 56–72, 60. 5  Uniacke, ‘Was Mary’s Death Murder?’ (n 4) 219.

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Ost LJ (Suzanne Ost)

the giving of increased dosages of analgesics is the intended means to achieve this and the patient’s hastened death is a foreseen but unintended consequence of this. There is a difference, however, between the administration of analgesics scenario and the case before me. In the former, the effects of the act are caused to one person. My learned friend Ward LJ concludes that the DDE cannot apply in the case before us because the effects of the surgery will be caused to two different patients and because the surgery is not in Mary’s best interests (at [199]). Brooke LJ is in agreement as to the inapplicability of the doctrine when the act in question would not be in the best interests of another (at [218]). I concur that surgery which will inevitably bring an end to her life cannot be in Mary’s interests; however, I disagree that the DDE is only applicable if the effects are caused to one person. There is actually no reason why the doctrine should be inapplicable if the effects are caused to different people; in fact, far from it.6 Aquinas’s discussion of justified killing in self-defence makes this clear, because the bad effects of the action of the individual who kills in self-defence are caused to the person who is killed. This is not to say that the DDE and killing in self-defence are identical (the latter almost necessarily requires the existence of a second party, the DDE does not). However, it does suggest that the source from which the DDE is commonly accepted to derive does not preclude the doctrine’s application where the effects are caused to two different persons.7 Since the DDE can be utilised where the effects are caused to two different persons, whether or not the surgery is in Mary’s best interests is irrelevant for the purposes of the doctrine, just as the interests of a person killed in justifiable self-defence are irrelevant. This is not to say that Mary’s best interests are irrelevant at law. However, I agree with Brooke LJ that principles of modern family law clearly direct us towards Jodie’s interests taking priority over Mary’s (at [240]). This also draws attention to the issue of proportionality, considered by some to be an implicit aspect of the DDE. The reality is that Mary cannot be saved. Due to the nature of her condition, she is ‘destined for death’ (Ward LJ, at [196]). Consequently, in the specific context of this case, her interests have to be superseded by Jodie’s and, in terms of the good and bad effects of the surgery, this is not a case of killing Mary in order to save Jodie. Rather, the effects and the issue of proportionality relate to a ‘life-that-is-able-to-be-saved’ and ‘one-that-is-notable-to-be-saved’ (Meehan 1978: [162]). [18] To summarise, I can do no better than to quote (with some modification), the words of Meehan, who advises that the appropriateness of the ethical position

6 

Uniacke, ‘Was Mary’s Death Murder? (n 4) 219. And the DDE may in fact provide an explanation as to why killing in self-defence can be justified. See WRP Kaufman, Justified Killing: The Paradox of Self-defense (Lanham MD, Rowman and Littlefield, 2009). 7 

Judgment 1—Re A (Conjoined Twins: Surgical Separation)

 17

such as that which I have applied here can be seen by considering the reality of the case in its totality: the moral indirectness of [Mary’s] death is reflected in the physical realities of the case, namely, the impossibility of saving both children, the union of their bodies in such a way that there is [long-term] life support for only one, the fact that, if nothing is done, both will die. These realities give flesh to the concept of moral indirectness. They are such as to allow that the death of [Mary] is unintended and that it is therefore not a morally evil means, but rather a premoral physical incidental misfortune.’ (Meehan 1978: [164])

[19] Having considered the totality of the case before me and having found judicial endorsement for elements of the DDE and no legal obstacle to its application, the decision of the High Court is upheld and the appeal is dismissed.

Judgment 2—Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147 HUXTABLE LJ (RICHARD HUXTABLE)

I.  The Facts [1] The medical evidence in this tragic case suggests that Mary relies on her sister Jodie’s support, since her own heart and lungs do not function. Without surgical separation, both are expected to die within months; if separated, however, Jodie might live a normal life [155], but Mary will inevitably die. Guided by their faith, the twins’ parents do not consent to the proposed surgery. [2] I concur with my noble and learned friend Ward LJ that, despite their ­conjoinity, we are determining the fates of two children [181–182]. Yet, this legal finding conceals immense philosophical complexity, which invites reconsideration of the purported medical findings. Can we say that only Jodie owns the stronger organs, merely by reference to their anatomical distribution?1 With respect to my learned friend, I do not share his view that the doctors alone can determine this question [189]. [3] Neither should we forget that pitiful predictions can be wrong. Alice Dreger, a scholar of medical humanities and bioethics, has trawled the evidence and found ‘that dire predictions have not always been borne out in non-sacrifice cases’, ie when conjoined twins have not been separated (AD Dreger, ‘The Limits of Individuality: Ritual and Sacrifice in the Lives and Medical Treatment of Conjoined Twins’ (1998) 29(1) Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical Sciences 1–29, 20).2 Whilst I cannot question the facts found, there are important lessons here, which, when viewed through the relevant authorities from the family law and criminal law, lead me to dissent from the opinions of my noble and learned friends and so conclude that Jodie and Mary should not be separated against their parents’ wishes.

1  S Hölm and CA Erin, ‘The Manchester Conjoined Twins: An Ethical Analysis’ (2001) 6 Jahrbuch für Wissenschaft und Ethik 67–87. 2  Cf AD Dreger, One of Us: Conjoined Twins and the Future of Normal (Cambridge, Massachusetts, Harvard University Press, 2005).

Judgment 2—Re A (Conjoined Twins: Surgical Separation)

 19

II.  Family Law [4] I begin with the principles of family law. Save for those situations in which the children themselves have the capacity to consent, it is for the person with parental responsibility to furnish the healthcare professional with what Lord Donaldson of Lymington MR once termed the ‘flak jacket’ that protects the professional from liability or culpability (Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 1 FLR 1). I leave aside the question of whether, with respect, my esteemed colleague advanced the most appropriate metaphor for this professional encounter. In any event, Jodie and Mary cannot provide the flak jacket and their parents will not do so. As the matter now falls to us, should we so equip the surgeons and thereby authorise the proposed separation? [5] According to the Children Act 1989, the paramount consideration for this court is the children’s welfare [s 1(1)]. Guided by that Act, we nowadays seek to answer such questions by drawing up a balance sheet of factors for and against a particular answer. The question before us is stark—to separate or not to separate?—and I will refer to the factors pertaining to each of these options. [6] In favour of separation, first and foremost, is the likelihood that this will serve Jodie’s interests. Jodie will live, and thus the sanctity of her life will apparently be given due recognition. Following reconstructive surgery, she will apparently enjoy a life of good quality. The relevant procedures also appear to involve only negligible risks to Jodie. Mary, meanwhile, seems already to have a poor quality life, and the doctors maintain that her dependence will threaten Jodie too. There are, therefore, powerful arguments in favour of separation. [7] Weighed against these observations are various reasons why these siblings should not be separated. First and foremost, there is the likelihood (indeed, certainty) that this will severely set back (indeed, eradicate) Mary’s interests. Mary will inevitably die sooner than she otherwise might, and thus the sanctity of her life will have been denied its due recognition. Certainly, her current quality of life is not good, but, no matter how disabled, diseased or damaged, every child’s life requires protection. Of course, a child’s interests are not exhausted by their medical interests; there are wider cultural, spiritual and emotional interests to which we must attend. Both in this regard, and as a free-standing ground for objection, we should additionally note that these parents will not consent to surgery that would mean the inevitable death of one of their children. [8] The arguments on both sides are evidently finely balanced: either we prioritise Jodie, thereby condemning Mary, or we prioritise Mary, thereby condemning Jodie. Here, again, there are considerable philosophical complexities. Despite its paramount importance and our daily dealings therewith, welfare remains a contested concept. David DeGrazia, a noted philosopher, has outlined three schools of thought (D DeGrazia, ‘Value Theory and the Best Interests Standard’ (1995) 9 Bioethics 50–61). He says that we can understand welfare as aligning with our

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Huxtable LJ (Richard Huxtable)

preferences, our pleasures, or our objective needs, where the latter encompass our objective interests in, for example, the intrinsic value of our lives and our deep personal relationships. [9] All of these ideas find support in the law, which invites further reflection on whether these insights bring us any closer to an answer to the present dilemma. As I previously observed, we cannot know the preferences of Jodie and Mary, so we lack an answer from this perspective. Each, however, is entitled to the law’s protection of their intrinsic worth and thus the sanctity of their lives (Re J (A Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930, 938G-H). Unfortunately, still no answer emerges, as we see that to protect one will mean to deprive the other. I will return to this matter. If, alternatively, we prioritise the intimate relationship that these children enjoy, then an answer might begin to emerge, as it could disincline us to authorise their separation. Yet, the complexity and conflict returns when we refer to the respective quality of these siblings’ lives, and thus to the pleasures and pains that they experience. Given these difficulties, I conclude that the welfare of these twins furnishes us with no clear answer. [10] So finely balanced are the opposing arguments in this case that I see no reason why we should be entitled to interfere with the undoubtedly agonising judgment that was reached, in good conscience, by the twins’ parents. This proposition finds support in the decision of this court in Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 All ER 906. In that case, the parents’ decision not to consent to a potentially life-saving liver transplant for their one-year-old son was upheld. Mindful of the paramount interests of the child, Waite LJ nevertheless ­acknowledged that there exists a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind [917–918].

There is, in such cases, a long line of authority which establishes that parents are free to martyr themselves but they cannot ‘make martyrs of their children’ (Prince v Massachusetts (1944) 321 US 158). [11] While the twins’ parents are influenced by their ‘scruples’—specifically their Roman Catholic faith—I doubt that the present case occupies this end of Waite LJ’s scale. We have already seen how we cannot say, with the requisite certainty, that the decision reached by these parents ‘is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind’. Moreover, although the phrasing is questionable, we confront the prospect that a decision in either direction—to separate or not to separate—will make martyrs— either of Mary, or of both her and her twin. [12] Instead, I believe that the case before us occupies the opposite end of my learned friend’s scale. At this end are ‘highly problematic cases where there is genuine scope for a difference of view between parent and judge’; in such cases, Waite LJ continued, the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the

Judgment 2—Re A (Conjoined Twins: Surgical Separation)

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best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature [917–918].

[13] As I have already reasoned, there is a great deal of scope for genuine debate about what the welfare of these united sisters requires. While some of my colleagues favour separation, the sisters’ parents—who must live with the consequences, whatever these might be—do not. We therefore confront one of the ‘highly problematic cases’ to which Waite LJ referred, and I see no reason to depart from his proposal that, in such cases, it is the opinion of the parents which should prevail. In this respect, I endorse the opinion of Hastings LJ, who also finds herself in the minority in the present appeal.3 [14] Although its provisions do not yet bind this court, I find further support for this conclusion in the provisions of the Human Rights Act 1998. Throughout that Act, and the European Convention on Human Rights, there is substantial support for the notion of personal autonomy. This ideal underpins the well-established­ rule that competent patients have the right to consent to, or refuse, medical treatment, for whatever reasons they might have or, indeed, not have (Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290). Certain provisions in the Act also bolster the autonomy that parents can be expected to enjoy, not least Article 8, the right to respect for private and family life, and Article 9, freedom of thought, conscience and religion. Each of these articles would seem to support the present parents’ right to decide the outcome of this agonising case. [15] Of course, the aforementioned rights can be limited, where, for example, this is necessary to protect the rights and freedoms of others. However, in keeping with my reasoning throughout this judgment, I find it impossible to say, conclusively, that the rights enjoyed by one sister (Jodie) should trump the rights enjoyed by her sibling (Mary), and thereby prevent the parents from deciding to preserve their children’s union, whatever the outcome. Indeed, failure to respect these parents’ decisions could be interpreted as not only a violation of their rights, but also a discriminatory violation, contrary to Article 14 of the Act. As such, I suspect these parents could complain that they are being unjustly discriminated against, if they are not granted the same right to decide as was enjoyed by the parents in the aforementioned Re T. They could complain that, unlike the parents in Re T, their decision is underpinned by their religious faith, as opposed to their being ‘health care professionals … experienced in the care of young sick children’ [908E–F]. [16] In short, as a matter of family law, the decision should be left to Jodie and Mary’s parents. They should, however, be reassured that they are free to reverse their decision. Indeed, I understand that the parents in Re T ultimately changed their minds and agreed to their son’s transplant (C Bridge, ‘Religion, Culture and

3  G Hastings, ‘Judgment: Re A (Conjoined Twins: Surgical Separation)’ in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010) 139–46, 145.

22 

Huxtable LJ (Richard Huxtable)

Conviction: The Medical Treatment of Young Children’ (1999) 11 Cambridge Family Law Quarterly 1–16, 11). If the same happens here, then, given the delicate balance of the arguments, I confirm that the procedure could go ahead, provided, of course, that the surgeons are in a position to proceed at the relevant time.

III.  Criminal Law [17] The criminal law, however, presents fresh problems. If the surgery is to go ahead, as the majority of my learned colleagues believe it should, I find it difficult to say that this would not amount to the murder of Mary. [18] As to the mens rea of murder, the intention to cause death or serious bodily harm, there is no suggestion that the surgeons’ efforts would be directly aimed at the death of Mary. However, the House of Lords has recently confirmed that foresight of a virtually certain consequence—such as Mary’s death, which the surgeons readily envisage—can provide evidence of an intention to kill (R v Woollin [1999] 1 AC 82). Barring any attempt to claim that this is a context akin to palliating the terminally ill patient’s symptoms in which we should differentiate between what is intended and what is foreseen, I fail to see how the prohibited intention is absent. My learned friend Ost LJ disagrees with me on this point [14], but I believe the most that can be said, following the steer provided by their Lordships, is that the question as to the surgeons’ intention must be left to the jury to determine. [19] If a jury were to conclude that the mens rea were present, then perhaps it could find that the actus reus, the causation of death, is not made out. But there are no grounds for avoiding that conclusion. Johnson J, at first instance, recognised how the authorities governing homicide differentiate between fatal actions and omissions. Culpability for the latter may be avoided, if the defendant was under no duty to intervene. With respect, Johnson J accordingly contrived an argument by which separation amounted to the withdrawal of life-support from Jodie to Mary. For reasons already explored, I do not think we need see Jodie as necessarily supporting Mary. In any event, this contrivance fails to capture the reality of the situation, which is that surgical separation amounts to a positive action, which will have the effect of causing Mary’s death. [20] The elements of murder are therefore made out and, unfortunately, I know of no defence that can cover this situation. First, the defence of necessity has long been unavailable to a charge of murder (R v Dudley and Stephens [1881–85] All ER Rep 61). My colleagues believe an exception can be made today, formulating a narrow principle for application to these twins [204–205, 240]. We cannot say, as my learned friend Ward LJ wishes [204–205], that this will set no precedent: we are bound by the doctrine of stare decisis, so we must envisage even the most carefully contained principle being applied in future cases. Whilst statistically unlikely, future cases might concern the fates of conjoined siblings, in which any principle

Judgment 2—Re A (Conjoined Twins: Surgical Separation)

 23

formulated here today would surely apply.4 Less directly comparable cases will also arise, to which the principle might be made to apply.5 I would therefore urge ­caution and the preservation of well-established principles. [21] Second, I resist the conclusion reached by my colleague Ward LJ that a defence of (quasi) self-defence could or should be advanced. My learned friend was of the opinion that Jodie ‘would surely protest, “Stop it, Mary, you‘re killing me”’ [197]. Professor Dreger, the expert on conjoinity, would dispute such an imputation. She certainly ponders the emotional trauma that a surviving sibling might have to endure. Of course, we cannot know Jodie and Mary’s own thoughts. We can, however, hear not only from their parents, but also from those who are themselves conjoined and able to voice their views. According to Professor Dreger’s research, ‘Never has a conjoined twin in fact consented to being killed or even risked for the sake of his or her conjoined sibling’;6 she has not found even ‘a single case in which, following the death of one conjoined twin, the surviving conjoined twin asked to be separated from the dead twin’ (Dreger, 22). Conjoined twins, it seems, generally prefer to remain together, even if separation means that one might live. [22] These observations return us to notions of objective value. Enduring conjoinity appears to be valued and valuable. But so too is the intrinsic value of our lives, which finds further support in Article 2 of the impending Human Rights Act 1998, the right to life. Mary’s life has an irreducible value, which the law of homicide seeks to support. But what, finally, of Jodie’s intrinsic worth? [23] Given my conclusion on the twins’ welfare and the law of murder as it pertains to separation, I must conclude that Jodie—or the surgeons on her behalf— can mount no strong case as to why she should thrive at the expense of her sister. Learned authorities such as Professor John Keown might seek to say that intervening on her behalf would be extraordinary and, as such, recognition of the sanctity of life does not oblige us to do so (J Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 Law Quarterly Review 481, 485). I leave this to others to contemplate. However, in keeping with my earlier conclusions, I should emphasise that the lack of obligation does not foreclose the option of doing so, at least so far as the family law is concerned. If, as such, the parents do decide to consent to the procedure, I believe this could be undertaken. I recognise, however, that the surgeons might still face the prospect of a murder charge, and that their culpability will turn on the jury’s determination of their intention. This is an uncomfortable conclusion but I see no basis for finding otherwise. [24] Taking all of these considerations into account, I conclude that the appeal should be allowed.

4 See

State of Qld v Alyssa Nolan & Anor [2001] QSC 17°4. J McEwan, ‘Murder by Design: The “Feel-Good Factor” and the Criminal Law’ (2001) 9 ­Medical Law Review 246–58, 248. 6  Contrast A Lustig, ‘Separated After Birth’ (2003) 130(16) Commonweal 8–9. 5 See

Legal Commentary—Twisted Reasoning: Disentangling Matters of Law, Conjoined Embodiment, Life, and Death KIRSTY MORETON

I. Introduction The case of Re A (Conjoined Twins) presents us with a specific and novel scenario, which challenges the ability, and perhaps exposes the inability, of the law to deal with complex matters of healthcare. The issue at stake is whether seven-week-old conjoined twins Jodie and Mary should undergo separation surgery that would inevitably kill the weaker twin in order to save the life of the stronger. Ost LJ and Huxtable LJ, like the other judges in the case, approach the question on two fronts—as a matter of (1) family law, and (2) criminal law; yet the weight they give to each and the conclusions that they draw, differ markedly from each other. Within family law, the key question is whether the proposed surgery can be shown to be in the ‘best interests’ of the twins. This question is particularly challenging, as whilst the Children Act 1989 section 1(1) requires the court to hold the welfare of the child as its paramount consideration, the case here concerns the welfare of two children whose interests, at least on some constructions of the case, appear to be in conflict with one another. For Ost LJ and Huxtable LJ the crucial point of difference is how they interpret the meaning of ‘best’ in this context and the significance they place on various factors that comprise that assessment. Even if the proposed surgery is in the twins’ best interests, there still remains the thorny question of whether the doctors would fall foul of the criminal law and commit murder in the act of separation. Both Ost LJ and Huxtable LJ [19] affirm that the actus reus of murder would be present. However, for Ost LJ the issue turns on her assertion that the requisite mens rea is lacking [3]. In contrast, whilst Huxtable LJ is confident that the offence would be made out and there are no applicable defences [20], he is left with the ‘uncomfortable conclusion’ that should prosecution arise, the doctors would be at the mercy of the jury and their interpretation of the doctors’ intention to avoid conviction [23].

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 25

A final introductory point is that as this is a legal commentary, it will primarily address the legal issues raised by the two judgments. In this vein Ward LJ attempts to keep the Court’s focus upon ‘the search for settled legal principle’ by asserting in the introduction to his judgment that ‘this is a court of law, not of morals’ [155]. Notwithstanding this however, I concur with Charles Foster’s and José Miola’s claim that ‘problems in medicine do not come neatly packaged with a label saying ‘“legal” or “ethical”’,1 and that it is therefore almost impossible to properly discuss legal principles without considering the ethical theories which both underpin them, and facilitate their interpretation and application.

II.  Family Law It is notable that Ost LJ is less explicit in her coverage of the best interests question than Huxtable LJ. Nonetheless, she commences with a plea that the Court must not ‘downplay the reality [of the situation]’ in seeking to avoid making a decision that produces the ‘stark result’ of the death of Mary [2]. Here, Ost LJ is alluding to a common characteristic of health law decision-making, which is termed by John Harrington as its ‘intertemporal struggle’.2 A pertinent feature of Harrington’s classification of this struggle, particularly as it might relate to Re A, is in its form as ‘the time of legal rhetoric’3—where the law comes under pressure to accelerate its procedures due to the urgent nature of the proposed surgery. This means, as Harrington notes, that ‘clinical imperatives can set the temporal horizons to the process of legal decision-making itself ’.4 Indeed, Ost LJ uses as the basis of her pronouncement of urgency in this case the unanimous medical opinion that the predicament facing the twins is ‘dire’ [2]. Yet operating under this ‘compressed temporality’ can expose the legal process to criticism ‘by pointing out its inconsistency with core legal values’,5 whether substantive, such as thorough consideration of relevant legal authorities or procedural, such as provision of patient ­representation.6 Undoubtedly, Ost LJ’s unquestioning reliance on medical opinion as the primary basis for determining the child’s welfare produces a narrow interpretation in this context. Nonetheless it is typical of the way the courts often interpret the notion of what is ‘best’ for the child in healthcare cases. An interesting element of Ost LJ’s assessment of Jodie and Mary’s situation is her attentiveness to the twins embodied experience. She chooses to borrow what

1  C Foster and J Miola, ‘Who’s in Charge? The Relationship between Medical Law, Medical Ethics and Medical Morality’ (2015) 23(4) Medical Law Review 505–30. 2  J Harrington, ‘Time as a Dimension of Medical Law’ (2012) 20(4) Medical Law Review 491, 496. 3  Ibid 497. 4  Ibid 508. 5  Ibid 497. 6  Ibid 510.

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Kirsty Moreton

some might describe as the ‘shock imagery’ of Ward LJ in propounding that Mary ‘will face the awful prospect of being dragged around by her twin’ [2]. Yet Ost LJ’s treatment of this medical ‘fact’ exposes the difficulty in the task of determining what is ‘best’ in Mary’s case. On one hand, she may be suggesting that Mary’s quality of life will be so poor that separation surgery would be in her best interests even if Mary will die as a consequence [2]. However, this conclusion is contradicted by her later concurrence with Ward LJ that surgery is not in Mary’s best interests [17], presumably as a result of interpreting that the welfare principle holds the preservation of life above all else. For Jodie the picture is clearer in that remaining in her conjoined state will ‘limit her ability to develop as a normal child’ [2, emphasis added]. Ost LJ’s pronouncement here reveals what Marie Fox and I, writing elsewhere, have described as the ‘inability of conventional legal discourse, grounded as it is in the distinctness of persons, to accommodate conjoined embodiment— to see it as anything other than an abnormal state’.7 Indeed, when considering whether ‘restoring’ Mary’s bodily integrity via the surgery could be part of the best interests assessment, Ward LJ notes that singular bodily integrity (which he couples with the concept of dignity) is the ‘natural order for all of us’.8 Such a view confirms the observation made by Jackie Leach Scully in her commentary, that those who inhabit ‘standard bodies’ find it difficult to appreciate that those in ‘unusual body form[s]’ might have different priorities or preferences.9 Yet, it is entirely possible that the state of being conjoined is what is natural and normal for these twins—in Scully’s words they are a ‘novel class of persons’.10 To view them as otherwise may represent ‘a new low point in the way we see the disabled’.11 Whilst this new class would represent a progressive step from an ethical point of view, the law also needs to adopt a new paradigm in which to accommodate conjoined embodiment. If Ost LJ is of the view that the surgery is not in the best interests of Mary but is of Jodie, then the difficulty remains as to how to reconcile the statutory requirement that the best interests of the children are paramount, when those interests are in opposition. To resolve this she resorts to the stance proposed by Ward LJ of the ‘least detrimental alternative’. This solution to resolving the dilemma of competing best interests of two minor children was originally posited in the case of ­Birmingham City Council v H (A Minor),12 however the strength of this approach was undermined in the case itself, when the court chose to sidestep the issue and in fact undertook no such assessment. In addition, Ost LJ appeals to ‘principles of modern family law’, which dictate that Mary’s ‘interests have to be superseded by 7  M Fox and K Moreton, ‘Re MB (An Adult: Medical Treatment) and St George’s Healthcare NHS Trust v S: The Dilemma of the “Court-Ordered” Caesarean’ in J Herring and J Wall (eds), Landmark Cases in Medical Law (Oxford, Hart Publishing, 2015) 159–60. 8  Ward LJ [184]. 9  J Leach Scully’s Ethical Commentary, in this volume. 10 Ibid. 11  H Watt, ‘Conjoined Twins: Separation as Mutilation’ (2001) 9 Medical Law Review 237, 239. 12  Birmingham City Council v H (A Minor) [1994] 2 AC 212.

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 27

Jodie’s’ [17] without expanding on what these principles may be or why this should be the conclusion. She does however make reference to the notion of proportionality as the basis for the best interests balancing exercise, referring to Meehan’s equation of a ‘life-that-is-able-to-be-saved’ against ‘one-that-is-not-able-to-besaved’ [17]. Whilst many healthcare cases involve some kind of cost-benefits analysis, in cases like Re A, a stark utilitarian approach does not clearly indicate where the utility would lie, at least from a resources point of view. Nor does it capture well the more subtle and particularist factors that are key to the kind of relational construction of welfare, which may be best suited to cases such as this. For Huxtable LJ, the establishment of best interests is at the heart of his judgment. He too begins with a consideration of the twins’ embodied state but is bolder in questioning the traditional legal paradigm of the individuality of persons. Whilst acknowledging that Jodie and Mary are indeed two children [2], he draws our attention to the inability of the law to accommodate a being which is not completely two but nor is just one. He queries a proprietary construction of existence by asking ‘can we say that only Jodie owns the stronger organs, merely by reference to their anatomical distribution?’ [2]. He considers whether prioritising the preservation of the intimate relationship that the twins enjoy might disincline us towards separation but also notes that the apparent disparity in the potential quality of their respective lives may make such a conclusion less evident [9]. Huxtable LJ’s overall assessment of the welfare of the twins is a much broader one than that of Ost LJ, as he seeks to bring in ‘wider cultural, spiritual and emotional interests’ [7]. This progressive approach is in keeping with the pronouncement of Butler-Sloss LJ in Re MB (Medical Treatment) that ‘best interests are not limited to best medical interests’.13 He fashions a relational understanding of the concept rooted in a deep respect for the parental responsibility to decide on their children’s medical treatment and the complexity of the dilemma in the face of uncertainty over applicable legal or ethical principles [10]. Huxtable LJ seeks to give weight to the sincerity of the parents’ objections based on their religious belief and an appreciation of the impact of the decision upon the future life of the family. He uses Re T (A Minor) (Wardship: Medical Treatment),14 as authority—a case that clearly lends support for a relational construction of welfare by holding that the practical and emotional implications of compelling non-consenting parents, residing in a country without specialist medical support, to provide long-term aftercare were decisive in the best interests assessment.15 Many of these same concerns are apparent in Re A,16 but are downplayed as the Court fails to appreciate that the future burdens of care might have implications for Jodie’s welfare, not merely that of her parents.17 In many ways Re T is a legal

13 

Re MB (Medical Treatment) [1997] 2 FLR 426, 439. Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 All ER 906. Ibid [248], [251]. 16  Ward LJ [13]. 17  Ward LJ [195]. 14  15 

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Kirsty Moreton

outlier, since the parents’ views were granted greater weight because they were healthcare professionals. Compare this to the parents in Re A who were deemed ‘strangers in our midst’,18 and as such were assumed to be submissive to the will of the Court in a way that the parents in Re T were not.19 Yet, the very ambiguity of the ‘right’ outcome in the case of Mary and Jodie, combined with a relational view of welfare, should lend greater weight to the parental objection than in a case like Re T, where the basis for the parental refusal were much less justifiable.

III.  Criminal Law For Ost LJ, the largest part of her judgment is devoted to the criminal law dilemma of whether the surgery would constitute murder. Her solution is to turn to the Doctrine of Double Effect (DDE), much in the way that Walker LJ does but more explicitly [15]. She claims that the good intention of preserving Jodie’s life provides a means of rendering lawful what would otherwise be a crime [3]. Whilst an interesting approach, there is a certain irony in utilising a doctrine arising from ­Catholic moral theory in order to justify an action to which the Church was opposed.20 In addition, the DDE does not have a strong pedigree within legal reasoning [7] and the doctrine has been criticised as ‘unbending’ in its impersonal application and its insistence of a stark divide between good and evil in cases where such a distinction may be hard to make.21 In essence, Ost LJ is seeking to use the DDE to negate the mens rea for murder. Under its first principle not only does it require that the doctors did not directly intend to kill Mary, but also that there was no oblique intention, as per ­Woollin [13].22 Ost LJ admits that the doctors would foresee death as a consequence of their actions [3]. However, she subverts the claim in Woollin that the jury is entitled to infer intention by contending that they are therefore also entitled not to infer it [13]—a form of discretion endorsed as a means of allowing the law to accommodate moral dilemmas.23 Furthermore, Ost LJ seeks to assert that the surgery will not fall foul of the fourth principle of the DDE—that the bad effect cannot be a means to achieving the good effect, by distinguishing Mary’s death (effect) from the clamping of the aorta (means) [16]. This is troublesome on several levels. First, the procedure

18 

Ward LJ [13]. JJ Paris and AC Elias-Jones, ‘Do we Murder Mary to Save Jodie?’ An Ethical Analysis of the Separation of the Manchester Conjoined Twins’ (2001) 77 Postgraduate Medical Journal 593, 595. 20  Written Submission from the Archbishop of Westminster, Walker LJ—Introduction. 21  Wenkel, ‘Separation of Conjoined Twins’ (n 2) 293–94. 22  R v Woollin [1999] 1 AC 82. 23  S Parsons, ‘Intention in Criminal Law: Why is it so Difficult to Find?’ (2000) 4 (1&2) Mountbatten Journal of Legal Studies 5, 17. 19 

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as a whole is necessary to save Jodie’s life; it is therefore artificial to divide the separation surgery into its component parts. Second, even if it is right that the clamping of the vessels is the crucial moment and that the death of Mary is a consequence of this, the distinction is a stretch too far. Since death occurs ‘almost immediately afterwards’ [16], temporally they are in essence one event. Whilst Ost LJ argues that if Mary miraculously lived this would in no way undermine the purpose of the doctors, such an assertion appears to contradict her earlier claim of the certainty of the medical evidence and the need to face ‘reality’ [2]. Finally, another possibility is to view the cutting into Mary’s body as a bad effect that is the means of saving Jodie.24 Ward LJ’s judgment establishes that whilst the doctors determined that there would be no ‘donation’ from Mary to Jodie, the very act of cutting and the initial exploratory nature of the surgery to assign organs and tissues to each child,25 inevitably involves an infringement of Mary’s bodily integrity. I concur with Helen Watt that such an act would constitute an unjustified invasion, as it would provide no benefit to Mary, bar the restoration of her singular self (at the expense of her life)—an argument dismissed above.26 However, a more problematic aspect of the use of the DDE in Re A is that it involves harm to a third party. Ost LJ rightly contends that as the DDE is applicable in cases of self-defence, detriment to a third party does not preclude its use [17]. However, it is not obvious that the scenario in Re A is at all akin to self-defence, nor that self-defence and the DDE are the same kinds of creature. In order to align the DDE to self-defence, Mary must be the aggressor and the doctrine would have to be expanded to justify intervention by the doctors on behalf of Jodie, when they themselves were not at risk. As noted earlier, whilst much of Ward LJ’s language throughout the judgment portrays Mary as a parasite who ‘lives on borrowed time’,27 who ‘sucks the life blood out of Jodie’28 and the provocative claim that if Jodie could speak she would cry out ‘stop it, Mary, you are killing me’,29 there is no indication that Mary was an unjust aggressor nor that Jodie would perceive of the situation in such a way. For Huxtable LJ, the position within the criminal law poses less of a dilemma, in that having decided that the surgery is not in the twins’ best interests, the question is merely academic. He is settled in his view that the surgery would constitute murder [17], although in concurrence with Ost LJ he would be prepared to allow for jury discretion on the issue of oblique intention [18]. To do so leaves open two possible interpretations—the one favoured by Ost LJ that the requisite mens rea is lacking [14] or the alternative that the intention is present but is not culpable. On the latter, I concur with AP Simester et al that such a course would introduce the

24 

Watt, ‘Conjoined Twins: Separation as Mutilation’ (n 11) 245. Ward LJ [164–165]. 26  Watt, ‘Conjoined Twins: Separation as Mutilation’ (n 11). 27  Ward LJ [7]. 28  Ward LJ [188]. 29  Ward LJ [197]. 25 

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concept of motive into mens rea by drawing a distinction between oblique intention and ‘guilty intention’ which does not exist in the English and Welsh law of murder.30 Additionally, I concur with Huxtable LJ that neither of the defences of necessity or self-defence can be stretched to cover this situation [18]—the former because of the impossibility of limiting the application of precedent, and the latter because the self-defence claim is unconvincing.

IV.  Concluding Thoughts Both the judgments of Ost LJ and of Huxtable LJ manage to combine elements of the innovative and of the traditional in their treatment of the family law and criminal law aspects of the decision. Whilst taking a traditionally narrow approach to best interests, for those seeking an innovative solution to this most difficult of criminal law dilemmas, Ost LJ’s proposition may be attractive. Using the DDE is a creative way to interpret the applicable legal rules, and would aid the Court in reaching the decision that many would feel is ethically right, however stretching the DDE to incorporate harm to a third party is problematic. Furthermore, Ost LJ’s conclusion that because the DDE would permit the surgery under the criminal law, best interests are therefore irrelevant [17] is placing the emphasis on the wrong issue. The surgery must be demonstrated to be in the children’s best interests before issues of permissibility are considered. Huxtable LJ’s approach is more persuasive, as his relational construction of best interests is compelling, particularly in cases such as Re A, where more traditional ethical approaches produce no clear legal or moral answer. Furthermore, his conservative interpretation of the outcome of the application of the criminal law and his caution over the ability of the judgment to limit the remit of stare decisis [20] will be appealing to those who are keen to preserve the integrity of the law.

30 

AP Simester et al, Simester and Sullivan, Criminal Law (Oxford Hart Publishing, 2001) 632.

Ethical Commentary—Conjoineds, Care, and the Question of Identity: Some Reflections on the Ethics of Re A JACKIE LEACH SCULLY

I. Introduction The case of the conjoined twins Jodie and Mary and the legal battle that led to their eventual separation is well known.1 From the outset it is clear that, as both Huxtable LJ and Ost LJ note, there is no obvious ethical logic that can resolve this dilemma. However, it is possible to have some ethical reflections on several central concepts on which the judgments of Huxtable LJ and Ost LJ are based. In particular, I wish to raise questions about things that are often taken for granted in cases like this, such as issues of language; ideas about the welfare of the child and the inherent complexities of calibrating welfare; the fresh perspective brought to these familiar ethical dilemmas by relational and care ethics frameworks; and the unresolved puzzle of singular and plural embodiments in the lives of conjoineds.

II. Language Both judges start by outlining the facts, and much of their later reasoning relies on these initial descriptions. Over the last decade or so there has been a growth of interest in the rhetoric of medical ethics and bioethics. Tod Chambers showed that bioethics cases are narrative constructions designed to locate the reader within a particular moral or legal point of view, even if not to direct them towards a particular conclusion.2 As narratives they are representations of the real world, both contained within and exploiting rhetorical conventions to make different moral

1 In 2 

Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. T Chambers, The Fiction of Bioethics (New York, London, Routledge, 1999).

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evaluations more or less compelling. In the judgments of Ost LJ and Huxtable LJ, this is done less through the overall narrative structure than individual words and turns of phrase. Ost LJ, for example, describes the efforts of the medical team as aiming to ‘save the stronger twin’ [1]; Mary has a ‘seriously impaired brain, heart and lungs’ [2] and faces the ‘awful prospect’ of being ‘dragged around’ by a twin who is developing ‘normally’ [2]. None of this is false, but it takes a significantly different tack from Huxtable’s description, in which Mary ‘relies on’ Jodie’s support [1], and Jodie ‘owns the stronger organs’ [2] rather than being the stronger twin. These differences are subtle but can influence the identification and evaluation of salient features in delicately balanced dilemmas like these.3

III.  The Welfare of the Child and the Ethics of Care Working within the framework of family law, Huxtable bases his second argument on the primacy of the welfare of the child, and ultimately on children’s entitlement to have the law protect their interests and lives [10–15]. In the case of Jodie and Mary, the difficulty is that there are two children involved (in most accounts) and both cannot be equally protected. In terms of medically determinable parameters, Jodie’s welfare is best served by separation because she can survive the separation but will die if it does not happen. But separation will inevitably mean the death of Mary, and it is hard (though not impossible) to argue that this serves her welfare. Equally, though, if she is likely to die anyway, the death of Mary is not of itself a decisive ethical factor tipping the balance one way or another. In medico-legal cases like these, the evaluation of interests tends to prioritise things like health and even basic survival. However neither Jodie’s nor Mary’s interests are exhausted by the predicted clinical outcomes ([7]); the wider concerns of the surviving child, and of the family in the aftermath of either decision, need also to be taken into account. Ethicists have difficulty identifying these interests, let alone grasping their significance to the different actors in the story to start weighing them up. Since there is genuine uncertainty about what constitutes the best interests and welfare of Jodie and/or Mary, and it is not the doctors or lawyers but the parents (and Jodie and Mary themselves) who will have to live with the consequences, Huxtable concludes that the opinion of the parents should prevail [16]. This argument is pragmatic and compassionate but theoretically rather thin. A more ethically satisfying basis may be found in a relationally grounded ethics of care, and more broadly an ethics in which the moral necessities special to familial relationships are taken seriously.4

3 Ibid.

4  V Held, The Ethics of Care: Personal, Political, and Global (Oxford, Oxford University Press, 2006); T Pettersen, ‘The Ethics of Care: Normative Structures and Empirical Implications’ (2011) 19 Health

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Ethics of care is arguably something of a misnomer: while it describes an approach focused on the moral obligations generated by dependent human animals’ needs for care, contemporary care ethics does so less because of an interest in the practice of care than because it recognises the primary importance of (often) asymmetric relationships to moral life. The terminology of care is shorthand for saying that, outside of legal contracts, most human relationships are asymmetric; those relationships that are most emotionally and morally important to us tend not to be the freely chosen coming together of autonomous equals; and special attention must be given to relationships involving care precisely because the giving or receiving of care exemplifies this unavoidable imbalance of power and dependency in human contacts.5 Jodie and Mary were utterly dependent on the care given to them by their parents and wider family, as much as the medical care they needed. So the analytic framework provided by care ethics becomes highly salient. Prioritising care does not resolve the dilemma, but it foregrounds a set of moral criteria that may be obscured by other ethical theories. While any ethical analysis must acknowledge the twins’ radical dependency on others, a care ethics perspective gives more prominence to other, less obvious aspects of care, such as the moral importance to the parents of providing the best support to that dependency—the best kind of care—and it is not obvious what that means from the parents’ point of view. For example, the parents’ rejection of surgery is articulated in the judgments in terms of their religious scruples. These scruples are not given close examination. They might rest on the teachings of the Roman Catholic Church, but they may also be influenced by a more theologically and ethically complex sense that the best form of care for their children is through equal acceptance of both. ‘Care’ entails something other than the preservation of bare life. In the vocabulary of a contemporary relational ethics of care, it is less about providing for the physical and medical dependencies of the infants than it is about caring for and about existing and future relationships. This might mean taking into account not just the relationship between the parents and their children, but also the one between Jodie and Mary: a relationship which the parents’ faith tells them will continue beyond physical death. An ethics of care approach can include other actors who constitute the fabric of relationships in complex medico-legal dilemmas, but whose own moral needs and vulnerabilities are normally less prominent. In this case, we might want to look at the clinical team and other hospital staff. It is important to be clear that acknowledging that medical professionals are involved in various forms of care relationship with Jodie and Mary does not mean that their moral claims have the

Care Analysis 51–64; J Tronto, Moral Boundaries: A Political Argument for an Ethics of Care (London, Routledge, 1993). 5  EF Kittay and EK Feder, The Subject of Care: Feminist Perspectives on Dependency (New York, ­Rowman and Littlefield, 2002).

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same weight as those of the children’s parents. But it counterbalances the way that in many accounts these other actors appear solely as representatives of a particular clinical option or line of legal reasoning, even when they have their own opinions on, and moral investments in, the right course of action for Jodie and Mary.

IV.  Family Ethics Very recently, the focus on relationality and relationships of care in both health and social care contexts has led to a developing ‘ethics of the family’. This approach does not privilege or naturalise the moral claims of families, but it is influenced by the recognition that there is ‘discordance between the sorts of ethical relationships and perspectives that exist within a family, and those that govern the behaviour of the healthcare system dealing with those families’.6 For instance, cases like Jodie and Mary’s tend to be approached as a conflict between the medical profession and the family over the fate of the patient. The result of this antagonistic framing is that the ethical imperatives, priorities and tensions of patients’ families tend not to be explored in detail until problems arise, especially problems between the families’ views and those of the clinical team. In case studies used to teach the ethics of end of life decisions, the patient’s relatives commonly only become involved at the point where they question their loved one’s decision-making capacity, or challenge a clinical care decision; less interest has been shown in the conversations about care which these actors (patients and families) may have had long before the clinicians made an appearance.7

V.  Persons and Bodies I have not said much about Ost LJ’s discussion, largely because its core is about the doctrine of double effect (DDE), and as she notes, this has been debated by moral philosophers and lawyers for a very long time [4]. However, one aspect of Ost LJ’s discussion points in a different direction, and although it is not followed up in the judgment it is central to the ethics of this and other cases involving conjoined twins. This is the nature of the identities of Jodie and Mary. There remains genuine uncertainty about how many patients/persons are present. This does not just make for a tricky moral dilemma here: it presses against some fundamental assumptions about personhood, individuality, embodiment, and the relationships between those concepts. 6 

MA Verkerk et al, ‘Where Families and Healthcare Meet’ (2015) 41 Journal of Medical Ethics 183–85. See eg C Rehmann-Sutter, H Gudat, and K Ohnsorge, The Patient’s Wish to Die: Research, Ethics and Palliative Care (Oxford, Oxford University Press, 2015). 7 

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In using the DDE in a comparison between delivering analgesics to relieve a patient’s suffering (and thereby shortening life), and the separation of Jodie and Mary, Ost LJ mentions Ward LJ’s contention that the DDE cannot apply to the conjoined twins as (i) the surgery affects two distinct patients, and (ii) for one of them, Mary, surgery itself is not in her best interests.8 Although Ost LJ ultimately disagrees with Ward LJ on this conclusion, she does not challenge the claim that two individuals are present [17]. Similarly, Huxtable LJ also agrees with Ward LJ that although Jodie and Mary are conjoined, they are not one individual: ‘we are determining the fates of two children’ [2]. The consensus is there is not one person but two, trapped in an anomalously singular body. If prenatal development had run as it should, Mary and Jodie would have been two individuals in two separate bodies. Something has gone wrong, and surgical separation can put it right. In line with this, the available empirical evidence suggests that in most cases where both conjoineds have undergone normal cognitive development, there are two subjectivities, two persons, present.9 This is why surgical separation of conjoined twins is normally undertaken, even when not separating them does not present an acute issue of survival because two persons require two bodies. Perhaps, though, we do not have a case of two subjectivities unable to step away from each other because they are stuck together in the same skin. Philosophers, especially feminist philosophers, are increasingly paying attention to the phenomenology of embodiment in shaping our moral perceptions and judgements.10 They argue the kind of body through which we engage with the world also shapes the moral and other stances that we hold towards that world. If so, being/inhabiting a very unusual form of body might generate preferences and priorities that are also to some extent anomalous—it would be hard for those of us who inhabit standard model bodies to predict these preferences and priorities with any real confidence.11 There is some evidence for this in cases of conjoined twins. Huxtable LJ, drawing on Dreger’s work,12 argues that ‘Conjoined twins, it seems, generally ­prefer to remain together, even if separation means that one might live’, and when

8 

In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (CA) 199 (Ward LJ). Dreger, One of Us: Conjoined Twins and the Future of Normal (Harvard, Harvard University Press, 2004). 10  SL Bartky, Femininity and Domination: Studies in the Phenomenology of Oppression, (New York, Routledge, 1990); G Weiss, Body Images: Embodiment as Intercorporeality, (New York and London, Routledge, 1999). IM Young, On Female Body Experience: ‘Throwing Like a Girl’ and Other Essays (New York, Oxford University Press, 2005). See also YM Barilan, ‘One or Two: An Examination of the Recent Case of the Conjoined Twins from Malta’ (2003) 28 Journal of Medicine and Philosophy 27–44; M Shildrick, ‘Some Speculations on Matters of Touch’ (2001) 26 Journal of Medicine and Philosophy 387–404. 11 J Leach Scully, ‘Moral Bodies: Epistemologies of Embodiment’ in H Lindemann, M Verkerk and M Urban Walker (eds), Naturalised Bioethics: Towards Responsible Knowing Practice (Cambridge, ­Cambridge University Press, 2008); J Leach Scully, Disability Bioethics: Moral Bodies, Moral Difference, (Lanham, MD, Rowman & Littlefield, 2008). 12  Dreger (n 52). 9  A

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r­ emaining joined means certain death. This is not a state into which most of us, used to being single persons within a single body, can easily imagine. Perhaps conjoined twins are better considered as a novel class of persons who inhabit the world in a different way: neither as single persons, but nor as two persons joined by an accident of nature, and who would inevitably be better off normalised through separation. The conjoined body like this has some parallels with a more common variation where the practice of ‘normalisation’ has attracted recent bioethical attention: the bodies of those born with ambiguous genitalia so that they are not easily identified as anatomically male or female. Until recently the default response to ambiguous genitalia was surgical intervention to ‘restore’ the baby or child to visible normality. The problem is that tidying up the external genitalia so that they look indubitably male or female is not always consistent with either the internal anatomy, or the later self-perception, of the individual concerned. Conceptually, normalisation is increasingly challenged for being a lazy retreat into binary gender categories; a growing number of bioethicists are arguing for the ontological validity of intersex subjectivities that are neither conventionally male nor female.13 If we were to consider conjoined bodies in a similar way, what might be the consequences for the ethics of this case? First, and as I emphasised at the outset, it wouldn’t solve the dilemma of this specific situation—in fact it is hard to see what would. But it does open up a space for understanding conjoineds as something other than anomalies that need to be rescued and restored. Viewing conjoinedness as a way of being, in which two persons are/inhabit a single body is different in important ways from a starting point in which two individuals who should be in two bodies are competing with each other for ownership of a single set of structures and organs. As Bratton and Chetwynd note, in a number of historical cases the assignment of internal organs before conjoineds are separated has been arbitrary enough to suggest a psychological need to believe that one twin has a greater right to, say, the shared heart, and therefore a greater right to life, to justify the intervention.14 Perhaps instead we might think about conjoined twins as two persons in a single body—which, in the case of Mary and Jodie, is an impaired body because of the cardiac insufficiency. Their single body is terminally ill, but still offers both persons the possibility of some life—even a reasonably good quality of life—in biographies that, at least initially, seemed more acceptable to their parents than the alternative provided by separation. A second ethical consequence would be to provide an even more compelling rationale for a better understanding of what it is like to live conjoined. Ultimately

13  A Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (New York, Basic Books, 2000); EK Feder, Making Sense of Intersex: Changing Ethical Perspectives in Biomedicine (Indianapolis, Indiana University Press, 2014); L Ermer, ‘Paradigms Revised: Intersex Children, ­Bioethics and the Law’ (2002) 11 Annals of Health Law 195–236. 14  M Bratton and S Chetwynd, ‘One Into Two Will Not Go: Conceptualizing Conjoined Twins’ (2004) Journal of Medical Ethics 279.

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this would need to come from empirical and experiential work with surviving conjoineds, about how they see the world and their place in it generally but also, crucially, what they think about the question of separation. Would they wish to be separated; do they wish they had been separated earlier in their development; would they want to be separated if the option is death? Do words like ‘separate’ and ‘individual’ and ‘autonomy’ even mean quite the same as they do for nonconjoineds—and is their alternative meaning sustainable, interesting, and/or useful for the rest of us? Information like this is essential in order for families and healthcare professionals to make decisions that are based on the lives of people whose experience is very different from the statistical norm. In the end, the necessity of gathering information to support ethically justifiable decisions is itself an ethical matter; it is not ethical to make life-changing medical interventions based on inadequate information when at least some better information is available if only we would make the effort to find it.

R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin) Facts In July 2004, the Department of Health published a document entitled ‘Best ­Practice Guidance for Doctors and other Health Professionals on the Provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health’. Ms Susan Axon contended that this Guidance was unlawful on five grounds, including that the Guidance misrepresented the decision in Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112. Gillick had decided that if a person under 16 had sufficient understanding and intelligence to enable that person to fully understand what was proposed, they could lawfully consent to the prescription of contraceptives without parental knowledge. Ms Axon sought a declaration that medical professionals were under a duty to consult the parents of (with parents having a correlative right to be consulted about) a minor before providing advice and/or treatment regarding sexual health. Silber J rejected Ms Axon’s claim, meaning parental responsibility is not able to limit the scope of a medical professional’s duty of confidence in respect of a competent minor. The claim that failure to consult parents before providing information relating to reproductive advice and/or treatment would be an infringement of a parent’s human rights was also rejected.

Outcome (High Court, Queen’s Bench Division): Petition Denied Judicial Makeup Mr Justice Silber. Appellate History None. Keywords consent, reproductive advice, mature minors, parental consultation.

Judgment 1—R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin) HERRING J (JONATHAN HERRING) [1] This case is brought by Sue Axon, who as a young woman underwent an ­abortion. She has experienced grief, guilt and depression since then. She now has two girls aged 12 and 15 and does not want her daughters to have the experience she had. Ms Axon is concerned about Guidance issued by the Secretary of State for Health entitled ‘Best Practice Guidance for Doctors and other Health Professionals on the Provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health’ (2004). This Guidance means that her children could receive medical advice on sexual matters (including access to abortion) without her consent or without her even being informed. She seeks a judicial review of the Guidance and a declaration that it is unlawful. [2] That is how the application came before the Court. But the case is not really about Sue Axon. It is about girls under the age of 16 seeking advice and treatment about reproductive matters, including abortion. To what extent should the law protect their right to access contraceptive treatment and to confidentiality? Are those under 16 to have the same rights on these issues as adults do? Or because of their age are their rights limited? Before exploring these issues further, it is important to appreciate that the issue under discussion affects many girls. Around 8–10 of every 1000 girls under the age of 16 become pregnant each year. Around 70 per cent of these are unplanned (Department of Health, National Service Framework for Children, Young People and Maternity Services. Standard 4: Growing Up into Adulthood (Department of Health, 2004) para 4.6). [3] The arguments presented to the Court have reflected two competing views about the nature of childhood and the rights of parents. On the one hand the Secretary of State has emphasised the decision of the House of Lords in Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 which acknowledged the right of children who are sufficiently mature to consent to receive medical treatment without parental consent or notification. On the other hand, Ms Axon has emphasised the rights of parents to be involved in the lives of their children and to make decisions on their behalf. Her arguments include reference to the rights to respect for private and family life protected by Article 8 of the European Convention on Human Rights (ECHR).

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I.  Autonomy Interests of Girls [4] Many models of autonomy are based on the belief that individuals should be permitted to live their lives as they wish, making decisions about themselves and their bodies, free from interference by the law, unless doing so infringes the rights of others. A person should be able to determine for themselves the journey their life will take. In part this is because an individual is better placed to decide what is best for themselves than anyone else. But the principle is best justified simply on the basis that a person’s life is their own. They will experience the joy and pain that results from what they decide and so it is right that they should determine how their lives are run. [5] How does the autonomy principle apply to children? The starting point is that the principle of autonomy only applies if a person has decision-making capacity. They must be able to understand the key facts relevant to the decision, otherwise they are not making a decision about how they want their lives to be, but rather a decision about a distorted version of their lives or the world. Similarly, they must be able to use that information to make a free decision. If they are compelled to make the decision by someone else, it is not their decision. Further, a person must have values they have chosen, rather than parrot the values of others because they have had no opportunity to adopt values of their own. If a person has simply adopted someone else’s values, they are not forging their own life story. This is as true for children as it is for anyone else. [6] It is true that many children lack capacity because they do not understand the information; lack the freedom or ability to make the choice; or do not have values they have adopted as their own. However, the reason they lack capacity is not because they are children. It is because they lack those abilities. It therefore follows that where the child has the capacity to make the decision they should not be denied that right to make the decision. If you have a child who has the capacity to make the decision, and you deny that child the legal rights and responsibilities to do so simply because they are a child, then that is age discrimination. It is failing to respect the child as an individual in their own right, but treating them based on assumptions about them because they fall within a particular class of people. [7] This approach is reflected in the law. The decision in Gillick recognises that a sufficiently mature child can consent to treatment, regardless of her age, and without parental veto. Similarly, Article 8 of the ECHR, while yet to be fully developed in relation to children, should be understood to protect the rights of children who have capacity to make decisions about their treatment. That is acknowledged in the UN Convention on the Rights of Children, Article 12 (1): States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

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[8] All of these points bolster the claim by the Secretary of State that the disputed advice is lawful. If a child has capacity to be able to consent to an abortion or other reproductive decision, she should have the legal right to do so.

II.  Rights of Parents [9] It is now necessary to explore the claim that parents have the right to make decisions involving their children. To do so, we need to consider why a parent may have such a right. That is crucial if we are to determine whether the right survives the child acquiring capacity and if it does the nature of the right. It will help to set out four views before choosing between them. 1. A parent has rights to make decisions over their child because they are best placed to know the child and therefore make decisions which will promote the welfare of the child. 2. A parent has rights to make decisions over their child because the alternatives will be worse. History teaches us that the state or state officials are not good at making decisions about children. Even if they were, a society in which all ­children were raised in an identical, state approved way would be unacceptable. 3. A parent has rights to make decisions over their child because they have invested time and energy in their child and it acknowledges the role they play in the child’s life. 4. The parent and child’s lives are so closely intertwined that the parent is inevitably affected by decisions concerning the child and so has a right to be involved in them. [10] The first two reasons rely on parents being best placed (or least worst placed) in making decisions for their children. If parents have a right to make decisions for their children based on either of these reasons, then this seems to fade away once the child is able to make decisions for herself. That is because we then have a person better placed than the parent to make those decisions: the child herself. [11] It seems the law accepts one of these two approaches. In the Gillick decision Lord Fraser said, at p 170: parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family.

Similarly, Lord Scarman said, at p 184, that ‘parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child’. [12] If we take the third view, that the rights of parents arise from their investment of time and care into the child, then does it not follow that a child’s ­maturity defeats the basis of that claim? Not necessarily. The fact the child has reached

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maturity does not negate the extent of investment or care in the child. Indeed, the fact the child has reached maturity may reveal that the investment in the child has been extensive. We would in such a case have a potential clash between the right of the child with capacity to make decisions for herself, with the interests of the parent to be involved in her child’s life given her care. Given the prominence attached to the right of autonomy and the particularly personal nature of reproductive decisions, these claims would rise in favour of the child. The invasive bodily nature of the pregnancy and the extensive obligations that flow from producing a child indicate that the abortion decision is one of fundamental significance for the girl concerned. On this view, then, it is not that the parent has no right to be involved, but that the child’s right trumps that of the parent. This is a significant finding because it means that if the child did not want to make the decision, but wanted her parent to make the decision on her behalf, the mother would have a legal and ethical basis for doing so. Similarly, if a medical professional were to seek to prevent a parent being involved, even though the child wanted the parent to be involved, the parent would have a right to be involved in the decision-making process that they could seek to invoke. [13] Finally, looking at the fourth basis, in effect, the claim here is that Ms Axon’s rights in her own right would be affected by the reproductive decision. The discussion to date, however, does not mean that Ms Axon has no rights in relation to children if they seek medical attention when competent. The decision of her daughter to proceed with the pregnancy and raise the child will impact on her own family and private life. If her daughter were to decide to have an abortion this too may impact on her. However, these rights will be readily counterbalanced by her daughter’s rights to make decisions for herself about her body and the direction of her life. The decision the daughter makes will be central to her life course; the impact on Ms Axon will be more limited. [14] So whichever theory of parental rights is taken none of them produce a sufficiently strong case to allow a parent to have a say in the decision of a competent child over an abortion or other reproductive decision. Indeed I would go further. One of the innovations of the Children Act 1989 was to introduce the concept of parental responsibility. This concept emphasises that the role of parents is based around their responsibilities towards their children, not rights that they have over them (see section 3). A parent who seeks to enforce their parental rights through the courts against a competent child has lost sight of how the law understands parental rights.

III. Relationality [15] The model of autonomy presented so far in this judgment, of allowing individuals to make decisions about their lives based on their own values, is somewhat

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fictitious. Few decisions are simply about our own lives. Our lives are profoundly interdependent and intertwined with others. The decisions we make are bound up with the lives of others. This is particularly so in this case where the decision of the girl, whether it be to have or not to have a child will impact on her family. She will be inevitably dependent on financial, emotional and practical help from other people. Even a mature child may find it difficult to access the services and financial support necessary to live independently. [16] It is the familial/communal impact of the decision about whether to terminate or continue with the pregnancy where the advice and support of a parent may be important. A doctor may not be in a position to know the child’s family and support network to know that, whatever decision is made, she is equipped with the help she will need. Indeed the idea that anyone, especially a child, will make a decision about an abortion with no one to discuss the issue with or be able to offer the support and help necessary is a worrying one. This is particularly as abortion is something little discussed in the general media. There are few role models a young person may look to as inspiring them in how to deal with a decision to abort. [17] But, and this is a big but, is this an issue where the law should intervene? The law could require that the child consult either her parents or a trusted family ­member or adult friend before making the decisions, but that seems somewhat heavy handed. If there is a good parent-child relationship, then there should be open communication on sexual and medical matters. Children will want to involve their parents in important decisions and indeed parents will want to involve their children. That, however, does not mean that the law must enforce such communication. Just because something is good does not mean that the law should enforce it. Indeed, in the legal enforcement the relationship can lose its goodness.

IV. Confidentiality [18] Confidentiality is a central principle in medical ethics. A medical health professional must keep a patient’s personal information private. While a host of reasons might justify this, two will be emphasised now. First, patients must be able to be completely open with their doctors about their health and family situations. Otherwise the patient will not receive the best advice. It is important not only for the individual, but also society more generally, that patients receive the most appropriate medical advice. Second, at the heart of the patient-doctor relationship is trust. The patient will say things to, and show parts of their body to, a doctor they may not say or show to anyone else. The vulnerability of the patient must be respected by the doctor not misusing this information for any purpose unauthorised by the patient. [19] Both of these principles apply just as strongly to a child as they do to an adult. The duty to keep a child’s confidence (save where the child is facing abuse or to

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avoid some other overwhelming public interest) is very strong. There is, however, one argument that the mother might raise in such a case. The principle of confidentiality rests on the notion that the information belongs to the patient. That is generally true. But in cases where people are in a close caring relationship, where the interests of the parties become mingled, it becomes less clear whose information it is. The boundaries between bodies and health become blurred. Is an abortion decision one such case? [20] I think clearly not. In a case where, say, someone is HIV positive but has not told their partner, with whom they are engaging in sexual relations, there is a case for saying that the information is communal. The information about the one body (it is HIV positive) is information about another (it is at risk of being positive). Just as the need for a treatment of a tumour in one part of the body may be needed to stop it spreading to another. But pregnancy or other reproductive decisions are not like that. The information about the girl’s body is not going to impact upon the body of the parents. It is not, in that sense, shared bodily information. [21] It was argued by Ms Axon’s counsel in this case that an interference in confidentiality would be justified in the public interest; the public interest being the need for parents to fulfil their responsibilities to ensure the health and wellbeing of their children. There are two reasons to reject this argument. The first is that it is not clear that the breach of confidence would achieve this end. It might have the opposite effect and deter young people seeking medical advice for fear their ­parents would learn about the issue. The second is that if the young woman is seeking medical advice we can assume her health and wellbeing are being promoted by the medical professional concerned. There are insufficient reasons to justify a breach of confidence in a case where a mature child seeks an abortion or other reproductive decision.

V. Conclusion [22] The application for judicial review fails. There is much in what the applicant says with which I agree. It is important that parents are involved in the lives of their child and they can offer support, advice and encouragement when children face difficult decisions. This is true of mature children, just as of minor children. However, it is not for the law to force the child-parent relationship into that model. Indeed, the very fact that a minor child does not want her parents involved in an important decision is an indication that the parent-child relationship cannot fulfil its ideal role. The court has no magic wand to make the parent-child relationship as it should be. Rather, where the child has sufficient maturity, it is her decision whether to involve her parents or not in important decisions. Parents who seek to force their children to involve them in decision-making may well find they achieve the very opposite of what they seek.

Judgment 2—R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin) BIGGS J (HAZEL BIGGS) [1] This application concerns the position of a young person below the age of 16 who seeks advice and treatment about contraception, sexually transmitted diseases and abortion but does not wish the medical practitioner to inform her or his parents and cannot be persuaded to notify their parents themselves. It raises issues about how medical professionals can legitimately provide advice and treatment to young people like this when they are capable of understanding the advice and the implications which flow from it. [2] The Family Law Reform Act 1969 makes it clear in s 8 (3) that a person over the age of 16 can give valid consent to surgical or medical treatment. Where a young person under the age of 16 requires medical treatment, the normal expectation is that a parent or guardian would give consent to that intervention. However, some young people need advice, and sometimes treatment, about matters concerning their sexual and reproductive health, including abortion, before they attain the age of 16. Further, in some circumstances these young people may prefer their parents not to know. [3] It might be thought that the ideal situation would be for adolescents to seek the advice and guidance of their parents or guardians about matters relating to their sexual and reproductive health. But it is evident that some young people may avoid seeking beneficial advice and treatment if their parents were to be informed, and this might leave them vulnerable to undesirable consequences, such as disease or unplanned pregnancy. [4] On 29 July 2004 the Department of Health published guidance to doctors and healthcare professionals entitled ‘Best Practice Guidance for Doctors and other Health Professionals on the Provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health’ (‘the Guidance’). It is the lawfulness of this guidance that is at issue in this case. The Guidance ­supports the provision of advice and treatment to young people under the age of 16 without the knowledge or consent of their parents as long as the clear stipulations set out by the House of Lords in the case of Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 (Gillick) are complied with. The Secretary of

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State submits that the Guidance is lawful as does the Family Planning Association (FPA), the Intervener in this case. [5] Ms Susan Axon (the Claimant) is the mother of two daughters aged 15 and 12. She is concerned about the Guidance because she experienced the trauma of abortion herself when she was a young woman, suffering depression and grief as a consequence. She does not wish her daughters to be exposed to the same e­ xperience. It is her belief that parents rather than doctors are best placed to determine the best interests of a child and that they should be consulted about any advice or treatment to be administered in relation to contraception, sexually transmitted infections or abortions. She therefore seeks a judicial review of the Guidance. [6] Ms Axon contends that the Guidance is unlawful. She claims that a medical professional is: under no obligation to keep confidential advice and treatment which he proposes to provide in respect of contraception, sexually transmitted infections and abortion and the health professional must, therefore, not provide such advice and treatment without the parent’s knowledge unless to do so might prejudice the child’s physical or mental health so that it is in the child’s best interests not to do so. The claimant’s primary case is that this represents the position in respect of all the above treatments but at the very least, is his duty in respect of the provision of advice and treatment in respect of abortion.

[7] The legal submissions made for and against this application begin with the case of Gillick. The facts of that case, where a parent challenged the lawfulness of Guidance issued to doctors by the Secretary of State, were materially very similar to this claim. They called for the Court to determine the circumstances, if any, under which a doctor can lawfully provide a girl under the age of 16 with ­contraceptive advice and treatment without the consent or knowledge of her ­parents. It was held by majority decision that so long as the patient had sufficient maturity and intelligence to understand the implications of the proposed treatment, the doctor could lawfully give that advice and treatment without parental consent even if the girl was under 16. [8] The Claimant seeks to ensure that the decision-making responsibility for young people remains with their parents until they reach an arbitrary age of ­responsibility. She rests her case on the assumption that failing to involve parents in decisions about sexual and reproductive health and keeping such decisions confidential is likely to be damaging to the physical or mental health of the person. This is predicated on a desire to protect family life under Article 8 of the ECHR. [9] Doctors and other healthcare practitioners have a professional, legal and ethical duty to treat their patients according to their best interests. The word ‘treat’ is used here in its broadest sense rather than to imply that it refers only to the provision of treatment in the guise of medical intervention. Information about patients must be treated with respect in relation to advice sought and treatment given, whatever their age. If a young person below the age of 16 seeks advice and treatment about matters relating to sexual and reproductive health, the ruling in Gillick

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permits that advice and/or treatment to be lawfully given regardless of parental involvement in the decision, so long as the conditions set out in Gillick are satisfied. Providing advice and treatment and maintaining confidences is an ethical imperative in these circumstances. [10] The ethical principles of autonomy and confidentiality are central to this application as is the importance of parental responsibility for the physical and moral welfare of their offspring. There is an obvious tension between these concepts but at their heart is concern for the welfare and best interests of young people. [11] In Gillick, Lord Fraser sets out very clear guidelines about when a young ­person below the age of 16 is to be regarded as capable of making decisions about her or his own health. The conditions demand that the young person understands the advice being given by the healthcare professional, and that the young person cannot be persuaded to tell her or his parents that advice is being sought about sexual or reproductive health and does not agree to allow the healthcare practitioner to pass on that information. In addition, it must be clear that the young ­person is likely to begin or continue to have sexual intercourse without contraceptive treatment, that her or his physical or mental health might suffer if the advice or ­treatment is not given and that the young person’s best interests require the medical professional to give the advice or treatment or both without parental ­consent. These principles have been widely adopted by healthcare professionals and are key to the Guidance challenged by the Claimant. [12] Lord Fraser’s Guidelines are based on an understanding that once a person has achieved sufficient maturity to understand the implications of a proposed treatment and is able to use that information to make a considered decision, they are capable of deciding for themselves. In short, they are to be regarded as an autonomous agent. In healthcare, respect for individual autonomy is one of four key ethical principles (T Beauchamp and J Childress, Principles of Biomedical Ethics, 5th edn (Oxford, Oxford University Press, 2001) and all ethical guidelines adopted by medical professional bodies propound respect for the individual autonomy of patients as being essential to good medical practice. [13] In recent years however there has been a shift of focus with some commentators arguing that prioritising individual autonomy tends to deny the potential impact on relationships (S Sherwin, ‘A Relational Approach to Autonomy in Healthcare’ in S Sherwin (ed), The Politics of Women’s Health: Exploring Agency and Autonomy (Philadelphia, Temple University Press, 1998) 19–47). There is a potential for relationships to be damaged if the medical profession promotes individual autonomy to the extent that patients are encouraged to act purely out of selfish interests or with little regard for the social context and consequences. But, despite the Claimant’s arguments that the Guidance excludes parents from decision-making­about the life and welfare of their child by making it an exception rather than the rule that they are informed about the consultation and treatment, that is not what is at stake in this case.

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[14] The Claimant has argued that her human right to family and private life as protected under Article 8 of the ECHR is threatened by the Guidance because it may result in a form of secrecy that is destructive to family relationships. The implication is that allowing young people below the age of 16 to act autonomously in relation to sexual and reproductive health is detrimental to family relationships. My view is contrary to this stance. [15] Parents have responsibility for the physical, emotional and moral welfare of their offspring. But part of the role of a parent is to prepare their child for life as an independent, autonomous being and once their child has attained sufficient emotional and moral maturity the parent has a moral obligation to allow them to decide for themselves and to respect their decisions. The parental right to decide for children applies only when the parent is acting in the child’s best interests and, as was aptly stated by Lord Scarman, p188H-189A in Gillick, it ‘terminates if and when the child achieves sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. This being so, parental rights cannot provide a legitimate foundation for this Article 8 claim and the Claimant’s case therefore fails on this issue. Instead the issue depends on the welfare and best interests of the competent minor. [16] When a young person approaches a healthcare professional for advice and/ or treatment in relation to their sexual or reproductive health, they do so because they have a medical need. The Claimant has argued that unless the young p ­ erson’s physical and mental health is clearly at risk the doctor or other healthcare professional should consult the parents before offering treatment or advice. It is contended that if consultation would be prejudicial to the young person’s health or welfare then it would be in their best interests to go ahead without consultation, but not otherwise. Nevertheless, as stated above, a healthcare professional has an ethical and professional obligation to treat a presenting patient according to their best interests. [17] The Claimant has argued that the Guidance she is challenging renders d ­ octors the sole arbiter of what is in the best interests of a child, but this is a mistaken claim. The only young people the Guidance permits to be treated without parental consent are those who satisfy the Fraser Guidelines laid down in Gillick. They will be competent to make autonomous decisions of this nature and will do so based upon their own understanding of what is in their best interests. Practically, the doctor, or other practitioner, does not operate in isolation but in consultation with the patient. Ethically, any advice given or decisions made about treatment will be on the basis of the practitioner-patient relationship and according to professional guidance as to what is regarded as proper practice in the circumstances. This process may legitimately exclude the parent. [18] It has been argued that Gillick should be distinguished because it did not apply specifically to abortion, which is regarded as a more invasive and serious intervention than the provision of contraceptive advice and treatment. That, I am afraid, is no more than legal sophistry. One of the most important ethical

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­ rinciples concerns the autonomy of the competent young person, and that being p so, the nature of the healthcare intervention makes no difference to the legitimacy of the Guidance. [19] As explained above at [9], confidentiality is equally as important as autonomy to this claim. The Claimant cites Article 8 in relation to the actual decision-making and her claim that parents have a right to be consulted and that the Guidance makes informing the parent the exception rather than the rule. [20] Article 8 gives ‘Everyone … a right to respect for his private and family life…’ (emphasis added). Accordingly, parents have a right to ‘respect’ for their family and private life, but so do their adolescent offspring. The law says that in ‘judicial decisions where the rights under Article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration’ (Yousef v Netherlands (2003) 36 EHRR 20 [73]). But it is not simply a matter of the minor’s rights trumping those of the parent. The right to family life must be balanced against the minor’s right to privacy. There are situations where the parents’ rights might prevail and it would be more ethical to uphold this, but not where a young person is competent to make an autonomous decision about their sexual and reproductive health. [21] Sexual and reproductive health is an area of life that is particularly sensitive, involving as it does, decisions of the most intimate nature. The Guidance that is the subject of this legal challenge makes it clear that ‘The duty of confidentiality owed to a person under 16, in any setting, is the same as that owed to any person.’ Hence the right to confidentiality is the same for those under 16 as it is for adults and it is not accurate to claim otherwise. A young person seeking advice about contraception, sexually transmitted disease or abortion is acting responsibly in order to protect her or himself from any unwanted consequences that might be attached to adult relationships. This is a mature and conscientious action, which should be respected. [22] The duty to keep confidences is enshrined in all ethical codes and professional guidance. It is founded on the ethical imperative to respect privacy, but also on the pragmatic need to ensure trust in the doctor-patient relationship so that patients of all ages will not shrink from confiding in their doctors. It is not accurate to claim that the Guidance at issue makes informing parents the exception rather than the rule. The duty to maintain confidences is a lynchpin of good medical practice, but it is especially pertinent where there is the real potential for the patient to avoid seeking advice. A requirement for the parents to be notified would be likely to operate as a disincentive to seek advice or treatment and might have undesirable and far reaching consequences. [23] On this point I am bound to introduce a public policy dimension that takes the implications of this case beyond those that are relevant to individual autonomy and the protection of individual rights. The Gillick case had a tortuous passage to the House of Lords with the Appeal Court holding that doctors were obliged to inform parents and obtain their consent prior to prescribing contraceptive advice

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to young people under the age of 16. In the time that elapsed between this judgment and its reversal in the House of Lords, the number of consultations for this treatment fell from 1.7 to 1.2 per resident thousand. The potential suffering and the number of unplanned pregnancies that occurred is not known, but the statistics are sufficient to persuade me that this is not just about making the right decision for individuals. It is about the health and wellbeing of an entire population cohort. [24] Much has been written about the fact that a young woman seeking advice about matters relating to her reproductive and sexual health without consulting her parents may be under the influence of a sexual partner, the implication being that some vulnerable young women and girls may be preyed upon by unscrupulous men. Lord Fraser himself referred to this at p174B-D in his speech in Gillick. However, whilst undoubtedly there may be some sad and disturbing cases where this is the situation, these should not be used to justify Ms Axon’s claim. The simple fact is that denying competent young people the right to decide matters relating to their sexual and reproductive health for themselves and requiring parental consent for such advice and treatment is not likely to protect those who are preyed upon and taken advantage of. [25] What is important for the majority is that once a young person has acquired the capacity to make complex decisions about her or his own health, she or he is entitled to have those decisions respected. Attaining and demonstrating this level of maturity means that the young person is entitled to act autonomously and to be treated as an autonomous agent. She or he has a right to the same respect for decision-making autonomy and confidentiality as any other patient. [25] For the reasons I have set out above I find that the Guidance, based upon Lord Fraser’s Guidelines in Gillick is not unlawful and the Claimant is not entitled to the relief sought. Judgment accordingly.

Legal Commentary—Axon and Autonomy: A Missed Opportunity? ELIZABETH WICKS The Axon case1 concerns a challenge to the Secretary of State for Health’s ­Guidance on the provision of contraceptive and reproductive advice and treatment to young people under 16. In two thoughtful and sensitive judgments by Biggs J and Herring J, the applicability of the Gillick principle2 to this context is reaffirmed. The judgments are bold in their support of the ethical principle of autonomy, but both judges regrettably fail to grasp the opportunity to engage with the various inconsistencies in the current law protecting the autonomy of young persons and thus ultimately do little to enhance the coherence of the law in this context.

I.  The Incoherence of the Law’s Approach to Autonomy In confirming the legality of the Guidance, Biggs J’s judgment focuses upon the ethical principles of autonomy, confidentiality and parental responsibility. She emphasises that all of these principles, even when in tension with each other, have concern for the welfare and best interests of young people at their heart [10]. Once a young person acquires the capacity to make decisions about their own health, under the Gillick Fraser Guidelines, those decisions should be respected: ‘Attaining and demonstrating this level of maturity means that the young person is entitled to act autonomously and to be treated as an autonomous agent’ [25]. In the view of Biggs J, neither parental rights nor paternalism will justify encroachment upon that autonomy. In a complementary judgment, Herring J also elevates the ethical principle of autonomy to prominence, arguing that denying a child with the capacity to make decisions the legal rights and responsibilities to do so, simply because they are a child, amounts to ‘age discrimination’ [6]. Thus, both judges are strong defenders of the autonomy of a young person with capacity, and yet neither explicitly recognises the incoherence of the current law 1 

R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin). Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112.

2 See

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on this point. While these two judges produce strong arguments for respecting autonomous decisions in this context, the law sends mixed messages as to when a decision by a minor with capacity, and indeed a decision by any woman concerning abortion, is to be the final say on the issue. The incoherence of the current law on autonomy can be illustrated by three examples. First, and completely ignored by Biggs J and Herring J, there has been a regrettable judicial retreat from the autonomy-respecting Gillick judgment. Referring only to Gillick, the judges in the present case add nothing to the subsequent judicial debate about the ability of young people with capacity to refuse medical treatment. Perhaps feeling that the present case was about saying yes, rather than no, to treatment, the judgments omit any reference to cases such as Re R (a Minor) and Re W (a Minor).3 While these might be distinguished as concerned with refusals of treatment, without acknowledgment of the judicial retreat from Gillick, an unrealistic and overly optimistic impression is given of the law’s approach to the decision-making of competent minors. The autonomy emphasised by Biggs J and Herring J is about choice; about young people being best placed to make decisions about their health and welfare. However, autonomy in this sense is simply not protected by the current law. Instead the law only protects the right of a young person to agree with medical advice; a right to give approval (and thereby a legal flak-jacket of protection for the doctor) rather than to choose between different options. Without any attempt to reconcile their judgments with those of Lord Donaldson in the aforementioned cases, the possibility remains that a young girl with capacity under the Fraser Guidelines can consent to an abortion (­following Axon) but cannot refuse one if her parents provide their own consent for it (­following Lord Donaldson’s approach). That is surely not an outcome either Axon judge desired, but without explicit reference to such issues, there is nothing in the judgments to stand against this unsatisfactory legal position. Beyond the law’s approach to refusals of treatment, there are other examples of its incoherence regarding autonomy. For example, a young girl under 16 cannot lawfully provide consent to sexual intercourse and yet, according to Axon, can provide consent to an abortion. This lack of joined-up thinking makes little sense. It stems, of course, from an ambiguity in the law as to whether a determination of capacity should be based on a functional test (as it is for consent to medical treatment) or age (as it is for consent to sexual activity).4 There may be sound reasons for these two different approaches given that the context is so different. But it remains hard to justify the consequence of a 15-year-old having the autonomy to request an abortion, the need for which results from an act in which she had no legal capacity to act autonomously. More broadly, this curiosity reflects the mixed

3  Re R (a Minor) [1991] 4 All ER 177; Re W (a Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All ER 627. 4  The age of consent is 16. See section 9, Sexual Offences Act 2003. This is not entirely about ensuring criminal liability for the other party in the sexual activity as a reasonable belief that the minor was older would prevent liability, but still would not render any purported consent valid.

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messages sent by the law when it comes to mature minors: a desire to protect and shield from harm, while also respecting a newly-acquired capacity to make decisions. Finally, the incoherence of the law’s approach to autonomy is particularly stark in the context of abortion. Regardless of age, abortion remains prima facie a criminal offence: a woman’s consent to the treatment does not suffice to render it lawful. Instead, it is the good faith certification of two doctors that one of the specified legal grounds for abortion exists that prevents liability for both medical professionals and the woman herself.5 It therefore seems inappropriate, or at least an oversimplification, to emphasise autonomous choice in this context. The ­woman’s autonomous choice is not currently respected by the law, whatever her age; the law instead prioritises medical opinion and regards the woman’s health, and not her autonomy, as the only justification for terminating a pregnancy. In addition to highlighting the law’s inconsistency on protecting autonomous choices, the distinct nature of abortion as a medical procedure casts some doubt upon Biggs J’s adamant insistence that abortion must be treated exactly the same as other treatments. Whether ethically that is a sound argument continues to be subject to considerable debate, but the law itself is extremely clear: abortion is not like other treatments because it is always a prima facie criminal offence. Thus, to dismiss, as Biggs J does, arguments that abortion might be distinguished from other contraceptive treatments under Gillick as ‘no more that legal sophistry’ [18], could be criticised as unsatisfactory. Rightly or wrongly, the current law does treat abortion differently in every other context. There is, therefore, at least a discussion worth having about whether it should also be treated differently in the context of Gillickcompetent minors. The lack of coherence in English law on the issue of autonomy is regrettable but it is striking that this is not even remarked upon by Biggs J or Herring J. Arguably, therefore, their judgments serve to increase the incoherence rather than seek to clarify it. Both judges seem strongly in favour of legal respect for autonomous decisions of young persons who have capacity. Thus it seems reasonable to assume that they would both support its extension and consolidation beyond some of the niggling inconsistencies in current English law. However, the potential implications of their autonomy-emphasising approaches are left unexplored in the judgments. It is a missed opportunity to restore some strength and coherence to the law on autonomy.

II.  Relational Autonomy Even the ethical principle of autonomy is not without controversy. Both Biggs J and Herring J adopt a relational autonomy view in their judgments which 5 

Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990).

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r­ ecognises that our decisions affect, and are affected by, other people. As Herring J explains, ‘Few decisions are simply about our own lives. Our lives are profoundly interdependent and intertwined with others’ [15]. A decision by a young girl to have an abortion is a good example of a choice which stems from, and impacts upon, relationships. Biggs J even asserts that there is ‘potential for relationships to be damaged if the medical profession promotes individual autonomy to the extent that patients are encouraged to act purely out of selfish interests or with little regard for the social context and consequences’ [13]. Nevertheless, neither judge seeks to apply a relational approach to the autonomous decision at question in this case. Biggs J rejects any idea that allowing young people to act autonomously in relation to sexual and reproductive health is detrimental to family relationships [14], while Herring J recognises that, whatever the obvious advantages of involving parents and/or other family or friends in a difficult decision such as this, it is not the role of the law to enforce such involvement when the young person herself has capacity [17]. The fact that two judges, with obvious sympathies to the relational approach to autonomy, should both independently reach decisions which apply a more liberal and individualistic approach to autonomy in this case is not surprising. While relational autonomy serves a useful purpose in reminding us that our choices impact upon others and that no man, much less woman, is an island, entire of itself, it also downplays the importance of a private, individual choice, and the vulnerability of the individual if neither law nor ethics seek to enforce that choice irrespective of its impact on his or her relationships. The law’s role in protecting the individual is part of a long struggle to establish human rights against the state and wider society. The dangers of failing to respect a decision made by a person with decision-making capacity because of considerations of family, relationships and community, should be obvious when viewed from a human rights perspective, especially in a healthcare context where a focus on the rights of the patient is not yet fully established. Relational autonomy forms part of a useful ethical debate, but it has no place in a court of law, as the decisions of Biggs J and ­Herring J prove. Even they, as supporters of a relational approach to autonomy, are not able to countenance the overruling of a person’s own individually formed choice, however much it might benefit from familial input.

III.  Parental Responsibility, Confidentiality and the Role of the Law The appropriate role of the law is a common theme in both judgments. For example, both judges highlight that a concept of parental responsibility has overtaken a previous focus upon parental rights. As Herring J explains, parental responsibility emphasises that the role of parents is based around their responsibilities

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towards their children, rather than any rights they might have over them [14]. Biggs J f­urther explains that part of the role, and responsibility, of a parent is to ‘­prepare their child for life as an independent, autonomous being’ and subsequently the parent has a ‘moral obligation to allow them to decide for themselves and to respect their decisions’ [15]. Until a child acquires decision-making capacity, her parents will generally be best-placed to determine her best interests, but both judges agree that once she has capacity, the girl herself is better placed than even the parents. Given the inexperience of a young person, and the particularly sensitive and emotional context of pregnancy and abortion, Herring J is right to worry about a young girl making a decision on her own without any support or communication with her family. However, he is also entirely correct to rule that it is not for the law to force a child-parent relationship into a particular model. What would be best for the child, and what the law will enforce, cannot be synonymous when the additional complicating factor of autonomous decision-making capacity is added to the scenario. The majority of both judgments focus on issues surrounding autonomy and consent, but the legal and ethical principle of confidentiality is also crucial to the questions raised by Ms Axon’s application. Biggs J sets out clearly the practical, as well as ethical, reasons for maintaining confidentiality in cases such as these. ­Herring J ultimately agrees, but outlines an unusual approach in which some medical information may be communal in nature, and thus not subject to the usual confidentiality restraints. Herring J seems to have in mind situations such as an HIV positive patient who is putting a sexual partner at risk. However, even in that scenario, the word ‘communal’ is unfortunate. The information about HIV status should not so easily lose its private, individual nature, even if a proportionate infringement of confidentiality is necessary to prevent harm to another person. Herring J’s doubts about whether health information always continues to ‘belong’ to a patient seems misplaced. He notes, obiter, that ‘in cases where people are in a close caring relationship, where the interests of the parties become mingled, it becomes less clear whose information it is’ [19]. This is clearly a relational approach again, but it once more threatens the individual rights of the patient. Although Herring J concedes that pregnancy is not a situation in which information about the girl’s body is going to impact on the body of the parents, the concept of communal information about an individual’s health would be best avoided entirely, given that existing limited exceptions to confidentiality already suffice to prevent specific harm to others. The Axon case raises difficult questions about autonomy, confidentiality and parental responsibility. It forces us to reflect upon when well-intentioned paternalism must end and potentially foolish and/or selfish autonomy take over. The answer is relatively straightforward, however. Decision-making capacity is crucial to the law’s approach to all patients, and is especially pertinent for children. In the context of children, the Fraser Guidelines in Gillick set out a sensible multifaceted test for determining if a young person is able to make her own decisions about contraceptive and reproductive health. For no one is this the ideal situation.

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As Herring J notes in his judgment, ‘If there is a good parent-child relationship, then there should be open communication on sexual and medical matters’ [17]. But not every such relationship meets this ideal, and thus the law must choose between respecting an autonomous decision by a person with decision-making capacity, and allowing the decision to be overruled or undermined by others. Both Biggs J and Herring J are unwavering in their support for the young person’s autonomy, recognising that giving a priority to relationality or parental rights is not an appropriate response for the law in this context. However, the law is not consistent in its approach to autonomy, especially in respect to the autonomy of children and on sexual and reproductive matters. While these two judgments in Axon lend strongly reasoned support to the Gillick principle and the need to respect individual autonomy, they also represent two missed opportunities. While a High Court judgment can only achieve so much in influencing the future direction of the law, the value of a strong declaration against the most blatant of inconsistencies in the law’s approach to autonomy, namely the Gillick retreat led by Lord Donaldson in relation to refusals of treatment, cannot be overestimated. A re-affirmation of Gillick as being about the need to respect an autonomous choice of a child with decision-making capacity, rather than simply a means to provide a doctor with legal authority for her preferred course of treatment would have been invaluable at this point in the development of English healthcare law. Even without it, there is much to be gained from these two staunch defences of autonomy as an ethical principle; but the law still has much work to do to resolve its current incoherence on this topic.

Ethical Commentary—Axon, Autonomy and Confidentiality DAVID ARCHARD

I. Introduction If I go to see a doctor I will probably do at least two things: First, I will talk about my condition, and possible courses of treatment. Second, I will make in consequence of that discussion with the doctor a decision about what to do. The discussion is protected by confidentiality and the decision by a right of autonomy. The Gillick case is about those permitted circumstances in which a legal minor might be allowed to exercise a right to make decisions about matters affecting his or her interests; a right to be treated, in effect, as an autonomous adult. The circumstances in question concern the demonstration of an appropriate competence. Much was made in the wake of that celebrated judgment of a so-called ‘retreat’ in subsequent cases from the principles of Gillick. Axon is esteemed by many as a reversal of that retreat. This may be an accurate assessment. Yet it is important not to overlook the fact that Axon also deals with the issue of confidentiality between doctor and minor. That is acknowledged in the judgments of Biggs and Herring JJ. But it is important to spell out carefully what that means.

II.  Justifying Patient Confidentiality and Autonomy There are obvious practical relations between confidentiality and autonomy of decision-making in the clinical context. A patient will certainly hope her decision can follow a full and frank discussion of her medical condition and that this is conducted without the risk of others knowing what is talked about. For their part minors might very well not disclose to a doctor what concerned them if they knew such disclosures would be shared with others (chiefly their parents). They might not do so even if they knew that, as minors, they had no right

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of autonomous decision-making. Confidentiality would likely matter despite an absence of autonomy. Biggs J at [23] notes that the immediate effect of the ‘retreat’ from Gillick was a significant fall in the numbers of young persons going to doctors to seek advice and information. It is reasonable to think that minors would still approach doctors if they knew that, even though they could not decide their own treatment, they would be able to disclose in confidence. In other words the reduction of consultations with young persons can be explained as much by the denial of confidentiality as by the denial of autonomy. These practical relations matter. However, what is of moral interest is the different normative justifications of the rights to confidentiality and autonomy. These are distinct. Both Biggs and Herring JJ acknowledge explicitly that children are owed confidentiality, and, indeed, are owed it just as adults are. Confidentiality is owed to someone irrespective of their status as child or adult. Thus Herring J asserts at [9] that, ‘Information about patients must be treated with respect in relation to advice sought and treatment given, whatever their age’ (emphasis added). Similarly, Biggs J at [22] notes that, ‘The duty to keep confidences … is founded on the … need to ensure trust in the doctor-patient relationship so that patients of all ages will not shrink from confiding in their doctors’ (emphasis added). Gillick is important inasmuch as it accords individuals a right to make their own decisions not on the basis of age alone, but rather on the basis of the possession and demonstration of an appropriate competence. This is a matter of ‘sufficient’ understanding and maturity. However, it remains a background assumption of the law—and not just in respect of medical decision-making—that adults are capable of deciding how to act whereas children are not. Age functions in this assumption as a useful rule of thumb as to when, normally and in general, the qualifying competence needed for autonomy is acquired. But if confidentiality is owed to someone whatever their age, then the justification of our duty to respect it cannot be of the same kind or order as the justification of a duty to respect someone’s choices. Biggs and Herring JJ implicitly acknowledge the difference yet also appear to see autonomy and confidentiality as somehow indissolubly yoked in their normative basis. For example, at [20] Biggs J states, ‘The right to family life must be balanced against the minor’s right to ­privacy.’ However she glosses this balance—that at least reads as having to do with confidentiality—as one of rights to autonomy; as between ‘situations where the parents’ rights might prevail’ and those ‘where a young person is competent to make an autonomous decision about their sexual and reproductive health’. In sum, although there are obvious practical relations between confidentiality and autonomy in medical decision-making, the normative justifications of the two rights are distinct. Age-related capacities seem relevant to the latter but not to the former. For all of that, it is all too easy to talk about autonomy and confidentiality as if they were morally indissolubly linked.

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III.  Three Justifications for Protecting Confidentiality So what does justify protecting confidentiality? And which does so in a manner that would allow us still to say it is owed to a patient whatever their age? There are at least three possible justifications. I note before I continue that there is something prima facie odd about a claim that confidentiality is owed to someone whatever their age. The oddity is that, at a minimum, one can only keep confidential what is communicated or made known to you. The very young are simply incapable of communicating anything to a doctor. To that extent they surely cannot be owed confidentiality. I grant that even neonates can be diagnosed and thus can, in some extended sense of the phrase, ‘make known’ their condition to a doctor. However, that extended sense of communicating one’s circumstances is surely not one that would allow us to speak of a shared confidence. It is an interesting further question as to whether, for the purposes of keeping a confidence, somebody needs not only to communicate what is personal to another person, but both to understand that it is personal and that it can be kept secret. One might conceivably owe confidentiality to someone who does not grasp what it means to keep something confidential. One might, after all, keep something confidential for reasons other than a duty to the subject of the confidence. Yet, on the face of it, it looks odd to think that I can owe confidentiality to someone who is incapable of grasping what a confidence is. So I only note here the evident difficulties of making sense of this possibility. For present purposes it is enough that the young—certainly those below an age of Gillick competence—can reveal what they know to be personal and which they wish to keep from others. The first justification of confidentiality is that it protects what is inherently valuable in the doctor-patient relationship. This might, most obviously, be seen as trust on both sides (note again Biggs J’s comments at [22], quoted above). The doctor can trust the patient to be honest in her disclosure of medical facts. The patient can be confident that the doctor is exclusively concerned with her interests. The second justification of confidentiality appeals to public good considerations. Whereas the first justification looks to what is inherently valuable in the doctorpatient relationship, the second looks to the good outcomes of having a certain kind of relationship. Thus, for instance, patients will only come for consultations if they know that they can do so in confidence. Further, only in consultation will doctors be able to address their medical condition, with all the consequent gains for personal and public health. Here it is relevant to note, once again, Biggs J’s reference to the reduction in the numbers of teenagers who went to doctors after the perceived ‘retreat’ from Gillick. The third justification of confidentiality rests on a putative right to individual informational privacy. This is a right to control access to personal information. The existence of such a right demands in turn its own justification. Notoriously,

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the idea of a right to privacy has been subject to criticism for a lack of clarity as to its scope (what exactly is it a right to?) and as to its normative justification (why exactly is there such a right?).1 Perhaps the most important question is whether the right is basic and irreducible, or is derived from a still more basic right. I note, for example, that Herring J sees informational privacy in terms of ownership. Thus, he affirms at [19] that, ‘The principle of confidentiality rests on the notion that the information belongs to the patient.’ Presumably then the principle of confidentiality on this account derives from a broader and more fundamental principle of ownership. Others, by contrast, have seen control of access to personal information as justified in terms of personal integrity and dignity; or personal autonomy; or intimacy. I will not enter into a discussion of these matters here. I only note the different possibilities, and consider below why the possibility of such differences makes a difference to how confidentiality stands in relation to autonomy. Some might be disposed to see confidentiality as a ‘role obligation’, as what is required from someone who occupies a particular role such as that of a doctor. In similar terms it is demanded of a priest, and is part of what a priest must do as a priest, that he respect the confidences disclosed to him in the confessional. Some ‘role obligations’ may be such that one can say no more than they just go with the role and need no further justification; nor is one possible. Some argue that this is true, for instance, of parental obligations. However, in respect of doctors it can be asked why doctors should do certain things as doctors, and the justificatory answer will have to be one that makes use of the three kinds of justification offered above.

IV.  Keeping it within the Family? The kind of justification of confidentiality that is favoured will bear different degrees of closeness to the justification that might be offered of a right to autonomy. So if for instance one thinks the value of confidentiality lies in its instrumental role of maximising personal autonomy—the more information disclosed, the better the information (diagnostic and prognostic) that can be offered to the patient, the better and more informed the subsequent decision—then one would be inclined to see a close relation between the ability to make decisions (on Gillick type grounds) and an ability to receive, process and understand information given and offered in confidence. If, on the other hand, one thinks that confidentiality’s value lies in its respect for personal information (whether ‘owned’ or not), then its justification is somewhat orthogonal to that of autonomy. And, again, if confidentiality matters for the

1  For a good introductory survey of the issues, see J DeCew, ‘Privacy’ (Stanford Encyclopedia of Philosophy, 9 August 2013) www.plato.stanford.edu/entries/privacy/ (accessed 3 March 2016).

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quality of the doctor-patient relationship between doctor and patient—that it is, most centrally, one of mutual trust—then this does not seem to have any evident bearing on who makes a final decision, and why any allocation of decision-making rights is morally warranted. Nevertheless, matters are complicated—and this is perhaps why in a case like Axon it is all too easy to see confidentiality and autonomy as so closely related— when the context is that of the family, and, in particular, that of the very distinctive relationship between parent and child. In such a context appeal can be made to a value like familial intimacy, or familial integrity, or to relationship goods. Biggs J explicitly acknowledges—and rejects—a claim that allowing doctors to keep secret from their parents disclosures made by minors is damaging to familial relationships [14]. For his part Herring J also notes the value of a parent-child relationship that allows for the open communication between them of information. However, he rightly rejects the idea that close relationships of this kind make somehow for essentially shared information, at [20] and [21]. Further, he cautions against using the law to compel the sharing of information within personal relationships. The fact that good parent-child relationships will be constituted by reciprocal disclosure of personal information does not mean that the law should compel such openness; and indeed any compulsion would deprive the compelled sharing of its value [17]. Once again, it is worth spelling out how autonomy and confidentiality figure differently in appeals to the value of familial relationships. Invoking familial integrity has a distinct character according to whether one thinks in terms of either decision-making or the sharing of information. If some things are kept confidential between a child and a doctor then parents are excluded from access to whatever is thus shared. Keeping things secret from a parent may be damaging to the relations between parent and child. Yet they need not be. It would be important to distinguish between the basic fact that something is kept secret and the nature of that which is not shared. Presumably lots of things can be shared between children and other children, teachers, and even adults other than parents who might play some morally unproblematic role in a child’s life (members of the extended family or parents of childhood friends, for instance); and this could be the case without necessary damage to the relationship with a parent. I will return to the question of what is kept confidential in the Axon case. In respect of decision-making, parental autonomy means that parents determine what shall happen to a child. This certainly is challenged by a Gillick allocation of some decisions about the child’s future to the child herself. If this is damaging to familial integrity it is so in a very different way to that which it is alleged is done by not sharing all information. Yet, having said that, it is not clear exactly why it is damaging. Familial relationships are not essentially or necessarily constituted as relationships of authoritative decision-taking by some but not others. If teenagers continue to live at home with their parents, it would be odd to say that their familial relationship ceases to have value when the former no longer defer to the latter and make their own choices.

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Moreover, decisional autonomy by all the members of a family is perfectly consistent with sharing personal information and both with keeping some matters reserved within or as shared with adults outside the family. The familiar claim that a parent knows best or better is also implicated differently in claims about autonomy and about confidentiality. A parent may know best because she alone knows relevant information about the child; yet if a child is allowed to share with a doctor what she does not share with a parent then the latter need not be better placed to know what is best. A parent may not be able to offer advice to a child—from a position of superior knowledge—if she doesn’t know what the child needs advice about. Equally, a parent can only make good decisions on behalf of a child if she does at least know what is going on in a child’s life. Allowing children to share with doctors what they will not share with their parents deprives the latter of information that would be materially relevant to a decision as to what is best for the child. Yet, in some important kinds of case, children would not share with doctors what would then be disclosed to their parents. All of this argues for the contingency of any claim in respect of some particular medical matter that parents do or must know best. Indeed, doctors may know better just because they know more than the parents—not about medicine but about what concerns the child.

V.  Concluding Points Some final comments are in order about the content of the information and the decision to be made by child or parent. Biggs J comments at [18] that the nature of the medical treatment makes no difference to the possession and exercise of autonomy. I think, to the contrary, that our understanding of the competence qualification—‘sufficient understanding and maturity’—is always relative to the matter under deliberation. The more complex and difficult the decision to be made, the greater the understanding required. And I do think that abortion—that was one of the matters in dispute in Axon—is a very complex matter. I understand its complexity not simply to lie in its morally contentious character but also to be implied by its likely significance for anyone who undergoes a termination. It is certainly more complex and difficult than access to and the use of contraception. Sue Axon did think that abortion is a momentous matter. She also thought that her own personal experiences were relevant. It is surely understandable why a parent in Sue Axon’s situation and with her own history might reasonably think that she had something to contribute to the deliberations of her teenage daughter on this matter. To that extent she might also reasonably believe that it would be wrong for a doctor to discuss this matter in confidence. This however would be wholly consistent with her accepting that the final decision was her daughter’s alone.

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In other words, one could believe both that confidentiality was not warranted if someone was to make the best possible decision and that decisional autonomy was warranted. Yet again it pays to keep carefully distinct the principles of autonomy and confidentiality, and their normative justifications. This too is why it pays not to see Axon solely in the light of Gillick.

Airedale NHS Trust v Bland [1993] AC 789 Facts Seventeen-year-old Anthony Bland suffered severe injuries as a result of the ­Hillsborough Stadium disaster. These injuries included the crushing and puncturing of his lungs, which had caused the supply of oxygen to his brain to be interrupted. As a result of this oxygen starvation, the patient had suffered catastrophic and irreversible brain damage. At the time this case reached the House of Lords, the patient had lain in a persistent vegetative state for over three and a half years. With the agreement of the patient’s parents, the support of the attending and independent physicians, and on the understanding that there was no hope of recovery for this patient, the NHS Trust sought a declaration that they may lawfully discontinue all life-sustaining treatment, including the withdrawal of all ventilation, nutrition and hydration. The declarations sought were granted by the High Court and Court of Appeal, but appealed by the Official Solicitor.

Outcome (House of Lords): Appeal Dismissed Where a patient lacks capacity, doctors are duty-bound by the doctrine of necessity to treat that patient in his or her best interests, where such interests may be determined by reference to a responsible body of medical opinion. The artificial provision of nutrition and hydration was to be considered treatment. In this case, responsible medical opinion held that continued treatment of this sort was not in the best interests of the patient. As such, continued treatment was no longer necessary and the doctors were freed from their duty to treat. Judicial Makeup Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Lowry, Lord Browne-Wilkinson and Lord Mustill. Appellate History Family Division; 19 November 1992 Airedale NHS Trust v Bland (1992) 142 NLJ 1648; Times, 23 November 1992. Court of Appeal (Civil Division); 09 December 1992 Airedale NHS Trust v Bland (1992) 142 NLJ 1755; Times, 10 December 1992. Keywords ethics, medical care, withdrawal of nutrition and hydration, death.

Judgment 1—Airedale NHS Trust v Bland [1993] AC 789 LORD SMITH OF ERIE (STEPHEN W SMITH)

[1] I would like to start off this judgment by expressing how difficult a task has been set before us. The facts are explained in detail above. Anthony Bland has spent the last three and a half years in a persistent vegetative state (PVS) from which he will never recover. The doctors inform us that the only still functioning part of his brain is the brain stem. Indeed, from what I understand, it is the only part of his brain which still exists. His chances of recovery are non-existent; his chances of improvement are the same. The doctors and the family are of the opinion that the best thing at this point would be to remove artificial nutrition and hydration (ANH) and other treatments from him. As a consequence, he will die. If those treatments are not removed, Anthony Bland will likely live for another five to 10 years. While the doctors believe removal to be the best option available to them, they also wish not to be charged with murder for having done so. As a consequence, they seek a declaration from this Court that their decision is lawful and will not lead to criminal charges. [2] Murder is one of the most serious crimes which can be committed and it requires that there be both an intention to kill or cause grievous bodily injury (mens rea) and an action which causes death (actus reus). There are also several defences which either eliminate or lessen the responsibility in a particular case. There are thus clear enough guidelines about what constitutes murder and what might remove responsibility for a specific death. The question before this Court is whether the crime of murder is made out and, if so, whether there is a defence. [3] The first avenue to avoiding any charge would be if Anthony Bland were already dead. Since murder requires an action which causes death, it is not possible to commit if the person in question is already dead. Unfortunately for the doctors, Anthony Bland is still alive under any medical or legal definition of death currently in use. His heart beats, his lungs take in oxygen, his brain stem continues to function. While he does not feel or think, that does not mean he is not alive. We must therefore accept that Anthony Bland, since he is alive, is capable of being killed. [4] The second possibility is to claim that the doctors’ conduct is lawful because they only wish to stop feeding Anthony Bland and that constitutes a lawful ­omission rather than an action. Since it is not an action at all, it cannot be an action which

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causes death. Consequently, there may not be the necessary actus reus required for murder. I am unconvinced by this line of reasoning for two reasons. First, I will note that the distinction between actions and omissions on which this particular argument relies is a contentious one. This has been recognised in a noted article written by Professor James Rachels entitled ‘Active and Passive Euthanasia’ (1975) 292 New England Journal of Medicine 78–80. Rachels posits a case where we have two different individuals, both of whom attempt to kill a young relative in order to gain inheritance money. The first kills the child by drowning him in a bath. The second comes into the bathroom intending to drown the child but sees the child slip and fall into the bath. He stands by waiting in case it becomes necessary to further drown the child but this is unnecessary. Rachels argues that if we do not think that the first person is worse than the second (and he believes we will not) then we cannot hold to the distinction between actions and omissions. I find this to be a compelling argument. [5] More importantly, the removal of ANH is simply not an omission under current definitions. An omission is the failure to do something. What the doctors wish to do in this case is to remove treatment. The removal of something is doing something. Under standard definitions [The Shorter Oxford English Dictionary (Gloucestershire, Clarendon Press, 1993) Vol I, 21; Vol II, 1994], it is an action. Indeed, if an individual other than the doctors involved wished to remove the ANH from Anthony Bland, I do not believe anyone would hesitate to suggest that they have undertaken an action sufficient to satisfy the actus reus requirement for murder. If we hold that removing ANH is an omission if doctors do it in treating a patient in their care, but an action if someone else does it, all that we have actually done is to change the definitions of act and omission. I see no reason to do that. [6] Indeed, it is situations such as this which go to show how false this distinction between actions and omissions really is. The truth of the situation is that the removal of ANH is a complicated process which will involve a number of things which individually are considered actions and a number of things which are individually considered omissions. To presume that there is only one kind of event involved—either action or omission—is to miss the complexity of the process. Medical treatment, perhaps especially treatment at the end of life, will often involve both actions and omissions and the maintaining of a distinction between the two is not likely to truly be beneficial to helping doctors sort their way through the ethical and legal problems that are involved in end of life care. [7] A third possibility is to claim that while what the doctors are planning to do is an action, they should not be prosecuted because they lack the requisite mens rea for murder. In other words, the claim is that the doctors do not have the intention to kill Anthony Bland. Instead, they merely foresee that his death will occur as a result of the removal of ANH. It can then be likened to similar cases where death has occurred not because those involved wished someone was dead, but because the actions involved meant that death was a side effect (see R v Adams [1957] Crim LR 365).

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[8] With all due respect to those who might present such an argument, I simply cannot see how it could work in this case. The purpose of removing ANH from Anthony Bland is so that he will die. There is no other intention that the doctors have in this particular case. If they remove ANH and Anthony Bland, through some fortuitous set of events, continues to live in the same manner in which he is now, the doctors will not necessarily be overjoyed. They will instead likely try to find some other way to end his life. I say that not because I believe the doctors involved are evil or cruel. They are not. What they want to do in this case is to bring an end to a tragedy which has gone on for far too long. It has been difficult for the family and the healthcare team. It may not be difficult for Anthony Bland himself but it is hard to believe he would have wanted this had he given an opinion. The doctors, then, are not sadistic for wanting him to die, but they do want him to die just the same. [9] To summarise then, there is the requisite intention to kill Anthony Bland and a sufficient actus reus to constitute a charge of murder. If that was all that was required, I would unfortunately have to conclude that the doctors should be charged with murder if they remove ANH from Anthony Bland and, as a consequence, Anthony should continue to exist in PVS until he dies from some other cause in five to 10 years’ time. However, I believe that a deeper look provides a way through the ethical and legal tangles that this case creates. [10] We can begin by looking further at intention. As I stated above, the doctors involved in the treatment of Anthony Bland do intend to kill him. In that way, they are no different than anyone else who might be charged with murder. However, there is an important difference between this case and an ‘ordinary’ murder. In the case of ‘ordinary’ murder, the individual in question not only means to kill or cause grievous bodily injury to someone but does so with an intention to disadvantage the person killed. In other words, in addition to intending to kill or cause grievous bodily injury to the victim, a standard murder case involves an intention to harm the victim. Since this harm is the result of the death of the victim, the intentions are collapsed together and the intention to harm forms part of the intention to kill. [11] This case is different. While the doctors intend to kill Anthony Bland, they do not intend to harm him. There are two reasons for this. First, it is a debatable point regarding whether Anthony Bland can be harmed at all. Considering he has no higher brain functions and thus cannot think or feel, we might question whether or not anything we do to him can actually constitute harm to him. [12] My own view, however, is that it is possible to harm Anthony Bland. If, for example, the healthcare team used him as a living ‘surgery doll’ for junior doctors to train on, we would find those actions to be degrading, even if the only person other than the healthcare team present was Anthony Bland. We would see them as being a setback of interests that Anthony Bland has, even in his current state, to dignity. This, according to the generally accepted conception of harm provided by Professor Joel Feinberg [Harm to Others: The Moral Limits of the Criminal Law

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(Oxford, Oxford University Press, 1984) Vol I], is harm to him. So, even if there is no other victim in such a scenario, we would find that Anthony Bland himself had been harmed in some way by being used as a ‘thing’. [13] Merely because it is possible to cause harm to Anthony Bland, however, does not mean the doctors intend to do so. They argue that what they propose to do is not harmful to him. They argue—and Anthony Bland’s family agrees—that he would not have wanted to continue to exist in this state with no cognitive abilities and no prospect of recovery or improvement. They argue that he would not have wanted to cause distress to his family in the way in which his continued existence in PVS does. In short, they believe that if Anthony Bland was to be able to express an opinion, he himself would want the ANH removed. [14] What the doctors are claiming, then, is that Anthony Bland will not be harmed by being killed. Instead they argue that his death is, in fact, beneficial to him, and that their responsibilities and duties as doctors require them to act in the benefit of the patient. While that most often will require that doctors attempt to keep patients alive, in this case the duty to act for his benefit (what philosophers call ‘beneficence’) means that they ought to remove treatment and allow him to die. This belief must be reasonable but, as long as it is, these treatment decisions are justified under the duties that doctors have. In that way, then, this is a unique case because the intention to kill does not include the intention to harm. [15] This, therefore, provides a distinguishing factor between this case and other cases of murder. The question we must then ask is whether the law of England and Wales allows such a distinction to be a basis for decisions. One possibility is to use the concept of ‘malice’ which had been a basis for the law of murder for a significant period of time. However, after R v Maloney [1985] AC 905, [1985] 1 All ER 1025, it would be unlikely that the use of malice in this way is consistent with the law of England and Wales. [16] Such a concept does find use, however, in other jurisdictions. US States sometimes use malice to distinguish between first and second-degree cases of ­murder. Additionally, German law has an additional element called Schuldprinzip, which provides an element of blameworthiness.1 In German law, in addition to proving the intention to kill, the State must also prove the additional element of wrongdoing. [17] The law of England and Wales has never expressly accepted this concept within the law of murder. There are, however, cases within the law of England and Wales which provide grounding for the use of such a principle. These are previous medical cases where doctors were allowed to claim a defence on the basis that their actions were consistent with standard medical practice at the time. This includes, among others, the two cases of R v Adams [1957] Crim LR 365, and R v Arthur (1981) BMLR 1. 1 

M Bohlander, Principles of German Criminal Law (Oxford, Hart Publishing, 2009) 20–22.

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[18] In Adams, the doctor in question was allowed to argue a defence of double effect. Dr Adams argued that he provided the four injections of a drug combination in an attempt to deal with his patient’s pain. This defence was presented to the jury and the judge, Devlin J, as he then was, informed the jury that if Dr Adams’ intention was to deal with his patient’s pain, then he did not intend to kill her and he did not have the requisite mens rea for murder. While this case turns primarily on the question of whether there was an intention to kill at all, the underlying argument does rely, at least in part, on notions of the intention to cause harm. [19] More important is the case of Arthur. In that case, a consultant pediatrician delivered a baby named John Pearson who was born with indications of Down syndrome. The parents rejected the child and Dr Arthur wrote ‘Parents do not want child to survive. Nursing care only.’ According to testimony by the nurses at trial, ‘nursing care’ meant the child was to be cleaned, kept warm and given food if he cried for it. The child died 69 hours later. At trial, Dr Arthur did not dispute any of the facts of the case. Instead, he presented expert witnesses who stated that they would have done exactly the same as Dr Arthur did in exactly the same circumstances. The jury was instructed that if Dr Arthur had merely provided what was standard medical treatment under the circumstances, then he did not have the requisite intention to kill and thus could not be convicted of murder. Like Dr Adams, Dr Arthur was acquitted of the charges. [20] While neither of these cases makes any specific mention of the intention to harm, we can nevertheless use harm to explain how the actions involved in both cases are not blameworthy. In both cases, the doctors on trial provided reasons why they did not have the necessary intention and those reasons relied on what was considered proper medical treatment for their patient under the circumstances. Proper medical treatment must be for the benefit of the patient and must be something which does not constitute harm under the circumstances. Moreover, these cases appear specific to those within the medical profession. Other defendants who were not doctors would not have been able to rely on these claims in defence of a murder charge. If, for example, Dr Adams’ patient had received the injections from one of her children, they would not be able to rely on the pain-relieving aspect to justify their actions. These cases articulate, then, an idea that actions in question need to be more than intentional. They need to be ones for which harm is intended in addition to whatever actions are performed. If the requisite intention to harm is not present in addition to the intention to perform an action which brings about death, then what was done was not blameworthy. [21] Consequently, we can articulate that, under certain specified circumstances, doctors might engage in actions which bring about the death of the patient in their care provided that they lack the necessary intention to harm. This intention to harm is different from the intention to kill. A doctor may therefore intend that the patient die as a result of the actions but only if the actions contemplated are done for reasons of beneficence. Such a rule is consistent with previous case law

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such as Adams and Arthur and with ethical principles about harm and doctors’ responsibilities to patients to act to their benefit. [22] There is, of course, the possibility that the rule in question could be abused and it will therefore be necessary for it to be properly limited to avoid instances of abuse. In particular, it will be necessary to ensure that the treatment decisions doctors wish to perform in this and similar cases are ones in which the requisite intention to harm is not present. Furthermore, it will be necessary to ensure that the decisions of doctors are reasonable and consistent with their ethical and legal duties. This can be accomplished by the requirement suggested by the courts below. In all of these cases, a declaration from the court would be necessary before such conduct was lawful. [23] It only falls to me to apply this rule to the case at hand. In this case, the removal is considered to be acceptable medical treatment under the circumstances. None of the expert witnesses objected to the proposed withdrawal of ANH in this case. Moreover, while Anthony Bland has not consented to the removal, his family has indicated that they agree with the treatment decision. Consequently, the doctors may withdraw the ANH from Anthony Bland. [24] In conclusion, the appeal of the Official Solicitor is DISMISSED. The declaration sought by the doctor will be GRANTED.

Judgment 2—Airedale NHS Trust v Bland [1993] AC 789 LORD JONES OF ANSCOMBE (DAVID A JONES)

[1] In the case before us, Airedale National Health Trust seek a declaration that the Trust and their responsible physicians may lawfully discontinue all life-sustaining treatment and care, including the provision of nutrition and hydration by artificial means, to Anthony David Bland, a permanently unconscious patient in the care of Airedale General Hospital, Keighley, West Yorkshire. Were this to be granted, the consequence, as Sir Stephen Brown P correctly observes, would be that ‘within some 10 or 14 days the lack of sustenance would bring an end to the physical ­functioning of the body of Anthony Bland and he would “die”. The process would be that of “starvation”’ (Airedale NHS Trust v Bland [1993] AC 789 (Fam D) 796 C, quotation marks in the original). [2] In relation to such a case, it is essential to be clear that the deliberate omission of sustenance can constitute murder, if that omission is intended to bring about death (mens rea), and if the omission does bring about death (actus reus). This is clear from R v Gibbins & Proctor (1918) 13 Cr App Rep 134. The added circumstances that sustenance is delivered by artificial means, that the person requiring sustenance is severely disabled and unable to feed himself, and that the person responsible for providing the sustenance is a physician, do not alter this central point. [3] In this context, Mr Munby, acting for the Official Solicitor as guardian ad litem, has helpfully drawn attention to the direction of Devlin J in Reg v Adams [1957] Crim LR 365 that ‘no doctor nor any man, no more in the case of the dying that of the healthy, has the right deliberately to cut the thread of life’. This point is reinforced by Ognall J’s direction in Reg v Cox (1992) 12 BMLR 38 that there is an ‘absolute prohibition on a doctor purposefully taking life as opposed to saving it’. [4] The prohibition on ‘purposefully taking life’ applies not only to deliberate acts but also to deliberate omissions, if these have as their aim, end, or purpose, the death of the victim. Mr Munby is thus misguided in his efforts to show that the withdrawal of artificially delivered nutrition and hydration would of necessity always constitute an act, as though any point of law, or indeed of morals, depended on the act/omission distinction. [5] It is clear that some people (parents, members of the same household, those who stand in a professional relationship of care) may be held liable for an omission

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that causes harm. Furthermore, R v Gibbins & Proctor (1918) 13 Cr App Rep 134 demonstrates that where the harm is intended and the omission causes death, such an omission may provide the basis for a charge of murder. [6] Butler-Sloss LJ has recognised that ‘whether this is an act or omission carries the matter no further’ (Airedale NHS v Bland [1993] AC 789 (CA) 823H). However, it would seem that Butler-Sloss and Hoffman LJJ introduce a similar, albeit more subtle, mistake in claiming that there is an essential distinction between an act or omission which allows causes already present in the body to operate, and an act or omission where ‘an external agency’ (such as poison or assault) is the cause of death. That this is mistaken can also be seen by considering R v Gibbins & ­Proctor (1918) 13 Cr App Rep 134, or indeed by considering any case where a victim dies of starvation. Deliberate omission of the means of sustenance to someone in one’s care, where this is intended to cause death and accomplishes this purpose, is clearly unlawful. [7] It is not clear from the facts presented before the Court whether the Trust or the responsible physician in proposing the withdrawal of artificially delivered nutrition and hydration from Anthony Bland are aiming to secure his death.1 If this were the intention then the withdrawal of sustenance by these means would be unlawful, and were Anthony Bland to die from starvation as a result, the responsible physician would have no defence against a charge of murder.2 [8] The question then remains as to whether artificial delivery of nutrition and hydration might lawfully be withdrawn for some other reason, for example, as futile, or as providing only limited benefits in relation to the burdens of the intervention. [9] Here it should be noticed that an act or omission ‘which as a side effect will render death more or less likely’ (Lord Donaldson In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, 46, emphasis in original) may nevertheless be justified, both in morality and in law. The key questions are whether the act or omission has a good primary aim and whether the achieving of this aim would be in the interests of the patient notwithstanding that it may shorten life as a side effect. While the prohibition of intentional killing by private citizens, whether by act or omission, does not admit exceptions, the duty to prolong life takes the form only of a strong presumption in favour of treatment. It is not irrebuttable. For this reason it may be justified to forego interventions that provide limited benefits while imposing real burdens, even if this omission renders death more likely. [10] Here Munby, in his laudable attempt to defend the principle of the sanctity of life, seems to err by excess. He asserts or implies that where death will inevitably 1  John Keown has helpfully drawn attention to the significance of this point: ‘Why the majority assumed that it was the doctor’s intention to kill is unclear: it did not follow that because Tony Bland’s doctor foresaw the patient’s death as certain that he therefore intended it.’ (J Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 The Law Quarterly Review 481, fn 5.) 2  This conclusion has also been defended by J Finnis, ‘Bland: Crossing the Rubicon?’ (1993) 109 Law Quarterly Review 329, and the present judgment has been influenced by that analysis.

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follow from an action or omission, it is thereby intentional and thus contrary to the principle. He gives the example of a person dependent on ventilation whose ventilation is withdrawn, and also the example of a climber who cuts the rope connecting him to a fellow climber in order not to be pulled to his own death. However, in neither of these cases is the subsequent death reasonably understood as the aim, intention or purpose of the action, and neither case necessarily fails to respect the sanctity of life. [11] In the case of the surviving climber, assuming that there was no negligence on his part and no aim or plan to harm his companion, it would seem grossly unjust to prosecute him for murder for seeking to save his own life. In the case of withdrawal of ventilation, the fact that death will inevitably follow does not itself show that the death was intended. Indeed this very example is invoked by no less a defender of the sanctity of life than Pope Pius XII, who, in 1957 stated very clearly that ‘Even when it causes the arrest of circulation, the interruption of attempts at resuscitation is never more than an indirect cause of the cessation of life’ (‘Address on “Reanimation”’, 24 November 1957: AAS 49). Munby confuses matters by conflating inevitability with intention and thus misrepresenting the principle of the sanctity of life as this has traditionally been understood in law and in morality. [12] In this regard, emphasis has been placed on the opinion of doctors that nutrition and hydration when delivered artificially constitute a form of medical treatment, that it is a form of treatment that could be refused by a competent patient and that, in the view of a reasonable body of medical opinion, providing this form of medical treatment would not be in the best interests of someone in a ‘persistent vegetative state’. [13] It is not clear what is at stake, either from the perspective of morals or of law, in categorising the artificial delivery of nutrition and hydration either as ‘medical treatment’ or as ‘nursing care’. Certainly the distinction between ‘medical treatment’ and ‘nursing care’ does not make a difference in the ability to forego the intervention. Even if nutrition and hydration (however delivered) is categorised as care, the inserting of tubes down the nose and throat, or of needles into a vein or under the skin, or the performance of an operation to insert a tube directly into the stomach, are all invasive procedures that ordinarily require consent. If a competent, non-suicidal person refuses to be intubated (or requests the removal of tubes inserted without consent) then inserting or failing to remove the tube would constitute battery. [14] The issue of how to categorise the giving of nutrition and hydration by tube should not obscure the general duty of those with a duty of care to ensure that those under their care are provided with adequate nutrition and hydration. This is a reflection of a basic human need and is an important obligation on any carer.3 3  This would later be the subject of legal clarification in Burke v GMC [2005] EWCA Civ 1003; see also the General Medical Council (GMC) guidance revised in the light of that judgment, Treatment and Care towards the End of Life: Good Practice in Decision Making (GMC, 2010) paragraphs 107–27.

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[15] If a healthcare professional is concerned that a patient under his care is not receiving adequate nutrition or hydration by mouth, even with support, then he has a duty to assess how these needs might be met. However, it is a matter of clinical judgement whether a particular form of artificial delivery of nutrition or hydration would be effective in this patient. It may be, for example, that a patient who is progressively declining in health would not be helped by tube feeding and a patient who is imminently dying may not need artificial hydration. It may also be that intubation is very burdensome to the patient while offering limited benefits. Whether artificial delivery of sustenance is understood as medical treatment or as nursing care, an assessment must still be made of the effectiveness, the risks, and the burdens of the intervention. [16] In the case of Anthony Bland there is no possibility to obtain consent and so decisions should be made for him in his best interests. This is a distinct question from the question of the competence of the doctors. The general duty of a doctor to act in accordance with a responsible and competent body of professional opinion laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (the ‘Bolam test’) is a test for negligence.4 However, I concur with the opinion of Butler-Sloss LJ that the Bolam test is not adequate for a best interest decision in regard to the usefulness of future treatment (Airedale NHS v Bland [1993] AC 789 (CA), 819C). The question before this Court is not, in retrospect, whether a doctor was negligent in having withdrawn the artificial means of nutrition and hydration from a certain permanently unconscious patient. The question is what, in prospect, and in the view of the Court, would be the course of action most in accordance with the best interests of Anthony Bland. [17] In weighing up the benefits of tube feeding, the Court must judge the value or the futility of this intervention, of the proposed treatment or plan of care. The Court is not called upon to make a judgment of the value or the alleged futility of the person’s life. [18] Despite medical terminology that is, from a legal and ethical perspective, unfortunate, Anthony Bland is not a ‘vegetable’. At various points in this case Anthony Bland has been described in ways that fail to acknowledge his equal dignity as a human being and his equal right to the protection of the law. He has been described as a ‘shell’, as someone who is effectively already dead, and while ­Butler-Sloss LJ is without doubt correct in ‘preferring to use a word other than “cabbage”’ (Airedale NHS v Bland [1993] AC 789 (CA), 820B), it is to be greatly regretted that such language was ever used by a learned colleague in court in relation to disabled persons.

4 The Bolam test would subsequently be qualified in Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151, but the argument in this judgment does not question the appropriateness of the Bolam test as a test for negligence, only the equivalence of a retrospective test for the negligence of a doctor and a prospective test for the best interests of a patient.

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[19] Anthony Bland is a severely disabled human being. His condition is relevant to his ability to benefit from or suffer from the intervention, but it is important to state clearly that it is the worth of an intervention that is here being weighed, not the worth of a life. [20] The evidence presented to the Court is that he has no hope of recovery of cognitive or physical ability. This is not in dispute. It is also agreed that delivery of nutrition and hydration by tube will not cure his underlying condition and will provide only the limited benefit of prolonging his life in this state. On the other hand, it is equally true that the presence of tubes which might be uncomfortable or intrusive for a conscious patient is no burden to him. [21] It could be that the continuation of tube feeding, while not uncomfortable, is repellent to someone as an idea, and if Anthony Bland had made a clear advance statement expressing such an opinion, then this would have some weight. However, Anthony Bland did not make such a statement and even had he done so, it would pose questions as to whether such fears properly represent his future self. In patients who are conscious but who are paralysed by traumatic injury it is common for them to develop a very different outlook on life with disability and, at least in some cases, to adjust to their new situation. [22] If there is a limit to what weight can be given to advance statements, this is much more so with regards to speculations made throughout this case as to what Anthony Bland ‘would have wanted’ or ‘would not have wanted’. Reference has been made during this case to ‘the anguish which [his parents and sister] continue to experience’ as they witness Anthony Bland’s condition (Airedale NHS v Bland [1993] AC 789 (Fam D), 797C per Sir Stephen Brown P). This should be acknowledged. They have suffered the loss of the person they knew as a result of a tragic event (the causes of which are not the subject of this ruling) and their suffering seems to be prolonged by the prolonging of his life. [23] This suffering is undoubtedly real and it is reasonable to say that Anthony Bland, were he aware of it, would not wish his parents to suffer so. On the other hand, the primary concern of this judgment is and ought to be the best interests of Anthony Bland, and very great caution is needed in imputing interests to him on the basis of the impact of the decision of others, especially in regard to matters of life and death. As the sceptical philosopher Bernard Williams wryly remarked, ‘“He would be better off dead” can be said for many dubious reasons: the most dubious is that we would be better off if he were dead’ (B Williams, Ethics and the Limits of Philosophy (London, Fontana Press, 1985) 42). [24] In the absence of signs that this intervention is burdensome to Anthony Bland himself, in his present state, and in the absence of any clear advance statement by Anthony Bland refusing such interventions, and aware of the need to express very clearly the equal protection of the law to all citizens including those with cognitive disabilities, and bearing in mind the strong (though not irrebuttable) presumption in the law in favour of preserving life and the seeming effectiveness of artificial means of nutrition and hydration in this case, I find that it would be in the

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best interest of Anthony Bland to continue to feed him and thus the appeal of the Official Solicitor is granted. [25] If, despite this judgment, the view of the majority of the Court is that continuing to provide nutrition and hydration to Anthony Bland would not be in his best interests, then the result will be that he will die of dehydration. This fact should then be duly recorded on the death certificate. If someone who cannot feed himself for some physical reason dies as a result of starvation or dehydration then the immediate cause of death is the starvation or dehydration, not the prior inability to eat or drink unaided. The fact that someone dies of dehydration does not in itself show that an offence has been committed if hydration was withdrawn lawfully. Concomitantly, a judgment of the lawfulness of withdrawing hydration should not inhibit a doctor from accurately stating that the cause of death was dehydration. [26] This judgment does not imply that artificial means of nutrition and hydration can never lawfully be withdrawn or that all cases of proposed withdrawal should come before a criminal court. There are important distinctions to be made in relation to classes of cases: [27] Cases where the aim, intention or purpose of the withdrawal is to end life are never lawful, and where artificial means of nutrition and hydration is withdrawn with this intent or purpose, and the withdrawal succeeds in causing the victim’s death, then the person who is responsible for the withdrawal may be liable to a charge of murder. [28] Cases where the means of providing nutrition and/or hydration are ineffective in prolonging life, for example in dying patients, or cases where such provision is causing evident distress to the patient, or where it is refused by a contemporaneous, competent and not overtly-suicidal refusal, need not come to court unless the facts are disputed. [29] However, cases of advance refusals of nutrition and/or hydration by artificial means, or of withdrawing or withholding such means in circumstances where they would be clinically effective and where the burden of the intervention is not ­evident, must come before the court to determine whether artificial means of delivering nutrition and/or hydration could lawfully be withdrawn.

Legal Commentary—Living and Letting Die: Harmful Intentions and the Best Interests of Anthony Bland HAZEL BIGGS

I. Introduction The legal conundrum in Bland came about because the wonders of modern ­medicine make it possible to keep a person alive where in the past they would have inevitably died. Following extensive trauma to his brain caused by a prolonged period of hypoxia, Anthony Bland (AB) was diagnosed as being in what would now be called a permanent vegetative state (PVS). In line with that diagnosis he was unresponsive to stimuli, had no awareness of self or environment, and was uncommunicative and doubly incontinent, although he did have periods of apparent wakefulness. There was no prospect of physical or intellectual recovery. Anthony Bland’s carers, both emotional and professional, wanted treatment to be withdrawn so that his life would be brought to an end, but it was questionable whether that could be achieved within the law. An application was therefore made to the Court for the grant of a declaration under the inherent jurisdiction to safeguard the welfare interests of the incompetent patient, that it would be lawful to withdraw all life sustaining treatment in these circumstances. It is notable that the Court was bound to focus on the lawfulness of the proposed intervention as is demanded by the declaratory procedure, hence the emphasis throughout on the criminal law and the clinician’s potential liability in relation to it. Essentially, the Court needed to decide whether, in withdrawing treatment from AB, the clinicians would be guilty of his murder.

II.  Alive or Dead? The law absolutely prohibits deliberate killing. A person is guilty of murder where they perform an act that causes death with the intention of causing death, even if they act from compassionate motivation. It is the intention to kill or cause

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g­ rievous bodily harm that constitutes the mens rea of murder, and the reasoning that led to the intention is irrelevant. The starting point for the Court in determining whether to grant the declaration sought concerned whether AB was still alive. If he was not still alive then anything that the clinicians did would not cause his death and he clearly could not be murdered. Although permanently unresponsive, AB’s brain stem continued to function, his heart was beating spontaneously, his lungs filled with air naturally and he did not require mechanical life support. Lord Smith of Erie and Lord Jones of Anscombe therefore accept, along with their brothers in the House of Lords, that AB is legally alive. Yet there is no unequivocal legal definition of death. In past times it would have been self-evident that a person was dead, and their status would have been unquestioned. More recently, the advent of complex medical techniques has rendered that understanding more equivocal and the law has reflected medical thinking and adopted brain stem death as the standard.1 Such a definition is not however, universally supported,2 and it has been argued that where a person has permanently lost all cognitive awareness, they are no longer the person they used to be and should be regarded as dead. In Bland the Court could have chosen to introduce such a definition into the law and thereby avoid the need for further deliberations as to whether it would be lawful to withdraw treatment from AB, but it did not.

III.  Act or Omission? Having acknowledged that AB was still alive, the next crucial issue to determine was whether withdrawing ANH amounts to an act capable of being the actus reus of murder if the patient dies as a result. A doctor may lawfully act in a way that incidentally shortens life,3 but since ANH was, together with nursing care, the only treatment being provided here and its withdrawal would inevitably result in death by dehydration, life would be shortened deliberately rather than incidentally, and the causal connection would be established. It seems clear that withdrawing treatment from a patient can be distinguished from a situation where treatment is never implemented, and must therefore involve some kind of action. Further, as AB was being nourished through various invasive mechanisms, such as nasogastric tubes, withdrawing treatment would normally involve removing the means of delivering ANH, which would undoubtedly be an action that would give rise to criminal liability. This conclusion could be escaped only if the withdrawal could be regarded as an omission, rather than a positive action. 1 

R v Malcherek and Steel [1981] 2 All ER 422. Beecher, ‘The New Definition of Death, Some Opposing Viewpoints’ (1971) 5 International Journal of Clinical Pharmacology 120–31. 3  R v Adams [1957] Crim LR 365. 2  H

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It would be feasible merely to abstain from injecting sustenance through those tubes, making the withdrawal of ANH more akin to never commencing treatment, and a pure omission, but the potential medical complications of so doing would be likely to be regarded as neglectful. Nevertheless, by avoiding the metaphysical distinctions between doing absolutely nothing, and acknowledging that removing the means of providing ANH is in fact an action, it is possible to characterise withdrawal of treatment as an omission. Lord Smith prefers not to do this, but with respect, in doing so denies himself the opportunity to strengthen the basis upon which he grants the declaration. Finding that the doctors’ conduct in the withdrawal of ANH constitutes an omission of course requires an analysis of the potential for liability to attach to an omission, and hence whether the doctors might still be culpable if they withdraw ANH from AB. To avoid such liability it is necessary to determine whether or not there is a duty to act and to continue treatment in such circumstances, which in turn leads to an assessment of whether or not continuation of treatment was in AB’s best interests because it would confer some benefit upon him.

IV.  Best Interests Where there is a duty to care for a patient, a clinician charged with caring for that patient must ordinarily provide treatment according to that patient’s best interests. If she fails to provide such treatment, or acts in a way that is contrary to the best interests of the patient, she will be negligent.4 Since AB is in PVS and has no cognitive awareness, it is at least arguable that he has no interest in what happens to him, and hence can have no best interests. However, as a vulnerable person who is unable to speak for himself, it is surely incumbent upon the Court to protect whatever interests he might have. Lord Smith has explained, using Joel Feinberg’s eloquent theory of harm,5 that AB could potentially suffer a setback to his interests that would be harmful, which indicates that he must retain some interests. Lord Jones took this one step further, arguing emphatically that under R v Gibbins and Proctor6 it is unlawful to intentionally cause harm that results in death. Based on the strong legal presumption in favour of the preservation of life that underpins the necessity to treat an incapacitated patient, he used R v Gibbins and Proctor to demonstrate that a charge of murder is possible in these circumstances, ultimately leading him to refuse the declaration.

4  Bolam v Friern Hospital Management Committee [1957] 2 All ER 771; Bolitho v Hackney Health Authority [1998] AC 232. 5  J Feinberg, Harm to Others: The Moral Limits of the Criminal Law (Oxford, Oxford University Press, 1984). 6  R v Gibbins and Proctor [1918] 13 Crim App Rep 134.

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However, where there is no therapeutic value in providing treatment and the patient will receive no benefit, the treatment is no longer demonstrably in the best interests of the patient and the obligation to continue treatment disappears. Accordingly, there can be no justification for continuing with invasive measures designed merely to prolong life where there is no prospect of recovery, as this would be contrary to his best interests. Indeed, to impose such treatment would be a battery, and that insult would be compounded where the only benefit would be the prolongation of a life of such very low quality as to be little more than a ‘living death’, where the only justification for so doing would be a slavish respect for sanctity of life over quality of life. Despite the attractiveness of such an argument, the assessment of the best interests of AB and patients like him ought properly to draw on more than an overly simplistic dichotomy between sanctity of life and quality of life, which is, after all, highly subjective. Although obscured to some extent by the declarative process being undertaken by the Court in Bland, the realities of the decision-making process inevitably include some reflection on the broader environment within which the judgment is being delivered and its potential impact. At the heart of the matter is whether AB would have wished for this treatment to continue at this juncture of his life and whether he would have consented to it. This subjective assessment is central to generating a sound understanding of what is in a person’s best interests and demands that some account be taken of the person AB once was, either through his own prior account or as understood by those close to him. Where patients are able to exercise their autonomy and consent to or refuse treatment, they may choose for themselves whether they wish their lives to be preserved, or if the benefits of continued life are outweighed by the dis-benefits, or burdens, of continuing with invasive interventions that offer no therapeutic value. Where the intervention will do no more than prolong a poor quality of life, some patients will opt to discontinue it. Consequently, just because AB was unable to participate in medical decision-making it should not be presumed that he would agree to subject his body to invasions in circumstances where competent persons might decline: To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality.7

The right to self-determination should not be entirely eclipsed by the fact of incompetence and the inability to make decisions. There are undoubtedly some people who would wish their lives to be prolonged through the use of invasive treatments until a ‘natural’ end, even if improvement or recovery was impossible.8

7  Supreme Court of Massachusetts, in Superintendent of Belchertown State School v Saikewicz (1977) 373 Mass 728, 747. 8  J Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford, Oxford University Press 2012).

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There are others who might decide, if competent to do so, that continued life in these circumstances is so unpalatable that they would refuse that treatment. And, whilst there can be no doubt that a person as vulnerable as Anthony Bland requires the utmost protection of the law, care should be taken to ensure that the prolongation of life does not come at the cost of dependence and indignity that would have been abhorred by the person concerned. It is also clear, as a matter of common humanity and sound medical ethics, that a doctor cannot be required to continue to treat a patient in circumstances that would bring no benefit and merely lead to prolonged suffering.9 The fact that the duty to treat is not absolute where to do so would only prolong suffering, has been clearly articulated in the New Zealand case of Auckland Area Health Board v Attorney General10 and stands as authority that it is legally permissible to withdraw or withhold interventions that are burdensome and provide little or no benefit to the patient. If the Court was persuaded that there would be no actus reus, either because AB was already dead, or because the doctors had no duty to continue to treat him and therefore could withdraw ANH with impunity, there would be no need to assess whether they possessed the mens rea, or intention to kill. Lord Smith, however, was not persuaded that there was no actus reus, and so sought to demonstrate that the mens rea would be lacking.

V.  Multiple Intentions It is not credible, as Lord Jones’ judgment implies, to argue that the clinicians intended merely to avoid the imposition of continued burdensome treatment to spare AB further indignity. The declaration of lawfulness was sought specifically in order to bring his life to an end, and withdrawal of ANH would inevitably achieve that aim, so to argue otherwise would be disingenuous. Even if such an argument were advanced, it was clearly foreseeable that death would result, so any jury would be entitled to infer guilt, under the ruling in Woollin,11 that foresight of death is sufficient to find the necessary mens rea made out. Lord Smith of Erie finds that AB can be harmed, even though he has no cognitive awareness, but that although the doctors caring for AB wish his life to come to an end, they lack the criminal intent to murder him because they mean him no harm. For him, withdrawing treatment will cause his life to end, but doing so will be part of proper medical treatment since continuing to provide ANH will offer no benefit to him, which means that they will be acting out of beneficence and 9  I Kennedy, Treat Me Right, Essays in Medical Law and Ethics (Oxford, Oxford University Press 1988). 10  Auckland Area Health Board v Attorney General [1993] 1 NZLR 235, 253, per Thomas J. 11  R v Woollin [1998] 4 All ER 103.

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with no specific intention to cause harm. Lord Smith therefore grants the declaration permitting the doctors to intend to bring about the death of their patient, only on the basis that they do so for reasons of beneficence and only because they do not intend to cause harm. With respect, that is legal sophistry at its finest. Nevertheless, it is an inescapable conclusion that the proposed withdrawal of treatment has been suggested with the best of intentions to secure what AB’s carers regard as the best outcome for him. Granting the declaration is undoubtedly the right outcome to the case, even though the arguments around the act/omission distinction, the best interests of the patient and the lack of criminal mens rea are not, in and of themselves, as Lord Jones suggests, individually persuasive.

VI.  Concluding Remarks The role of the Court was not to determine whether Anthony Bland should live or die, but to assess the lawfulness of continuing or discontinuing treatment in the form of ANH. Had Anthony Bland been of sound mind and able to speak for himself he could have refused to consent to further treatment, but we cannot know if he would have. However, because he was not competent to make the decision, and as an adult there was no legal mechanism (at least, at that time)12 through which another person could decide on his behalf, it became a moot point. The Court was not asked, as it was in Re F,13 to decide whether the proposed medical intervention was in the patient’s best interests and therefore whether it could proceed, it was asked to declare that the proposed withdrawal of life sustaining ANH was lawful; there is a subtle but crucial difference. Underlying the proposal to withdraw treatment is an implicit assumption that the doctors regarded that form of action as being in the patient’s best interests, since that is the overriding duty of a doctor. The potential for that assumption to have influenced the Court is unrecognised in the judgments in this volume, but should perhaps have been explicitly addressed. The case, and the judgments of Lord Jones and Lord Smith, highlight the intractable tension between sanctity of life and quality of life, but also emphasises the tension between competing harms. In short, is it more harmful for a person to continue to be subjected to invasive treatment that will provide no therapeutic benefit or to be allowed to die? Although this appears to be a stark dialectic, the legal and ethical complexities are huge. If, as it is for some, the principle of the sanctity of life is inviolable, then death cannot ever be regarded as a less harmful alternative. Others, meanwhile, might regard a continued existence perpetuated by futile invasive medical treatment as the ultimate indignity and death as the less harmful alternative.

12  13 

See now the Mental Capacity Act 2005: 2005, c 9. Re F (A Mental Patient: Sterilisation) [1989] 2 All ER 454.

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Building on that perspective though, it is questionable whether a slow death by starvation is potentially more or less harmful than continuing treatment. If AB has no interests and can suffer no harm, then a slow death by starvation can do no further harm and might be acceptable. However, if under Feinberg’s assessment of harm, confirmed by Lord Smith of Erie, he is capable of suffering a setback to his interests through continued indignity, then it would be preferable and more humane to provide him with a quick and dignified end. Like redefining the criteria for diagnosing death, such an outcome would not be permissible under existing law, but it might offer a more ethically defensible alternative.

Ethical Commentary: The Ethical Acceptability of Discontinuing Artificial Nutrition and Hydration for Patients in a Permanent Vegetative State JAMES F CHILDRESS

I. Introduction Since the 1970s, legal and ethical controversies have erupted from time to time about cases of withholding or withdrawing artificial nutrition and hydration (ANH), particularly from patients in a permanent vegetative state (PVS). In 1983, Joanne Lynn and I identified three circumstances in which it would be ethically acceptable to withhold or withdraw ANH: when such treatment is futile in a strict sense, when the burden to the patient would be disproportionate to the benefit, and when there is no possibility of benefit. The last category includes patients in a persistent vegetative state. At the time we indicated that continuing ANH for patients’ ‘loved ones and the community at large’ is probably ‘best in most cases’, but that when the family and caregivers find it unreasonable or offensive to continue, ‘there seems to be no adequate reason to claim that withholding food and water violates any obligations that these parties or the general society have with regard to permanently unconscious patients’.1 Not surprisingly, then, I disagree with Lord Jones’s conclusions and reasoning about the Anthony Bland case, while I generally agree with Lord Smith’s conclusions but depart from his reasoning at several points.

1  See J Lynn and JF Childress, ‘Must Patients Always be Given Food and Water?’ (1983) 13 Hastings Center Report 17–21; JF Childress, ‘When Is It Morally Justifiable to Discontinue Medical Nutrition and Hydration?’ in J Lynn (ed), By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water (Bloomington, Indiana, Indiana University Press, 1983) 67–83. Both are reprinted in JF Childress, Practical Reasoning in Bioethics (Bloomington, Indiana, Indiana University Press, 1997).

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II.  Respect for Personal Autonomy Respect for personal autonomy, a short-hand expression for respect for ­autonomous choices and actions, is one among several important prima facie principles in biomedical ethics.2 Respect is displayed in various ways, including not overriding personal choices and actions. In general, in medical decision-making in liberal societies, competent adults have the right to refuse medical procedures, except when their refusals put others at risk—for instance, refusals of quarantine or vaccination in a public health crisis. The acceptable limits on refusals are fewer than the acceptable limits on requests. Examples include limits on requests for medical procedures that are rationed or that are unapproved and available only in a clinical trial. Adults are presumed to be competent unless proven otherwise. (Decision-making for incompetent persons will be considered below.)

A.  Non-Suicidal Decisions Lord Smith generally accepts this framework, but Lord Jones sets an unwarranted limit on a competent person’s contemporaneous refusals of medical procedures. This limit obviously does not apply to a patient in PVS, such as Anthony Bland, who lacks the capacity to make his own decisions, but it merits attention here because of its implications. According to Lord Jones, ‘If a competent, nonsuicidal person refuses to be intubated (or requests the removal of tubes inserted without consent) then inserting or failing to remove the tube would constitute battery’ (emphasis added) [13]. He also says that, unless there is a dispute about facts, a court review should not be required if a competent person’s contemporaneous refusal of ANH is ‘not overtly suicidal’ [28]. Lord Jones does not clarify what counts as ‘suicidal’ or ‘overtly suicidal’, but presumably it includes aiming or intending to die joined with the knowledge that the medical refusal in question will lead to one’s death with a high degree of certainty. Aims and intentions can be quite complex, including, for instance, an individual’s aim to die along with her aim to avoid burdening her family. Sometimes these aims are equally important primary aims for individuals. It is not easy to sort out primary and secondary intentions, and doing so may even be impossible in many cases. Lord Jones’s argument implies that if an individual expresses a primary aim or intention to die, even along with another primary aim, such as avoiding prolonged hospitalisation, her refusal should not be honoured. But he does not indicate whether a competent patient’s secondary aim to die is enough to disqualify her contemporaneous refusal of ANH. For instance, should a religious believer’s fervent prayer for a quick death lead her professional caregivers to conclude that 2 See, for instance, TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 7th edn (New York, Oxford University Press, 2013).

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her refusal of ANH is actually suicidal? Exclusion of ‘overtly suicidal’ refusals may simply lead patients to find ways to hide their intentions to die. Finally, it is unclear whether Lord Jones would go so far as to recommend forced feeding of patients in such cases.

B.  Respecting Temporally Extended Selves Respecting personal autonomy is often complicated because we are ‘temporally extended selves’.3 As proponents of relational autonomy emphasise, we exist in and through time and our choices and actions occur over time. ‘Under relational theory’, Susan Sherwin notes, ‘selfhood is seen as an ongoing process rather than as something static or fixed’.4 In discharging our obligations under the principle of respect for autonomy, we not only have to determine whether a person is choosing autonomously at this moment and what he or she is choosing in light of possible ambiguities, but we also must consider that person’s current choices in a broad temporal context that includes the past and the future as well as the present. Past or prior consent/refusal poses no problems if the patient cannot currently autonomously express her wishes, for example, because of mental incapacity. Sometimes in such cases, we can invoke what may be called ‘precedent a­ utonomy’5 and respect that person’s autonomy by acting on her past or prior statement of preferences such as an advance directive. Suppose, contrary to the facts, that Anthony Bland had previously indicated in an advance directive his desire not to receive ANH in case of PVS. For Lord Jones, this would have ‘some weight’ [21], though it would not necessarily be determinative. Moreover, Lord Jones would require that ‘advance refusals of nutrition and/or hydration by artificial means’ undergo court review before lawful withdrawal [29]. In my judgment, a previously competent person’s clear and specific advance directive to withhold or withdraw medical procedures under certain circumstances, such as ANH in the case of PVS, should be respected as a form of precedent autonomy as long as there is no reason to doubt its validity—for example, the individual completing this directive was competent, understood what he was doing, and was acting voluntarily, as attested by witnesses who also signed the document (as is required in some jurisdictions). Moreover, in jurisdictions that also recognise individuals’ prior designation of surrogate decision-makers or that, by law, establish a hierarchy of surrogate decision-makers (such as spouse, adult children, etc) in the absence of individuals’ designation of a surrogate, it is 3  H Baumann, ‘Reconsidering Relational Autonomy: Personal Autonomy for Socially Embedded and Temporally Extended Selves’ (2008) 30 Analyse & Kritik 445–68. 4  S Sherwin, ‘A Relational Approach to Autonomy in Health Care’ in S Sherwin (ed), The Politics of Women’s Health: Exploring Agency and Autonomy, The Feminist Health Care Ethics Research Network (Philadelphia, Temple University Press, 1998) 19–47. 5  JK Davis, ‘Precedent Autonomy, Advance Directives, and End-of-Life Care’ in B Steinbock (ed), The Oxford Handbook of Bioethics (New York, Oxford University Press, 2007) 349–74.

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a­ ppropriate to respect the surrogate’s decision unless there are reasons, such as a blatant conflict of interest, to seek to disqualify him or her. Matters become more complicated when an incompetent person’s best interests at a particular time are not well served by her prior choices. Suppose that an individual who is no longer competent to make autonomous choices is now so contented with her life that legitimate questions arise as to whether her advance refusal of medical treatments should now be honoured.6 There are vigorous debates about whether the current ‘experiential interests’ of this seemingly different person should yield to or trump her prior self ’s decisions or ‘critical interests’, to use Ronald Dworkin’s language.7 However, an argument for the priority of ‘experiential interests’ in some cases does not apply to persons in PVS, who lack the capacity for ‘experiential interests’ because all that remains functional is their brain stem. Nevertheless, Lord Jones indicates that even if Anthony Bland had clearly stated in advance that the idea of ANH in a situation of PVS was ‘repellent’, this statement, while having ‘some weight’, would still ‘pose questions as to whether such fears properly represent his future self’ (emphasis added) [21]. He offers, as an example, patients who are conscious after paralysis from a traumatic injury and who commonly develop a very different perspective on life with disability, perhaps even adjusting quite positively to their new circumstances. While compelling on its own terms, this example has no relevance to the situation of PVS. Patients in PVS, who have only a functioning brain stem, are, in a sense, beyond both physical and psychological benefits and harms. And they have no prospect for any improvement. However, as Lord Smith observes, they may still be subject to what some call dignitary harms; in different language, they may still be wronged even when they cannot be harmed in a strict sense. Disrespect for precedent autonomy, where there is a valid written or oral advance directive, represents one such dignitary harm or wrong. The force of the principle of respect for personal autonomy covers precedent autonomy. In the absence of explicit prior directives by previously competent individuals who now lack the capacity to make autonomous choices, it is often both necessary and risky to draw inferences about their medical preferences from their lifestyles, their earlier decisions about other medical treatments, their comments on newsworthy medical cases, and so forth. Examples are legion and familiar: ‘He was the kind of person who would not have wanted to be kept alive under these circumstances.’ Or ‘He was the kind of person who would have wanted ANH under these circumstances.’ Great caution is needed in imputing such specific preferences in these situations.

6  See The President’s Council on Bioethics, Taking Care: Ethical Caregiving in Our Aging Society (Washington, DC, The President’s Council, September 2005) 82–88. 7  For the distinction between ‘experiential interests’ and ‘critical interests’ see R Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (New York, Knopf, 1993). Dworkin gives priority to ‘critical interests’ over ‘experiential interests’ if they conflict.

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Lord Smith appears to accept as a solid basis for action inferences from a now incompetent individual’s prior life, values, and preferences: [The doctors] argue –and Anthony Bland’s family agrees –that he would not have wanted to continue to exist in this state with no cognitive abilities and no prospect of recovery or improvement. They argue that he would not have wanted to cause distress to his family in the way in which his continued existence in PVS does. In short, they believe that if Anthony Bland was to be able to express an opinion, he himself would want the ANH removed. [13]

By contrast, Lord Jones is wary of imputing too much to the now incompetent person’s prior ‘wants’. Focusing specifically on familial claims that Anthony Bland would not have wanted his parents and sister to suffer the anguish they were experiencing as a result of his condition, and thus would have wanted the ANH withdrawn, Lord Jones urges ‘very great caution’ in imputing interests to Bland based on the impact of his treatment or non-treatment on others [23]. In my judgment, the ‘best interests’ of the incompetent patient can incorporate the interests of others, where there is sufficient evidence about the patient’s prior values and preferences. What counts as sufficient evidence may be debatable in particular cases and may require mechanisms of resolution such as the courts. In any event surrogate decision-makers, however appointed, should make their decisions about treatments for previously competent individuals by trying to respect their prior wishes where they can be reliably discerned or reconstructed. In the absence of adequate evidence about a now incompetent person’s prior wishes, treatment/non-treatment decisions should reflect that person’s best interests, just as they should for the never competent person.

III.  Best Interests, Benefits, and Harms I have seen no plausible argument that Anthony Bland’s best interests required his family and professional caregivers to keep him alive by ANH. In particular, I do not find persuasive Lord Jones’s list of factors for concluding that ANH would be in Bland’s best interests: —— Absence of a clear advance refusal by Bland; —— Absence of signs that ANH was ‘burdensome’ to Bland himself; —— Need to express the equal protection of the law to all citizens including those with cognitive disabilities; —— Strong, though rebuttable, legal presumption in favour of preserving life; —— ‘Seeming effectiveness’ of ANH in this case [24]. The ‘seeming effectiveness’ of ANH in this case is limited to the preservation of life itself. What cancels physical and psychological harms and burdens to Bland also cancels physical and psychological benefits to him. So life itself becomes the primary and even exclusive benefit for determining Bland’s best interests. But life

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is hardly an actual value to Bland now; it is more a symbolic value for the society. And, as Lord Jones recognises, the presumptive duty to preserve life can be rebutted. Moreover, it is arguable that equal protection does not require ANH in Bland’s case because it and other cases of PVS are substantially different from most other cases of disability. Despite Lord Jones’s claims to the contrary, Anthony Bland’s best interests as a patient in PVS do not appear to require the continuation of ANH for years and even decades without any hope of improvement. This allows considerable latitude for surrogate decision-makers in the absence of evidence about the patient’s prior wishes. Looking ahead, lawyer and bioethicist Lois Shepherd argues that after (1) aggressive rehabilitative efforts in the early stages of what appears to be PVS and (2) vigorous efforts to avoid mistakes in diagnosis, once ‘a very high level of certainty’ about the prognosis of no recovery has been attained, ‘we should require that continued tube-feeding and other treatment be justified’.8 That this is not implausible indicates how far the ethical arguments have shifted over the last 30 or so years. It also suggests that claims about justice in the allocation of resources will inevitably complicate the moral picture when the patient’s best interests do not require specific treatments such as ANH in cases of PVS.

IV.  Killing or Letting Die? Even though I share many of Lord Smith’s views about killing and letting die, I think that we need to be cautious about making them the basis for public policies and familial and professional caregivers’ actions. In this regard, it is useful to consider Dan Brock’s argument in ‘Truth or Consequences?’ which reflects on his experiences as a philosopher on the staff of the US President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in the early 1980s.9 He focuses on the tension between formulating the most rigorous and compelling philosophical position and formulating ethically acceptable and feasible public policies, all things considered. At the time the President’s Commission was developing its major and influential report on Deciding to Forego Life-Sustaining Treatment,10 it was commonplace in the US to say that it is permissible to allow patients to die—to let nature take its course—as long as we do not kill them. Philosophically, Brock held a

8  L Shepherd, If That Ever Happens to Me: Making Life and Death Decisions after Terri Schiavo (Chapel Hill, North Carolina, The University of North Carolina Press, 2009) 186–87. 9  D Brock, ‘Truth or Consequences: The Role of Philosophers in Policy Making’ (1987) 97(4) Ethics 786–91. 10  President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (Washington DC, President’s Commission, 1983).

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­ ifferent view, one very close to Lord Smith’s: that the difference between killing d and allowing someone to die ‘is not in itself morally important, and that stopping life-sustaining­treatment is often killing, though justified killing’, a view sharply rejected by the majority of the members of the President’s Commission and perhaps by a majority of the US public. Suppose, in the pursuit of truth, Brock could have convinced these commissioners that their views were mistaken, that there is in fact no sharp distinction between allowing someone to die and killing them, and that letting someone die is often killing. This probably would have had unfortunate effects for dying patients. In all probability, the commissioners would not have said, ‘Letting die is the same as killing; therefore, we should permit both of them.’ Instead, they probably would have said, ‘Letting die is just as bad as killing; therefore, we should prohibit them both.’ Such a conclusion would have deprived many patients of the exercise of autonomy at the end of their lives, requiring them instead to undergo treatments they wanted to refuse. Patients would have been both harmed and wronged. In short, successfully convincing the commissioners of the most defensible philosophical position, as Brock saw it—and as Lord Smith sees it—probably would have had very bad effects for people at the end of their lives.

V.  Final Reflections In law, public policy, institutional rules, and professional codes for addressing cases like that of Anthony Bland, it is crucial to find a practical approach that will ensure respect for personal autonomy, including precedent autonomy, and protect patients’ best interests. At a minimum, such an approach should allow individuals while competent to make specific advance directives about treatments under various circumstances and to designate surrogate decision-makers who can make medical decisions for them if they are no longer able to make their own decisions. Identifying a legal structure of possible surrogate decision-makers when an individual has not designated a surrogate decision-maker is also important. And the purview of all these decision-makers should include ANH in PVS, as well as a range of other situations. It is also important to establish a way for physicians, other health professionals, and healthcare institutions to disqualify surrogate decision-makers who are themselves incompetent, act against a patient’s known prior wishes or best interests, or have a serious conflict of interest. Even though rules and procedures are needed to reduce the likelihood of abuses, it is not clear that the courts should be generally and heavily involved beyond the rare cases of otherwise irresolvable conflicts, as in the famous Terri Schiavo case in the US, which featured such a conflict between the husband and the parents of a woman in PVS over withdrawing ANH.11 11 

See Shepherd, If That Ever Happens to Me (n 26).

R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151 Facts The appellant, Diane Blood, appealed against the dismissal of her application for judicial review of the Human Fertilisation and Embryology Authority’s (HFEA) decision to refuse to release sperm taken from her husband before he died to enable her to be treated by artificial insemination. Mrs Blood and her husband had been actively trying to start a family at the time he fell ill. The HFEA declined to licence the treatment on the basis that the donor had not provided his written consent at the time the sperm was collected. The appellant argued that by also refusing to grant her a licence to export the sperm to a Member State that would not require the donor’s written consent before treatment could take place, her rights under the Treaty of Rome 1957, Article 59 and Article 60 were violated.

Outcome (Court of Appeal): Appeal Allowed The Authority had been right to refuse treatment within the UK as the storage and preservation of the sperm without the donor’s written consent was unlawful under the Human Fertilisation and Embryology Act 1990. However, the appellant’s Article 59 and Article 60 EC Treaty rights were directly enforceable and so the Authority was invited to reconsider its decision to refuse Mrs Blood an export licence that would allow her to receive the treatment in another Member State. Judicial Makeup Lord Woolfe MR, Waite and Henry LLJ. Appellate History (with citations) Queen’s Bench Division; 17 October 1996. R v Human Fertilisation and Embryology Authority Ex p Blood [1996] 3 WLR 1176; [1996] 3 CMLR 921; [1997] 1 FCR 170; (1996) 93(40) LSG 25; (1996) 146 NLJ 1542; (1996) 140 SJLB 227. Keywords assisted reproduction, artificial insemination, consent, embryology, in vitro fertilisation, EC law.

Judgment 1—R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151 LAURIE J (GRAEME LAURIE) [1] I am grateful to my learned colleague for providing the background to this decision. [2] This is a request for judicial review and the restricted remit of the Court in such an action is not always appreciated. The overarching consideration is whether the Authority has acted within the powers conferred by Parliament in the 1990 Act. Any discretion afforded by those powers must be exercised within the wider legal environment, including European Community law. It is the single duty of this Court to determine whether this is so. [3] On 26 February 1995 Mr Blood was admitted to hospital. His condition deteriorated rapidly and he fell into a coma. On 28 February the applicant, Mr Blood’s wife, raised with the doctors the prospect of taking a sperm sample from him. Samples were retrieved on two separate occasions. Mr Blood was certified as dead on 2 March. He had been unconscious throughout both procedures. The samples were taken under the supervision of Professor Cooke of the Infertility Research Trust. [4] On 2 March, Professor Cooke contacted Flora Goldhill, Chief Executive of the Human Fertilisation and Embryology Authority, to ask for advice about storing sperm from a man who was on a life support system. The Chief Executive made a note of the conversation from which the following is an excerpt: I advised Professor Cooke that the man’s written consent for storage was a legal requirement and that it needed to be established whether he had given relevant consent in any form at any time. It was thought unlikely that he [Mr. Blood] had but it was recognised that the wife might wish to obtain her own legal advice whether he had given relevant consent in any form at any time. The current situation was so traumatic for the wife in that the decision to turn off the life support system would be made in the next few hours that it would appear uncaring and unnecessarily bureaucratic to insist on the provision of proper legal consent at this time. Nevertheless, it needed to be brought to her attention that storage was going ahead to allow her time to clarify the situation. Professor Cooke

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understood that if there was no legal consent the sperm could not continue in storage or be used.

[5] The legislative provisions to which Ms Goldhill refers are those contained in the Human Fertilisation and Embryology Act 1990. Of direct relevance to the current appeal are the provisions relating to the storage, use, and export of live human gametes (sperm and eggs). In particular, it is only if services are being provided ‘… for the treatment of the man and woman together…’ (section 4(1)(b)), or donor sperm is being used or stored will the Act apply to regulate such practices (section 4(1)(a)). These are important distinctions that will become apparent in due course. Notably, section 24(4) concerns the import and export of gametes and other materials. As to exportation, this subsection provides: Directions may authorise any person to whom a licence applies … to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions, and directions made by virtue of this subsection may provide for sections 12 to 14 of this Act to have effect with such modifications as may be specified in the directions.

As a result, this subsection gives to the Authority a wide discretion to give directions allowing the export of gametes and to determine the conditions under which export might take place. [6] No discretion that the Authority enjoys, however, is completely unfettered. The Act is proscriptive in many respects as to licence conditions, as detailed in sections 12–15. Most notable is the pivotal importance of written consent for the storage and use of gametes (and embryos), as expressed in Schedule 3. This requirement reflects a fundamental ethical premise that underpins the entire 1990 Act; indeed, it would be accurate to state that the role of written informed consent is the principal guiding mechanism for the legislation as it relates to storage and use of gametes. Schedule 3(2) lays down a number of requirements in this respect, for example, that consent must ‘…(a) specify the maximum period of storage… and [in the case of storage] (b) state what is to be done with the gametes…if the person who gave the consent dies or become incapacitated.’ [7] The rationale underpinning this requirement reflects uniform developments in medical law throughout the 1970s, 1980s and 1990s. The direction of travel has been towards increased respect for the autonomy of persons as expressed through their valid, free, and informed choices about how to live their lives and what should happen to their bodies. The presumption of inviolability of bodily integrity is an ethical principle that is now well recognised in both civil law (Re T [1992] 4 All ER 649; Re C [1994] 1 All ER 819) and criminal law (R v Brown [1994] 1 AC 212). For these sound ethical reasons, the 1990 Act contains provisions for the storage and use of gametes whereby these acts will only be lawful pursuant to a licence, and a licence can only be granted on the basis of the subject’s written and informed consent. The only exception to this is found in the rather prosaic provision of the Act that addresses circumstances within which gametes are used ‘…for the purpose of that person, or that person and another together, ­receiving treatment

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services’ (­paragraph 5(3) of Schedule 3). Each of these highlighted expressions is a legal term of art carrying specific legal meaning. ‘Treatment services’ is defined in section 2(1) of the Act to mean: ‘…medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children’. The expression ‘together’, from the perspective of the underlying rationale, was intended to cover situations where a husband and wife pursue the joint enterprise of seeking artificial insemination and the man is present at the time. His consent will be self-evidently implied by his voluntary and immediate involvement. [8] Against this legal background, it is not the role of this Court to revisit or reopen the facts of the case as found by Sir Stephen Brown P. Those facts clearly show that Mr Blood was unconscious at the time of removal of the sperm. Unfortunately, there is no detail as to the specific procedures involved, although examples from other jurisdictions include removal of the epididymis, irrigation or aspiration of the vas deferens, and rectal probe electro-ejaculation. Each of these interventions is an intimate and highly invasive procedure. [9] From the point of view of the law, we can easily address the initial question of whether effective consent, as required by the Act, had been obtained. As should be apparent from the above, it was not. [10] The next crucial issue to address is to ask whether Mr Blood was alive or dead at the time the sperm was extracted. This happened on two occasions: on the 28th of February—two days after he was admitted to hospital—and on the 2nd of March, the same day that he was pronounced clinically dead. This is not to say that death could not have occurred before such a pronouncement. In Re A [1992] 3 Med LR 303, the judge made a declaration that a patient found to be brain stem dead was dead for all legal and medical purposes. The subsequent switching off of life support was not, therefore, illegal. However, and once again most unfortunately, the facts of this case do not directly answer the question. And yet, the answer matters very much to the outcome. [11] The starting presumption must be that the patient was alive. If this were so, then the unauthorised invasion of his bodily integrity is unequivocally a b ­ attery, unless it can be demonstrated that it was in his best interests, as a patient, to undergo the particular procedure. It is irrelevant that both his wife and his family supported the actions in question. No one, not even a court, can consent on behalf of an adult (Re F [1990] 2 AC 1). As to best interests, there is no direct benefit to Mr Blood whatsoever; neither immediately because he is in a coma, nor longer term since the interventions clearly occurred in anticipation of his death to bring about a benefit that would only arise once death had occurred. The applicant has argued that she and her husband were strongly committed to starting a family, and there is no reason to doubt this, nor should we dismiss lightly the common objective of the couple. However, there are good reasons to doubt whether it is possible to extrapolate from that scenario, involving a young healthy couple who will both be involved in the life of their future child, the scenario that presents itself today:

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the invasive, unconsented extraction of sperm from a dying (or dead) man, and the prospect of adverse psychological consequences for the child, knowing that she or he was conceived in such a manner. For the same reasons, it is not possible to find that Mr and Mrs Blood were being ‘treated together’ under the provisions of the exception for consent in the 1990 Act. [12] If Mr Blood had already died, the legal and ethical position is changed to some extent. In law, he would have to be treated as a donor under the 1990 Act (following In re Q (Parental Order) [1996] 1 FLR 369, 370). In that case, the point was made that where a man’s sperm is used after his death, he is not to be treated as the father of the child. In the current case, recasting Mr Blood as a donor makes the consent provisions all the more necessary because this excludes the potential exception of ‘treatment together’ discussed above. Ethically, the considerations with respect to Mr Blood himself are also changed, but they are not entirely eliminated. For the applicant, the desire to have a genetically related family is undoubtedly strong; indeed she has argued that this would also be the wish of her deceased husband. However, for the reasons outlined above, there has been a fundamental change of circumstances with respect to the initial common joint enterprise of husband and wife. There is no hard evidence of a clear and settled wish in the event of death. To speculate would be an ethical conceit. [13] It should not be forgotten that the precursor to the 1990 Act, the Warnock Committee (Report of the Committee of Inquiry into Human Fertilisation and Embryology, Cmnd 9314, 1984), expressed ‘grave misgivings’ about the prospect of posthumous use of gametes. The Committee recommended that such uses should be ‘actively discouraged’ (para 10.9), citing concerns for the psychological wellbeing of the future child and possible problems with succession. The 1990 Act did not see fit to outlaw posthumous storage and use completely, but it did elect to fix the policy considerations in the ethically robust concept of full and informed consent. If matters are to change, then, this is a matter for Parliament itself. There are vitally important issues at stake concerning the inviolability of the person. Moreover, the legitimacy of extrapolating wishes is highly questionable. There is no evidence, for example, of Mr Blood ever having contemplated the kind of treatment to which he was subjected. Both his autonomy and his inherent human dignity have been compromised. [14] The intrusion that has occurred here is not trivial; nor is it an answer that the legal position was unclear: the Chief Executive made the position on written consent to storage very clear in her initial conversation with Professor Cooke before Mr Blood was declared clinically dead. The policy approach is ethically robust both with respect to protecting the autonomy of competent persons, and with respect to upholding the human dignity of those who are incompetent or have died. The Authority’s decision concerning the need for consent is legally correct as a matter of domestic law. Indeed, it should be noted that an offence was committed by the licence holder for illegitimate storage under section 41(2)(b) of the Act of 1990.

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[15] A question remains about whether any of this is changed by the applicant’s argument that the failure of the Authority to issue a Direction in her favour to export the sperm for her own use was discriminatory, partial, unjust, and in contravention of European Community law. [16] It is true that discretion to issue directions regarding the export and import of gametes exists under section 24(4) of the Act. Indeed, a General Direction (D.1991/8) had been made by the Authority, and brought to the applicant’s attention on the 13th of March 1995, which (among other things) reiterated the crucial importance of prior, informed consent. This, of course, was of no assistance to the applicant. Furthermore, a general meeting of the Authority reconsidered the issues with specific reference to the applicant’s case and found that it was not appropriate to depart from the provisions of the Act. Finally, in a letter of 21 November 1995, the Authority gave explicit reasons to the applicant for its refusal to grant a direction for export. This was a clear, consistent, transparent—and repeated—statement of a core policy and ethical position underpinning the Act and its operation. The Authority has no discretion with respect to storage or treatment within the UK. Notwithstanding, in light of the lack of clarity about the effect of a direction on export to another country, and separate from the questions above on storage of gametes, it is important to deal briefly with the European Community law question. [17] Counsel for the respondent, Mr Pannick, accepts that under Articles 59 and 60 of the EC Treaty, Mrs Blood has a right to receive medical treatment in another Member State. This is directly enforceable by her as a part of English law (Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377). More specifically, Lord Lester, on behalf of Mrs Blood, submits that the ­Authority’s refusal to export her late husband’s sperm is an infringement of the freedom to receive services in other Member States (also citing Luisi and Carbone, 403 and Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Grogan [1991] ECR I-4685, 4738–39). [18] In determining the application of Community law in such matters, a national body must consider two issues. First, has there been interference with relevant cross-border rights as a result of actions or decisions? Second, are such actions or decisions nonetheless justified by the legitimate requirements of the public interest? Interference is established if it can be shown that an action or decision ‘…is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services’. (Case C-275/92 Customs and Excise Commissioners v Schindler [1994] QB 610, 666 [43]). However, it is also a principle of EC law that a Member State may seek to justify restrictions placed on access to cross-border services. First, any national authority must address a set of considerations expressed succinctly by Advocate General van Gerven in Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Grogan [1991] ECR I-4685: there must be an objective, non-discriminatory, basis for the interference ‘justified by imperative requirements of public interest’. In this

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respect, the European Court of Justice has confirmed that each national authority must be given ‘a sufficient degree of latitude’ to determine the moral or religious or ethical values which it regards appropriate in its territory (see Schindler, above, 667F–669B). There is no question of discrimination between EU citizens in this case. Furthermore, when the policy choice involves a ‘fundamental ethical valuejudgment’, national authorities ‘must be allowed’ to determine ‘…what is to be understood by public policy and public morality. It is for each Member State to define those concepts with its “own scale of values”’ (Grogan, 4728, [37]). Second, any action or decision must be proportionate to the ends sought ([27] and [32]). This requires that the mechanism used must be suitable or appropriate for the achievement of the policy aim sought, and must not go beyond what is necessary for the achievement of that aim. [19] Taking considerations of domestic and European Community law together, and in light of this request for judicial review, it is not clear that the Authority has sufficiently considered these matters. While the fundamental ethical value judgments at stake are manifestly concerns relating to autonomy and human dignity, the Authority has not established whether Mr Blood was definitely alive or dead at the time of extraction and initial storage of the sperm. Moreover, the relevance of European Community law here cannot be ignored, albeit that the unauthorised extraction of sperm from a dead or dying man invokes considerable ethical concerns that shore up the reliance of the Authority on a mechanism of prior informed consent as the best means to manage the use, storage and export of gametes in such cases. The public policy objective of basing all decisions, and pre-existing directions, in prior informed consent in order both to respect the wishes of citizens and to protect them once they become vulnerable or die, must be considered against the tests laid out above. This has not been done. The appeal is therefore allowed.

Judgment 2—R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151 JACKSON J (EMILY JACKSON) [1] The applicant, Mrs Diane Blood, is a widow aged 30 years. Her husband, ­Stephen Blood, died after contracting meningitis. Stephen had complained of feeling unwell on 26 February 1995; was admitted to a local hospital and his condition deteriorated rapidly. On 28 February 1995, when he was in a coma, Mrs Blood asked the doctors caring for Stephen to take a sperm sample from him. This was done twice before Stephen died on the 2nd March. The samples were sent to the Infertility Research Trust (IRT), where they are being stored, with the permission of this Court, pending the resolution of this case. [2] The applicant would like to be artificially inseminated with her late husband’s sperm in order to have his child. Unfortunately for the applicant, the Human Fertilisation and Embryology Act 1990 in Schedule 3 provides that gametes (that is, sperm and eggs) may not be stored or used without the written consent of the gamete provider. Stephen did not give written consent to the taking, storage or use of his sperm and hence it would be unlawful for the sperm samples to be used in the UK. [3] The applicant sought permission from the Human Fertilisation and ­Embryology Authority to take her late husband’s sperm samples abroad in order to receive treatment in a country where treatment is lawful in the absence of consent. The Authority has refused permission and that refusal is the subject of this application for judicial review. [4] Section 12 sets out licence conditions that apply to every licence issued by the HFEA. The following shall be conditions of every licence granted under this Act—… (c) that the provisions of Schedule 3 to this Act shall be complied with …

Schedule 3 is entitled ‘Consents to Use of Gametes or Embryos’. Paragraph [1], which is headed ‘Consent’, provides: A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn.

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Paragraph [3] further provides: (1) Before a person gives consent under this Schedule—(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b) he must be provided with such relevant information as is proper…

Paragraph [5] is headed ‘Use of Gametes for Treatment of Others’ and it provides: (1) A person’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent. (2) A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used. (3) This paragraph does not apply to the use of a person’s gametes for the purpose of that person, or that person and another together, receiving treatment services.

[5] In this case, Stephen Blood did not give consent in writing and he did not have an opportunity to receive counselling or be provided with such relevant information as is proper. There is an exception in Schedule 3 para [5(3)] for the use of a person’s gametes in their own treatment, or their treatment ‘together with another person’. Mr Blood is dead and cannot receive treatment together with the applicant. It is indisputable, therefore, that his sperm sample cannot be used lawfully in the UK. [6] Section 23 of the Act of 1990 gives the HFEA a broad power to issue directions, including directions permitting the export of gametes and embryos. Section 24(4) provides: Directions may authorise any person to whom a licence applies to receive gametes or embryos from outside the United Kingdom or to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions…

[7] The HFEA issued a General Direction which came into force on 1 August 1991. Among other things, this General Direction states that: (1) Any person to whom a licence applies may send stored gametes outside the United Kingdom (such gametes being also referred to in these directions as ‘exported’) if the following conditions are satisfied: (a) the person who provided the gametes must have given and not withdrawn consent in writing to their being exported….

[8] The HFEA considers that its policy as set out in this General Direction constitutes a reasonable restriction on its discretion to issue specific directions in an individual case. In contrast, the applicant maintains that the HFEA’s policy and its application in her case is discriminatory and unfair. She maintains that if Stephen had not been in a coma, he would have given consent, and that it is unfair to require written consent from someone who was unable, at the relevant time, to give that consent. [9] There are compelling arguments on both sides in this case, which could be summed up as a clash between certainty and pragmatism. From the point of view of the applicant, who desperately wants to preserve the option of bearing her late

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husband’s child, it seems cruel that a legal technicality could force the destruction of her husband’s sperm. No one would be harmed directly by permitting her to export her late husband’s sperm, whereas the emotional cost to Mrs Blood if the sample must be destroyed could be very great indeed. The applicant, who knew Stephen Blood better than anyone else, is adamant that he would have consented to the posthumous use of his sperm by his widow. Her evidence on that point is not contradicted. [10] On the other hand, the law is clear: consent to the use of gametes must be in writing and must be given after the person has had an opportunity to receive counselling and such information as is proper. In exercising its discretion to issue directions for the export of gametes, it seems reasonable for the HFEA to take the view that directions ought not to undermine the statutory framework. Legal certainty might be best served by refusing permission to export this sperm sample, but the applicant would maintain that doing justice in the individual case requires a more pragmatic approach. [11] Although not the subject of this appeal, counsel for the Authority has drawn the Court’s attention to the circumstances in which the sperm samples were removed from Mr Blood. When doctors took the sperm samples in question, Mr Blood was unconscious and he was never expected to regain consciousness. At the time of the ‘treatment’ in question, then, Mr Blood unquestionably lacked capacity and capacity was never regained. [12] Counsel for the Authority reminded the Court that any intentional touching of an adult’s body, however slight, is prima facie tortious if it occurs without his consent. As Robert Goff LJ put it in Collins v Wilcock [1984] 1 WLR 1172, 1177: The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.

[13] One of the first cases to consider whether it would be lawful to treat a person who lacked capacity, when that treatment would amount to battery without consent was F v West Berkshire HA [1990] 2 AC 1. In that case, Lord Goff derived the now familiar ‘best interests’ requirement from the doctrine of necessity: to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

[14] Treatment justified under this principle does not have to be necessary to save someone’s life, but it would be difficult to argue that it was in Mr Blood’s best interests to have sperm samples removed from his body, unless he was likely to (a) recover from his coma, and (b) suffer from impaired fertility. That was indisputably not the case here. It is the view of this Court that the requirement to act in Mr Blood’s ‘best interests’ could justify carrying out interventions that might save his life or make him more comfortable, but that it could not require the hospital to

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remove sperm from his body in order that his widow might use it after his death. In the absence of his consent, the removal of sperm from Mr Blood’s body was unlawful. [15] Many of the medico-ethical dilemmas that come before the courts can be framed in terms of a clash of principles, and this case is no exception. TL ­Beauchamp and JF Childress’s Principles of Biomedical Ethics (Oxford, Oxford University Press, 1979) developed what has become known as the ‘four principles’ approach. In this case, a number of their principles are relevant and in tension with one another. [16] First and for a number of reasons the principle of autonomy might weigh in favour of granting the declarations sought. First, Mrs Blood might invoke her reproductive autonomy. She wishes to become a mother and she has a compelling interest in making this critically important decision about her body and her future family life for herself. Second, Mrs Blood might further argue that her late ­husband’s wishes were clear: he would wish her to have the chance to have his child posthumously, and hence his autonomy during life in having his wishes respected after death is best served by permitting export. Third, autonomy is not necessarily a purely individualistic value. What might be termed ‘relational autonomy’ would require us to recognise that Mrs Blood’s interests cannot be considered in isolation from those of her late husband. As a couple they wished to start a family and that shared desire persists on her part after his death. [17] On the other hand, the principle of justice roughly equates to ‘treating like cases alike’, and that might militate in favour of refusing permission to export Mr Blood’s sperm. Why should someone who has the resources to fund private treatment overseas be in a different position from someone who is dependent on NHS services in the UK? In order to promote justice between similarly situated people, export should not be available to the comparatively wealthy to enable them to circumvent the UK’s statutory regime. [18] Beauchamp and Childress’s two remaining principles, beneficence and maleficence, might also be relevant. Would destroying the sperm samples that represent Mrs Blood’s only chance to have her deceased husband’s child be to ‘do harm’? Would permitting her to conceive what will be a much loved child or children amount to ‘doing good’? Alternatively, could there be harm caused by permitting unlawfully extracted sperm to be used without the man’s consent? Does this undermine the rigour of the statutory scheme and cause uncertainty for others? [19] Framed in terms of the ‘principlist’ approach, the decision for this Court is essentially whether an interference with Mrs Blood’s reproductive autonomy can be justified by the need to ensure that the clarity of the statutory scheme applies consistently to all. These are weighty considerations but they pull in opposite directions. The principles themselves are not capable of telling us what to do. [20] Nor is it clear that older ethical traditions will help the Court to resolve this dilemma. Teleological theoretical approaches, an example being utilitarianism,

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judge the rightness and the wrongness of an action in terms of its consequences. In this case, there are two possible decisions: permitting export of the sperm samples or, in effect, ordering their destruction. A utilitarian would have to decide which course of action would add the most to the general sum of welfare in society. At first sight, it might look as though a utilitarian would straightforwardly favour the applicant’s case, since her welfare, and presumably that of her future children, would undoubtedly be served by enabling her to start a family. On the other hand, if this Court were to allow sperm to be used without consent, effectively turning a blind eye to its unlawful extraction, would this undermine trust in the law and create anxiety among the population as a whole? [21] Deontological traditions emphasise the intrinsic rightness or wrongness of actions. The Kantian Imperative instructs us that we must not treat others solely as means, but always also as ends in themselves. Did extracting sperm from Mr Blood’s body without his consent amount to using him as a means to another’s ends? Or given Mrs Blood’s evidence as to his wishes, were these, in fact, his ends too? Alternatively, would ordering the destruction of the samples be to sacrifice Mrs Blood’s understandable desire to start a family as a means to the end of promoting legal certainty? [22] If we were to fall back on the ancient Greek tradition of virtue ethics we could ask what a good judge would do in this situation. In the Court below, Sir Stephen Brown P expressed considerable sympathy for the applicant, but he felt that his hands were tied: the statute gives the Authority a broad discretion to permit or to refuse export and the Authority’s reasoning, that it should not use that discretion to facilitate treatment that would be unlawful in the UK, could not be described as perverse. [23] It is well established that a court may not interfere with the exercise of administrative discretion on substantive grounds unless it is satisfied that the decision made is unreasonable, in the sense that it is beyond the range of responses open to a reasonable decision-maker: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. [24] Counsel for Mrs Blood drew attention to the human rights context. Although not incorporated into English Law, it is well established that the European Convention on Human Rights ‘may be deployed for the purpose of the resolution of an ambiguity in English primary or subordinate legislation’ (R v Secretary of State for the Home Department Ex p Brind [1991] 1 AC 696, per Lord Ackner). Mrs Blood’s Article 8 rights might be at stake, but there is no ambiguity in the statute which the Convention could be used to resolve. At the risk of repetition, the law is unambiguous. Given the clear illegality of the sperm’s extraction, storage and use in the UK, the Authority’s decision to refuse export could not be said to be Wednesbury unreasonable. [25] Mrs Blood also has rights under Articles 59 and 60 of the EC Treaty to receive medical treatment in another Member State. There is nothing that could stop Mrs Blood travelling to Belgium for a cycle of IVF treatment, and indeed the

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Authority maintains that by refusing to grant directions permitting export, it is not interfering with her right to receive fertility treatment in another Member State. The right under the EC Treaty is to receive treatment, not to export sperm. [26] Counsel for the applicant maintained that the Authority placed too much weight on the precedent effect of any decision to permit export. The decision to extract sperm and to store it was taken in ignorance of the law in this country. Once that law is better known and understood, it will be impossible for sperm samples to be extracted unless proper consent is in place beforehand. If, as should be the case, there will never be another instance of unlawful sperm retrieval in this country, the applicant’s case could not set an undesirable precedent. [27] Of course, it is to be hoped that Counsel is correct and that this set of facts will never be repeated, but given the circumstances in which sperm samples must be extracted, the Court does not share Counsel’s view that repetition is impossible. Someone whose partner is about to die will not generally be in a licensed fertility clinic where the provisions of the Human Fertilisation and Embryology Act 1990 are well understood. On the contrary, they are likely to be in an Intensive Care Unit and time will be of the essence. In such circumstances, it can be predicted that future doctors will be placed under the same pressure as the doctors in this case to extract sperm first and worry about the legal niceties afterwards. [28] In all the circumstances of the case, and bearing in mind the terrible tragedy that has already befallen Mrs Blood, this Court cannot see how the Authority’s decision to refuse export could be said to be Wednesbury unreasonable, but at the same time, the Authority has a very broad and statutorily unrestricted discretion to issue directions permitting export. If it had issued directions for export in this case, it could not be criticised for having done so. The decision, quite properly, is for the Authority and this Court declines to interfere with their discretion, save for noting that it would be a very great pity if the licensing authority took decisions with such a profound effect over someone’s future life without meeting them and discussing the implications with them in person. Respectfully, therefore, we invite the Authority to meet Mrs Blood and her representatives in order to see whether it might be possible to resolve this case outside of the adversarial setting of the courtroom. To paraphrase Carol Gilligan (In a Different Voice: Psychological Theory and Women’s Development (Boston, Harvard University Press, 1990)), it may be that the dispute between Mrs Blood and the Authority is not best resolved using the ethics of justice, dispensed by the Court. Instead, if both parties were to talk to each other, perhaps they could resolve their dispute without the need to involve lawyers.

Legal Commentary: R v Human Fertilisation and Embryology Authority, ex parte Blood MARY NEAL

I. Introduction During the late 1990s and early 2000s, an unprecedented story unfolded in the UK media involving a young widow, Diane Blood, and her legal battle to bear the children of her late husband, Stephen, following his tragic death from meningitis at the age of only 30. As the story unfolded in the media, the ethical and legal issues were explored in the courts and in academic commentaries.1 For all the controversy the case generated, the applicable law was clear and straightforward: the governing statute at the time of the case, the Human Fertilisation and Embryology Act 1990 (hereafter ‘the Act’), prohibited the storage or use of gametes without the clear written consent of the gamete provider.2 Since the Act was unambiguous, and since Stephen Blood had never given his written consent to the storage or use of his sperm, there was no possibility of the HFEA permitting treatment within the UK. The question, therefore, was whether the HFEA would authorise the removal of the sperm abroad for treatment in another EU country. Initially, they refused, so the issue became a procedural one: had the HFEA reached their decision after appropriate consideration of the various factors which they were obliged to take into account? My concern here is not to examine the points of law which were directly at stake in the case, but to identify some wider themes which have relevance beyond the case itself and examine them from a predominantly (though not exclusively) legal perspective.

1  See further DM Morgan and RG Lee, ‘In the Name of the Father? Ex parte Blood: Dealing with Novelty and Anomaly’ (1990) 60(6) The Modern Law Review 840–56. 2  Human Fertilisation and Embryology Act 1990, Schedule 3.

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II.  The Absence of Consent and the Principle of Autonomy As Laurie J notes, Stephen Blood was unconscious throughout both of the ­procedures to retrieve sperm samples from him. Where a patient is unconscious, and so clearly lacking in autonomy, there is (obviously) no requirement to obtain his consent for an intervention. In discussing a patient who was unconscious throughout his hospitalisation, therefore, the principle of patient autonomy and the absence of consent to these interventions are irrelevant. Because this case involves assisted reproduction and the Act, however, it is relevant to have regard to the fact that Stephen Blood never consented under that statute; he neither sought nor consented to ‘treatment together’ with his wife under the Act. Putting herself in the applicant’s position, Jackson J reflects that: From the point of view of the applicant, who desperately wants to preserve the option of bearing her late husband’s child, it seems cruel that a legal technicality could force the destruction of her husband’s sperm [9].

Here, Jackson J is trying to see the issue from Mrs Blood’s perspective, rather than endorsing this way of looking at the legal requirement for consent. Far from being a ‘legal technicality’, or a needlessly cruel impediment to Mrs Blood’s achievement of her (and reportedly her late husband’s) dream of a family, the written consent of the parties seeking treatment is of the utmost importance under the Act and has been described as one of the ‘twin pillars’ of the statutory regime.3 Jackson J emphasises that the requirement for consent under the Act must also be seen as part of a whole process of deciding to embark upon treatment when she observes that ‘Stephen Blood did not give consent in writing and he did not have an opportunity to receive counselling or be provided with such relevant information as is proper’ (emphasis added) [5]. Autonomy has a shadowy presence in discussions regarding what deceased persons and persons with permanent incapacity ‘would have wanted’. We cannot really respect the autonomy of such persons, of course, but in attempting to estimate what their wishes would have been, we are trying to do more than simply act in what we think are their ‘best interests’ (if they are alive), or act in a way that is objectively ‘respectful’ (if they are dead). Insofar as we try to respect such persons personally, rather than impersonally, it could be argued that we are influenced by the ‘imprint’ of their autonomy, so that in such cases, autonomy is neither truly present nor truly absent as a factor.4 In the Blood case, although there was ‘no hard

3  S Sheldon, ‘Evans v Amicus Healthcare; Hadley v Midland Fertility Services—Revealing Cracks in the Twin Pillars’ (2004) 16 Child and Family Law Quarterly 437. 4  Jackson J acknowledges (but does not endorse) this kind of argument at paragraph [16] of her judgment.

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evidence of a clear and settled wish in the event of death’ [12] (per Laurie J), the Court had some evidence of what Mr Blood’s wishes had been during his lifetime. As Laurie J remarks, The applicant has argued that she and her husband were strongly committed to starting a family, and there is no reason to doubt this, nor should we dismiss lightly the common objective of the couple [11].

There was, however, no evidence of Mr Blood ever having contemplated assisted reproduction. This is relevant because assisted reproductive techniques (ARTs) raise particular ethical issues; for example, some people abhor the destruction of human embryos, which is a routine consequence of assisted reproduction. It is impossible, therefore, on the basis of Mrs Blood’s testimony that she and her husband wished to start a family without assistance, to draw the conclusion that he would have been agreeable to the use of ARTs in pursuit of the same end. Not all of those who would countenance the former would also countenance the latter. This difference alone ought to dissuade any court from believing it can determine how Mr Blood would have regarded his wife’s plans. In fact, however, Mrs Blood’s intentions were distinguished from what they envisaged together during his lifetime not only by the use of ARTs, but also because she proposed to conceive and bear a child after his death. Stephen Blood may well have contemplated the enterprise of conceiving and raising a child together with his wife; but the prospect of his wife conceiving and raising a child alone, after his death—a child with whom he could never have any kind of personal relationship, and could never ‘parent’—is so far removed from what would have been within his contemplation while alive that the latter can hardly be relevant.5 Indeed, we might choose to interpret his wife’s account of their joint plans as evidence that Stephen Blood seems to have wanted to be a parent, not to father a genetic child whatever the circumstances. If we decide that it is likely that parenthood is what Stephen Blood was enthusiastic about (and the language of ‘starting a family’ is suggestive of this), then nothing his wife did after his death could have achieved that for him. Only if his wish to start a family was motivated mainly by a burning desire to secure his genetic legacy could we reasonably regard his wife’s posthumous plans as being in fulfilment of ‘what he would have wanted’; and even if we knew this to be so, there seems no reason why the law should facilitate such an endeavour (indeed there may be strong policy reasons for not doing so). In any case, Diane Blood seems to have made no such claim. Since Mr Blood was unconscious when the sperm was extracted, and was deceased by the time of the litigation, the issues of his consent and autonomy arose only indirectly in the case, via the acknowledgment that he never consented to

5 

Laurie J acknowledges this at paragraph [11] of his judgment.

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treatment under the Act and the evidence about his wishes while alive. Mrs Blood’s autonomy might also be relevant, however. Jackson J considers this: Mrs Blood might invoke her reproductive autonomy. She wishes to become a mother and she has a compelling interest in making this critically important decision about her body and her future family life for herself [16].

In the view of Jackson J, Mrs Blood’s personal autonomy was simply one ethical principle which must be balanced against others, notably the need for a clear and consistent application of the framework set out in the Act [19]. Although ‘patient autonomy’ often appears to trump other values in healthcare law cases involving competent patients seeking to exercise decisional autonomy in relation to medical treatment, that is not the context here; patient autonomy has been held not to support any right of patients to insist on receiving particular treatments.6 As such, we are dealing in this case with autonomy as an abstract ethical principle, albeit an important one. The only sense in which autonomy seems to be relevant in a legal sense in this case is the sense in which it probably forms part of the ideological scaffolding of the right to free movement which ultimately won the day for Mrs Blood.

III.  ‘Treatment’ and Patients Although questions regarding what constitutes ‘treatment’ and who constitutes a ‘patient’, legally-speaking, were not directly at issue in this case, the case prompts some reflection on these matters. Considering Mr Blood first, he was clearly a patient while unconscious in hospital, until the point at which he was declared dead. When dealing with an unconscious patient, healthcare professionals have a legal and ethical obligation to act in the patient’s ‘best interests’ (to ensure beneficence and patient-centred treatment). With this in mind, Laurie J has strong words for the professionals who acquiesced with Mrs Blood’s request that sperm samples be extracted: the unauthorised invasion of [Mr Blood’s] bodily integrity is unequivocally a battery, unless it can be demonstrated that it was in his best interests, as a patient, to undergo the particular procedure…there is no direct benefit to Mr Blood whatsoever; neither immediately because he is in a coma, nor longer term since the interventions clearly occurred in anticipation of his death to bring about a benefit that would only arise once death had occurred [11].

The interventions to extract sperm from an unconscious, dying man had no possibility of therapeutic value for him and were not motivated by clinical need. As Laurie J notes, not only did they fail the ‘best interests’ test; they ‘unequivocally’ amounted to a battery. As such, they cannot plausibly be regarded as ‘treatment’. 6 

R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003.

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What of Mrs Blood? The whole case seems to be framed as if she were a patient (someone seeking to exercise her right to ‘seek treatment abroad’). Mrs Blood was not a patient at the time of this case, however; she had no diagnosis, and was not under the care of a doctor as far as we know. Instead, it is more accurate to say that she sought to become a patient. Did she become a patient when she was finally granted leave to take the sperm abroad and use it to create her family? I think this is questionable. In paragraph [7] of his judgment, Laurie J quotes from section 2(1) of the Act, which defines ‘treatment services’ as ‘medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children’. When such a statutory definition exists, it supersedes (for the context covered by the Act) any common law understandings that may apply in other contexts. According to this definition, the intervention Mrs Blood seeks to avail herself of is ‘treatment’. In my view, however, the statutory definition (which is undoubtedly authoritative in this case) is undesirably wide. I have argued recently elsewhere7 that to count as ‘treatment’ in the healthcare context, an intervention should either have intended therapeutic value for the person intervened-upon (as most cases of treatment do), or have a strong public interest justification (as, for example, in the case of an intervention to remove a healthy kidney from a living donor, which has no therapeutic value to the donor).8 In fact, in most cases of treatment, both of these elements are present.9 So which of these elements is present in Mrs Blood’s ‘treatment’? It is difficult to regard it as therapeutic, since Mrs Blood (as far as we know) had no relevant illness, nor any physical impediment to conceiving. Neither is her project straightforwardly justified by ‘public good’ considerations; indeed, it could be argued that there are public good considerations (perhaps associated with child welfare and the proper treatment of unconscious patients) which weigh against allowing it. I am conscious of the fact that other ‘treatments’ currently so regarded may also fall foul of the test I have proposed above. For example, and staying in the same area, my test could lead to questions about whether assisted reproduction t­echniques were ‘treatment’ in the context of single people or same-sex couples (who may seek to access them despite being neither ill nor infertile). A short answer to this is that I believe that a public interest justification can be made in these cases (along the lines that denying ARTs to single and gay people risks driving people who are desperate to have children into risky unregulated inseminations or even unwanted intimate physical relationships which may be traumatic for them). Moreover, what Mrs Blood sought was to bear the child of a particular man, now

7 M Neal, ‘Locating Lawful Abortion on the Spectrum of “Proper Medical Treatment”’ in S Fovargue and A Mullock (eds), The Legitimacy of Medical Treatment: What Role for the Medical ­ xception? (­London, Routledge, 2015) 124–41. E 8  It must also, of course, be justified by patient consent, or where that is impossible, by necessity or a ‘best interests’ calculus. 9  Neal n 7 above, passim.

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deceased. This is a preference (albeit a very strong and persistent one), not a condition; thus, the steps taken in pursuit of it ought to be understood as an exercise in preference-satisfaction, rather than treatment. The line between the two is rather than always clear, but sometimes, as in this case, it is.

IV.  Human Dignity Like the principle of respect for autonomy, the value of human dignity is both an ethical and a legal value.10 Despite the derision of some famous detractors,11 the idea of dignity has enjoyed a renaissance in recent years, not least in the context of bioethics, where a growing body of literature is attempting to redress the neglect of the idea in that context (a neglect which may stem, at least partly, from the invisibility of dignity within the ethical approach—principlism—which dominated the first several decades of bioethical scholarship).12 Considering the Blood case from a dignity perspective may prompt dignity-related anxieties about the treatment of Stephen Blood while unconscious. As Laurie J puts it, Mr Blood was subjected to ‘an intimate and highly invasive procedure’ [8] which offered ‘no direct benefit to [him] whatsoever’ [11]. While his wife was presumably affected by shock and grief, the doctors were under an obligation to act professionally and in their patient’s best interests. In requesting the sperm samples, Mrs Blood was regarding her husband as a potential father, which seems to have been consistent with the way she had always regarded him, and is not necessarily incompatible with respect for his equal human dignity. By retrieving the samples, however, the healthcare professionals treated Mr Blood not as a patient with equal human dignity and interests of his own (which would only be extinguished upon his death), but as a source of gametes. Presumably, amid the emotion of the situation, they were moved by Mrs Blood’s appeals; in acting on them, however, they failed to respect the dignity of their patient, and their actions cannot be understood (as hers can) in terms of grief and shock.

10  For an explanation of the importance of human dignity, and why it is not properly described as a ‘principle’, see M Neal, ‘Respect for Human Dignity as “Substantive Basic Norm”’ (2014) 10(1) International Journal of Law in Context 26–46. 11  See eg S Pinker, ‘The Stupidity of Dignity’ (The New Republic, 2008), available at: www.tnr.com/ article/the-stupidity-dignity, accessed 4 March 2016; R Macklin ‘Dignity is a Useless Concept’ (2003) 327 British Medical Journal 1419–20; and M Bagaric and J Allen, ‘The Vacuous Concept of Dignity’ (2006) 5 Journal of Human Rights 257–70. 12  See further D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, Oxford University Press, 2001); C Foster, Human Dignity in Bioethics and Law (Oxford, Hart P ­ ublishing, 2011); and R Andorno, ‘The Dual Role of Human Dignity in Bioethics’ (2013) 16(4) Medicine, Health Care and Philosophy 967–73. The dominant ‘principlist’ approach prioritises ‘four principles’ identified by TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 4th edn (Oxford, Oxford University Press, 1994).

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V. Conclusion The eventual outcome of the Blood litigation was, of course, a happy one for Mrs Blood, who was permitted to travel abroad for treatment and eventually gave birth to two of her late husband’s genetic children. As serious as the legal issues considered above are, there is a sense in which the birth of two much-wanted children—and the creation of a happy family out of a tragic loss—represents a powerful counterargument to the concerns I have raised. As a number of cases concerning so-called ‘wrongful conception’ have emphasised, the ­acknowledgment that legal wrongs have taken place along the route to a child’s coming into existence (and have even caused it) certainly does not lessen the extent to which that child is a ‘blessing’ in the eyes of the law.13 I think it is worth emphasising that principle in this context too. Whatever legal and ethical anxieties surrounded their conception, the Blood children are as valued by the law, by society, and of course by their remarkable mother, as any children ever were.

13  See, eg, McFarlane and another v Tayside Health Board [2000] 2 AC 59, and Cattanach v Melchior (2003) 199 ALR 131.

Ethical Commentary—Beyond Law: An Ethical Critique of Blood HEATHER WIDDOWS

I. Introduction In their judgments, Laurie and Jackson JJ have highlighted issues of consent, autonomy, best interest and the significance of whether Stephen Blood was alive or dead. In this commentary I will consider these legal views from an overtly ethical perspective, emphasising that the ethicists’ duty is to question the (ethical) justification of legal principles and the wider implications of decisions such as these in Blood.

II.  The Lack of Written Consent Both judges regard written consent and its lack as decisive when it comes to ­considering whether the removal of sperm from Stephen Blood (and its subsequent use) was lawful. Laurie J defines the key issue as ‘the pivotal importance of written consent for the storage and use of gametes (and embryos)”’ [6]. He continues that the requirement for written consent ‘reflects a fundamental ethical premise that underpins the entire 1990 Act; indeed, it would not be going too far to state that the role of written informed consent is the principal guiding mechanism for the legislation as it relates to storage and use of gametes’. [6] Given this, it is not surprising that both judges conclude unambiguously that the initial retrieval of sperm without consent was illegal. Furthermore, both highlight that what the law requires by way of written consent is not simply ascertaining the wishes of the individual. Rather the consent process required by ‘Schedule 3’ is demanding and involved and includes a number of stages and requirements. For both judges this is crucial. Laurie J concludes that, ‘from the point of view of the law, we can easily address the initial question of whether effective consent, as required by the Act, had been obtained. As should be apparent from the above, it was not.’ [9]. Likewise Jackson J states, ‘In this case, Stephen Blood did not give consent in writing and he did not have an opportunity to

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receive counselling or be provided with such relevant information as is proper’ [5]. Accordingly, the retrieval of sperm was clearly illegal. However, this is not enough to address the ethical issues. Why is consent important? What is it intended to protect and what is disregarded if consent is not attained? For Laurie J, Stephen Blood’s ‘autonomy and his inherent human dignity have been compromised’ [13]. What matters ethically then is autonomy and dignity, and consent is assumed to protect these values. Both judges—understandably given the current assumptions of the law—assume that consent protects autonomy (and presumably dignity). For example, Laurie J states that the emphasis on consent arises from developments in law from the 1970s The direction of travel has been towards increased respect for the autonomy of persons as expressed through their valid, free and informed choices about how to live their lives and what should happen to their bodies [7].

Here, Laurie J is prioritising autonomy as the primary value, although dignity and the protection of bodily integrity are included by implication.1 Ethically it is problematic both to assume that these values are all compatible and that they can be protected by consent. Ethically speaking bodily integrity and autonomy do not always equate, nor do autonomy and dignity. For instance, there are all kinds of humiliating experiences—experiences which are an affront to dignity—which can be autonomously chosen. This connects to the second concern that (written) consent alone is enough to ensure that dignity, autonomy, or any other value is protected. In Roger Brownsword’s terms it is to commit the ‘fallacy of sufficiency’ to assume that consent is enough to make an act ethical.2 In this instance, is it really the case that consent would have been enough—even had it been given—to ensure Stephen Blood’s autonomy, dignity, and bodily integrity were protected?3 If not, and it is reasonable to have some doubts, then other ethical features need more consideration.

III.  Dead or Alive Laurie J spends considerable time deliberating whether Stephen Blood was alive or dead. To recap, Stephen Blood fell into a coma on 26th February (and was 1  ‘[t]he presumption of inviolability of bodily integrity is an ethical principle that is now well recognised in both civil law and criminal law’ (Laurie [7]). 2  R Brownsword, ‘Rights, Responsibility and Stewardship: Beyond Consent’ in H Widdows and C Mullen (eds), The Governance of Genetic Information: Who decides? (Cambridge, Cambridge University Press, 2009) 99–125. 3  Elsewhere I’ve argued about other reasons why consent is not sufficient, See H Widdows, ‘Rejecting the Choice Paradigm: Rethinking the Ethical Framework in Prostitution and Egg Sale Debates’ in Anne Phillips, Sumi Madhok and Kalpana Wilson (eds), Gender, Agency and Coercion (London, Palgrave, 2013) 157–80 and H Widdows, The Connected Self: The Ethics and Governance of the Genetic Individual (Cambridge, Cambridge University Press, 2013).

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presumably considered ‘brain-dead’ from this point). Sperm was extracted from Stephen Blood twice on 1st March and on 2nd March and he was declared dead on 2nd March. Therefore, at the very least the ‘facts clearly show that Mr Blood was unconscious at the time of the removal of the sperm’ [8]. However, while legally crucial, how is this ethically significant? If Stephen Blood was considered to be alive at the time sperm was extracted then legally the ‘unauthorised invasion of his bodily integrity is unequivocally a battery unless it can be demonstrated it was in his best interests, as a patient, to undergo this particular procedure’ [11]. As both judges state there are no likely grounds to support an argument that his best interests were served by the extraction of sperm. Laurie J, [11] Jackson J [14]. As Jackson J notes, ‘[a]t the time of the “treatment” in question, then, Mr Blood unquestionably lacked capacity and capacity was never regained’ [11]. Jackson J rightly qualifies ‘treatment’; there is no possible ‘treatment’ for Stephen Blood. This said Stephen Blood’s interests might be best considered not as a ‘patient’ but as someone seeking to found a family, and while the law does not allow such consideration it is ethically pertinent: the wishes of Stephen Blood will be returned to. If dead then, as Laurie J comprehensively discusses, the question of whether ­Stephen Blood could be considered a gamete donor is paramount. The standard view of cadaveric donation is that it is ethical to use the organs and tissue of the recently deceased; indeed many regard donation positively. Donation requires consent: currently the UK has an ‘opt-in’ system to indicate willingness to donate, and consent is also sought from family members. However, while some defend this system (on the grounds that consent is necessary for public acceptance), others argue that ‘opt-out’ systems are ethically justified given the need for ‘life-saving’ organs.4 But, even if it is possible to argue that opt-out systems are ethically justified for life-saving organs, such as kidneys, it is very hard to imagine extending such reasoning to gametes. Those who justify ‘opt-out’ systems for organ donation—and thus argue for implied or presumed consent rather than formal written consent—do this on the grounds that the need for life-saving organs is so great that other concerns are mitigated. It is not possible to apply this life-saving argument to gametes. Refusing the extraction and exporting of Stephen Blood’s sperm was not life threatening, nor, indeed would it have denied Diane Blood the possibility of reproduction (whether in a future relationship or using donor sperm). Accordingly, even if Stephen Blood could be considered a donor and—contrary to current UK law—it be deemed ethical to remove organs and/or tissue using a presumed consent model, it would still not be ethical to remove sperm without prior consent.5

4  SM Bird and J Harris, ‘Time to Move to Presumed Consent for Organ Donation’ (2010) 340 BMJ c2188. 5  Indeed, given the emphasis on genetic-relatedness, consent for use of gametes after death seems particularly important. For instance, soldiers often freeze sperm so their wives can have ‘their’ child in the event of death.

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IV.  Whose Wishes Count? The discussion of whether or not Stephen was alive or dead moves the debate from discussions of whether legal and ethical processes were, or could be, seen to be followed to a wider (ethical) debate. What the discussion to date has missed are the real people involved in this case and the profound influence that this decision has on their lives and the social and cultural implications. While legal reasoning attempts to apply the same rules to all cases, this case shows that doing this is not easy or straightforward. Both judges are clear that the removal of Stephen Blood’s sperm was illegal, but Laurie J allows the appeal and Jackson J suggests a discussion outside of the courtroom. Given this, it is reasonable to conclude that both are concerned that the procedural arguments (surrounding written consent) do not exhaust ethical concerns. In particular both consider Diane Blood’s actual wishes and Stephen Blood’s possible and presumed wishes. Most prominent are the wishes of Diane Blood, who is clearly a woman in a tragic set of circumstances, with strong preferences. As Jackson J rightly states, ‘[f]rom the point of view of the applicant…it seems cruel that a legal technicality could force the destruction of her husband’s sperm’. [9]. This is a view Jackson J gives weight to as she continues that ‘the emotional cost to Mrs Blood if the sample must be destroyed could be very great indeed’ [9]. However, ethically it is not clear what weight we should give to the strength of Mrs Blood’s wishes. Only in preference-satisfaction theories could the strength of Mrs Blood’s preferences feature ethically. This does not mean that Mrs Blood’s wishes should not be taken into account when ethically assessing the case, clearly they deserve attention—shown by the fact that both judges consider them rather than closing the discussion at the point where the failure to attain written consent establishes illegality of the removal and the subsequent actions. Given this attention, p ­ erhaps, as Jackson J suggests, ‘Mrs Blood might invoke her reproductive autonomy’ [16]. However, reproductive autonomy does not obviously extend to a process such as this.6 Indeed, as ­Jackson J notes in her discussion of justice, Diane Blood’s ability to export the sperm depends on having the financial means to travel for treatment (and so to avoid UK law). Standardly, reproductive autonomy is not extended to requiring that reproductive choices are met or made possible. If it were, all r­ eproductive choices would be justified (including selection for sex and any other parental preference). Moreover, such an extension to positive reproductive rights could mean that funding for access to all reproductive technologies would be e­ thically required. To take another approach, as Jackson J notes, a relational autonomy model ‘would require us to recognise that Mrs Blood’s interests cannot be considered in isolation from those of her late husband’ [16]. To this 6 For some, access to abortion and contraception are the only basic reproductive rights. See S McGuinness and H Widdows, ‘Access to Basic Reproductive Rights: Global Challenges’ in Handbook of Reproductive Rights (forthcoming).

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we can add, or in isolation from any future children, or in isolation from the best interests of social relationships. Laurie J argues that it would be ethical conceit to speculate about what ­Stephen Blood would have wanted (or presumably what he would have considered his ‘best-interests’). While it is the case that Mr Blood could have regarded his best interests as being served, as Laurie J forcibly points out, Stephen Blood cannot be assumed to have wished his sperm to be taken and used in this way merely because he was ‘strongly committed to starting a family’ [11]. Undoubtedly, Laurie J is correct. There is a world of difference between wishing to have a family and be in a parenting role and providing gametes for children you will not (and cannot) be involved in raising. The decision to begin ‘trying for a family’ is a commitment not to providing the gametes for a child others will raise, but a commitment to a future way of life entailing long-term relationships. It is of course possible that Diane’s assertions that Stephen would have consented are correct, but it is equally possible that he would not and that part of his strong commitment to starting a family was a strong commitment to being a husband and a father. As Laurie J says, speculation about Stephen Blood’s wishes cannot be relied upon for useful insight into this case. However, clarity about the difference between what can be ‘presumed’ from Stephen Blood’s actions and the claims being made in this case is enlightening. With reflection it is clear that the difference between being a ‘father’ in a family unit is not comparable to providing gametes. Accordingly, presuming consent from one context to a wholly different act in a different context is ethically flawed (and too speculative to be legally useful). Other parties whose possible wishes merit consideration are any future children. For instance, Laurie J refers to the ‘prospect of adverse psychological consequences for the child’ [11]. However, neither judge dwells on what these consequences might be. Perhaps there is good reason for this. If it is ethically presumptuous to try to intuit Stephen Blood’s wishes, it is even more difficult to imagine what the future children’s best interests might be. Indeed, there is a sense in which, irrespective of any general judgment about the best interests of future children, actual children will (in hindsight) wish to be born. One issue which could be mentioned with regard to future children is that of ‘an open future’. Some argue that the importance of an open future is such that there is a ‘right not to know’; for instance, whether or not one has, or is likely to have, a particular disease.7 Is this argument ethically applicable here? Would it be possible for future children to be defined by the circumstances of their conception in a parallel way to which one can feel limited by a diagnosis? In all cases considering the best interests of future children is notoriously difficult, not least because it is always hypothetical and appears presumptuous and, moreover, can appear callous given the tragic circumstances of the would-be mother.

7  L Bortolotti and H Widdows, ‘The Right not to Know: The Case of Psychiatric Disorders’ (2011) 37 Journal of Medical Ethics 673–76.

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In addition, to the wants and interests of Diane and Stephen Blood and future children, it is essential to consider the impact on wider society. In other words, what is in the ‘best-interests’ of society as a whole? The case-by-case nature of law can conceal the social and cultural implications of legal decisions. All judgments, and particularly those which elicit public interest and concern as this one did, affect public understandings and reinforce or challenge social and cultural norms. Given this, what are the messages which can be derived from this case? The main (ethical) message implicit in this case is first, as discussed already, that the wishes of Diane Blood are paramount. They were paramount in the initial removal of sperm (an invasive process for which there was no clinical justification), and only this can explain the support for appeal and request for discussion. This suggests that what is driving the discussion are assumptions about the primacy of ‘reproductive autonomy’ (even though not explicitly recognised as such by the judges, and Laurie J is sceptical because of worries about respecting Stephen). However, both do consider Diane Blood’s wishes, and consider her claim that consent could be presumed; even though this was clearly illegal and has been shown to be ethically problematic. That this is even considered is telling, as is the initial removal. This has significant ethical implications which need to be addressed and discussed communally; for instance, the justice implications noted above. If reproductive autonomy is to be primary and extended, then is it unethical for it only to be available to those with means? Moreover, if in practice reproductive autonomy is regarded as primary (at least for those who can afford it) then would it be more honest, and more ethical, to recognise that the best interests of the child is not taken into account in any real sense? The second assumption in this case which has social relevance is that it assumes that genetic relatedness is highly significant: that Stephen Blood will be a ‘father’ by virtue of providing gametes. This runs counter to social models of parenting; something which is arguably true of all reproductive technologies.8 The point is not that this is right or wrong, but a recognition that judgments such as this are highly normative and impact on shared social norms.

V. Conclusion In conclusion, while the judges’ role was to determine whether the Authority acted lawfully, rationally, and reasonably in the application of its powers to the circumstances of the application, the ethicists’ role must be more: To look beyond the law, and to question the assumptions which underlie legal claims and principles and to consider and critique the normative claims judgments imply. In the Blood case there are no easy answers, but to be ethical it is important to consider the ethical assumptions and implications as well as procedural issues. 8  H Widdows, ‘The Impact of New Reproductive Technologies on Concepts of Genetic Relatedness and Non-Relatedness’ in H Widdows, IA Idiakez and AE Cirión (eds), Women’s Reproductive Rights (London, Palgrave, 2006) 151–64.

Bolitho v Hackney Health Authority [1998] AC 232 Facts The appellants were the parents of a two-year-old child who had been admitted to the respondent’s hospital with breathing difficulties. Following admission, the child suffered two episodes of acute respiratory distress. During both episodes nursing staff telephoned the doctor and on both occasions the doctor did not attend. A short time after the second episode, the child’s respiratory system failed and he suffered a cardiac arrest, leaving him severely brain damaged. The appellants brought an action in negligence, arguing that the doctor’s failure to attend to their son after the second episode of respiratory distress and accordingly arranging prophylactic intubation caused his cardiac arrest and resulting brain injury. The judge found that although the doctor had been in breach of duty by failing to attend when called by nursing staff, she would not have intubated had she attended and that the decision not to intubate met the test laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. As such, on the facts, causation could not be made out. The Court of Appeal affirmed the decision of the judge, so the parents brought their appeal before the House of Lords.

Outcome (House of Lords): Appeal Dismissed The Court decided that, although the Bolam test would not usually apply to issues of causation, the judge had been right to apply that test in this case. Where a case concerned a breach of duty flowing from a failure to perform an act that ought to have been performed, in determining whether such a failure was negligent and therefore whether the consequent injuries could have been avoided, the Bolam test should be applied. In applying Bolam, the Court held that the judge must be satisfied that those medical experts offering the opinion of a responsible body of medical men could demonstrate that the opinion offered was able to withstand logical analysis. In rare cases, where such a demonstration could not be provided, the Court would be entitled to reject the opinion of medical experts. In the instant case however, the Court was satisfied that the judge had not erred in accepting the evidence of the defendant’s expert in applying the Bolam test and as such it could not be said that the defendant caused the child’s injuries.

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Judicial Makeup Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Clyde. Appellate History Court of Appeal (Civil Division); 15 December 1992 Bolitho (Deceased) v City and Hackney HA [1993] PIQR P334; [1993] 4 Med LR 381. Keywords causation, medical experts, negligence, expert opinion.

Judgment 1—Bolitho v Hackney Health Authority [1998] AC 232 LORD MONTGOMERY OF BOTLEY (JONATHAN MONTGOMERY) [1] This case raises issues of clinical judgment and moral integrity that lie at the very foundations of medical malpractice law. Medicine is a calling that requires knowledge, skill and judgement. Doctors must be scientists applying their expertise in the interests of their patients within a centuries-old ethical tradition and thus must possess moral integrity. On this combination of scientific expertise and ethical orientation, a social contract is built that offers the medical profession a privileged position in our society in return for the care that it provides. [2] These privileges manifest themselves in the law in many ways. Doctors are entrusted with the power to dispense with criminal sanctions in relation to the use of powerful drugs; prescription-only medicines can be deployed only under medical authorisation. Even the law of murder has adapted to accommodate the challenges of medical practice, acknowledging that it cannot be acceptable that following proper professional practice should place doctors at risk of prosecution (see R v Adams [1957] Crim LR 365 and R v Arthur (1981) BMLR 1). With this great power comes great responsibility. [3] Some see the Bolam test as over-lenient to doctors. It was formulated by McNair J in the following terms: [A doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. Bolam v Friern Hospital Management Committee [1957] 1 All ER 118, 121.

In the leading case of Sidaway v Board of Governors of Bethlem Royal Hospital, Lord Scarman said, ‘The implications of this view of the law are disturbing. It leaves the determination of a legal duty to the judgment of doctors’ [1985] 1 All ER 643, 649. Yet, that great judge applied the very same test of negligence on behalf of the House of Lords in Maynard v West Midlands AHA [1985] 1 All ER 635. [4] It is beyond any serious contention that the Bolam test provides the sound foundation of clinical negligence. This House made that clear in Whitehouse v Jordan [1981] 1 All ER 267. Indeed, this House has endorsed the use of the same test in every case that has come before it concerning the exercise of medical professional judgement including cases not based in negligence and even those concerning the duty to sustain life (Airedale NHS Trust v Bland [1993] AC 789).

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[5] Their Lordships’ reasoning in Re F [1989] 2 All ER 545 provides an important guide to the rationale behind English law’s approach. They were presented with a situation in which it was suggested that two fundamental values were in tension; the right to physical integrity (protected by the doctrines of assault and battery, with the doctor’s liability waived by the patient’s consent) and the right to proper care (enforced via actions in negligence for malpractice). Lord Bridge reasoned that it would be wrong to place doctors in a position where they would be judged differently depending on the cause of action pleaded by the plaintiff [548–49]. There needs to be a single standard, to enable the doctors to be free to deliver the care that the patient requires. That standard is captured in the Bolam test. [6] The most fundamental purpose of the law is to facilitate the delivery of the medical care that patients need. The legal duty of a doctor is to apply their professional skills to do good for their patients, usually described in the bioethical literature as a duty of beneficence. Lord Templeman captured this in Sidaway when he pointed out that the duty to have regard to the patient’s best interests overrode any putative obligation to inform patients about everything that was known about a treatment [665–66]. Lord Scarman also recognised that where there is a clear clash between informing patients and protecting them, then the obligation to protect prevails over the duty to inform. That is the function of the ‘therapeutic privilege’ that would be required if a reasonable patient test was used to define the obligation to disclose information [654]. [7] This facilitative purpose lies behind the law’s jealous protection of clinical freedom. This has sometimes been understood as a principle that serves to insulate doctors from external scrutiny, but this is a fundamental misconception of both the workings of the law and its rationale. Clinical freedom is not a matter of the absence of external control, but of the promotion of conditions in which medicine can flourish. It is only because these conditions are in place that the law can apply more onerous standards to those of a professional calling than could be expected of a reasonable traveller on the Clapham omnibus. [8] The defence that an ordinary citizen might make that they did all that could be expected of them cannot protect someone of professional standing. For professionals, it is not enough to meet the standards of an ordinary reasonable person. They must meet the extraordinary and more exacting standards of professional practice (see Whitehouse 277 [Edmund-Davies], Gold v Haringey HA [1988] QB 481, 489–90 [Lloyd LJ]). [9] It would be quite unfair to hold professionals to such standards if the law did not also work to ensure that they were in a position to provide the care that their calling requires of them. Thus, in Thake v Maurice [1986] QB 644, the Court resisted the seductive temptation of an argument that a contractual term could warrant success, holding that it was not compatible with the uncertain nature of medical practice. A similar point was made about liability in negligence by Lord Denning in the Court of Appeal in Whitehouse and expressly approved by Lord Fraser in the House of Lords; ‘if they are to be found liable whenever they do

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not effect a cure, or whenever anything untoward happens, it would do a great disservice to the profession’ [1980] 1 All ER 650, 658; approved [1981] 1 All ER 267, 281. [10] Thus, the law protects clinical freedom, in all its scientific and moral richness, because that provides the bedrock on which the benefits medicine can give patients is built. For the law to require a doctor to treat patients in a way that was inconsistent with their clinical judgement or conscience would be a betrayal of the great promise of medicine, not its fulfilment. It would also be an ‘abuse’ of judicial power, ‘requiring the practitioner to act contrary to the fundamental duty which he owes to his patient’ (Re J [1992] 4 All ER 614, 622 [Lord Donaldson]). [11] The respect for clinical judgement leads the law to expect the highest standards of integrity from members of the medical professional. It is regard for this integrity that prevents due respect collapsing into mere deference, something that the law cannot permit. This is a case about the exercise of professional judgement, but it should always be remembered that judgement is a complicated process. There is a factual component and the forensic process must seek first to determine how the question appeared to the doctor. It would be unfair to judge doctors on the basis of what turned out to be the case, rather than what was apparent to them at the time. It is their judgement that is being assessed. There is, however, always a risk of self-serving testimony; both claimants and professionals may believe that the facts were as they wished them to be. This is a matter on which it is quite proper for the court to settle disputes of fact in the usual way, evaluating the reliability of witnesses and examining the evidence presented. Judgement is also about the application of knowledge. Here, professionals can expect respect for their judgements provided they are exercised in good faith and with integrity. [12] The facts in the case before this House have been summarised succinctly by my learned friend Lord Browne-Wilkinson. Suffice it to say that the case turns on two key issues about clinical judgements made by Dr Horn. We must first consider whether the failure of Dr Horn to attend Patrick (or arrange for someone else to do so) was negligent. Second, whether Dr Horn was entitled to rely on the fact that she would not have intubated Patrick had she in fact attended? Only intubation would have saved Patrick’s life, so other issues have now become immaterial to the disposition of the case. [13] In essence, we must ask whether Dr Horn acted with integrity as a responsible professional. This is a two-stage test, examining firstly her personal integrity, and secondly her position as a responsible professional. The first stage is often obscured in reported litigation, but is brought into sharp relief by this case. In this case, the two questions fall to be resolved by applying very different legal tests. Dr Horn could not resist a finding of negligence against her in respect of not attending Patrick, because she had in fact decided that it was her professional duty to do so. She had told Sister Sallabank that she would attend ‘as soon as ­possible’ [236]. There is no issue here about professional standards, expert evidence or the Bolam test. The matter concerned her personal integrity. Having exercised her

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professional judgement, she had defined the standard of care that applied to her and failed to meet it. [14] No doubt, this occurs in numerous cases that are never reported because they are settled out of court. If a defendant admits they are at fault, liability may follow even if a defence might be available. Thus, in Smith v Tunbridge Wells Health Authority [1994] 5 Med LR 334, the doctor’s acceptance that it was necessary to warn the young, sexually active male patient of a risk of impotence established breach of the standard of care despite a contemporary school of thought, including a leading textbook, which would not have regarded such a warning as necessary. The doctor could not in such circumstances claim with integrity the protection of the Maynard principle that judges should not choose between schools of thought. In this case, Dr Horn could not have asserted with integrity that she need not have attended Patrick. It is to her employer’s credit that it did not require her to make any such claim once the Court have made its finding on the evidence that she had in fact decided to attend. [15] We turn, therefore to the second problem. The judge found as a fact that even if she had attended Patrick, as she had intended, Dr Horn would not have arranged for him to be intubated. This was her honest opinion. She was fully entitled to assert it without compromising her personal integrity. Things would be different had she considered intubation appropriate. In such circumstances, it would be immaterial that others might have thought differently. To allow her to defend the claim on the basis that others might have done differently would be to undermine the expectation that society, and the law, have that professional ethics requires doctors to act with integrity. A doctor without integrity has breached the social contract that provides the context for the standard of care in negligence. [16] This is not a novel concept. The law has long been familiar with the idea that people must act with integrity in relation to legal rights. It lies behind the two traditional maxims of equity; that ‘one who comes to equity must come with clear hands’ so that equity will not allow someone to take advantage of their own wrong, and that equity will not allow a statute to be used as the instrument of fraud. Both these maxims recognise that an argument can be valid in the abstract, but be unavailable to someone in a specific case because of their conduct. The equitable doctrine of estoppel is another example of this line of thought; those who indicate that they will not exercise their legal rights in such a way as to induce reliance by another are not permitted to renege on that representation even though the legal right remains fundamentally sound. [17] This point has rarely been articulated in the medical cases, but its presence can be traced. In Re T [1997] 1 All ER 193, the Court of Appeal took the unusual step of endorsing a mother’s decision that a liver transplant was not in her son’s best interests despite the clinical team’s contrary assertion. Amongst the features of the case was the fact that the hospital had previously stated that the operation would only be appropriate with the full support of a child’s family. The change of position on this point undermined their claim to be making a decision with

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i­ntegrity. In contrast, Diane Blood was permitted to take advantage of the legal wrong of taking sperm without consent or justification from her dying husband (R v Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 All ER 687). The law’s expectation of moral integrity from professionals does not extend to lay people experiencing personal tragedy. [18] If that were the end of the story, then Dr Horn’s personal integrity means that the Health Authority would not be vicariously liable for Patrick’s death. However, we must also consider whether her professional integrity permits her to rely on her judgement that intubation was unnecessary. This is where the Bolam test falls to be considered. Were the judgements that she made professionally acceptable in the sense that a responsible body of opinion would have regarded them as proper? A professional cannot, with integrity, claim respect for a specific clinical judgement that would not be supported by colleagues. That would be closer to an immunity from suit than the promotion of clinical freedom in the wider interests of the patient. [19] The case law illustrates a number of ways in which expert opinion and practice may fall short of the requirement of integrity. Expert evidence may be influenced by ‘the exigencies of litigation’, in which case it would become ‘selfdefeating’ as no professional could present it, or seek to rely on it, with integrity (see Whitehouse [276] (Lord Wilberforce)). Lord Bridge developed this theme most eloquently, saying that interpreting a defence witness’ report as the trial judge had done implied that it was ‘a dishonest attempt to whitewash a subordinate’ and would reveal the author as ‘not only a knave but also a fool’ [287]. This was not the case and the judge’s finding could not stand. If such a lack of integrity had been displayed, the Court would have been amply justified in disregarding the evidence, however eminent the witness. This will be no less true if the fault lies with lawyers. In the Court of Appeal in Whitehouse, Lord Denning MR noted their pernicious tendency to undermine the integrity of medical experts by ‘settling’ their evidence: ‘A striking instance is the way in which Professor Tizard’s report was ‘doctored’. The lawyers blacked out a couple of lines in which he agreed with Professor Strang that there was no negligence’ ([1980] 1 All ER 650, 655). It would be tragic if the moral integrity of medicine was degraded by its contact with the less altruistic values of the legal profession. [20] Turning to issues of professional practice, it seems clear that no doctor could rely on fear of litigation as an excuse for an unnecessary test that caused the patient harm or for being so risk-averse as to avoid modern treatment (a position described as ‘defensive medicine with a vengeance’ by Lord Diplock in Sidaway [657], see also Lord Scarman [653]). That would lack professional integrity because it would depart from the ethical orientation to patient welfare. [21] These examples show that the court should take care to understand the basis on which health professionals assert that a decision was made in the exercise of clinical judgement. It would only be human for professionals to succumb to the desire to protect themselves, but if their actions are ‘only human’, rather

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than ‘professional’—by which we mean taken with integrity in the exercise of professional judgement, then they are not entitled to the special respect that professional judgements are due. Judgements that fail to ‘withstand logical analysis’, as Lord Browne-Wilkinson puts it in his speech, have not been shown by defendants to be taken with integrity in this sense. [22] However, with respect, I would depart slightly from his formulation in that it is not, in my view, a matter of whether a professional opinion is ‘capable of being logically supported’ (emphasis added) but whether it has in fact been properly supported. Lord Browne-Wilkinson’s assertion concentrates on the logic of the argument, but the issue is the integrity of the professional. Not all logical arguments can be asserted with integrity, as has already been noted. By concentrating on the evidence of experts, rather than the case made by the defendant, Lord Browne-Wilkinson removes the spotlight from the doctor. [23] Nevertheless, in the case before us, this subtle difference is immaterial. The evidence shows that Dr Horn could properly say with personal integrity that she would not have intubated. She could also assert her professional integrity in this decision by showing that her genuine judgement would have been within the range of decisions that might properly have been made. There will be circumstances in which a decision supported by experts would be acceptable if taken by them, but negligent on the part of a particular defendant whose integrity commits them to a different view (see Smith v Tunbridge Wells HA, above) or whose reason for reaching a judgement was based on extraneous factors (such as protecting themselves rather than the patient, see the dicta in Sidaway). However, this is not such a case. [24] In conclusion, therefore, the plaintiff cannot show that the failure to intubate Patrick Bolitho was negligent. It did not exceed the scope of professional judgement. Nor has it been shown that Dr Horn, the professional in question, failed to act with integrity. Along with Lords Slynn of Hadley, Nolan, Hoffman, Clyde, and Miola, I agree, therefore with Lord Browne Wilkinson that the appeal should be dismissed. I have added this lengthy alternative only because it may be in subsequent cases that the differences between approaches that we have taken will be significant.

Judgment 2—Bolitho v Hackney Health Authority [1998] AC 232 LORD MIOLA OF SOUTH LEICESTER (JOSÉ MIOLA) [1] My Lords, the facts of this case are set out above and I therefore see no need to rehearse them here. This appeal raises important points of principle that require clarification and it is first necessary to set out the legal parameters in order to identify and examine them. The technical point of this case relates to causation. It is accepted by this Court that Dr Horn should have attended Patrick Bolitho, and that not to have done so constituted a breach of her duty of care. However, the appeal to this House relates to the question of how to deal with the fact that Dr Horn has said that, even if she had attended the patient during one of the two initial episodes, she would not have intubated him. This is despite her accepting the fact that, had Patrick Bolitho been intubated after the second episode, the third episode would not have occurred. [2] As the Court of Appeal noted, the answer to this question must depend on whether this lack of intubation would itself have been reasonable conduct by Dr Horn. Were it to be unreasonable, then this would be no defence—since Dr Horn’s argument would essentially be that even had she not breached her duty by not attending, there was no causation as she would have breached her duty by not intubating later in the proceedings. This, for obvious reasons, cannot be accepted. If it would have been reasonable not to intubate, however, then the plaintiff would have failed to demonstrate that the breach of duty caused the harm and the case against Dr Horn must fail. [3] The key, therefore, is whether we can accept as reasonable conduct Dr Horn’s evidence that she would not have intubated Patrick. This task is complicated by the fact that both sides presented experts, eight in total, who testified on their behalf. The judge at first instance was particularly impressed by two—one from each side—who were experts in respiratory medicine. The judge found that given that the evidence of both sides was reasonable, the plaintiff had failed to prove that Dr Horn’s assertion lacked reasonableness and found against the plaintiff. The Court of Appeal, in a majority judgment, agreed. [4] This leads us to two wider questions at the heart of the appeal to this House: is it open to the court to reject evidence on the part of the defendant and find for the plaintiff? If so, on what basis might this be done? The answer to the first question is particularly critical to the claimant, for without the court’s ability to reject medical

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evidence his case necessarily fails, given the existence of expert evidence presented on behalf of the defendant. [5] The answer to the question of whether the court should be able to reject evidence at all also has far reaching implications for the whole of medical law. Indeed, the issue raises further fundamental issues relating to the limits of medical competence and how much the profession should be left to set its own standards unencumbered by judicial oversight. Whether the law allows this is a matter of some disagreement, as noted by the Court of Appeal in this case. There are seemingly contradictory approaches taken by the courts. Thus in Maynard v West Midlands Area Health Authority [1984] 1 WLR 634 it would seem that this House was of the view that it is not permissible for a judge to reject expert evidence. Lord Scarman referred at page 639 to a judge who had preferred the honest evidence of the plaintiff ’s expert to that of the defendant’s as having ‘erred in law’. Indeed, in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 his Lordship was to make the same point abundantly clear at page 881 when he said that in matters of negligence the standard of care is a question of medical judgement and is thus set by the profession itself. However, in cases such as Hucks v Cole [1993] 4 Med LR 393 (decided in 1968) as the Court of Appeal noted in this case, the Court took a different view and was prepared to find for the plaintiff despite the existence of medical evidence on behalf of the defendant. Equally, in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, a case relied upon by all of those listed here, the judge clearly allowed the jury the option of rejecting the defendant’ evidence when he directed them that: [I]t is not essential for you to decide which of two practices is the better practice … but if the result of the evidence is that you are satisfied that this practice is better than the practice spoken of on the other side, then it is a stronger case [588].

[6] This difference of opinion needs to be addressed and resolved. This is not least due to the fact that, given the importance of medical evidence to medical law, it is vital that there are clear and equitable rules relating to how it is treated by the courts. The starting point must be the limits of medical expertise. In other words, while we must recognise that there are large elements of medical practice that rely on medical expertise, it is also true that there are areas where doctors may not claim unique or enhanced competence. Lord Scarman himself identifies that this is the case in Sidaway, a case concerning the disclosure of risk, when he determined that as the issue of how much information to disclose was ethical rather than technical in nature, it should not fall on the doctors to decide. [7] However, the test of reasonableness, determined by expert evidence (what has become known as the Bolam test), has strayed far beyond matters of technical medical skill. Since 1985, this House has used the test to determine the issue of risk disclosure in Sidaway (where Lord Scarman was in a minority of one in rejecting the use of Bolam), whether to sterilise an adult with learning disabilities (F v West Berkshire Health Authority [1990] 2 AC 1), and even whether to remove life sustaining treatment from a patient in a persistent vegetative state

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(Airdale NHS Trust v Bland [1993] AC 789). Clearly, these are not issues where medical practitioners are uniquely qualified to make decisions. Indeed, it is arguable that it is vital that the courts become involved to at least provide oversight of decisions. This creeping expansion of what is labelled a ‘medical’ decision has been criticised by writers such as Professors Ian Kennedy (‘What Is a ‘Medical’ Decision?’ in I Kennedy, Treat Me Right: Essays on Medical Law and Ethics (Oxford, Oxford University Press, 1990)) and Thomas Szasz, who has argued that the medical profession’s influence is such that it can be seen to exert a form of social control (T Szasz, The Theology of Medicine (Oxford, Oxford University Press, 1979)). In these issues, it is vital that the courts reassert our right to involvement in decisionmaking. The Law Commission’s report on mental incapacity (Law Commission, Mental Incapacity (Law Com 231, 1995)) takes this view and an application of the principles suggested there would have made a difference in the cases of Bland and F v West Berkshire amongst others. [8] The case before us now, however, is of a different order. The decision regarding intubation is technical in nature, and it is right that we are more careful about allowing judges with little or no medical training to be the ultimate arbiters in decisions that they have no experience and perhaps little understanding of. The question thus becomes: should judges have the power to evaluate that sort of evidence. As I have already mentioned, it would seem to me that the legal authorities are split. Nevertheless, I am persuaded by an argument by Professor Harvey Teff (H Teff, Reasonable Care (Oxford, Oxford University Press, 1994)), whose view is that the medical profession has too often misconstrued judicial involvement for interference. His view is that this is borne out of being too used to being treated differently to other professions, and that such an approach is ‘doctrinally and historically unsound’ (xxix). He instead proposes that patients’ rights can only be protected, and a therapeutic alliance formed between doctor and patient, if the law is allowed to intervene. Since then attitudes have, if anything, hardened towards a view that it is simply inconceivable that there be no judicial oversight of medical practitioners’ decisions. I agree. However, I do so with a significant proviso, and that is that judges must think carefully before rejecting expert evidence adduced by the defendant. Nevertheless, this is an issue regarding how the courts should intervene, rather than whether we may do so. On the latter point, I side with Hucks v Cole and, indeed, Bolam itself, in saying that the courts must be allowed oversight of medical decision-making. This must necessarily involve a process that evaluates rather than merely confirms the existence of the evidence. [9] Having therefore answered the first of the questions of principle in the case in the affirmative, I now turn to the second: how a court should, if it is minded to do so, approach the rejection of expert evidence. This is a difficult issue, particularly in a case such as this that does involve the application of technical medical skill. The two options that present themselves are either that a judge is entitled to express a preference and choose what evidence she likes best, or that she may only

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reject evidence that is patently ridiculous (in a way similar to the Wednesbury case that I discuss below). I shall consider each in turn. [10] In legal terms, it has long been assumed that a judge may not reject medical evidence presented by experts for the defendant merely due to that fact that she might ‘prefer’ that given by those for the claimant. This is the view taken in very explicit terms by Lord Scarman in Maynard when, as I described above in paragraph [5], he held that a judge engaging in this practice would have ‘erred in law’. However, with respect to Lord Scarman, I am not sure that this is entirely consistent with the judgment on McNair J in Bolam. Again, the key passage is the one that I quoted in paragraph [5] of this judgment. It strikes me that what the judge is doing in that passage is openly giving the jury precisely the opportunity to express a preference that Lord Scarman disapproves of. The threshold is not high—McNair J tells the jury that they may choose whichever evidence that they feel presents a ‘stronger case’. Thus I am of the view that, if I were to choose the ‘preference’ option, I would not be undermining established precedent, including Bolam itself. [11] The question then becomes one of whether this would be a fair method of assessing a doctor’s conduct, and I am not sure that it is. One of the most fundamental principles of justice is that the law and its application should be clear and transparent. We should all be able to know what the law is and, in particular, how we must act in order not to fall foul of it. The principle objection to the ‘preference’ option, in my view, is that doctors would find it difficult to know whether each of their treatment decisions would be consistent with their legal duty of care. It might be argued by medical practitioners—and with good reason—that judges and juries choosing what evidence they liked would make legal liability more of a lottery than a fair system of accountability. [12] Conversely, we must be careful not to overly constrain the judiciary by making the threshold for intervention too high. It should be remembered that the law functions to compensate patients from harm, not to protect doctors from litigation. While, of course, I do not wish to impose liability lightly, as Professor Kennedy has argued, the law has too often taken the side of doctors over that of patients, and this has to stop (see Treat Me Right: Essays in Medical Law and Ethics). Moreover, it is absolutely correct, as I have held above, that the law acts in such a way as to be more than a mere rubber stamp to medical practice. This will and must involve some analysis of the merits of the evidence presented, and preference expressed on some level. [13] Nevertheless, it is also true that such an analysis is difficult by judges and juries with little or no medical background. While this does not stop the courts analysing evidence relating to other professions, it is right that we be cautious. This is particularly true given that the real treatment of real patients may consist of a series of decisions being made where there is no consensus within the profession. The alternative model for judicial intervention, then, remains that based on the Wednesbury principles. These state that it is only open to a judge or jury to reject

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the practice of a profession or part of it (as determined by the expert evidence) if it is ‘so absurd that no sensible person could ever dream that it lay within the powers of the authority’ (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 229). This is the standard set by the majority of the Court of Appeal in this case. [14] Again, I would respectfully disagree to some extent. The advantage of the approach lies in the amount of certainty that it provides to medical professionals. There is oversight, but it is very much in ‘light touch’ form and doctors can be as certain as they can be that following the established procedures and treatments will not result in successful litigation against them. Yet herein also lies its disadvantage: it presupposes that merely following established practice should be enough to avoid liability. I am unconvinced that this should be the case, for the reasons that I outlined above regarding whether judicial intervention should be allowed at all. However, I recognise that the balance between what patients should be entitled to, the role of the courts in providing oversight and the right of doctors to have a transparent standard of care applied to them is a difficult one to achieve equitably. Indeed, it may well be that it is impossible. [15] For this reason, I would favour an approach that makes a distinction between matters of technical medical skill and those that relate to matters of a more ethical nature. In matters of technical skill, it is right that such a specialised profession— and one that is continuously innovating and developing—is afforded as much transparency and certainty as possible, short of what would be an abrogation of responsibility by the courts. Thus in such cases the court must reserve the right to intervene where there is disagreement in the expert evidence over the reasonableness of the defendant’s conduct. However, it should only make such a decision under the Wednesbury criteria (I know that I have previously expressed a different view extrajudicially). In theory, this would also make it possible for the court to declare unreasonable the universally accepted standard of the profession, but I envisage such a situation to be absolutely exceptional if it ever were to materialise. [16] For issues that do not relate to technical medical skill—and here I refer to issues where Bolam’s ambit has been expanded into such as risk disclosure and best interests—the threshold for intervention should not be so high. This is because there is no unique competence to decide the issue on the part of the medical profession, and it is right that a higher level of judicial oversight is applied. Moreover such issues, which involve the question of ‘whether’ to do something rather than ‘how’ it is done, involve fundamental issues regarding the rights of patients and should therefore necessarily be determined as much by the law as the protector of the interests of the patient as the medical profession. The necessity for oversight in non-technical decision-making would be both fully consistent with the majority of this House’s decision in Sidaway, as well as mitigating against many of the factors warned against by Professors Kennedy, Szasz and Teff. [17] Nevertheless, I am not sure that it would be fair to medical professionals for such issues to be decided on the basis of mere ‘preference’. The lack of natural

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justice inherent in, for example, a court declaring that a risk that would not be warned of by the vast majority of the medical profession merely because the judge prefers the evidence of someone who takes the minority view, is an obvious danger. To my mind, there has to be some greater failing than that, but I would not go as far, in this regard, as to require Wednesbury unreasonableness. Rather, I would suggest something in between. The important aspect would be for the court to be satisfied that the plaintiff ’s expert’s approach was substantially preferable to that of the defendant’s, which must equally impact adversely on the patient’s autonomy without justification. In other words, the judge would have to demonstrate a specific reason contained within the evidence of the plaintiff ’s expert that allows the judge to decide that it is appropriate to prefer that. This will involve an analysis of the evidence itself rather than who is presenting it or, indeed, how it is presented. This threshold is high, and deliberately so—I would imagine that such a course of action would be used sparingly by a judge. [18] In this case, the matter is technical, and the Wednesbury criteria should therefore be applied. I agree with the decision of the Court of Appeal in this case that the respected experts on each side have presented compelling evidence. On that basis, I can only conclude that Dr Horn acted reasonably and must dismiss the appeal.

Legal Commentary—Bolitho: Expertise, Law and Medicine NICKY PRIAULX, MARTIN WEINEL AND CHRIS GOLDSWORTHY

I. Introduction Central to the judgments offered by Lords Browne-Wilkinson, Montgomery and Miola is an aspiration for legal policy to promote a series of values which ultimately operate to our benefit as recipients of healthcare. As the judgments and broader scholarship reflects, the question of what the judge should do when presented with competing clinical evidence in respect of alleged negligence generates divergent responses. Some regarded Bolitho as an opportunity for law to assert its proper role in setting standards, rather than rubber stamping doctors’ p ­ erformance.1 By contrast, there is a fear that strong intervention could introduce great uncertainty as to how medical practice is governed. Alive to these concerns, their Lordships are united in holding that in matters concerning diagnosis and treatment, a high level of judicial restraint is necessary. Beyond this general principle, we have less clarity; their Lordships pursue slightly different paths. At the centre of this case is the notion of expertise which speaks not only to the scope of clinical expertise, but also legal expertise in assessing the legitimate scope of judicial evaluation. Informed by the studies of expertise and experience, we argue that Lord Miola’s judgment proves to be consistent with a realistic account of expertise and restores Bolam2 to its appropriate limits. Respect for expertise, as well as the need to provide certainty, forms the foundation of the legal rule that in the face of competing medical evidence, judges should show restraint before disregarding one set of accounts in favour of another. There are good reasons why that should be so. The medical sciences include a wide range of specialisms often speaking of matters that clinical actors gain deep understanding of through lengthy immersion in a field. Questions relating to how medicine ought to be practiced are rarely capable of resolution by resort to ‘common sense’. We should on such matters, which are essentially about life and death, prefer to

1  2 

Bolitho v City and Hackney Health Authority [1997] 4 All ER 771. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

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speak to individuals ‘who know what they are talking about’.3 Affording scope for competing schools of thought encourages medical and technological innovation and avoiding a litigation system which encourages defensive medical practices are both factors that operate to our social advantage. As Lord Montgomery highlights, ‘this facilitative purpose lies behind the law’s jealous protection of clinical freedom’ [7].

II. Deference The effect of Bolam is to instil in law deference to medical opinion. Central to Bolitho is the appropriate scope of deference: in what circumstances should or could a judge be prepared to take a more interventionist stance? Here we might draw a distinction between deference and ‘excessive deference’, the points where trust in professional integrity to define standards is legitimate, and those where it is not.4 Nevertheless, the distinction between the two has at times been lost so that ‘deference’ became a dirty word; within such accounts, patients’ rights have been sacrificed through the failure of law to exert its authority over clinical professionals. Highlighting Whitehouse v Jordan5 as an example of a ‘hands-off ’ approach, a case in which the House of Lords held that misuse of forceps causing injury to the claimant did not depart from generally accepted standards of medical practice, Conaghan and Mansell6 criticise the wide margin of error afforded to the medical professions, which has produced ‘results whereby many severely injured patients go uncompensated’. They argue that the tendency to defer rather than offer serious scrutiny, [H]as been legally enshrined in the so-called Bolam rule… [so] that where there is a conflict of opinion between medical experts as to what constitutes a preferred practice, it is not open to the judge to choose one practice over another and on that basis hold the defendant negligent… This seems a very strange position to take towards professional negligence. Where a practice has obviously harmful consequences to patients, and where such consequences can easily be avoided (for example, by giving the patient a warning of the risks…), it is surely unreasonable not to seek to avoid those consequences. Moreover, just because a practice is common, does not make it reasonable. Yet the Bolam rule goes some way towards saying exactly that.7

3 

H Collins and R Evans, Rethinking Expertise (Chicago, Chicago Press, 2007) 2. Right Honourable Lord Woolf, ‘Are the Courts Excessively Deferential to the Medical ­Profession?’ (2001) 9 Medical Law Review 1–16. 5  Whitehouse v Jordan [1981] 1 All ER 267. 6  J Conaghan and W Mansell, The Wrongs of Tort (London, Pluto Press, 1999) 57. 7  Ibid at 57–58. 4 The

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III.  Boundaries of Expertise: Separating the Technical from the Social The above quote fuses matters which some of their Lordships artfully separated out: issues relating to technical skill as distinct from cases of risk disclosure which possess a socio-ethical character. Here we see significant differences between the judges; Lord Montgomery draws no distinction between such cases, instead pitching for a ‘single standard, to enable the doctors to be free to deliver the care that the patient requires. That standard is captured in the Bolam test’ [5]. Lord Miola argues that because cases of risk disclosure hold a social character, the threshold for judicial intervention should not be as high as in matters of technical skill; the judge needs only to be ‘satisfied that the plaintiff ’s expert’s approach was substantially preferable to that of the defendant’s, which must equally impact adversely on the patient’s autonomy without justification’ [17]. The courts’ approach to risk disclosure certainly underpins a peculiar extension of Bolam,8 remarkably, the kind of case Lord Browne-Wilkinson excluded from the remit of Bolitho. It has never been evident that risk disclosure is a ‘technical’ matter even if some skills are required for communicating risk. The extension of Bolam to such cases is an example of technocratic decision-making which has worked vastly against the interests of patients and where judges have acted with excessive deference.9 But these kinds of cases do not disrupt the validity of Bolam as a standard for evaluating fault in the technical matters. We should be careful before stepping in the complete opposite direction.

IV.  Rejecting or Trusting Expertise? The invitation to more closely scrutinise experts might seem more attractive when we examine the black box of expertise. Experts are fallible as cases involving seismologists, meteorologists or economists failing respectively to predict earthquakes, hurricanes or a global market collapse show. Not all experts exhibit the professional integrity that Lord Montgomery alludes to as a critical feature of what law expects, as demonstrated by Andrew Wakefield’s assertions about a link between MMR and autism. Nor does science move in the smooth direction we might expect; there is contestation, disagreement and on closer inspection what 8 

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871. Significantly, however, while not disrupting its broader operation in matters pertaining to technical skill, the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11 has declared that the operation of the Bolam standard, as laid down in Sidaway, should no longer govern questions of fault in cases of risk disclosure. See further, J Montgomery and E Montgomery, ‘Montgomery on informed consent: an inexpert decision?’ (2016) 42(4) Journal of Medical Ethics 89–94. 9 

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occurs within the ‘technical realm’ can mask a range of human choices and political struggles. Rather than delivering truth and incontestable fact, science is a collective, provisional and probabilistic enterprise. Taken collectively, some might question whether we should be deferential at all. But we should, as Collins and Evans urge, deeply resist the urge to reject science in favour of doing our own thing. As they note, [T]hough science and technology do not touch the divine they are still the best way to distil human experience of an uncertain world … other things being equal, we ought to prefer the judgements of those ‘who know what they are talking about’.10

V.  Judging the Technical The failure to recognise appropriate boundaries in expertise has resulted in a series of spectacular failures, sometimes with devastating results.11 The obstacles that confront non-scientists attempting ‘Do-It-Yourself ’ evaluations of science are too numerous to note here, but they seem to us, insurmountable.12 Without deep understanding of the specific field, one’s insight into what is really going on will be extremely limited and misleading. A few randomly selected journals will not provide access to full scientific discourse, and actors will confront a barrage of logistical problems in evaluating that literature; from discerning what is reliable, identifying the relative importance of the literature to its acceptance within the scientific community. Not all science is equal, and not all science is good science. While concern about judges’ abilities to evaluate science and the credibility of witnesses or robustness of evidence has led some to advocate training to improve lawyers’ ‘scientific literacy’, that approach has limits. Providing legal personnel with the meta-expertise to better appreciate evidence, to distinguish between fact and opinion, or identify good questions to ask is desirable; however it cannot create the equilibrium between medical expertise and legal expertise. Given that expertise is acquired through active and continuous immersion in the community of relevant experts, in which techniques, theories, and ideas develop and change over time, this is a world of learning and practice that lies beyond the capacity of lawyers and judges. Experts become able by virtue of socialisation to identify ‘accepted practice’ in their respective fields, and to recognise the ‘hired gun’ or the maverick.

10 

Collins and Evans, Rethinking Expertise (n 3) 2. See further, M Weinel, ‘Primary Source Knowledge and Technical Decision-Making: Mbeki and the AZT Debate’ (2007) 38(4) Studies in History and Philosophy of Science 748–60. 12  N Priaulx and M Weinel, ‘Behaviour on a Beer Mat: Law, Interdisciplinarity and Expertise’ (2015) Fall, Journal of Law, Technology and Policy 361–91. 11 

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This leaves us stuck with what some are keen to avoid—the paradigm of deference to expert medical opinion as our guide as to what is reasonable, respectable and acceptable clinical practice. As Lord Montgomery highlights, though he extends his trust too far in cases of risk disclosure, we ultimately depend upon the professional integrity of individual doctors; this speaks to two evaluative issues— Dr Horn’s assertion of what she would have done, and what she should have done. We must hope that more often than not, clinical professionals including those providing evidence do so honestly and with integrity.

VI.  Rejecting Evidence The finding that the law should not micro-manage the standard of care in ­technical matters seems right. It would have spelled the kinds of problems that their ­Lordships addressed—introducing a lottery-like element into clinical negligence which causes great uncertainty as to what the law is, how ‘we must act in order not to fall foul of it’ (Lord Miola, [11]) and a ‘betrayal of the great promise of medicine, not its fulfilment’ (Lord Montgomery, [10]). That is not to say that judges can never disregard a body of evidence relating to technical matters. Bolam, as Lord Browne-Wilkinson noted, seemed to allow this possibility given the references to ‘a responsible body…’, ‘a standard of practice recognised as proper by a competent reasonable body of medical opinion’ [241]. Emphasising that this would only happen in rare cases, the threshold for intervention Lord Browne-Wilkinson considered, would be only where, ‘a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed’ [243]. Also speaking to technical matters, Lord Miola fashions a high threshold so that it would only be open to a judge ‘to reject the practice of a profession or part of it (as determined by the expert evidence) if it is “so absurd that no sensible person could ever dream that it lay within the powers of the authority”’ [13] despite arguing something different in an extra-judicial capacity.13 Perhaps the perspective from which one views this threshold (the judicial role of setting thresholds versus academic evaluation as to where others have set them) makes all the difference, but the shift to this particular threshold, from one which earlier questioned whether absurdity is an appropriate litmus for intervention by virtue of imposing an ‘impossibly high standard’,14 is intriguing. By contrast, Lord M ­ ontgomery modifies Lord Browne-Wilkinson’s­ articulation of the threshold from ‘whether a professional opinion is ­capable of being logically supported’ to ‘whether it has in fact been properly supported’ 13  M Brazier and J Miola, ‘Bye Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Medical Law Review 84–115, 105. 14  Ibid.

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[22] (our emphasis). This d ­ istinction strikes us as important. While criticism has been launched at the courts’ conflation of ‘truthful expert testimony with reasonable and responsible practice’, this distinction helps to guard against such a tendency.15 If Lord ­Montgomery is guided by trust, it is not trust that goes unchecked. What factors might then be constitutive of the absurd, the illogical, or lacking of proper support in fact? As Mellis suggests, objective errors in medical notes or where an expert witness has failed to appreciate their role in litigation constitute objective markers where a judge will find it easier to reject evidence.16 So too, might the failure to provide account on a critical question of what one would have done in the face of evidence weighing in favour of what one should have done, invite an adverse inference.17 In such instances, a judge might be prepared to disregard evidence on the grounds that it is contradictory, incomplete, or entirely absent.18 Beyond these examples, the question of when and on the basis of what, a judge might be entitled to disregard evidence gets trickier. At the time Bolitho was decided, judges were more reliant upon the experts appearing before them to evaluate the question as to whether appropriate standards had been met; but as shown by their judgments as to the presence of ‘impressive’, ‘distinguished’ or ‘convincing’ witnesses, judges might well have been swayed by factors fairly irrelevant to the task of establishing whether the defendant’s conduct mapped onto a respectable body of contemporary medical practice. Expert witnesses must be expected to clearly map the relevant approach as one which is objectively credible within the community of practice in question. The expectations of expert witnesses have dramatically changed since Bolitho. The Civil Procedure Rules entrench the expert’s duty to ‘help the court on the matters within their expertise’,19 and overrides obligations to those instructing or paying the expert. Expectations have been heightened with the removal of the expert’s legal immunity.20 We have also seen changes in the manner by which clinical risk is institutionally governed; the increase of evidence-based medicine and clinical guidelines being the most notable development.21 Guidelines, as a form of extrinsic evidence, are increasingly making their way into the courts. In Montgomery v Lanarkshire Health Board, the Supreme Court identified how the law had fallen perilously behind clinical practice in the field of risk disclosure, largely assisted by General Medical Council Guidelines.22 The availability of clinical guidelines has been seen as a potential game-changer by some; Brazier and Miola note how a

15 

J Beswick, A Brave New Bolam (University of Manchester, unpublished PhD, 2011) 39. A Mellis, ‘BD v The Royal Wolverhampton Hospitals NHS Trust’ (2015) 21 Clinical Risk 1–3. Wisniewski v Central Manchester Health Authority [1988] Lloyd’s Rep Med 223. 18  See eg Thornton v NIHE [2010] NIQB 4. 19  CPR, Part 35.3. 20  Jones v Kaney [2011] UKSC 13. 21  A Samanta, ‘The Role of Clinical Guidelines in Medical Negligence Litigation: A Shift From the Bolam Standard?’ (2006) 14 Medical Law Review 321–66. 22  Montgomery v Lanarkshire (n 2) [2015] UKSC 11, [77]–[79]. 16  17 

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judge ‘confronted by individual experts who disagree about good practice will in certain cases be able to refer to something approaching a “gold standard”, a form of extrinsic evidence “enabling him to assess the logic of the parties’ cases”’.23 While the introduction of guidelines must surely be welcomed, serious questions have been raised about their construction, purpose, quality, usability, inclusiveness and the presence of vested interests.24 Some are concerned about their impact on clinical practice in encouraging ‘algorithmic’ rule-following, and given the proliferation of guidelines, questioned the capacity of clinicians to consume and be guided by them.25 At a point when evidence-based guidelines are the subject of powerful critique within the clinical research community, we should be cautious before labelling them as close to constituting a ‘gold standard’ or as definitive of the standard of care itself. Nevertheless, guidelines could form a useful starting point for attempting to map expert evidence onto broader practice; an unsubstantiated departure from guidelines might usefully place a judge on alert as to the possibility that such evidence might be absurd, illogical, or lacking in proper support in fact.

VII. Conclusion Lord Miola’s judgment offers, in our view, the most sophisticated approach to the questions raised in Bolitho. His attention to context proves critical here; the distinction between technical expertise and matters of a social or moral nature informs a judgment that carefully aligns the issue of standard-setting with those best-situated by virtue of their skills and knowledge to help guide determinations of that sort. If his judgment is marked by deference—it is deference to a realistic account of expertise, rather than to any single status or category of individual such as the doctor, the patient or indeed, the judge. Context defines the voices that matter. Some will want judges to intervene in cases involving victims that have suffered serious harm. But no matter how far our sympathies are swayed, the law demands neither perfection in the delivery or outcome of clinical care. Clinical negligence is not about providing compensation to everyone irrespective of fault. This points to a broader question that has been insufficiently addressed in these discussions: what do we expect negligence to achieve? If the aspiration is for negligence to deter error, heighten clinical standards, address excesses of power and promote patient autonomy, we need to contemplate the extent to which it plays that role. This perhaps is the question that requires urgent and fundamental review. 23 

Brazier and Miola, ‘Bye Bye Bolam’ (n 13) 100. Greenhalgh, J Horwick, and N Maskrey, ‘Evidence-Based Medicine: A Movement in Crisis?’ (2014) 348 British Medical Journal 3725. 25  Ibid. 24  T

Ethical Commentary—Bolam, Bolitho and the Crisis of Legal Form JOHN HARRINGTON

I. Introduction Lords Miola and Montgomery both indicate that Bolitho is a landmark case with ‘far reaching implications for the whole of medical law’ and, thus, inviting review of the ‘very foundations’ of the field. They take this assignation seriously, reflecting on the nature of medical law as such and proposing a new basis for it. In this comment I seek to examine the manner in which each judge articulates the need for a re-foundation and the different legal resources which they deploy in meeting this challenge. I will argue that their judgments must be seen in the context of a decline in plausibility of the hitherto dominant Bolam test. This can in turn be linked to a more general crisis of legal form associated with the welfare state, of which medicine, practised under the auspices of the National Health Service, is a significant part. The argument here is premised on an understanding of the indeterminacy of legal reasoning, identified by critical legal scholars.1 On this view the ‘­correctness’ of any particular doctrinal figure is due to its acceptance and this, in turn, is a function of the rhetorical efforts to establish it as plausible with reference to the wider patterns of legal argumentation and broader political and social contexts. Such efforts establish sets of distinctions or the judgment of certain decision-makers­as places (or ‘black boxes’) to which the contingency of legal decision-making can be displaced and concealed.

II.  The Plausibility of Bolam: Rise and Fall By predicating negligence liability on conformity with the practice of a r­ esponsible body of practitioners, Bolam displaced the determination of negligence to the medical profession. With its extension to ethically controversial questions, such 1  See for example, AC Hutchinson, It’s All in the Game: A Non-Foundationalist Account of Law and Adjudication (Durham, North Carolina, Duke University Press, 2000).

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as the sterilisation of incompetent adults and disclosure of risk, this displacement became the central figure of medical law. Clinical judgement, informed by the practice(s) of the profession, would serve as a ‘black box’ absorbing the contingency of medical law.2 This was underwritten by resonant, common sense images of medicine as driven by a pluralistic contest of opinions, while also involving fine judgement and the application of tacit knowledge, and of the NHS as a protoutopian, national project.3 If Bolam had lost plausibility by the time of Bolitho, this was significantly due to increasing scepticism as to each of these images. However, the crisis was also provoked by powerful criticism directed at the legal form enshrined in the test for determining negligence and other medical issues. Put briefly, the deferral to medical opinion effected by Bolam was represented by critics as a deformation of law as such. Their proposals were accordingly directed at restoring true legal values in this area.

III.  Legal Form and the Welfare State The nature of this deformation and of the proposed restoration are suggested by broader critiques of law in the welfare state. Writers as diverse as Friedrich von Hayek and Juergen Habermas noted that the dramatic increase in state intervention in many areas of the economy and society over the course of the twentieth century had been enabled by the development of a distinctive legal order.4 The latter was defined in opposition to the classic nineteenth century liberal view of law as a unified system of abstract norms, applicable to formally equal legal subjects, whose determination in specific cases was ideally the subject of closed, deductive reasoning. By contrast, law in the welfare state was marked by open-ended tests which enabled the courts to promote concrete policy objectives through balancing the interests of specifically distinguished types of legal subject. Discrete new fields of law had emerged, such as labour law, more connected with the substantive goals and rationality of the relevant neighbouring social field than with the values of the legal system as a whole. Put in terms of the separation of powers, this represented a loss for the courts and a gain for the executive, understood broadly to include the medical profession as agents of the welfare state.5

2  See, J Harrington, ‘Of Paradox and Plausibility. The Dynamic of Change in Medical Law’(2014) 22 Medical Law Review 305. 3  See further, J Harrington, ‘“Elective Affinities” The Art of Medicine and the Common Law’ (2004) 55 Northern Ireland Legal Quarterly 259–76; J Harrington, ‘“Red in Tooth and Claw”. The Idea of Progress in Medicine and the Common Law’ (2002) 11 Social and Legal Studies 211–32. 4  FA Hayek, The Road to Serfdom (London, Routledge and Kegan Paul, 1944) 54ff; J Habermas, Between Facts and Norms (Cambridge, Massachusetts, MIT Press, 1996) 260. 5 Habermas, Between Facts and Norms (n 29) 190.

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Medical law under Bolam instantiated most of these features. Distinctions, between therapeutic and non-therapeutic procedures, or between disclosure and treatment malpractice, for example, were dismissed as being legally irrelevant. The field was substantially oriented to the concrete policy goal of promoting individual and public health. The Gillick guidelines on the lawful provision of contraceptive treatment to under 16s and the grounds for lawful termination in the Abortion Act 1967, for example, both carved out status-based exceptions to generally applicable criminal law.6 From a liberal perspective, then, Bolam threatened to dissolve law’s distinctive, formal identity into the rationality of medicine. As Sheila McLean argued, deference to clinical judgement produced only ‘uncertainty, inconsistency and confusion’ whereby ‘prejudices and emotional baggage … obscure principled assessment of the situation’.7 As Hayek emphasised, these developments also posed a grave threat to the freedom of citizens, a perspective taken up by early medical lawyers.8 The rights of patients, they claimed, would only be secured by a return to the liberal model of the rule of law. Larry Gostin’s critique of the Mental Health Act 1959 is a good example of this tendency.9 For Ian Kennedy too, ‘internal coherence and consistency of principle’ in law would be fundamental to the realisation of autonomy, dignity, and justice across medicine.10

IV.  Miola: Qualified Reformalisation The judgments of Miola and Montgomery respond in substantially different ways to the declining plausibility of Bolam. Miola aligns himself broadly with the (neo-) liberal approach outlined above, framing ‘Bolamisation’ in terms of an inappropriate derogation of sovereignty on the part of the law.11 He casts this in spatial terms, noting that the key issue is ‘the limits of medical expertise’ given that Bolam had led to ‘a creeping expansion of what is labelled a “medical decision”’. Power had been conceded over matters in which doctors had ‘no competence’. The law’s task then was to reclaim the territory lost to clinical discretion through ‘reasserting’ its right to scrutinise and be involved in medical practice. Miola’s jurisdictional move is matched by a return to authentically legal decision-making in place of the mere ‘rubber-stamping’ of medical opinion. This is

6  Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112; JC Smith, Justification and Excuse in the Criminal Law. Hamlyn Lectures 40th Series (London, Stevens, 1989) 64–68; S Sheldon, Beyond Control: Medical Power and Abortion Law (London, Pluto, 1997) 53ff. 7  S McLean, Old Law, New Medicine. Medical Ethics and Human Rights (London, Pandora, 1999) 127. 8  FA Hayek, The Road to Serfdom (London, Routledge and Kegan Paul, 1944) 61ff. 9  For an overview, see N Glover-Thomas, Reconstructing Mental Health Law and Policy (London, Butterworths, 2002) 32ff. 10  I Kennedy, Treat me Right. Essays in Medical Law and Ethics (Oxford, Clarendon, 1988) 385. 11  See, K Veitch, The Jurisdiction of Medical Law (Aldershot, Ashgate, 2007) Ch1.

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exemplified by his drawing precisely the kinds of distinctions suppressed under Bolam at its height, most significantly that between technical and non-technical (or ‘ethical’) matters. However, he eschews any bid for full subsumption of the clinical to the legal, noting the epistemic difficulties for courts in fully grasping and judging the details of medical practice. Instead he develops a variegated approach to judicial intervention informed by the use of basic rule of law values. Considerations of ‘natural justice’, in particular the requirement that the law be clear, transparent and intelligible, lead him to exclude the possibility, seemingly permitted by precedent, that a judge could reject medical evidence on the basis of a simple preference. Instead he applies Wednesbury and a test of ‘substantial preferability’ to technical questions and non-technical questions respectively. This produces a regime of judicial control, sensitive to the respective competences of judges and doctors while affirming the ultimate sovereignty of the law. Deference is retained though in qualified form. Miola’s approach can be said, in terms of the foregoing discussion, to realise a partial formalisation of medical law. It is noteworthy that neither philosophical ethics nor the codes of the General Medical Council figure in this reasoning. A thoroughgoing ethical analysis of the issues in Bolitho was certainly possible, but Miola does the work of disputing an expansive Bolam test and offering an alternative from within the resources of the law itself. Indeed the term ‘ethical’ is only used twice and then in passing as a synonym for ‘non-technical’, a marker for where more intensive legal scrutiny is mandated. In truth while the term ‘ethics’ is now inseparably linked with ‘medical law’, in the titles of textbooks, journals and degree programmes sustained integration of both modes of analysis is less common among the judiciary and academics working in the field. On the basis of the foregoing it might be argued that the appeal of (at least mainstream) ethics to medical lawyers lies, not so much in its substantive content, as in its formal attributes. These include a focus on general rules and principles, an emphasis on distinction drawing and transparent argumentation, as well as an ‘ordinary language’ style of expression and an orientation to individual rights.12 In this mode ethics may offer an image to medical law of its better self, a proxy for the liberal ideal lost with the deformation of law in the welfare state.

V.  Montgomery: Reflexive Regulation By contrast with Miola, Montgomery robustly defends Bolam as a ‘sound f­ oundation’ not only for clinical negligence, but for medical law as a whole, justified by the overarching goal of allowing doctors to ‘deliver good medicine’. He seeks to make this plausible through representations of medicine, law and the relationship between them which are quite distinct from those of Miola. He eschews 12 

W Van der Burg, ‘Bioethics and Law: A Developmental Perspective’ (1997) 11 Bioethics 91, 100–02.

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the territorial idiom of sovereignty lost (under Bolam), reclaimed (by liberal ­critics) and partly conceded again (on Miola’s model). Instead he makes warmer allusions to the ‘scientific and moral richness’ of medicine practised with ‘skill’ and ‘judgement’, whose ‘flourishing’ the law must promote. However, he does more than simply restore professional opinion as a black box for decision-making in medical law. Rather he seeks to re-establish the Bolam test on explicitly normative grounds and in doing so to counter the neo-liberal critique and to remedy the problems with the reformed model of medical law which it proposed. The key figure in this re-foundation is the ‘social contract’ which M ­ ontgomery identifies between medicine and society. The capacity to enter such a contract presumes that the medical profession is not simply an emanation of the state, but enjoys an authentic independent existence. As such the ‘social contract’ has constitutional force, establishing a set of reciprocal obligations between medicine and the state, setting the limits to and conditions for external interference in clinical practice. Moreover medicine is represented, not simply as an instrumental enterprise, but as an authentic norm-producing order in itself. The Bolam regime, in this version, is not the mere crystallisation of occupational struggles for monopoly and advantage, as alleged by its critics.13 Rather, it operationalises the ‘social contract’ by coupling law to the normative order of medicine. The imperatives for this constitutionalisation of medical law have been elaborated by Montgomery elsewhere.14 Direct detailed legal regulation has the effect of diminishing the quality of medicine as a moral enterprise. But it has also lead to a degradation of law. Uncoupled from the ethics of the profession, the law has been prey to the strategic ambitions of litigants and the tactical ruses of their lawyers. The ironic consequence of the movement to ‘reformalise’ and rationalise medical law has been to render it increasingly incoherent. Against this, Montgomery proposes that the law can be saved from itself through reading in to the Bolam test a requirement that doctors act in the clinic and in litigation with ‘personal and professional integrity’. This principle is underwritten by various equitable doctrines, but it originates in the normative orientation of medicine itself. The immanent morality of practice, the ethical history of the profession and its current efforts at self-governance mean that the ‘concrete order’15 of medicine is, thus, a more plausible place to which law’s indeterminacy can be displaced than either bare professional discretion or the abstract norms of general law. In sum, if Miola offers a combination of ‘old’ Bolam and re-formalised medical law, Montgomery proposes a more novel alternative, a form of what Gunther

13  See S Sheldon, ‘“A Responsible Body of Medical Men Skilled in that Particular Art” Rethinking the Bolam Test’ in S Sheldon and M Thomson (eds), Feminist Perspectives on Health Care Law (London, Cavendish, 1998) 15. 14  J Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26 Legal Studies 185, 190ff. 15  See, MG Slater, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (London, Routledge, 2012) 95ff.

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Teubner has called ‘reflexive regulation’.16 This alternative to both formalised and de-formalised law is composed of three essentially constitutional moments. First, law imposes restrictions on its own interventions in specific social fields, given its inability to apprehend them in full detail. This element is realised in the traditional deference embodied in Bolam. Second, law seeks to mobilise the self-regulatory capacities of these fields, given the destructive effects of attempts to exert full external control over them. Third, their internal self-regulation is subject to normative control at a secondary level. Through the ‘regulation of regulation’, law provides procedural requirements and tests to allow the field itself to remedy irrational and abusive practices. The requirement of a ‘logical basis’ for medical opinion, as per Lord Browne Wilkinson, and the application of the Wednesbury test by Miola function in this way as filters on the legal ratification of medical decision-making. But of the three judges in Bolitho, only Montgomery takes seriously the normative potential of medicine itself as a means of steering the regulation of practice. A couple of queries may be raised with regards to the notion of a social contract between medicine and the rest of society. There is little evidence that such a contract was explicitly formed at any given moment in British history. In particular, the establishment of the NHS in 1948 was based more on the strategic wooing of the medical professions by the Labour administration than on any ethical ­compact.17 Indeed Montgomery does not identify a clear moment when the terms of the agreement were settled. Instead he reads them off from the detail of legislative and judge-made medical law which the social contract is meant to ground, raising obvious problems of circularity. The social contract functions mythically here, as elsewhere in constitutional theory, as an appealing origin story for a renewed medical law.18 It might also be queried whether the idea of ‘covenant’ would be a more apt foundation for a new medical law. Contracting suggests strategic bargaining, a narrow definition of interests and adherence to the letter of one’s obligations in just the manner repudiated by Montgomery.19 By contrast, covenants have been defined in political and religious history as ‘morally informed agreements’, establishing communities over an indefinite period, which are interpreted generously in light of their overarching purposes. As William F May has argued, they have a distinctively ‘internal’ effect, reshaping the identities of the individual parties.20 Montgomery’s emphasis on the higher standard of personal, as well as professional integrity expected of doctors is consistent with this, as is his deployment of equity as a higher moral control upon the application of the law.

16 G Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law and Society Review 239, 278. 17 See M Rintala, Creating the National Health Service: Aneurin Bevan and the Medical Lords (­London, Frank Cass, 2003). 18  See LE Lomasky, ‘Contract, Constitution, Covenant’ (2011) 28 Social Philosophy and Policy 50, 52. 19  DJ Elazar, ‘The Political Theory of Covenant: Biblical Origins and Modern Developments’ (1980) 10 Publius 3. 20  WF May, ‘Code and Covenant or Philanthropy and Contract’ (1975) 5 Hastings Center Report 29.

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VI.  Concluding Remarks Montgomery’s approach would appear to have been rejected by the Supreme Court in its recent decision in Montgomery v Lanarkshire Health Board.21 ­Confirming the displacement of Bolam from its central place in medical law, the Court adopted a patient centred test of negligence in risk disclosure. By contrast with the vision of continuous professional tradition, their Lordships posited a rupture in the way in which medicine is organised and practised.22 There had been a normatively significant shift from discrete doctor-patient consultations to the delivery of care by teams subject to resource constraints, bureaucratic directives and other non-medical imperatives. The widespread availability of health information had greatly diminished the informational asymmetry which had favoured doctors. As such clinical judgement could no longer be plausibly represented as a pristine point of departure for decision-making in medical law. Furthermore, while medical tradition had been ruptured, the common law had always reflected fundamental values such as self-determination and could respond to the new dispensation from within its own resources.23 Like Miola, the Court delimited a zone in which the profession is largely free to determine technical matters, from one in which non-technical choices are made by patients. Like him they reasserted the sovereignty of the courts, reclaiming responsibility for determining the scope of patient’s rights in the latter context.24

21 

Montgomery v Lanarkshire Health Board [2015] UKSC 11. Ibid (per Lords Kerr and Reed at paras [75, 76]). 23  Ibid (per Lords Kerr and Reed at para [80]). 24  Ibid (per Lords Kerr and Reed at para [82]). 22 

R v Bourne [1939] 1 KB 687 Facts Mr Bourne, an obstetric surgeon, performed an abortion on a 14-year-old girl who became pregnant following a rape. Mr Bourne was charged with using an instrument with intent to procure a miscarriage, contrary to s 58 of the Offences Against the Person Act 1861. Counsel for Mr Bourne argued that the procedure was performed ‘for the purpose of preserving the life of the mother’ and a medical psychologist gave evidence suggesting that the continuance of the pregnancy would leave the girl ‘a mental wreck’. In summing up, Macnaghten J directed the jury that Mr Bourne was entitled to be acquitted, unless the Crown had proved to them that Mr Bourne did not perform the procedure in good faith for the purpose of preserving the life of the girl.

Outcome (Central Criminal Court): Not guilty verdict Judicial Makeup Macnaghten J. Appellate History None. Keywords criminal law, procuring miscarriage, defence, OAPA 1861.

Judgment 1—R v Bourne [1939] 1 KB 687 MCGUINNESS J (SHEELAGH MCGUINNESS) [1] The case before you is a difficult one. It raises questions concerning the role of law, social justice, the rights of women, the role of medicine, and indeed the sanctity of life. You have heard the evidence and the speeches of counsel, it is now my duty to sum up the case to you and to give you the necessary directions in law. In this summing up I am highlighting some of the key issues upon which you, the jury, must reflect. [2] Mr Bourne has been charged under s 58 of the Offences Against the Person Act 1861. The initial indictment did not include the word ‘unlawfully’. The defendant challenged this omission and asked that the indictment be amended in accordance with the wording of the Act. As I have stated already I agree that in omitting this word the police erred. If I am wrong about this then there is the Court of Criminal Appeal to put the matter right. This means that it is not sufficient that the prosecution prove to you that Mr Bourne performed a termination on Miss X. Rather they must prove that he did so unlawfully. To summarise this in a different way you must consider whether Mr Bourne acted other than in good faith with the purpose of preserving the life of Miss X. [3] Before continuing, I believe it is worth emphasising an inevitable observation on the function of the law in this area. The law on abortion as it currently stands is inoperable. The Offences Against the Person Act 1861 has proven impossible to police. Cases that come to light tend to be those that involve not just the termination itself but also the death or injury of the pregnant woman involved. For example in R v Sasun [1920], a doctor, Dr Devi Sasun, who was known to provide abortions, was sentenced to 10 years penal servitude. There was evidence that Dr Sasun had safely carried out hundreds of terminations. His prosecution resulted from the unfortunate death of Miss Elsie Wood following such a procedure. The case can be distinguished from the current circumstance in that Miss Wood died and Dr Sasun attempted to cover up his actions. The case before you is unusual. Miss X’s life has not been endangered by the procedure but rather saved.

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I.  Facts of the Case [4] This case involves criminal activities that are beyond the scope of our ­consideration here. A 14-year-old girl, who we will refer to as X, was brutally raped by a number of men. As a result of this, she found herself to be pregnant— something that, given the horrific nature of the crime committed against her, was impossible for her to bear. X’s parents contacted the recently formed Abortion Law Reform Association to seek help for their daughter. They were concerned about what they felt the likely impact of continuation of pregnancy would be on their daughter—specifically it was felt that the continuation of pregnancy would render X a physical and mental wreck. They knew of the possibility of termination of pregnancy but as Dr Joan Malleson stated in her letter to Mr Bourne, which was read before you, ‘the girl’s parents are so respectable that they do not know the address of any abortionist’. [5] Tragic though the situation is, you must not allow it to impact on your assessment of the case before you. While the path that led to X’s tragic circumstance may have some bearing on your assessment, it must be a side consideration only. Your primary concern is with what happened in the wake of X’s parents contacting the Abortion Law Reform Association. Dr Malleson, who is a member of the Abortion Law Reform Association, duly contacted Mr Aleck Bourne, a clinician of good standing who was known to be sympathetic to termination of pregnancy in situations such as that in X’s case. It was Mr Bourne’s subsequent actions, causing the termination of the pregnancy, which led to a most grave criminal charge being brought against him. [6] The following facts are not in dispute and are accepted by all parties to these proceedings. On the 1st of June 1938, X was admitted to hospital under the observation of Mr Bourne. Subsequently on June 14th, Mr Bourne performed the termination and consequent to this was arrested and charged under s 58 of the Offences Against the Person Act 1861.

II.  Relevant Law [7] Two statutes set out the framework for your considerations today. The first of these is the Offences Against the Person Act 1861. Mr Bourne has been charged under s 58 which states “whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony”.

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McGuinness J (Sheelagh McGuinness)

[8] The second statute is the Infant Life Preservation Act 1929. Section 1(1) states that “no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother”. The latter statute is relevant to the extent that it provides for lawful ‘destruction’ of the “child capable of being born alive” where the life of the pregnant woman is endangered. Given this it seems logical that termination would also be permissible when the foetus is at a much earlier stage of gestation. Indeed, medical necessity pre-dates the 1929 Act; in the case of R v Collins [1898] 2 Brit. Med. J. 59 it was accepted that: It could well be understood that there were cases where it was necessary in order to save the life of a woman, that there should be forcible miscarriage, and a properly qualified doctor had to say when that time had arrived.

III. Context [9] Members of the jury, the case before you cannot be considered other than within its complex and controversial social context. Abortion is available in this country. Notwithstanding the tricky ethical issues, as recently detailed in the Report of an Investigation into Maternal Mortality, it is a procedure more widely carried out than publicly acknowledged. So long as unplanned pregnancies occur, women will face an unwelcome choice. A choice between procuring the services of whatever abortionist they can afford or continuing with the pregnancy. From the aforementioned Report it is also clear that some women are more able to access safe abortion services than others. We know that women who have the financial means and connections are able to have terminations in doctor’s surgeries. Those without the knowledge or finances to pay as much for these services, often working class families like X’s, must navigate the murky world of so-called ‘back street’ abortions. And sadly we know that these women face greater risk and reality of death or serious injury. [10] For those unfortunate women who need to have a termination the first thing that happens is that they seek the services of illicit practitioners. The health impacts of so-called ‘back street’ abortions are well known, and have been for decades now. Indeed the negative health impacts have contributed to a ‘maternal health crisis’ in this country and led to the creation of the Royal College of Obstetricians and Gynaecologists in 1929. The current legal framework doesn’t stop these women from having terminations but rather impacts to the extent that they cannot be assured of finding or cannot afford a practitioner of Mr Bourne’s expertise and good standing. [11] The alternative, which is often overlooked, is that of women having more children than they can physically or financially bear. Sadly, this too often leads to

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injury or death, as well as poverty and social exclusion, particularly among working-class women. Women with connections and finances are able to avoid this situation. It is a well-known fact that abortion is available as is evidenced in Miss X’s parents contacting the Abortion Law Reform Association. Without doubt, the abortion industry, as we may describe it, is illicit, and it is not homogenous. Far less is it consistent in the standard of care provided to women. For women with money, abortions are available from qualified individuals; often of high standing in the medical community. The procedures are provided with much discretion, which is fitting given the intimate nature of the decision being undertaken. However, this discretion is not directed to protecting women alone. It allows for doctors, and indeed society as a whole, to expound the horrors of abortion while at the same time ensuring its provision to those with most money in our society. While those, like X’s family, often have to resort to clandestine and unsafe procedures. This is a grave social injustice. It is on this issue that the Abortion Law Reform Association, an organisation that is intimately involved in this case, has focused its campaigns. The law exacerbates societal inequality and ensures that ‘women with money have an abortion while women without have children’. [12] It is 1937: our attitudes and social expectations have changed since the passage of the 1861 Act. That statute was introduced at a time when the citizenship of women was severely curtailed in this country. Women could not vote, their property was automatically passed to their husband, and their ability to request a divorce was limited. [13] We are a modern society, and our laws increasingly recognise and protect the rights of women. The Equal Franchise Act 1928 provides that women over the age of 21 can now vote on an equal footing with men. It is 20 years since the first woman was elected to Parliament and notwithstanding the fact she chose not to assume her seat many women have in her wake. The Women’s Property Act 1882 allows women to own and control their own property regardless of their marital status and, with the enactment of the Matrimonial Causes Act 1937, women can also divorce their husbands. Society is increasingly prepared to recognise the rights of women as free and equal citizens. As long as women cannot control the timing and number of their pregnancies, their citizenship remains contingent on either good luck or good fortune. As Mrs Stella Browne so eloquently described in her 1935 publication on ‘The Right to Abortion’: Abortion must be the key to a new world for women… Abortion should not be either a prerequisite of the legal wife only, nor merely a last remedy against illegitimacy. It should be available for any woman, without insolent inquisitions, nor ruinous financial charges, nor tangles of red tape. For our bodies are our own … [F]reedom of choice and deliberate intention are necessary for [women] in their sexual relations and their maternity, if they are to make anything of their status and opportunities.

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McGuinness J (Sheelagh McGuinness)

IV.  Conclusion and Direction [14] My views on this case have been much influenced by my learned and most unfairly maligned friend Justice McCardie. In the case of R v H Windsor Bell [1929] 1 Brit. Med. J. 1061 he stated that: many of those who seek to uphold and administer [the] present law of abortion are wholly ignorant of the social problems which not only persist in our midst, but which menace the nation at the present time … I cannot think it is right that a woman should be forced to bear a child against her will and I hope that the era of savagery in connection with these cases is drawing to an end.

The necessity of abortion is plain to see. Justice can no longer choose to be blind to the needs of women in this country. [15] Indeed, there is, at this time, an Interdepartmental Committee on Abortion taking evidence on the need for reform of the law in this area. It is my view that such reform is necessary and my hope is that Parliament will move to ensure women have access to safe and legal abortion regardless of their social class. It is clear Mr Bourne was not alone in his sympathy to the plight of X. However that is not at issue here. Rather you must consider the legal question of whether Mr Bourne acted in good faith with the intention of saving the life of Miss X. Mr Bourne was sure of the legality of his actions on the day of 14th June 1938. We have been told he took seriously his role as a clinician and, in this role, his obligations to X. A termination was, in his clinical judgement, necessary in order to ensure X’s physical and mental well-being or to use the wording of the 1929 Act in “preserving the life of the mother”. He wished to protect her future life and indeed her future capacity to act as a loving mother to a wanted child when she was ready to assume this role. However, the veracity of Mr Bourne’s beliefs is not your sole consideration. Instead you must decide whether his actions were in accordance with the law. [16] At the start of this direction I highlighted the implications of the word ‘unlawful’ in the charge against Mr Bourne. He feels certain the law is on his side. Bearing in mind the relationship that you perceive as essential between law and justice, it is now for you, the jury, to decide whether he was right in this belief.

Judgment 2—R v Bourne [1939] 1 KB 687 DELLAPENNA J (JOSEPH DELLAPENNA) [1] Members of the jury, now that you have heard the evidence and the speeches of counsel, it is my duty to sum up the case and direct you regarding the law; it will be for you to consider the facts in relation to the law as laid down by me and to deliver your verdict. You the jury, and you alone, are the judges of the facts in this case. [2] The charge against Mr Bourne is that under the Offences Against the Person Act 1861, s 58, he unlawfully procured the abortion of the girl who was the first witness in the case. It is so grave a crime that the punishment may be penal servitude for life. It is a crime that judging by the cases that come before the court, is by no means uncommon. This is the second case at these July sessions where a charge under that section has been preferred. In the previous case, a woman without any medical skill or qualifications did what is alleged against Mr Bourne: she used an instrument to procure the miscarriage of a pregnant girl. She did it for money. She came, she used her instrument, and, within seconds, the victim of her malpractice was dead on the floor. She was paid her fee and went away. That is the class of case that usually comes before the court. The instant case is very different: a man of the highest skill performed the operation openly, in one of our great hospitals, and did so as an act of charity, without fee or reward. Whether it was lawful or unlawful is for you, the jury, to determine. [3] This is a case of first impression. A jury has never been called upon to determine a case in circumstances such as these, and there seems to have been some doubt even among counsel as to the applicable law. If I err in stating the law, and if you find the accused guilty, there is a Court of Criminal Appeal which will put the matter right. There has been much discussion before you as to the meaning of the words ‘preserving the life of the mother’. I will deal with that presently, but, before doing so, I will say that the Infant Life (Preservation) Act 1929 deals with the scenario where a child is killed while it is being delivered from the body of the mother. It provides that no one is to be found guilty of the offence created by the Act –‘child destruction’—unless it is proved that ‘the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother’. Those words by their terms apply only after the pregnancy has proceeded for at least 28 weeks. Should those words nonetheless be implied in the terms of s 58 of the Act of 1861, which contains no explicit limiting language?

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Dellapenna J (Joseph Dellapenna)

[4] Abortion has always been a crime in England and Wales. From the earliest cases in the 1200s to the present day, either under the common law or under a series of statutes enacted in the nineteenth century, abortion has been punished as a felony.1 The earliest cases described the crime as the murder of a living human, and do not seem to have been concerned about the stage of gestation at which the abortion was performed. Thus in Rex v Code, JUST 1/789, m.1 (Hampshire Eyre, 1281), the defendant was convicted of the murder of an infant of one month’s gestation. Those convicted of the crime under the common law were, at least in some cases, hanged: eg, Rex v Haule, JUST 1/547A, m.20d (London Eyre, 1321); Rex v Kyltavenan (Cork, Ireland, 1311). While various refinements and complexities were introduced to the simple calculus of these early cases, abortion remained a crime in England and Wales and the crime was codified in statutes enacted between 1803 and 1929. [5] This brief history raises a number of questions that should inform our understanding of the law in this case. First, why has abortion always been considered a serious crime? Second, why have prosecutions and convictions for abortion been rare relative to other serious crimes, at least until the nineteenth century? Third, why did prosecutions and convictions for abortion become more common in the nineteenth and twentieth centuries and why were a series of statutes enacted that progressively tightened the statutory expression of the prohibition of abortion? And finally, how, if at all, can the answers to these questions inform our understanding of the law in the instant case? [6] The answer to the first question is fairly straightforward. The relevant cases and statutes all express as their primary concern the protection of human life—namely the life of the unborn child. Because the great majority of the cases for which we have records have also involved maternal death or grave injury, one might infer that protection of the life or health of the mother was another concern, although there has been scant mention of this factor. Lord Ellenborough’s Act of 1803, the first statutory prohibition of abortion in England and Wales, was a statute directed not only against abortion, but also against other actions that caused grave risk to human life. That Lord Ellenborough’s Act is sometimes referred to as the ‘Malicious Shooting Act of 1803’ or the ‘Malicious Shooting or Stabbing Act of 1803’ illustrates this. That abortion was included in this statute strongly suggests that abortion was seen as similarly threatening to the lives of humans, either born or unborn. Yet if abortion was seen as the crime of killing an unborn human being, as well as creating a serious threat to the life of the mother, why were prosecutions relatively rare until the later years of the eighteenth century, only becoming common in the later nineteenth century? [7] Here a bit of medical history is instructive. Some would have us believe that abortion was common and relatively safe and painless while in the hands of 1  See J Dellapenna, Dispelling the Myths of Abortion History (Durham, North Carolina, Carolina Academic Press, 2006).

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­ idwives, and only became dangerous when physicians began performing it in the m late eighteenth century.2 The better view is that abortion was extremely dangerous and often tantamount to suicide3 before the introduction of improved medical technologies from the middle of the eighteenth century to the middle of the twentieth century, which made abortion safer (and less painful) for the mother.4 Before the necessary technologies were perfected, what we find, in place of legal attention to abortion, is a great deal of legal attention to infanticide—the killing of new-born infants shortly after their birth. The philosopher David Hume described new-born illegitimate infants as the ‘most common victims of murder’. D Hume, Commentary on the Law of Scotland, Respecting Crimes 1:291 (1797). Parliament enacted in 1624 that concealing the birth of an infant in order to conceal its death would be conclusive proof of murder: 21 James I ch 27, § 3. Such a heavy presumption suggests yet another reason that abortion is underrepresented in the recorded cases: abortion, like infanticide, is difficult to detect or prove unless the mother herself is gravely injured or dies, or decides to assist the prosecution. But the greater problem appears to have been the danger of the available procedures and the consequent maternal preference for killing an unwanted child after, rather than before, its birth. Strongly suggestive of this is the decline in the incidence of infanticide coincident with the increase of the incidence of abortion. [8] That these technological changes influenced the legal developments regarding abortion is confirmed by Lord Ellenborough’s Act, which introduces the provisions on abortion by stating that the incidence of abortion had become more common in (then) recent times. Medical technologies gradually became available from the early twentieth century that enabled physicians to preserve the life of premature infants, generally after 28 weeks gestation. In response to these developments, P ­ arliament enacted the Infant Life (Preservation) Act of 1929. The Act protects viable human infants by prohibiting their abortion except when necessary, in the good faith judgement of the attending physician, to preserve the ­mother’s life. The Act does not indicate what, if any, steps are required relative to the infant’s life should the attending physician decide to abort it. One might infer that the physician is under a duty to take all reasonable steps to preserve the life of the infant, but the Act does not so state. [9] The summary in the previous two paragraphs indicates that the protection of the life of the unborn child has always been a goal of the common law. Indeed,

2  See J Riddle, Contraception and Abortion from the Ancient World to the Renaissance (Cambridge, Massachusetts, Harvard University Press, 1992); C Means, ‘The Law of New York Concerning Abortion and the Status of the Foetus, 1664–1968: A Case of Cessation of Constitutionality’ (1968) 14 New York Law Forum 411; C Means, ‘The Phoenix of Abortional Freedom: Is a Penumbral Right or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?’ (1971) 17 New York Law Forum 335. 3  See G Devereux, A Study of Abortion in Primitive Societies (Whitefish, Montana, Literary Licensing, LLC, 1955). 4  See Dellapenna, Dispelling the Myths of Abortion History (n 1).

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Dellapenna J (Joseph Dellapenna)

protection of unborn life has been the only consistently expressed justification for the criminality of abortion. Less explicit, but perhaps inferable from the historical record, is the protection of the life and the health of the mother. So long as these two values were consonant, there was no need to consider which should take precedence. The divergence of the two values consequent upon medical advances forced Parliament to attempt a balancing. My concern in this case is to discern how Parliament has struck the balance between society’s interest in protecting the life of the unborn child and its interest in protecting maternal life. Section 58 of the 1861 Act prohibits ‘unlawful’ abortions without further defining that term. Given the state of medical knowledge in 1861, intervening to end even an early pregnancy carried grave risk to the life of the mother as well as to the unborn child. Thus, even if one concludes that Parliament in 1861 intended to make some abortions ‘lawful’, it could only have intended to do so in those circumstances where continuation of the pregnancy posed such a threat to the life of the mother as to justify both the destruction of the unborn child and the threat posed to her life by the abortion. The Infant Life Preservation Act of 1929 enacted an exception to that broad prohibition, but balanced concern for the mother’s life, as determined in the good faith judgment of the attending physician, with concern for the well-being of the unborn child. The question now before the Court is whether this standard can be implied into s 58 of the Act of 1861, and if so, how it is to be applied in practice. [10] This is a case of great importance to the public, and more especially to the medical profession, but you will observe that it has nothing to do with the ordinary cases of procuring abortion. In those cases, the operation is performed by a person of no skill, with no medical qualifications, and there is no pretence that it is done for the preservation of the mother’s life. Cases of that sort are in no way affected by the consideration of the question before you. It is obvious that that defence raised here could not be available to the professional abortionist. [11] Today, abortions can be performed with only small risk to the mother’s life or her health, yet Parliament has not seen fit to amend the 1861 statute to reflect this new reality before the 28th week of pregnancy. Nevertheless, I conclude that the correct understanding of s 58 of the 1861 Act is that there is an implied exception for the preservation of the life of the mother, as was made explicit in the Infant Life Preservation Act of 1929. You have heard a great deal of discussion regarding the difference between danger to life and danger to health. There are of course maladies that are a danger to health without being a danger to life. Rheumatism is not a danger to life. But impairment of health might reach a stage where it does endanger life. As Mr Bourne answered a question regarding whether there was a clear line between a danger to life and a danger to health: There is a large body of material between those two extremes in which it is not really possible to say how far life will be in danger, but we find, of course, that the health is depressed to such an extent that their life is shortened, such as in cardiac cases, so that you may say that their life is in danger, because death might occur within measurable distance of the time of their labour.

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If that is a view which commends itself to you, you should not interpret the words ‘for the preservation of the life of the mother’ as meaning merely for the avoidance of her immediate death. In cases where it is reasonably certain that a woman will not be able to deliver a child without her own death resulting, the doctor is entitled to perform abortion with a view to saving the life of the mother, and in such a case it is obvious that the sooner the operation is performed the better. The law does not insist that the doctor wait until the woman is in immediate peril and then snatch her from the jaws of death at the last moment. [12] Apparently, there is a great divergence of view even in the medical profession on whether emotional distress can justify abortion. Some may even regard the mere fact of a woman’s desire for an abortion as sufficient justification in itself. That is not the law’s view: the fact that a woman desires to be relieved of her pregnancy is no legal justification for performing an abortion. On the other hand, there are people who object to the operation being performed at all. That is not the law either. I mention those two extremes merely to show that the law—whether or not you think it a reasonable law is immaterial—lies somewhere between them. It allows the termination of pregnancy only for the purpose of ‘preserving the life of the mother’. Those words ought to be given a reasonable construction. [13] These general considerations must be applied to the particular facts of this case. Your verdict must depend on the facts proved here. You are the judges of the facts, and it is for you to say what weight to give to the testimony of the witnesses. In the instant case, so far as danger to life is concerned, we have a young girl whose body is not yet fully mature and who might therefore have suffered physical injury had she been made to carry a child to term and then deliver it. Consider also the evidence of the effect of the alleged rape on the mind of this girl, a child under the age of 15. You have been told that the girl suffered great mental anguish as a result of her pregnancy, so much so that she threatened suicide (convincingly, according to Mr Bourne), which would certainly have ended her life. The law also has regard for the innocent life of an unborn child, as is evident from the law on abortion and the preservation of infant life. It would be easy to dismiss these competing concerns by making some facile claim about the absolute primacy of either the mother’s or the child’s life. Parliament did not take such a simplistic view of the matter, however, but sought to balance the interests in a way that perhaps favours the mother’s life, but does not altogether disregard that of the unborn child. The responsibility of this Court is to construe the statute so that both competing interests are given proper consideration. [14] It must be emphasised: the physician must act in good faith. This requirement is drawn from the terms of the Infant Life Preservation Act, an Act the primary purpose of which is to preserve the life of the unborn child when possible. By this requirement, Parliament balances the two profound interests at stake in a decision to abort. The same principle should apply today under s 58 of the Act of 1861. The Crown must prove the offence beyond reasonable doubt, yet the claim that the attending doctor acted in good faith appears to be an affirmative defence.

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Dellapenna J (Joseph Dellapenna)

It is incumbent upon the physician claiming this defence to explain his medical decision and to convince the jury that he (the physician) was indeed acting in good faith. Allowing juries of lay persons to determine, as an objective matter, whether abortion was medically necessary would seriously impair the ability of a physician to exercise his best judgement about whether a proposed abortion was consistent with the legal standard of good faith judgement, since no physician could undertake an abortion without fear that a jury would later decide that the decision was not objectively justified. But if s 58 of the 1861 Act were construed as leaving the determination to the unbridled discretion of a single physician, the law would result in virtual abortion on demand even for late-term foetuses. Neither construction seems justified by the language, or policy, of the statute. Instead, you the jury must decide, taking into consideration the circumstances in which the abortion was carried out, whether the attending physician has presented convincing evidence of good faith that the prosecution has not challenged successfully. [15] It is unnecessary to recapitulate the evidence that has been presented regarding the reasons why Mr Bourne thought it right to perform the operation. The question that you must determine is whether Mr Bourne has proven, based on all of the evidence presented, that he ended the pregnancy of this girl in good faith for the purpose of preserving her life. If you, as members of the jury, are not convinced that the physician acted in good faith, you are to return a verdict of guilty. If you are satisfied that he did, then according to the law of England he is entitled to be acquitted.

Legal Commentary—R v Bourne: A Historical Context1 LOIS S BIBBINGS2

I.  Background and Context Although the legal reports of Bourne give few details as to its history, ­newspapers and journals of the time offer a good deal of information. Using these publiclyavailable sources, a fuller account of this background is included here as it is important to an understanding of the case, not least as all the key players (the judge, lawyers, jury and witnesses) would have had knowledge of this context. It was, it must be said, an horrific tale of child abuse. On 27 April 1938, a 14-year-old girl (‘X’) went with two girl friends to Horse Guards Parade in London to watch the changing of the guard. While there, a trooper offered to show X a horse. One of the girls, a ‘15 year old factory girl’, went with X to look but when a soldier tried to kiss her she kicked him and ran away. As she left she saw X being pulled towards the stables.3 There, despite screaming and fighting back, X was subjected to a sexual attack. Some of the soldiers stood by and watched. She was then seized by other men, dragged to their barrack room, held down by a number of them and raped. She escaped, reported what had happened to a police officer and an investigation began.4 Although a number of troopers were involved, only three suspects were identified; all were charged with rape. In late June 1938 they appeared at the Old Bailey in two separate trials.5 One was convicted of rape, one of aiding and abetting that offence and another of a separate attempted rape. Mr Justice Du Parcq in sentencing made a point of emphasising the extreme nature of the offences, stating that ‘[h]e had seldom heard of a more horrible case’.6

1 

[1939] 1 K.B. 687; [1938] 3 All E.R. 615 CCC. References here are to the former. With thanks to Gladstone’s Library for the Scholarship which facilitated the research and writing of this commentary, and thanks also to fellow residents Hilaire Wood and Martin Nutt. 3  Eg, ‘Girl Says Soldier Tried to Kiss Her’ Daily Mail (Hull, 18 May 1938) 4. 4  Eg, ‘Guardsmen and the Girl’ Portsmouth Evening News (11 May 1938) 14. 5  Eg, ‘Two Troopers Found Guilty’ Manchester Guardian (29 June 1938) 3. 6  Eg, ‘Penal Servitude for Two Troopers’ The Times (30 June 1938) 11. 2 

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Following these well-publicised trials another criminal case hit the headlines— and the connection was immediately evident as it was referred to in court and in the newspapers.7 X had become pregnant as a result of the rape and on 14 June 1938 (between the rape committal proceedings and the troopers’ trials) Mr Aleck William Bourne, an obstetrical surgeon, had carried out a surgical abortion on the 14-year-old, with both her and her parents’ consent. Bourne was tried on indictment for unlawfully using an instrument with intent to procure a miscarriage contrary to section 58 of the Offences Against the Person Act 1861. This trial also took place in the Old Bailey and was heard on the 18–19 July before Justice Macnaghten. At its conclusion Bourne was acquitted, meaning there was no possibility of an appeal—and no possibility of an authoritative legal statement. As indicated above, however, Bourne’s importance was to be greater than its technical legal status; indeed, Macnaghten’s ruling on the parameters of the offence of abortion formed the basis upon which abortion could legally be performed in England, Wales and Scotland until the Abortion Act 1967 came into force and in Northern Ireland (albeit restrictively) until the present day. Before we turn to the judge’s words, it is worth pausing to consider the wider setting in which this trial took place in order better to understand the ‘original’ as well as the two ‘new’ summings-up. Public attention was already focused on abortion by 1938, with so called ‘­professional’ or ‘back street’ abortionists (non-doctors who performed procedures for money) and the deaths their activities sometimes caused raising particular concern.8 In 1937 a Ministry of Health ‘Report of an Investigation into ­Maternal Mortality’ drew attention to this issue9 resulting in the creation of an Inter-Departmental Committee on Abortion.10 As to doctors and abortion, opinion was divided—but at this time the Abortion Law Reform Association was campaigning for the legalisation and medicalisation of abortion.11 Significantly, Bourne was on the Association’s Legal Council, as was Dr Joan Malleson who had referred X’s case to him. In so doing, Malleson had opined that ‘public opinion would be immensely in favour of terminating pregnancy in cases of this sort’.12 Bourne’s response was to agree to perform the procedure; indeed, he had done so before, ‘had not the slightest hesitation in doing it again’ and would then ‘write to the Attorney General, inviting him to take action’.13 This he did not do (as the girl’s parents had pleaded for secrecy). However, on the very day the procedure was carried out, Bourne received a visit from the police. He promptly 7 

Eg, ‘Gynæcologist for Trial in Test Case’ Manchester Guardian (2 July 1938) 18. Bourne at [689]. 9  Cmd 5422. 10 Ministry of Health-Home Office, ‘Report of the Interdepartmental Committee on Abortion’ (London, HMSO, 1939). 11  See further A Jenkins, Law for the Rich (London, Victor Gollancz, 1960) 46–61. 12  Eg, ‘Distinguished Gynæcologist On Trial’ Manchester Guardian (19 July 1938) 12. 13  Eg, ‘Gynæcologist for Trial in Test Case’ (n 7) 18. 8 

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admitted performing the abortion and requested that he be arrested.14 Consequently, as the prosecution was to note at trial, Bourne was a carefully selected test case by which it was hoped the law would be liberalised.15

II.  The ‘Original’ Summing-up Thus, Bourne found himself in the dock of the Central Criminal Court—and it fell to Macnaghten to set out the law in relation to abortion. In fact, this was a two stage process as, following the presentation of the prosecution case, defence counsel requested that the judge give legal direction so that Bourne could be properly represented. This, in fairness to Bourne, Macnaghten did, later reiterating his pronouncements in his summing-up.16 In addressing the jury the judge had no difficulty in recounting the facts, as these were undisputed. He emphasised the brutality of the attack on X. He was also careful to distinguish Bourne from ‘professional’ abortionists, noting that here the operation had been performed openly ‘as an act of charity, without fee or reward’, by a ‘man of the highest skill’ who ‘unquestionably believ[ed] that he was doing the right thing, and that he ought, in the performance of his duty as a member of a profession devoted to the alleviation of human suffering, to do it’.17 As such, Macnaghten’s construction of the facts was likely to be most in accord with the defence. In terms of law, the judge thought this to be the first time that such a case had come before the courts, meaning there was no precedent for him to draw upon. Instead he relied upon two statutory provisions. In his view section 58 of the 1861 Act was to be read alongside section 1(1) of the Infant Life Preservation Act 1929. Macnaghten found that the word ‘unlawful’ in section 58 was crucial, as it implied that some abortions might be lawful. He then turned to the later provision for guidance. Section 1(1) of the 1929 Act created an offence of child destruction to cover the situation where a person who, intending to destroy the life of a child capable of being born alive, caused the child to die before it had an existence independent of its mother. However, the prosecution had not only to prove these elements beyond reasonable doubt, but also that ‘the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother’. From this Macnaghten concluded that a termination was lawful where it was ‘done in good faith for the purpose only of preserving the life of the mother’.18

14 

Eg, ‘Charge of Procuring Abortion’ British Medical Journal 1938; 2: 199, 199–200. Eg, ‘Charge Against Surgeon’ The Times (2 July 1938) 9. Eg, ‘Charge of Procuring Abortion’ (n 14) 200–01, 203–05. 17  Bourne at [689–90]. 18  Bourne at [691]. 15 

16 

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Lois S Bibbings

It followed from this that the question for the jury was whether, in the light of both the account given by Bourne regarding his thinking and the evidence of medical experts concerning X’s likely physical and mental health if an abortion was not performed, ‘the Crown has satisfied [them] beyond reasonable doubt that he did not do this act in good faith for the purpose of preserving the life of the girl.’ They were told that ‘preserving the life of the mother’ should be interpreted in a ‘reasonable sense’; meaning that if the doctor had operated in the ‘honest belief ’ that the ‘probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck’ a jury could find that the termination was lawful.19 This interpretation allowed for a more flexible approach to the current law than, for example, one which focused only upon the likelihood of a woman’s imminent death as providing justification for an abortion—and Macnaghten’s focus on Bourne’s standing and motives already suggested to the jury that the ‘good faith’ element had been satisfied. The result was a carefully balanced statement of the law, but a summing-up which, taken as a whole, seemed perhaps to err on the side of defence.

III.  The ‘New’ Summings-Up Of necessity, Justices McGuinness and Dellapenna ignore Macnaghten’s midtrial pronouncements in order to construct their own legal directions. Their texts provide very different approaches to the case—but both court controversy. McGuinness’s summing-up is driven by a concern with women’s rights and justice. Although in places Dellapenna echoes Macnaghten’s words, there are major departures and significant silences, with this judge focusing upon the rights of the ‘unborn child’.

A.  Justice McGuinness McGuinness’s summing-up makes no bones about outlining the terrible background to the case, as well as considering the possible consequences of continuing the pregnancy. In recalling the facts of the case she reminds the jury that X was ‘brutally raped by a number of men’, that the crime was ‘horrific’, stressing also that the resultant pregnancy was ‘impossible for her to bear’ and it was feared its continuation ‘would render X a physical and mental wreck’ [4]. This is a more powerful account than that relayed by Macnaghten and arguably one even more likely to arouse the jury’s sympathies for X, consequently encouraging them to be more minded to side with the defence. 19 

Bourne at [694–95].

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In a similarly defence-minded vein, the text paints Bourne in a favourable light, describing him as ‘a clinician of good standing’ [5] with McGuinness emphasising that he operated out of sympathy for X, with an unquestionable belief in both the legality and clinical necessity of what he did. Moreover, he ‘took seriously his role as a clinician and, in this role, his obligations to X’ operating to ‘protect her future life’ [15]. As with Macnaghten, the word ‘unlawful’ is pivotal to McGuinness’s legal direction. Taking into account section 58 of the 1861 Act and section 1(1) of the 1929 Act, McGuinness argues that ‘[i]t seems logical … that termination would also be permissible when the foetus is at a much earlier stage of gestation’ [8]. She shores up this interpretation by pointing out that medical necessity had long been held to be a defence to the charge of procuring an abortion and the 1929 Act had merely adapted this notion [8]. Moreover, McGuinness agues that ‘lawfulness’ should be interpreted in a manner that is just. Looking at the law in practice she finds that current abortion law is ‘inoperable’ and ‘impossible to police’ [3]. Consequently, abortion is by no means uncommon. However, whilst wealthy women can access discreet private medical services, [9, 11] working class women are unlikely to be fortunate enough to find a medic such as Bourne (who would risk prosecution and seek no payment) and must hunt out ‘back street’ abortionists [9–11]. For McGuinness, this inequality of access to safe terminations causes injustice. The summing-up also considers the position of women in general, cataloguing changes in attitudes and law—but for McGuinness legislation still lags behind the times, limiting women’s ability to fulfil their roles as citizens because they ‘cannot control the timing and number of their pregnancies’. Here feminist campaigner FW Stella Browne’s demand for abortion to be available to all women ‘without insolent inquisitions, nor ruinous financial charges, nor tangles of red tape’ is cited20 along with Justice McCardie’s 1931 statement that no ‘woman should be forced to bear a child against her will’ [14].21 Thus, for McGuinness ‘[t]he necessity of abortion is plain to see. Justice can no longer choose to be blind to the needs of women in this country [14].’ McGuinness’s closing words continue this theme, indicating that the jury should decide upon the meaning of ‘unlawful’, ‘[b]earing in mind the relationship that you perceive as essential between law and justice’ [16]. Whilst by no means a direction to acquit, this is a weighted and controversial summing-up—but one that is based upon a credible interpretation of the law.

20  [13]—see ‘Abortion’ [3 essays] in FW Stella Browne AM Ludovici, H Roberts (eds), The Right to Abortion (London, Allen and Unwin, 1935) 31. 21  See ‘Judge On Birth Control’ The Times (19 December 1931) 12.

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B.  Justice Dellapenna One of the things most notable about Dellapenna’s summing-up is its limited ­consideration of X’s experiences and welfare (and here the rape is ‘alleged’ [13]). This contrasts with both ­Macnaghten and McGuinness. In 1938 the summing-up considered the ‘great violence’ accompanying the rape, the physical effects of pregnancy upon a young girl, the ‘­mental effect produced by pregnancy brought about by the terrible rape’ and the ‘great mental anguish’ of childbirth in these circumstances.22 In the present day, ­McGuinness pays heed not only to X but also to other women and girls. A good part of Dellapenna’s summing-up takes a foray into history in its quest for a construction of the law as at July 1938. In his view abortion has been criminalised because of concern for the protection of ‘the life of the unborn child’ [6], although he acknowledges that worries about the dangers of abortion to the life and health of the ‘mother’ might have also been a factor [9]. Undoubtedly, ­Dellapenna’s choice of language in these musings is important—and it is again suggestive of views very different to those of McGuinness, in particular. Given his rendering of the past, Dellapenna opines that, taking the 1929 statute and section 58 together, in the case of medical abortions ‘there is an implied exception for the preservation of the life of the mother’. He advises the jury that life preservation might mean more than just ‘the avoidance of [the mother’s] immediate death’, as ‘the law does not insist that the doctor waits until the woman is in immediate peril’ if they are certain that she would die [11]. Moreover, ill-health might in extreme cases be taken to threaten life [11]. So Dellapenna’s concern centres upon ‘the innocent life of an unborn child’ [13] and his acceptance that in the direst of circumstances medical abortion can be lawful to protect the ‘mother’ seems reluctant. Consequently, his version of the law is more restrictive than Macnaghten’s, and his perspective is poles apart from McGuinness’. But this is not the end of the matter, as he attempts to place another hurdle in the way of doctors who consider performing a termination. Towards the end of his summing-up, he constructs a defence in relation to ­section 58, reading the provision in conjunction with section 1(1). Despite the fact that the 1929 Act states ‘no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith’, Dellapenna tells the jury: The Crown must prove the offence beyond reasonable doubt, yet the claim that the attending doctor acted in good faith appears to be an affirmative defence. It is incumbent upon the physician claiming this defence to explain his medical decision and to convince the jury that he (the physician) was indeed acting in good faith. [14].

22 

Bourne at [694–95].

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If this were a real summing-up, Bourne’s defence might have preferred to know that they bore this burden a little earlier; at the very least, in fairness to the doctor, it might have been expected that the judge would follow this novel move with a recounting of the evidence as to ‘why Mr Bourne thought it right to perform the operation’ [15]. Dellapenna, however, did not do this.

IV. Aftermath In concluding we return to 1938. With Bourne acquitted, there was applause in the courtroom and he was surrounded by well-wishers, including X.23 Responses to the case published in the press, legal and medical journals were generally positive, although some doctors doubted whether sufficient clarity had been arrived at to enable practitioners to be entirely confident about the legality of their actions. Interestingly, there was also a feeling of disappointment that Bourne had not been convicted in order that the matter might have been appealed and an authoritative statement of the law given.24 At the same time, there was criticism of the decision from those concerned about protection for the ‘unborn’25 and from others who were dissatisfied at the limits of Bourne from a women’s rights perspective.26 And so we are left with three summings-up, two of which are written with the benefit of hindsight. It remains to the reader to decide which they prefer—and to ponder what might have happened next had either McGuinness or Dellapenna presided over Bourne.

23 

Eg, ‘BMA Cheer Verdict’ Western Morning News and Daily Gazette (Plymouth, 20 July 1938) 8. Eg, ‘The Bourne Case’ British Medical Journal 1938; 2: 262, 262. 25  Eg, ‘Bourne Trial: Its Importance to Roman Catholics’ Manchester Guardian (25 July 1938) 5. 26  Eg, ‘Abortion Law Reform’ Nottingham Evening Post (11 January 1939) 10. 24 

Ethical Commentary—Abortion and Physician Conscientious Action FRANÇOISE BAYLIS

I. Introduction Key facts in the case of R v Bourne,1 as per the summing-up provided by Justice Macnaghten, are that on 14 June, 1938, Mr Aleck William Bourne performed an abortion on a 14-year-old girl who was brutally raped. Bourne was not a professional abortionist, but a qualified obstetrical surgeon in good standing with the requisite skills and qualifications to perform a safe abortion. The abortion was performed under favourable conditions at St Mary’s Hospital. No fee was charged. These facts, as presented to the jury, were not in dispute. The question before the jury was whether these facts, taken together, constituted a crime. At that time, intending to procure a miscarriage was a crime under s 58 of the Offences Against the Person Act 1861: … whosoever, with intent to procure the miscarriage of any woman, where she be or be not with child shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony (emphasis added).

The challenge for the jury was in determining whether Bourne acted lawfully or unlawfully when he performed the abortion.2 In his directions to the jury, Macnaghten referenced the Infant Life Preservation Act 1929, as a potential source of meaning for what might be lawful action in this instance. This statute provided for the legal destruction of ‘a child capable of being born alive’ when the action taken to bring about its death was done ‘in good faith for the purpose only of preserving the life of the mother’. As a point of clarification, Macnaghten further noted: It is not contended that those words [‘in good faith for the purpose only of preserving the life of the mother’] mean merely for the purpose of saving the mother from instant death 1 

R v Bourne [1939] 1 KB 687. According to the ‘rule against surplusage’ or the ‘presumption against tautology’, every word in a piece of legislation is included for a reason. Were it not possible for the actions to be taken lawfully, there would have been no reason to include the word unlawfully. 2 

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… I think those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother.3

In his defence, Bourne had argued that he examined the girl to confirm that she: (i) was pregnant as a consequence of a violent rape; (ii) not infected with venereal disease;4 and (iii) of good character (neither feeble-minded nor of a ‘prostitute mind’). On the basis of these facts, he determined that continuing the pregnancy would likely cause serious injury to the young girl owing to her mental state. On the basis of this determination, he concluded that ‘it was his duty to perform the operation’.5 Acting on this conclusion, he used his clinical skills safely and effectively to terminate the pregnancy. While Bourne may have acted in the right way—exercising clinical judgement and then acting with appropriate clinical skill—did he act for the right reason? That is, did he act ‘in good faith for the purpose only of preserving the life of the mother’? This pivotal question can usefully be parsed into two questions: Did Bourne act in good faith? And, did Bourne act only to preserve the life of the mother?

II.  Did Bourne Act in Good Faith? To assert that Bourne acted in good faith is to affirm that he acted honestly and out of conviction in a manner that he understood to be consistent with his fiduciary obligations to the patient. The opposite would be to claim that Bourne acted in bad faith—out of self-interest, malice or ill will—with no intention of promoting or protecting his patient’s interests. There are no facts to support a claim of sinister intention and neither Justice Macnaghten, nor our alternate Justices Dellapenna or McGuinness suggest this is the case. There is no evidence that Bourne sought to take advantage of the patient, or her family for personal gain (financial or other).6 Moreover, there is no evidence of duplicity, fraud or deception. Rather, it is clear that Bourne believed that

3 

Bourne at [692], [693–94]. with a desire to promote health and not cause injury, Bourne ‘satisfied himself that [the girl] had not been infected with venereal disease’. A termination of pregnancy under those circumstances would have risked spread of the disease. Bourne at [688]. 5  Bourne at [688]. 6  In his memoir, A Doctor’s Creed: The Memoirs of a Gynaecologist (London, Victor Gollancz Ltd, 1962), Bourne describes this case as a ‘God-given opportunity’ to seek clarity on the law regarding termination of pregnancy (at p 99). While this might be construed by some as taking advantage of the situation, this is clearly not for personal gain. 4  Consistent

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in certain circumstances abortion was medically necessary. Indeed, he had come to this conclusion once before in a case three years prior involving a 15-year-old girl.7 In Macnaghten’s summing-up, the jury is directed to assess not whether the testimony provided by Bourne and the evidence provided by expert witnesses support the claim that Bourne acted in good faith, but rather whether the Crown has proven otherwise. The jury is specifically told, ‘the question that you have got to determine is not are you satisfied that he performed the operation in good faith for the purpose of preserving the life of the girl. The question is, has the Crown proved the negative of that?’8 Preceding this statement is the following reminder: Mr. Bourne in this case thought it right to perform the operation… the learned ­Attorney-General accepts this evidence as a frank statement of what actually passed through his mind. In view of the age and character of the girl and the fact that she had been raped with great violence he thought that the operation ought to be performed…9

To the contrary, Dellapenna stipulates for the jury that the question they must answer is: ‘whether Mr. Bourne has proven, based on all of the evidence presented, that he ended the pregnancy of this girl in good faith for the purpose of preserving her life’. No summary of the evidence on which the jury should reflect in answering this question is provided. To this point, the jury has mostly been told of the competing interests of the pregnant woman and the developing fetus (whom Dellapenna, in my mind prejudicially, refers to as the mother and the unborn child). There is in his direction to the jury scant attention paid to the particular details of this case. The second alternate summing-up, authored by McGuinness, emphasises issues of reproductive freedom and social justice. As regards to whether Bourne acted in good faith, her direction to the jury is, shall we say, ‘directive’. She writes, He took seriously his role as a clinician and, in this role, his obligation to X [the patient]… He wished to protect her future life, and indeed her future capacity to act as a loving mother to a wanted child … The basis for Dr. Bourne’s belief was clear: abortion was, in certain circumstances, a necessary medical procedure… He feels certain the law is on his side.

In this way, McGuinness summarises for the jury the affirmative defence that Bourne acted in good faith believing the termination of pregnancy to be medically necessary and legally permissible. McGuinness also effectively conveys a sense of inner conviction on the part of the physician. On my reading of this case, Bourne’s action in terminating X’s pregnancy can reasonably be interpreted as conscientious action reflective of the values of compassion, service and altruism. In contemporary Western bioethics, discussions of

7 Bourne, A

Doctor’s Creed (n 35) 99. Bourne at [695]. 9  Bourne at [695]. 8 

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physician conscience and conscientious action often focus on the ways in which physicians interfere with patients’ timely and convenient access to medical treatment. In relation to abortion, this explains the focus on physician refusals to provide terminations of pregnancy, or to refer patients to other qualified physicians willing and able to assist. Not all conscientious actions, however, are conscientious refusals. There can also be conscientious offers. Arguably, this is what happened in this case. In his memoirs, A Doctor’s Creed, Bourne explains how he received a letter from Dr Joan Malleson, one of the initiators of the Abortion Law Reform Association (ALRA), outlining the details of the case and asking him to admit the girl to St Mary’s Hospital for observation with a view to terminating the pregnancy. He responded in writing: I am interested in this case of rape which you describe in your letter. I shall be delighted to admit her to St. Mary’s and curette her. I have done this before and have not the slightest hesitation in doing it again… I have said that the next time I have such an opportunity I would write to the Attorney-General and invite him to take action.10

In the event, he did not write to the Attorney-General. On the dominant view of conscience in contemporary Western bioethics, physician conscientious action (whether for offering care or refusing to provide care) aims to promote personal moral integrity, typically understood as inner harmony (ie, the ability to live with oneself in peace).11 In this case, there is no evidence that Bourne acted to preserve his personal moral integrity. Rather, it appears that consistent with the physician’s fiduciary duty to patients Bourne acted for the benefit of his patient, firm in the belief that abortion of a child pregnancy following rape or incest was medically indicated, morally required and legally permissible. In his memoirs, he describes the young girl in this case as having ‘suffered the extremity of cruelty and horror and was, withal, an innocent child’.12 He describes medicine as ‘humanitarian’13 and he describes himself as ‘a reputable man [acting] in all sincerity’.14 This orientation fits a different view of conscience than the one anchored in personal integrity. In my own writing, I describe this alternative view as relational conscience; and I explain how integrity is both a personal and a social virtue. In this way, conscience is other-oriented insofar as it is about ‘improving human ethical practice by refining our understanding of right and wrong’.15

10 Bourne, A

Doctor’s Creed (n 35) 98. M Benjamin, ‘Conscience’ in B Jennings (ed), Bioethics, 4th edn (Farmington Hills, MI, M ­ acmillan Reference USA, 2014); M Wicclair, ‘Conscience and Professionals’ in H LaFolette (ed), International Encyclopedia of Ethics (London, Blackwell, 2013). 12 Bourne, A Doctor’s Creed (n 35) 99. 13 Bourne, A Doctor’s Creed (n 35) 99. 14 Bourne, A Doctor’s Creed (n 35) 108. 15  F Baylis, ‘A Relational View of Conscience and Physician Conscientious Action’ (2015) 8 International Journal of Feminist Approaches to Bioethics, 18, 31–32. 11 

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My relational view of conscience draws distinctions between conscience (a byproduct of dialogical thinking), acts of conscience (judgements about right and wrong), and conscientious action. On this view, conscience is what comes of thinking. More precisely, it is a by-product of thoughtful, reflective inner deliberation (soundless, solitary dialogue with oneself) about which values, beliefs, and commitments to endorse as one’s own. This thinking is followed by judgement, at which time there is the exercise of one’s best judgement about what should be done in a particular circumstance, taking into consideration a shared interest in living justly and well—that is, a shared interest in improving human ethical practice. This judgement is the act of conscience. It is a determination about what should be done consistent with the goal of promoting harmony of the whole (ie, harmony for the ‘self-in-community’).16 In turn, an act of conscience may lead to conscientious action—an action aimed at keeping one in proper relation to oneself and fitting oneself for proper relations with others. To put this in other words: Acts of conscience (in the mind) and conscientious action (in the world) are … the fruits of conscience—thoughtful, reflective inner deliberations about which values, beliefs, and commitments to endorse as one’s own as part of the shared interest in improving human ethical practice, thereby contributing to harmony of the whole.17 (emphasis added)

On this relational view of conscience, people are called on to do work both in orienting their conscience, and in making careful judgements about what should be done in order to be responsive to others. The underlying presumption is a shared interest in living justly and well. Ultimately, conscience is not just about promoting inner harmony (ie, harmony for the self), but is also about promoting harmony of the whole (ie, harmony for the ‘self-in-community’). On the facts of this case, it is reasonable to assert that Bourne’s conscientious action was grounded in concern for the young rape victim. In his opinion, ‘continuance of the pregnancy would probably cause serious injury’.18 Indeed, in the words of a specialist in medical psychology, there was the risk that ‘she would become a mental wreck’.19 As well, Bourne alluded to the possibility of death that ‘might occur within measureable distance of the time of labour’. He advanced this claim in support of his view that there was no clear demarcation line between ‘danger to health and danger to life’.20 Beyond this, it is important to remember that the alternative to a hospital-based abortion provided by a skilled medical professional such as Bourne would have been a so-called back street abortion, of which many pregnant women were known to have died. McGuinness’s directions to the jury notwithstanding, Bourne’s conscientious action was not taken in defence of women’s right to control their bodies. Bourne 16  ‘Community’ here refers to the human community (hence, the reference to human ethical practice), and not the community of medical or health professionals. 17  Baylis, ‘A Relational View’ (n 44) 30. 18  Bourne at [688]. 19  Bourne at [689]. 20  Bourne at [692].

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‘favoured abortion where it was necessary for economic or health reasons’.21 He did not support abortion for women who desired this service for spurious reasons. Among these women, Bourne identified those ‘who objected to motherhood because it would curtail their social amenities’.22 Further, Bourne believed that ‘[a]bortion would become largely unnecessary in a socialised State with adequate wages, stability, social services, education, and an improvement in the position of women’.23 Though McGuinness includes an extensive discussion of reproductive autonomy and equitable access to abortion services in her summing-up, for which I am a sympathetic audience, this is not obviously consonant with Bourne’s conscience.

III.  Did Bourne Act to Preserve the Life of the Pregnant Woman? The interpretation given the words ‘preserving the life of the mother’ is of pivotal importance in this case. Macnaghten directs the jury to give ‘reasonable’ meaning to these words and adds, ‘[i]t is not contended that those words mean merely for the purpose of saving the mother from instant death… [t]he law does not require the doctor to wait until the unfortunate woman is in peril of immediate death’. Similarly, Dellapenna directs the jury that ‘those words ought to be given a reasonable construction’, and he adds ‘the law does not insist that the doctor wait until the woman is in immediate peril and then snatch her from the jaws of death at the last moment’. Therein lies the rub, however. If the words ‘preserving the life of the mother’ refer to more than immediate risk of death, then how much more? Both Macnaghten and Dellapenna make mention of the fact that it is undesirable for a young girl whose body is not yet fully developed to bear and birth a child. Both also refer to the risk of mental anguish (emotional distress) resulting from rape and from the fact of being pregnant as a result of rape. Both also allude to potential long-term negative consequences. At the same time, Dellapenna (unlike Macnaghten) carefully directs the jury to weigh such consideration against the fact that ‘[t]he law also has regard for the innocent life of an unborn child’. Whatever legitimate concern there might be for the pregnant woman’s life, this life does not have absolute primacy over the ‘unborn child’s’ life. McGuinness, for her part, is more directive than either Macnaghten or ­Dellapenna insofar as she offers a clear interpretation of life in social rather than biological terms. In her summing-up she tells the jury: ‘He wished to protect her future life, and indeed her future capacity to act as a loving mother to a

21 

Bourne, ‘Social Aspects of Abortion’ (1939) The British Medical Journal 598. Ibid. 23  Ibid. 22 

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wanted child when she was ready to assume this role’. This accords with Bourne’s ­memoirs, in which he recounts in some detail the testimony of expert witnesses who attested to the risk of severe mental or nervous breakdown and lasting neurosis undermining physical health. In his view, ‘it was not possible to let a person drift into a mental breakdown in the future and say one was preserving life. Surely it can be claimed that a serious mental breakdown is tantamount to mental death’.24 Today, in countries where abortions are legally permitted to ‘preserve the life or health’ of the pregnant woman, there is greater certainty among physicians regarding the lawfulness of procuring an abortion in circumstances similar to the case involving Bourne. Where there may still be uncertainty, however, is with respect to the scope of the term ‘health’. While many embrace the World Health Organization’s (WHO) definition of health, which stipulates that health is ‘a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity’,25 others insist that this definition of health is too broad insofar as it extends beyond physical and mental health. Still others object to the word ‘­complete’, and worry that the inclusion of this descriptive term in the definition of health is more about happiness than health.26 On the other hand, there are those who think the WHO definition of health is too narrow. For example, ­Aboriginal peoples in Australia stipulate that ‘Aboriginal health’ is ‘not just the physical wellbeing of the individual but refers to the social, emotional, and cultural well-being of the whole Community…’27 A similar worldview obtains among certain indigenous groups in Mexico for whom health is a complex interaction of bodies, minds, social relationships within the community and with nature.28 Leaving aside this debate about the proper scope of the WHO definition of health, in jurisdictions where there is: (i) explicit reference to health as a legitimate reason for abortion: and (ii) there is at least a minimal understanding of health as including mental health, forcing a woman to continue an unwanted pregnancy would be understood (unequivocally) as a threat. In the case before the jury, there was no explicit mention of preserving the health of the pregnant woman as a legitimate reason to perform an abortion. There was only a reference to preserving the life of the pregnant woman in the Infant Life Preservation Act. In rendering its decision, the jury elected to understand ‘life’ in terms of narrative identity, not just biology. From this perspective, one’s life is a narrative and dramatic events such

24 Bourne, A

Doctor’s Creed (n 35) 101–02. WHO, Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June 1946, and entered into force on 7 April 1948. 26  R Saracci, ‘The World Health Organization Needs to Reconsider its Definition of Health’ (1997) 314 British Medical Journal 1409. 27 National Aboriginal Community Controlled Health Organisation (Australia), ‘Constitution’ (2011), available online: http://naccho-org-au.cloud.hosting-toolkit.net/wp-content/uploads/ NACCHO-CONSTITUTION-Ratified-Ver-151111-for-ASIC-.pdf 5 (accessed 4 June 2016). 28  G Coronado, ‘Competing Health Models in Mexico: An Ideological Dialogue Between Indian and Hegemonic Views’ (2010) 12 Anthropology & Medicine 165. 25 

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as rape followed by unwanted pregnancy and birth, represent a serious threat to one’s life narrative.

IV. Conclusion This case is an important historical illustration of conscientious action that is reflective of the values of compassion, service and altruism. Bourne’s challenge then, and our challenge now, when confronted with a difficult ethical quandary, is to do the work required of us to both understand and pursue our shared interest in living justly and well. All of us, at all times, need to be reflective about our values, beliefs and commitments, and to critically examine these in relation to the goal of improving our understanding of right and wrong and thereby improving human ethical practice. Bourne so exercised his conscience to the best of his ability in reaching the decision that he had a fiduciary duty to assist the young rape victim by providing a termination of pregnancy. A jury of 12 laypersons determined that in so doing he acted lawfully—in good faith for the purpose only of preserving the life of the pregnant woman.

Chester v Afshar [2005] 1 AC 134 Facts The respondent, having suffered frequent and repeated bouts of lower back pain, sought the surgical expertise of the appellant, a consultant neurosurgeon. The appellant performed surgery on the respondent who consequently suffered a rare but severe complication known as cauda equina syndrome, in which there is pressure and swelling of the nerves at the end of the spinal cord. The appellant had failed to inform the respondent of the risk of such a complication, prior to performing the surgery. The respondent claimed in respect of this a negligent failure to warn. At first instance, the judge found that, although the surgery itself had not been performed negligently, the failure to warn the respondent of the risk of cauda equina syndrome was negligent, and that had the appellant informed the respondent of the risk of cauda equina syndrome, she would not have undergone the surgery at that time. The appellant appealed against the Court of Appeal decision, which had affirmed the judgment at first instance.

Outcome (House of Lords): Appeal Dismissed Although the surgery had been performed skillfully, the appellant’s failure to warn the patient of cauda equina syndrome had obviated the patient’s right to choose freely if, where, when and at whose hands she received the surgery. Cauda equina syndrome fell within the scope of the appellant’s duty to warn and so the injuries sustained were to be considered a result of the appellant’s breach of that duty. Although this case could not be resolved by resort to conventional principles of causation, the rights of the patient being undermined were so central to her exercise of informed choice and bodily autonomy that a narrow modification to the principles of causation that allowed provision of a remedy and vindication of her rights was both required and justified. Judicial Makeup Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe. Appellate History Queen’s Bench Division; 21 December 2000 Court of Appeal (Civil Division); 27 May 2002

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[2002] EWCA Civ 724; [2003] QB 356; [2002] 3 WLR 1195; [2002] 3 All ER 552; [2002] Lloyd’s Rep Med 305; (2002) 67 BMLR 66. Keywords negligence, causation, failure to warn, duty to warn, inherent risk.

Judgment 1—Chester v Afshar [2005] 1 AC 134 LORD HEYWOOD OF TAMESIDE, GREATER MANCHESTER, (ROB HEYWOOD)

I. Introduction [1] This case concerns an action in negligence for the non-disclosure of a ­significant risk inherent in neurosurgery. Whilst the legal issue at stake centres on the question of causation, the case itself raises wider questions about the ethical desirability of ensuring that every patient agrees to medical surgery on the basis of a sufficiently informed consent. Indeed, to what extent should the law show a commitment towards respecting and protecting a patient’s right to give an informed consent and how, if indeed at all, can the law of negligence be utilised effectively to accommodate this important ethical principle?

II.  The Facts [2] The detailed facts of the case are set out in the decision of the trial judge and so do not need recounting here.

III.  The Issues [3] It is common ground that in accordance with settled law Mr Afshar was subject to a duty of disclosure, and that the failure to disclose the one–two per cent risk of cauda equina syndrome amounted to a breach of that duty (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871; Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167). [4] The contested issue is that of causation. Given that it has been established that Mr Afshar was under a legal duty to disclose the risk and acted in breach of that duty by not doing so, then, if it can be established, on the balance of

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­ robabilities, that had Ms Chester been warned of it she would not have agreed to p surgery, she has satisfied the conventional ‘but-for’ test for causation and ought to be allowed to recover damages accordingly. In this sense denying her the important information about the risk prevented her from acting to avoid or reduce that risk, actions which she could have taken had she been informed about it. [5] The difficulty in this case resides in the fact that the trial judge, based on the evidence of Ms Chester, could not make that finding of fact. All Ms Chester did was honestly state that if she had been informed of the risk, she would not have consented to the treatment three days after her initial consultation. She would have taken the time to discuss it with others and to explore other options. Nevertheless, she made no attempt to rule out completely the fact that she may well have agreed to the surgery at some date in the future. Equally, it was never argued that there was any way in which Ms Chester could reduce the random risk inherent in that particular surgery. [6] As such, strictly speaking, Ms Chester has failed to establish but-for causation. She is unable to prove that but for the failure to warn she would not have consented to surgery. At best all she can reliably say is that she would not have had the operation on that particular date. Nonetheless, this is immaterial because the risk of injury would be exactly the same whatever the date of any future surgery and it would be unaffected by whoever performed it. In other words, Mr Afshar’s breach in failing to disclose the risk has not caused the harm to Ms Chester. Having ruled out the possibility of avoiding the risk altogether by being unable to state categorically that she would have never had the procedure at all, and by further being powerless to take any steps to minimise the inherent risk of surgery, she would have faced exactly the same risk of injury in the future. [7] The question for this Court, then, is whether in fact the rules of causation within the negligence action are such as to allow Ms Chester to recover damages despite the fact that she cannot prove that Mr Afshar’s negligence caused her loss in the ordinary meaning of the word.

IV. Discussion [8] Two important issues are worthy of consideration here. First, the interplay between legal rules and ethical principles and how both disciplines can relate to, and support, each other. Second, whether the law is in fact capable of lending greater credence to certain ethical values and, if so, the precise extent to which it is appropriate that the law should do so. [9] In my judgment, the starting point is to consider why the law of negligence has recognised that a doctor owes a duty of disclosure to her patients. In a n ­ arrow sense, it may be seen as a mere acknowledgement that the law deems it a­ ppropriate to

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provide monetary redress for any injury that has been caused to a patient as a result of a risk materialising that she was inappropriately warned about. To this end, the law of negligence is arguably the most appropriate mechanism to achieve this compensatory goal. What is at the root of this thinking? In a wider sense, it is undoubtedly grounded in the belief that a patient has a right to make an informed choice about medical treatment in command of appropriate information. How can a patient ever exercise her right of informed choice if, for example, she is denied the opportunity to weigh in the balance a particular risk and to decide whether or not to avoid it altogether, or, alternatively, to make an attempt to reduce that risk by opting for a different course of action? If harm results from the failure to provide information, it seems both ethically right and legally correct that a patient ought to be entitled to recover damages in law. [10] Beauchamp and Childress suggest that there are five building blocks for a definition of informed consent: ‘One gives an informed consent to an intervention if (and perhaps only if) one is competent to act, receives a thorough disclosure, comprehends through disclosure, acts voluntarily, and consents to the intervention’ (TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 5th edn (Oxford, Oxford University Press, 2001) 79). Here we can see that the concept of informed consent, in an ethical sense, is multi-faceted and encompasses a number of different components. A sharp distinction emerges, which warrants discussion for the purposes of the present case. The ethical concept of informed consent is different from the legal understanding of the term. Indeed, the phrase ‘informed consent’, in its legal usage, is prone to mislead. The legal protection afforded to a patient’s right to choose in command of reasonable pre-operative information has been channelled, perhaps inappropriately some would suggest, through the contours of the negligence action. As the gist of negligence is harm, the focus of any legal inquiry into ‘informed consent’ has converged on the disclosure of risk. This creates a situation in which the legal protection that is afforded to the wider notion of informed consent is severely limited. Is it desirable that the law should seek to provide greater protection to a patient’s right to self-determination by aligning itself more closely with the wider ethical view of informed consent and, if so, is the law of negligence capable of being adapted in this way? [11] It is important to identify that whilst ethical and legal principles do have a considerable degree of overlap, they are not always natural bedfellows and sometimes do not sit squarely with each other. By way of an example, provided that two medical professionals form the opinion in good faith that section 1(1)(d) of the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990, s 37) is satisfied, an abortion will be legally permissible under the foetal abnormality ground. This is despite the fact that some people will remain ethically opposed to it, if, say, it was performed on the basis that the foetus was found to be suffering from a condition that the majority of people in society would not consider to be a serious handicap, such as a cleft palate (see Jepson v Chief Constable of West Mercia [2003] EWHC 3318). Consequently, the law does not always represent

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what may be deemed ethically desirable in a given situation, and this is because the law has a separate and distinct role from that of pure ethics. However, ethical principles can be, and are not infrequently, used to shape the trajectory of the law. In the context of this case, the ethical commitment towards promoting patient autonomy through the desirability of informed consent has clearly influenced the development of the legal duty of disclosure in the negligence action. Yet, this has only been developed so far, not only in terms of the content and focus of the duty itself, but also in the context of the wider principles of negligence, which must be satisfied in order for a patient to successfully recover compensation. These wider principles, which are in play in the current case, may serve to inhibit even further the legal protection afforded to patient autonomy and, if followed strictly on every occasion, may be inimical to the very right that the legal duty is designed to protect. Thus, we may be justified in questioning why the law has only developed in a limited way when there is a clear justification for adding greater protection to a patient’s right to self-determination by broadening the focus of the legal rules, causing them to correspond more closely with the ethically desirable notion of informed consent. [12] Leaving aside for present purposes the content and delivery of the disclosure per se (for in this case these issues are not in question), what is clear is that on a strict interpretation of the rules of causation, for the reasons I have set out above, Ms Chester’s claim should not succeed. Given that I have argued here that there are discernible justifications for the law of negligence adopting an expansive approach in respect of the protection it provides for a patient’s right to choose, we are now faced with the question of whether or not the law of negligence is sufficiently malleable so as to be capable of adaptation to meet this goal. [13] The beauty of negligence is that it is an area of law that is alive. Desirable characteristics of any law are certainty and consistency. Without these the law would become unpredictable, which could potentially operate to the detriment of both claimants and defendants. Therefore, it is crucial that the law of negligence operates within a designated framework, adhering to what might best be described as a guiding set of principles. Nevertheless, the need for certainty has to be mitigated, to an extent, by recognition of the fact that there must remain some scope for flexibility and incremental development. The framework of negligence is therefore exactly that; it is a frame and not a cage. In certain instances, where there is a compelling justification, a modest departure from the guiding principles ought to be acceptable. [14] What, then, is the justification here and is it sufficiently convincing? If the law’s wider purpose in developing the duty of disclosure is to give a right to the patient to receive reasonable pre-operative information, thereby recognising the ethical imperative that choices about medical treatment can only be made on the basis of sufficient information, the purpose of that duty is effectively emptied of any meaningful content if the law holds that, notwithstanding the fact the duty of disclosure was very clearly breached, there can be no recovery because the

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patient cannot establish that she would never have consented to the said operation. If this were the case, the rules of causation would serve to undermine the very existence of the duty itself. Accordingly, it seems to me enough that the patient in the case can simply prove, on the balance of probabilities, that she would not have consented to the operation on that day and by that surgeon. It was his duty to warn her; he failed in the duty. The patient was therefore exposed to a risk at his hand at that time and on that day as a consequence, which she would have avoided at his hand at that time and on that day had she been appropriately warned. This is the very conduct that the law of negligence, in recognising the duty of disclosure, is attempting to prevent and it is only right that it seeks to provide a remedy where unnecessary harm has been caused in these circumstances. [15] I acknowledge that my judgment may not be well received by negligence purists. In defence of my position, I would draw attention to the fact that, whilst this may be a slight departure from the legal norms of the negligence action, it is not the first time that this has happened, both specifically in a causal context and elsewhere in terms of the wider question of breach. In the Australian case of C ­ happel v Hart (1998) 195 CLR 232, a case that was factually similar to the present situation, the claimant was allowed to recover damages, notwithstanding the fact that she was more explicit about the fact that she probably would have had the operation at some point in the future, albeit under the care of a more experienced surgeon. In this case, arguably, the traditional rules of causation were more visibly not satisfied given that Ms Hart would definitely have run the same risk in the future; Ms Chester, in our situation, was not as forthright in her testimony about whether she would have definitely had the operation and hence run the same risk in the future, preferring to state she would have reserved judgement until after a second or third opinion. As a result, a more radical departure was apparent in Chappel which has since been justified in reference to negligence’s ethical commitment towards autonomy, Professor Tony Honoré elegantly suggesting that ‘Dr Chappel violated Mrs Hart’s right to choose for herself, even if he did not increase the risk to her. Morally he was responsible for what he did.’ Indeed, I am also inclined to agree with Professor Honoré’s further assertion that the courts have the power in certain cases to override causal considerations in order to vindicate a claimant’s rights, on condition that the right is exercised with great caution (T Honoré, ‘Medical Non-Disclosure, Causation and Risk: Chappel v Hart’ (1999) 7 Torts Law Journal 1 at 8). Taking this one step further, negligence’s commitment towards the wider ethical notion of informed consent has been seen before. In adopting a more expansive approach to the question of breach, the courts have shown that it is not necessary to confine the law to the one dimensional analysis of risk disclosure per se, and that in certain circumstances negligence should look beyond this in order to consider the different dimensions to the notion of informed consent and to examine what can be done to bring these other aspects within the reach of the law to ensure that a patient’s right to make an informed choice is more effectively protected. By way of example, we have seen the law of negligence recognise in

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other jurisdictions that not only is it important to impose on doctors the requirement to disclose risks, but also the requirement to disclose reasonable alternatives (see the Canadian case of Haughian v Paine (1987) 37 DLR (4th) 624 (Sask CA); and the Californian case of Truman v Thomas (1980) 611 P2d 902 (Cal Sup Ct)).1 Similarly, the law has recognised that whilst disclosure is an important aspect of the negligence action, it is meaningless unless accompanied by at least a degree of understanding. Whilst the law has acknowledged that it would be inappropriate for negligence to place a duty on doctors to ensure full understanding, it has been recognised, and indeed the law has made inroads into mandating, that there is a duty to ensure a reasonable level of understanding in terms of the content of information that is imparted from doctor to patient (see Lybert v Warrington Health Authority (1995) 25 BMLR 91; Smith v Salford Health Authority (1994) 5 Med LR 321. For discussion, see K Williams, ‘Comprehending Disclosure: Must Patients Understand the Risks They Run?’ (2000) 4 Medical Law International 97). Thus, the law of negligence has clearly demonstrated that it is sufficiently capable of remaining flexible in respect of its attitude to embracing the ethical notion of informed consent, and this is not confined simply to modifying the rules of causation. Provided any adaptation is clearly justified, modest and piecemeal, there is no reason why the law of negligence should deny recovery when, on a holistic view of justice and accountability, a patient should be entitled to recover. Ms Chester’s case, in my view, falls into this very category. [16] As an endnote, I feel it is important to say something about the potential impact of allowing Ms Chester to recover damages in the present circumstances. The nature of this judgment will no doubt have repercussions for those working in the medical profession. If it drives home the importance of making every effort to ensure that patients are as informed as possible before agreeing to undergo medical treatment, that can only be a beneficial thing. Here, the prescriptive power of negligence can be utilised to good effect by promoting enhanced standards of clinical practice. There will no doubt be a perception amongst some that this judgment could have the opposite effect; that it may create a culture of fear amongst doctors, eroding clinical discretion and thereby leading to a culture of excessive risk disclosure. This, it is said, could be potentially detrimental to the patient’s long-term health. In some respects I agree that informing patients of every possible eventuality may not always be a good thing. If this practice is adopted, it is nigh on impossible to attribute it directly to the development of the law. Why? The law of negligence does not demand complete disclosure and never has. It simply demands reasonable disclosure in the circumstances and is subject to the well-recognised­therapeutic privilege, which allows doctors some scope to exercise clinical discretion in withholding information from a patient where it is believed that the information will be detrimental to the patient’s physical or mental health (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley ­Hospital [1985] AC 871). As such it becomes pivotal to bridge the gap between perception and reality and to ensure that medical understanding of the law is 1 

Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB).

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improved amongst health care professionals. Similarly, one potential criticism of this judgment is that the slight modification of the law could cause litigation in this field to spiral out of control. The time-honoured floodgates argument has frequently been relied upon by judges to justify not doing something that the law, in a wider sense of justice and accountability, should perhaps do. In my view, reliance on the floodgates argument is a weak proposition on which to prevent Ms Chester from recovering damages in the instant case. This is a minor modification in one specific area of clinical negligence law which is not yet hotly litigated. The relaxed approach to causation in these circumstances does not apply universally across the board in all types of cases. It is, and ought to be, confined solely to information disclosure actions. In view of this, I perceive it to be highly unlikely that this more relaxed approach will lead to a sudden influx of frivolous claims concerning negligent disclosure and fears of excessive burdens being placed on the public purse as a result of this decision are, consequently, ill founded.

V. Judgment [17] For the reasons I have set out above, I find in favour of the respondent, Ms Chester, and would dismiss this appeal accordingly.

Judgment 2—Chester v Afshar [2005] 1 AC 134 LADY DEVANEY OF PRESTON (SARAH DEVANEY) My Lords, [1] I am grateful to my learned friend Lord Hope of Craighead for his detailed exposition of the facts of this case. In brief, having suffered from back pain for some six years, the Respondent, Miss Chester, underwent a surgical procedure carried out by the Defendant which entailed a one–two per cent risk of neurological damage in the form of cauda equina syndrome. This risk eventuated in Miss ­Chester’s case and she has been left with significant disabilities as a result. Her position is that, had she been informed of this risk, she would not have undergone the operation at the time she did. Rather, she would have sought further information and advice about how best to proceed. [2] The judge at first instance found as a matter of fact that, had the Respondent received the warning to which she was entitled, the operation would not have taken place on the occasion that it did. The Court of Appeal (Hale LJ, Sir ­Christopher Slade and Sir Denis Henry) upheld the conclusion of the judge (Chester v Afshar [2002] EWCA Civ 724; [2003] QB 356). [3] The question before this House is a causal enquiry, namely whether, as the Respondent alleges, the negligent failure to provide the relevant warning caused the injury from which she now suffers. It seems to me that behind this simple legal question lies a more challenging normative one: ought the law provide a remedy to a patient who is denied the opportunity to make an autonomous decision about their medical treatment, where this treatment leads to the very risk about which she should have been informed, but was not? [4] The concept of autonomy is a complex one, but can be briefly defined as selfdetermination or self-government. In the medical context, the law allows capacitous patients to make autonomous choices about whether or not to undergo the treatment offered through the mechanism of consent. Justice Kirby, in ‘Informed Consent: What Does it Mean?’ Journal of Medical Ethics 9 (1983) 69–75, describes the link between autonomy and consent thus: [The] fundamental principle underlying consent is said to be a right of self determination: the principle or value choice of autonomy of the person… The principle is not just a legal rule devised by one profession to harass another. It is an ethical principle which is

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simply reflected in legal rules because our law has been developed by judges sensitive to the practical application of generally held community ethical principles.

[5] Such is the importance of the ethical principle of autonomy in medical ­decision-making that the courts have, rightly, protected the rights of patients to exercise it even where this will result in the ending of their lives. For instance, Ms B became paralysed from the neck down and required mechanical ventilation to sustain her life in B v An NHS Trust [2002] 2 All ER 449. In this case it was held that a capacitous individual requesting the removal of such medical intervention, in the full and certain knowledge of her consequential death, must have her wish respected. Continued ventilation in the face of her request that it be removed constituted a battery in law and a gross infringement of her autonomous wishes. [6] This principle was reiterated by Lord Goff in Airedale NHS Trust v Bland [1993] AC 789, who stated at [864]: […] it is established that the principle of self-determination requires that respect must be given to the wishes of the patient so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so […] To this extent, the principle of the sanctity of life must yield to the principle of self-determination […]

This was echoed by Lord Donaldson MR in Re T (Adult: Refusal of Treatment) [1993] Fam 95, 112 as follows: The situation gives rise to a conflict between two interests, that of the patient and that of the society in which he lives. The patient’s interest consists of his right to selfdetermination­—his right to live his own life how he wishes, even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all paramount possible. It is well established that in the ultimate the right of the individual is paramount.

[7] Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426 involved a pregnant woman with a phobia of needles whose doctors advised that her baby needed to be delivered by caesarean section. It was stated in the Court of Appeal at [436] that, A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests, objectively considered, do not arise.

[8] The primacy of the principle of autonomy in the law having being established, what mechanisms are in place to protect it? Before making such serious decisions about medical treatment, the law requires a patient’s medical practitioner to provide information about the proposed course of action, including certain risks inherent in it. Thus, the purpose of the duty to inform is to facilitate a patient’s

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autonomous choice. At both an individual and societal level, fulfilment of this duty allows us to retain that trust in our medical advisors which is so central to our relationship with them and the profession as a whole. In the instant case, the Respondent was explicitly denied that choice through the Appellant’s failure to respond to her queries about risks with the information she sought. [9] It was affirmed in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 that failure to provide sufficient information is a matter to be dealt with by the law of negligence (as opposed to a failure to provide information in broad terms of the nature of the procedure, which will be dealt with through the mechanism of battery (Chatterton v Gerson [1981] QB 432)). At the time of the former decision, the question as to whether the failure to provide a warning constituted a breach of duty was established through recourse to the Bolam test—ie was such failure acceptable to a reasonable body of the practitioner’s peers? However, the law has developed in the intervening period to give greater recognition to the patient’s role in determining the extent of the medical treatment with which they will engage (Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53). [10] In the latter case, Lord Woolf noted, In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law … that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.

[11] It is this approach to the law on consent which has led to the finding in the instant case that the failure to warn the Respondent of the risk of developing cauda equina syndrome was a breach of the Appellant’s duty. [12] The fact that the legal mechanism protecting this entitlement has, over time, changed emphasis from a professional determination of the information required to a patient-focussed one only serves to accentuate the need for the law in this area to have teeth. If this is not done, a mockery is made of the ostensible move from paternalism on the part of the medical profession, and of the body of case law which has eroded its influence (and to which I referred above) to the empowerment of patients to play as full a role as possible in their medical treatment. The requirement in negligence for a claimant to establish that the breach of duty identified caused the damage of which they complain, may at first glance however appear to deal a fatal blow to the Respondent’s claim. After all, how can it be said that a failure to provide information about risk caused a physical injury? This may require an adjustment of our understanding of the rules on causation in order to meet the law’s aims. [13] The purpose of the law of negligence is to ensure that those who have failed to protect others from the harm which it was their duty to protect, take responsibility

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for that failure. This was recognised in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 when Lord Hoffmann stated: The concepts of fairness, justice and reason underlie the rules which state the causal requirements of liability for a particular form of conduct (or non-causal limits on that liability) just as much as they underlie the rules which determine that conduct be tortious. And the two are inextricably linked together: the purpose of the causal requirement rules is to produce a just result by delimiting the scope of liability in a way which relates to the reasons why liability for the conduct in question exists in the first place ([56]).

[14] While the purpose of the remedy in compensation for physical harm is to put the person back in the position they would have been, its existence also stands as a form of deterrent to those who might otherwise breach the duties they owe, whether to act or to refrain from doing so. [15] The law of England and Wales has a long and illustrious history of amending its rules on causation to ensure that the above aims of the tort of negligence in general, and the duty to inform in particular, are met and that justice is thus done. It has done so in the face of a spectrum of different types of uncertainty, the categories of which will no doubt continue to expand in the coming years. Causation has been found, for example, despite uncertainty as to the extent of the contribution of the injury-causing mechanism. In Bonnington Castings v Wardlaw [1956] AC 613, the Claimant contracted pneumoconiosis from the inhalation of silica dust during the course of his employment. A certain proportion of the dust exposure occurred in non-negligent circumstances during the use of pneumatic hammers. However, the employer’s failure to provide dust-extraction equipment in relation to the use of swing hammers was in breach of their duty to protect their employees. It was impossible to determine the relative proportions of the dust exposure in negligent and non-negligent circumstances, and so the C ­ laimant could not reach the ‘but for’ threshold. Nevertheless, this House held as fact that the negligent exposure made a material contribution to the Claimant’s injury which was sufficient to reach the causal threshold. [16] The Claimant in McGhee v National Coal Board [1972] 3 All ER 1008 contracted dermatitis through exposure to brick dust at his place of work. As in ­Bonnington Castings, some of this exposure occurred in non-negligent circumstances during the course of the working day. However, the employers had negligently failed to make appropriate shower facilities available for this dust to be washed off at the end of the day. Expert witnesses could say no more than that this failure had materially increased the risk of the contraction of dermatitis. This was sufficient for this House to hold the defendants liable for that condition on the basis that, while uncertainty existed as to whether it was the actual cause, the breach made the risk more likely, Lord Wilberforce (at [1012]) acknowledging that the ‘evidential difficulty’ was overcome on the basis of policy reasons. [17] In Fairchild, it was impossible to establish, on the balance of probabilities, that any one particular employer was responsible for the exposure of the Claimant to

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the asbestos fibre which caused the later development of mesothelioma. Nevertheless it was held that in order for justice to be done, the Claimants must succeed in their claim. [18] In the instant case, the nature of the uncertainty which faces us is not in relation to lacunae in our scientific understanding of causal mechanisms, but a factual uncertainty leading us to the hypothetical enquiry as to how the Respondent would have acted, had she been given the warning to which she was entitled. While the question of whether Miss Chester would have undergone the operation at all had she received the warning, to which she was entitled, remains uncertain, what we do know, and what has been accepted as fact by the judge at first instance, is that she would not have undergone it on the date and at the time that she did. She would have taken advantage of the expression of her autonomy which the duty to inform is intended to facilitate, by availing herself of further advice and opinions. Thus, certainty exists in relation to the fact that the operation would not have gone ahead when it did. [19] Here, there is no possibility of proving that Miss Chester’s injury would have materialised had she undergone the operation on another day. However, the statistical likelihood of this occurring, one–two per cent, allows us to be confident that it would not have done. On the balance of probabilities, on another day, she would not have suffered such injury and it can therefore be said that ‘but for’ causation is satisfied. The failure to warn had a clear effect on the decision-making of the Respondent, leading her to undergo the operation on the occasion that the one– two per cent risk materialised. This appears to me to be a clear example of factual causation. Further, it is right to say that the failure to warn caused the injury as justice demands that where the injury relates to the warning that has not been given, recompense should be made. Thus, legal causation is established. [20] Does it matter that the uncertainty does not relate to the evidence given by experts, but rather a lay person expressing their views in hindsight about what they would have done? Indeed not. The purpose of the protection of autonomy is after all to ensure that, having been given information based on the current technical, scientific and/or medical knowledge, the decision is hers to make, whether she takes this information into account in doing so or not. [21] In Fairchild, Lord Nicholls stated: To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law. [36]

[22] In holding in the instant case that Miss Chester’s injury was caused by Mr Afshar’s failure to warn, we retain that adherence to principle and coherence exhibited by a line of cases which demonstrate a commitment to ensuring that the law fulfils its own aims. The finding that causation has been made out in this case

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places it within a body of jurisprudence which strives to ensure justice and to meet its own ends, in this case to uphold the law’s commitment to autonomous medical decision-making. It becomes one of a number of cases in which decisions have been made about where the causation threshold should lie, taking principles and policy into account in the given circumstances. In addition to fitting neatly within that cohort of cases, coherence must also exist in relation to the law’s upholding of the ethical principle of autonomy. If circumstances come before the courts which demonstrate that this principle is in fact not protected in the context of medical treatment, they should be quick to interpret existing legal frameworks in a way that will ensure such coherence. [23] The law’s increasing efforts over time to ensure the paramountcy of patient autonomy lends a normative element to it. This normativity provides the justification for the identification of new forms of causation, or at least its establishment in novel circumstances. Lord Hoffmann noted in Fairchild that the causation element of negligence serves to allow the establishment of ‘just responsibility’ (at [9]). In answering the normative question, it is just to allow the responsibility for injury to lie in the circumstances before us. [24] The instant case presents us with a tension between, on the one hand, the opportunity to develop the law to protect the values it is intended to uphold, and on the other, to deny such values for the sake of rigid consistency within one aspect of the law (itself a manmade construct intended to uphold certain values which society views as worthy of such protection)—in this case the ‘but for’ test of causation in negligence. However, even a finding of ‘but for’ causation is far from ultimate certainty—it is only a finding that it is more likely than not that the breach of duty caused the harm complained of. In negligence cases, the law only asks that the answer to the question ‘did the Defendant’s negligence cause the Claimant’s injury?’ be ‘Probably’. It does not require the answer to be ‘without a reasonable doubt’ and certainly does not have an expectation that the answer will be ‘without a shadow of a doubt’. In that sense, holding that causation is established in this case is not beyond the bounds of this criterion to respond to the needs of justice and the requirement to uphold patient autonomy.

Legal Commentary—Taking Autonomy Seriously? Loss of Autonomy as a Legal ‘Harm’ JOSÉ MIOLA

I. Introduction All of the judges, from Lords Hoffman and Bingham who would not support the claimant’s case, to Lords Steyn, Hope and Walker, as well as Lord Heywood and Lady Devaney who would, are agreed that the law clashes with the ethics in this case. This has led them to discuss the question of whether the law is malleable enough to allow Ms Chester to recover damages, or whether it is appropriate to effect some sort of minor modification to the law in order to allow it. For Lords Hoffman and Bingham, legal certainty and the general principles of causation demanded that, however sympathetic they were to her claim, Ms Chester must fail. The others, however, attempted to marry the legal and ethical principles in such a way as to bend the law into a shape that would accommodate Ms Chester. This approach is an interesting one but, as I argue below, it does not in my view satisfactorily address the issues that it identifies. I will consider this argument below, before proposing my own alternative reading of the law which, I believe, would provide a solution without the need to alter the rules of causation.

II.  Justifying Finding for Ms Chester The argument put forward by those in favour of finding for Ms Chester can be summarised in the following way. As Lord Heywood noted at para [10], there exists in this case interplay between the legal and ethical principles. Moreover, ‘whilst ethical and legal principles do have a considerable degree of overlap, they are not always natural bedfellows and sometimes do not sit squarely with each other’ [11]. In this case the ethical principle of autonomy—which is supposed to underpin the law in this area—is fundamentally undermined if the patient has to prove that had she not been informed of the risk at issue, she would never have

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consented to the procedure. This is because, in the absence of the information required by the patient, while she will have made a choice, it will not have been autonomous. Indeed, as Lady Devaney notes at [20], [t]he purpose of the protection of autonomy is after all to ensure that, having been given information based on the current technical, scientific and/or medical knowledge, the decision is hers to make, whether she takes this information into account in doing so or not.

Whether she would have consented to the procedure in any event, thought about it for longer and consented at another time or refused does not alter the fact that there was no autonomous decision made. The legal principle of causation, however, takes a different view that would require us to reach a different conclusion. It states that the law of tort compensates patients for the harm suffered by patients as a consequence of the breach of duty (not warning of the material risk). Thus, if the patient would have consented to the operation in any event, then the harm, if the risk materialises, would have occurred in any event. The breach of duty will thus have caused no harm at all. The perceived unfairness of this argument was highlighted by Lord Bingham in Chester itself, who stated at [9] that: A defendant is bound to compensate the claimant for the damage which his or her negligence has caused the claimant. But the corollaries are also true: a claimant is not entitled to be compensated, and a defendant is not bound to compensate the claimant, for damage not caused by the negligence complained of. The patient’s right to be appropriately warned is an important right, which few doctors in the current legal and social climate would consciously or deliberately violate. I do not for my part think that the law should seek to reinforce that right by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant [my emphasis].

The key to being able to compensate Ms Chester, then, is to somehow find a way around Lord Bingham’s concerns. The way that this has been achieved is to concentrate on the fact that, while Ms Chester would not have refused consent to the operation, she would have postponed it. Thus, Lady Devaney held at para [19] that the statistical likelihood of this occurring, one–two per cent, allows us to be confident that it would not have done. On the balance of probabilities, on another day, she would not have suffered such injury and it can therefore be said that ‘but for’ causation is satisfied. The failure to warn had a clear effect on the decision-making of the Respondent, leading her to undergo the operation on the occasion that the one–two per cent risk materialised. This appears to me to be a clear example of factual causation.

Equally, Lord Heywood noted at para [14] that ‘it seems to me enough that the patient in the case can simply prove, on the balance of probabilities, that she would not have consented to the operation on that day and by that surgeon’. Their Lordships’ view is, then, that there can be said to be some causative connection— even if it is temporal rather than relating directly to the injury in the case of Lord ­Heywood—between the failure to warn and the cauda equina syndrome suffered

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by Ms Chester. The general approach is to encourage the law to fit in with the underlying ethical purpose of the law. Thus, if the law exists to protect autonomy and it does not do so, then the law must be changed so that it does fulfill its function.

III.  Is Harm to Autonomy ‘Harm’? However, this approach may be challenged. Take, for example, Lady Devaney’s view that, because the risk of harm was low, the general rules of causation dictate that it is far more probable than not that had she undergone the procedure some other time then the risk would not have materialised. This leaves the patient a hostage to fortune in the sense that she can only claim if the result might have been different if the procedure had been carried out at a different time. Had she, for example, been shown to be allergic to a certain drug, then it follows that her claim would have had to fail because she would still have been allergic to it whenever it was given. Lord Heywood’s view that it would be ‘enough’ for the patient not to have consented at that time also relies, albeit implicitly, on the notion that the outcome might have been different had the surgeon or the timing of the procedure been different. In both cases, the patient is asked to demonstrate that she would in some way have altered her behaviour, or that the disclosure of the material risk would have in some way made a difference to proceedings. With the greatest of respect, I would disagree with this, for several reasons. First, as noted above, such an approach leaves hostages to fortune in the sense that the justification for imposing liability melts away if by changing surgeons or postponing the procedure the patient would have suffered the injury anyway. Second, and more fundamentally, by concentrating on the patient changing her behaviour we only tangentially address what is supposed to be the core of the issue: autonomy. Let us look again at how their Lordships framed their decisions. Essentially, all of them recognised that the purpose of the law in this area was to protect autonomy, and that Ms Chester’s right to make an autonomous decision had been infringed by the lack of warning about risks. The problem that they faced was that what they saw as a conventional application of the law would not allow them to compensate the claimant, so they sought to bend it in order to be able to do so. As Lord Steyn noted at para [24], ‘[h]er right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles’. Equally, Lord Heywood argued (at [14]) that a legal framework that would not protect patient autonomy would fail to protect the very principle that it claimed to uphold: If the law’s wider purpose in developing the duty of disclosure is to give a right to the patient to receive reasonable pre-operative information, thereby recognising the ethical imperative that choices about medical treatment can only be made on the basis of

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s­ ufficient information, the purpose of that duty is effectively emptied of any meaningful content if the law holds that, notwithstanding the fact the duty of disclosure was very clearly breached, there can be no recovery because the patient cannot establish that she would never have consented to the said operation. If this were the case, the rules of causation would serve to undermine the very existence of the duty itself.

Yet we do not achieve this by leaving hostages to fortune. Indeed, I would argue that we do not have to do so. Rather, if we are going to prioritise autonomy and state that Ms Chester has a right to be informed of the material risks, then we should be bold and assert that not to be informed of them is therefore harm in itself. In other words, I would propose that an alternative and more effective method of protecting Ms Chester’s right to autonomy would have been to redesignate the ‘harm’ suffered from being the cauda equina syndrome to being the loss of the ability to make an autonomous decision. If we were to approach the issue in this way, then two advantages would accrue. The most obvious is that we would be genuinely and squarely protecting the patient’s right to autonomy. If the philosophy behind the law is that the patient’s autonomy deserves to be respected, then it surely follows that not to do so causes harm to the patient. The principle of autonomy is thus promoted to being both central to the legal framework and the determinant of liability. If the right to autonomy ‘can and must be vindicated’, then let us do so openly and honestly by designating the lack of an ability to make an autonomous choice ‘harm’. Another advantage to this is that such an approach would not require any legal gymnastics to find for Ms Chester. Rather, the ‘but for’ test of causation would be satisfied easily as the breach of duty (not warning of a material risk) can easily be shown to cause harm (the loss of the ability to make an autonomous choice). This would also mean that there would be no need for the patient to demonstrate that she would have altered her behaviour, as it would apply equally in scenarios where the patient would have consented in any event. This means that the artifice whereby we seek to protect autonomy by reference to what the patient would have done rather than whether the choice itself was autonomous is avoided. However, this also presents a problem, because it also means that causation is essentially dispensed with. This is because of the fact that, if we modify the definition of the ‘harm’ away from the solid structure of physical injury and into the more amorphous concept of the principle of autonomy, then every breach of duty will necessarily cause harm in the legal sense. In other words, a failure to disclose a material risk will be both a breach of duty and the harm itself. All patients will, under this system, be entitled to compensation, whether they agreed to the procedure or not, and indeed whether they suffered any physical harm or not. An analogous situation to this has already been considered by the courts in the case of Gregg v Scott [2005] UKHL 2. The case concerned a GP’s failure to refer a patient with a lump for a biopsy. The lump was cancerous, and the lack of timely referral resulted in the patient losing a 17 per cent chance of recovering—as his chances of survival dropped from 42 per cent to 25 per cent. The argument put to the Court is that the claimant should be compensated for this loss of a chance of recovery.

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However, the House of Lords declined to do so, holding that loss of a chance of recovery was not an actionable head of damage. As Sarah Green has noted, ‘[t]he law of torts is concerned not with compensating all those who have suffered loss, but only with compensating those who have suffered loss as a result of the defendant’s breach of duty’.1

IV.  Loss of Autonomy as a Harm: Challenges and Advantages If we were to redesignate the loss of the patient’s autonomy as the ‘harm’, then, we would not only see harm as a non-physical concept, but also remove the concept of ‘suffering’ from the physical sphere, and one would expect damages to be small to the point of being nominal in such cases. It would be a bold step to adopt this position, and it would certainly be arguable that the floodgates would be opened to much litigation. However, there are still some good arguments in favour of doing so despite all of the disadvantages. Perhaps the most important of these is the issue of the protection of autonomy mentioned above. If, as is stated, the purpose of the law in this area is the protection of the patient’s right to make autonomous decisions, then surely it follows that an infringement of that right constitutes harm. While it is easy to understand the discomfort of some with the idea of providing compensation for breaches that do not result in the patient changing her behaviour, it might be argued that such issues relate to the quantum of damages rather than the question of liability in itself. Indeed, concerns about opening the floodgates to litigation might be allayed if the courts made it clear that only nominal damages would be awarded unless the information not disclosed would have made the patient act differently. Any damages awarded would thus be below the cost of litigation itself, which would deter frivolous claims. This method of differentiating between frivolous and more serious claims will therefore depend on making a distinction between material and significant risks. It might be argued that a material risk is one that the patient is entitled to be told of, while a significant risk is one that would change the patient’s mind.2 The courts in England and Wales have not really considered this, and indeed a court in Ireland has suggested that the distinction may not exist in law.3 Nevertheless, by recognising and effecting this distinction, the courts could determine when to award only nominal damages (thus deterring litigation), and when to consider higher sums.

1  S Green, ‘Coherence in Medical Negligence Cases: A Case of Doctors and Purses’ (2006) 14(1) Medical Law Review 1, 4. 2  For a discussion of the distinction, see A Maclean, ‘Giving the Reasonable Patient a Voice: Information Disclosure and the Relevance of Empirical Evidence’ (2005) 7 Medical Law International 1. 3 See Fitzpatrick v White [2007] IESC 51.

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However, in both cases there would be legal recognition of the patient’s right to make an autonomous decision. Moreover, this would accord with the more holistic view of informed consent now embedded in the law. The law has gradually come to demand more than the mere disclosure of risks, and it now includes, for example, a requirement that doctors disclose alternative treatments.4 However, since the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11, much more is required. Thus, the Supreme Court noted at paras [89–90]: that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient … Secondly, the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.

In other words, the doctor’s duty is now imagined by the law as being an interactive process where patient and doctor discuss all elements of the decision. The purpose is expressly to allow the patient to make a fully autonomous choice. Given this, it is difficult to argue that the loss of the opportunity to make an autonomous choice should thus be considered an actionable head of damage. Even the ­General Medical Council (GMC) considers autonomy to be the fulcrum of patient decision-making, and has long required doctors to act in the way described by Montgomery.5 By adopting this approach, the law could maintain information disclosure within the law of negligence. Frivolous or opportunistic claims could be controlled by awarding only nominal damages where a material but not significant risk was not disclosed. The principle of autonomy would not just be visible in this model, but directly and specifically protected. Finally, there would be no need for the law of negligence to be modified, as Lord Heywood and Lady Devaney suggest. I would argue that defining a loss of autonomy as ‘harm’ would therefore make sense in a case such as this.

4  5 

See, for example, Birch v UCL Hospital Trust [2008] EWHC 2237. See GMC, Consent: Patients and Doctors Making Decisions Together (GMC, 2008).

Ethical Commentary—Autonomy Rights and Duties: Ethical Issues in and around Chester v Afshar JOHN COGGON

I.  Introduction: Three Tiers of Ethical Critique in Medical Law This book is premised on the idea that English medical law not only addresses morally complex questions, but has developed—albeit haphazardly and sometimes incoherently –to incorporate ethics into its very fabric. Assuming the truth of these premises, there are three particularly salient points of entry for ethical critique. Although they are analytically distinct, they may build upon each other: that is, an ethical analysis of medical law might be conducted at any of the following levels, or through all three of them. First, we might analyse a given scenario, asking: morally speaking, what should happen. We draw here simply from ethical theory. We might, for example, ask what a Kantian analysis tells us about the nature and level of provision of information that a person in Ms Chester’s situation should receive.1 Such analysis is not obviously about law in a direct sense; rather, it is about what ought to ­happen given the demands of moral theory. Nevertheless, such questions are often raised in medico-legal evaluations, especially when these feed into the next tier of analysis, and they certainly bear on discussions of good medical practice and governance more widely. At the second level, we might examine the extent to which ethical obligations should be manifested as legal obligations. JK Mason and Graeme Laurie’s textbook on law and medical ethics2 is prefaced with the celebrated dictum from Lord Chief Justice Coleridge in R v Instan:3 ‘It would not be correct to say that every moral

1  Cf N Manson and O O’Neill, Rethinking Informed Consent in Bioethics (Cambridge, Cambridge University Press, 2007). 2  JK Mason and GT Laurie, Mason & McCall Smith’s Law & Medical Ethics, 9th edn (Oxford, Oxford University Press, 2013). 3  R v Instan [1893] 1 QB at 453.

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obligation involves a legal duty, but every legal duty is founded on a moral obligation.’ Even if we consider this to be an overstatement, we may still think that some moral obligations are so important that they should be enforceable through law. So here we might ask: if Ms Chester has a moral right to be more fully informed of the risks of surgery, should that be translated into a legal right? The question of whether a legal right should exist does not automatically follow from establishing the existence of a moral right. In this analysis, we require a legal theory that explains the relationship between law and morality, and allows us to explain what the substantive content of law should be.4 Third, having established what the law should say, we might explore how legal developments should arise. We are concerned here with the processes of legal change, and might ask: in the absence of needed legal rules to protect Ms C ­ hester’s moral right to be informed, which organ of the state should establish further autonomy protections? In other words, our ethical question is whether the courts, as opposed to Parliament, should have created (or ‘recognised’) autonomy rights and duties. In this analysis, we need a legal theory that explains how legal changes legitimately occur. These different tiers of analysis provide a useful template for ethico-legal study generally. In this commentary, I will reflect on the idea of autonomy as presented in the opinions of Lady Devaney and Lord Heywood, and consider ethics and the protection of autonomy in medical law. I will outline some points concerning bioethical debate and patient autonomy, the ethics of protecting autonomy through law, and the ethics of judges playing a part—to twist a phrase familiar to philosophical bioethicists—in enhancing the law’s evolution. My aim is to expose a range of useful questions to address in evaluating Chester v Afshar, and autonomy more widely as an ethical concept in medical law.

II.  Patient Autonomy in Health Care Ethics and Practice Autonomy is considered the preeminent concept or principle in medical ethics. It features as such within a wide range of perspectives. Consider a few examples. Within a ‘common morality’ framework, Raanan Gillon argues that alongside the principles of non-maleficence, beneficence, and justice, autonomy is the ‘first among equals’.5 Within feminist theory, responses to systemic disempowerment,

4  In other work, I have characterised this move as one taking us out of moral and into political theory, where we would wish to account for moral and other factors: see J Coggon, ‘Assisted Dying and the Context of Debate: “Medical Law” versus “End-of-Life Law”’ (2010) 18:4 Medical Law Review 541–63. 5  R Gillon, ‘Ethics Needs Principles—Four Can Encompass the Rest—and Respect for Autonomy Should be “First Among Equals”’ (2003) 29 Journal of Medical Ethics 307–12.

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such as that explored in Sally Sheldon’s works regarding abortion law, lend weight to arguments for autonomy.6 Different strands of liberal bioethics likewise triumph autonomy: for instance the Lockean-Millian ‘libertarian-consequentialism’ of John Harris7 and the neo-Kantian Gewirthian moral framework espoused by Deryck Beyleveld and Roger Brownsword8 both emphasise the primacy of individual decision-making. Autonomy’s importance is easily explained. The medical practice (and ethics) of old, wherein ‘doctor knew best’, was rightly rejected.9 Even if we trust that medical expertise affords particular insights and understandings, this does not commit us to holding that patients should completely cede decision-making power to clinicians. As a general proposition, arguments that patients (or at least those who are of sufficient maturity and decision-making capacity) should decide what health care interventions to consent to, rest on the strength of one of two ideas:10 either that it is each person’s right to make decisions about herself for herself, and thus it is a moral offence for others to decide for her;11 or that each person is best placed to assess the content of his own interests, and thus it is a moral offence for others to second-guess his evaluation of what serves his interests.12 Although these views rest on strong arguments, scholars representing a range of positions and approaches have questioned the reverence for patient autonomy, suggesting that it has become somehow fetishised.13 These oppositional arguments find particular purchase in situations where people are free to make foolish, harmful, or selfish choices. Angus Dawson, for example, urges that simplistic accounts of autonomy themselves allow for an unthinking ethics that ignores other important values.14 When faced with concerns that autonomy has lost its moral content and is overvalued, we need to apply caution. Other concepts matter, but there are good reasons, as expressed above, to protect autonomy. Accepting autonomy’s importance does not require us to accept an excessively individualistic ethic, wherein people are conceived as self-reliant, wholly-rational, atomised decision-makers.15 There

6 

S Sheldon, Beyond Control: Medical Power and Abortion Control (London, Pluto Press, 1997). J Harris, The Value of Life (London, Routledge, 1985). D Beyleveld and R Brownsword, Consent in the Law (Oxford, Hart Publishing, 2007). 9  See I Kennedy, Treat Me Right—Essays in Medical Law and Ethics (Oxford, Oxford University Press, 1991). 10  These two sorts of ideas are reflected in the philosophical literature in debates between ‘choice theorists’ and ‘interest theorists’ of rights. 11  For a forceful defence of this position, see RP Wolff, In Defense of Anarchy (New York, Harper and Row, 1970). 12  This is the position that I would defend. See eg J Coggon, What Makes Health Public? (Cambridge, Cambridge University Press, 2012) Part III. 13  See eg M Brazier, ‘Do No Harm—do Patients have Responsibilities Too?” (2006) 65:2 C ­ ambridge Law Journal 397–422; S Conly, Against Autonomy: Justifying Coercive Paternalism (Cambridge, ­Cambridge University Press, 2012). For discussion, see J Coggon, ‘Would Responsible Medical Lawyers Lose their Patients?’ (2012) 20:1, Medical Law Review 130–49. 14  A Dawson, ‘Three Dogmas and a Cup of Hemlock’ (2010) 24:5 Bioethics 218–25. 15  See Coggon, What Makes Health Public? (n 17) Part II. 7  8 

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is increasing recognition of patients’ decision-making existing within a network of social relations, wherein we account for vulnerability, power dynamics, practical capacities, and so on. Bioethical concern is given to patients viewed as mutually reliant and supportive beings, able to thrive only when embedded in properly structured social relationships of interdependency.16 Whether an account is more or less ‘relational’, it should be recalled that developments to protect patient autonomy arose in response to the ‘tyranny’ found in doctors’ excessive professional autonomy. There is no need to regard patient autonomy as a new ‘tyranny’. In bioethics, we need simply to be clear about how and why we value autonomy, and how it weighs against other important values. Although there are limits to permissible choices, when, as in Chester, we find self-regarding choices, there are good reasons to promote a patient’s moral right to decide whether to submit to a risky procedure. It is useful now to consider how the ethical judges in Chester conceptualise autonomy. Neither considers it the only value of importance, but both advance good reasons to value it in Ms Chester’s situation. In paragraph [4] of her opinion, Lady Devaney says: The concept of autonomy is a complex one, but can be briefly defined as selfdetermination­or self-government. In the medical context, the law allows capacitous patients to make autonomous choices about whether or not to undergo the treatment offered through the mechanism of consent.

Lord Heywood, at paragraph [10], draws directly from Tom Beauchamp and James Childress’ canonical work on biomedical ethics: Beauchamp and Childress suggest that there are five building blocks for a definition of informed consent. [A patient can give] ‘…an informed consent to an intervention if (and perhaps only if) [a patient] is competent to act, receives a thorough disclosure, comprehends through disclosure, acts voluntarily, and consents to the intervention.’17

To fail to be concerned about autonomy on the terms of the ethical judges is to fail to be concerned that people should be free, where they have the capacity to do so, to decide what should be allowed to happen to their bodies. To ensure that ­people can act autonomously, doctors must respect patients’ (moral) rights to receive clear and accurate information to weigh in their decision-making. There is a good case for suggesting that Ms Chester had a moral right to be informed of the risk of significant harm.

16  Good examples of ‘relational autonomy’ feature, for example, in feminist and civic republican bioethics: see respectively C MacKenzie and N Stoljar (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (Oxford, Oxford University Press, 1999); W Gaylin and B Jennings, The Perversion of Autonomy (Washington DC, Georgetown University Press, 2003). 17  The quoted text within this passage comes from T Beauchamp and J Childress, Principles of ­Biomedical Ethics, 5th edn (Oxford, Oxford University Press, 2013) 79 but the language in later editions is the same.

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III.  Autonomy as an Ethical Concept in Health Care Law If we take it that patient autonomy is morally important, it does not follow (even from an ethical perspective) that it is due legal protection. The determination in Chester relates to informed consent. But informed consent does not stand in isolation as a contender ethical concept. As seen above, it is well framed by the ethical judges as part of a fuller concept of autonomy. We cannot assess Chester without placing it—as the judges do—in the context of wider legal protections of patient autonomy. To put this another way: to analyse the merits of the law pre- and postChester, we need to understand whether patient autonomy more widely is due legal protection, and if so whether protecting informed consent is a necessary part of that. Within the clinical setting, English medical law protects patient autonomy through two legal areas. Together these account for the concepts of autonomy presented by Lady Devaney and Lord Heywood.18 First, there are protections in mental capacity law. These maximise people’s freedom to decide for themselves whilst aiming to ensure they have the capacity, in terms of practical reasoning, to decide on a particular matter. In English law, this means suffering no disturbance in the functioning of the mind or brain,19 and being able to understand, retain, and weigh relevant information, and communicate consent.20 Second, there are protections found in tort law rules governing consent. These arise in the tort of battery, which requires that consent be given before bodily integrity may be breached, and in the tort of negligence, which requires that doctors provide sufficient information to the patient to ensure that her consent is adequately informed. From a philosophical perspective, these technically separable matters are intertwined and collectively account for a complete concept of autonomy that requires protection. That is to say, whilst there may be different legal aspects of protections of autonomy, with Chester focused on just one of them, ethically the concern must be about the coherent, overall protection of autonomy. The ethical argument for legal protections of patient autonomy rests on the importance of ensuring that moral autonomy rights are vindicated: the force of law safeguards an ethical entitlement of great magnitude. This includes ensuring that patients are told about risks that they would consider relevant; a point on which there was a legal deficit prior to Chester. Lord Heywood says at the start of his speech: ‘Whilst the legal issue at stake centres on the question of causation, 18  This could be widened, eg to include resource allocation questions and public law protections, or to allow for criminal law protections. For present purposes, capacity and tort law protections capture the relevant concerns. See further J Coggon and J Miola, ‘Autonomy, Liberty, and Medical DecisionMaking’ (2011) 70:3 CLJ 523–47. 19  Mental Capacity Act 2005, s 2. 20  Ibid, s 3.

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the case itself raises wider questions about the ethical desirability of ensuring that every patient agrees to medical surgery on the basis of a sufficiently informed consent’. And regarding legal protections of the concept of autonomy as a whole, Lady Devaney posits an ethical imperative to ensure legal safeguards of the different aspects of patient autonomy. She advances her defence of informed consent rights as one of ethico-legal coherence, holding at paragraph [22] that: [C]oherence must… exist in relation to the law’s upholding of the ethical principle of autonomy. If circumstances come before the courts which demonstrate that this principle is in fact not protected in the context of medical treatment, they should be quick to interpret existing legal frameworks in a way that will ensure such coherence.

As well as the ethics and coherence arguments, I would note here that I find convincing Lady Devaney’s view, expressed in paragraph [8], that the public interest is of central importance.21 The sound functioning of health care relies on the ­confidence provided by autonomy protections.

IV.  The Ethics of the House of Lords’ Imposition of a Greater Duty to Inform Most bioethical critiques of Chester are likely framed within the tiers of analysis outlined in the previous two sections. In this shorter, but no less important, part of my commentary, I will note some matters that arise in relation to the third tier: should the courts have decided that Mr Afshar’s ethical duty was also a legal one? Whilst many commentators might welcome the outcome in Chester, a number of legal scholars express concern about the misapplication, as they see it, of legal rules.22 Ethically, finding that the law should guarantee informed consent is not sufficient to show that the House of Lords should have ruled as it did. Lady Devaney talks at paragraph [15] of amending legal rules. More stridently, Lord Heywood in his opening paragraph talks about the law being ‘manipulated’. This aspect of their rulings raises not just a narrow, ‘legalistic’ concern. Important questions—ethical questions—arise from ‘judicial law-making’, even within a common law system. These include constitutional issues about the separation of powers; arguments that if the law needs to be changed, it should be the democratically accountable Parliament, not unelected judges, making the change. Equally, the questions include consideration of rule of law problems: if judges are making

21 See further R Huxtable, ‘Autonomy, Best Interests and the Public Interest: Treatment, NonTreatment­and the Values of Medical Law’ (2014) 22:4 Medical Law Review 459–93. 22  See eg T Clark and D Nolan, ‘A Critique of Chester v Afshar’ (2014) 34:4 Oxford Journal of Legal Studies 659–92.

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law, they do so after the fact, and thus might be said retroactively to be imposing legal liability on Mr Afshar. We might approach this problem in various ways. First, we might suggest that really the judges just found the relevant legal rules and applied them to the facts. Whilst ‘constitutionally neat’, this is a bit of a stretch. However, legal philosophers have advanced theories that hold that judges can legitimately reach a decision even when the rules appear to have run out. Ronald Dworkin, like Lady Devaney, argues that judges should look to the principles upheld by the legal system, and from there establish what the legal rule should be in a particular case. In that analysis, judges are not creating law; they find the rules within the pre-existing political morality.23 Other means of defending apparent judicial law-making—which phenomenon, we should recall, is a hallmark of medical law—could be given here. However, it is hard to accept that Chester is a case where the rules ran out. There were clear rules on causation, which the ethical judges have chosen to modify, or ‘manipulate’. Scholars interested in the relationship between medical ethics and medical law should ask themselves whether, as with many other legal developments (such as the other cases considered in this book), it is right that judges took the lead here. There is vital work to be done, exploring why the courts, as opposed to Parliament, should bring ethical content to medical law. Ethically to defend the Chester decisions, we need to see why the question should not have been left to Parliament, or to the Department of Health or General Medical Council guidance.

V. Conclusion This commentary raises more questions than it answers. Nevertheless, I hope that the discussion framed within the three tiers of ethical analysis proves useful, both for an ethical critique of Chester, and for wider medico-legal scholarship. By asking what ethical medical practice is, how ethical obligations should manifest themselves at law, and how ethical legal reform should be brought about, we go a long way towards understanding how morally sound—or otherwise—medical law may be.

23 

R Dworkin, Law’s Empire (Boston, Harvard University Press, 1988).

R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 Facts The appellants in this case suffered catastrophic physical disabilities, rendering them completely immobile. Despite their physical condition, the appellants were both completely cognitively able. Both appellants, because of their condition, wished to be able to end their lives at a time of their choosing but because of their physical condition were incapable of ending their own lives without assistance. Should anybody have assisted the appellants in ending their lives, criminal liability under s 2 of the Suicide Act 1961 would be imposed. The appellants argued that this provision was incompatible with Art 8 of the European Convention on Human Rights.

Outcome (Supreme Court): Appeal Dismissed The Court held unanimously that whether s 2 of the Suicide Act 1961 is incompatible with Article 8 is a matter that lies within the United Kingdom’s margin of appreciation. Five of the nine Lords and Ladies held that a declaration of incompatibility was within the Court’s constitutional jurisdiction. However, only two of those five (Lady Hale and Lord Kerr) would have actually granted a declaration of incompatibility. Lord Neuberger, Lord Wilson and Lord Mance declined to grant such a declaration. Further, the remaining four justices (Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke) emphasised that the compatibility of s 2 of the Suicide Act 1961 with Art 8 is a matter that Parliament, rather than the courts, is better qualified to assess. Judicial Makeup Lord Neuberger PSC, Lady Hale JSC, Lord Mance JSC, Lord Kerr JSC, Lord Clarke JSC, Lord Wilson JSC, Lord Sumption JSC, Lord Reed JSC, Lord Hughes JSC. Appellate History Divisional Court; 16 August 2012 R (on the Application of Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin); [2012] 3 FCR 233; [2012] HRLR 32; [2012] Med LR 544; (2012) 127 BMLR 197; [2012] ACD 118; (2012) 109(32) LSG 18.

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Court of Appeal (Civil Division); 31 July 2013 R (on the Application of Nicklinson) v Ministry of Justice [2013] EWCA Civ 961; [2014] 2 All ER 32; [2014] 1 FCR 316; [2013] HRLR 36; (2013) 16 CCL Rep 413; (2013) 133 BMLR 46. Keywords assisted suicide, criminal law, human rights, right to die.

Judgment 1—R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 LORD HUXTABLE OF PEN-Y-BONT AR OGWR (RICHARD HUXTABLE)

[1] I agree with my noble and learned friends that this appeal must be dismissed for the reasons given. I will, however, venture to add some remarks about our role in this appeal. Given the recent frequency with which we have been required to adjudicate on these matters of life and death, I feel it appropriate also to add my reflections on how we might see the law in this area developing. I do so in the manner of Lady Hale, Lord Kerr and Lord Coggon; my observations, however, differ markedly from theirs. [2] Our task in this—and, indeed, every—case is to apply the law. On the occasion of the final sitting of the House of Lords in its judicial capacity, Lord Neuberger explained: ‘As judges, we are concerned with applying the law, not with changing the law: that is a matter to be decided by Parliament’ (R (Purdy) v DPP [2009] 3 WLR 403, 409). In the same hearing, Lord Hope elaborated in the following terms: ‘Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it’ (ibid [385]). [3] Law, as my noble friend avers, requires clarity. The esteemed jurist Lon Fuller described the essence of law as ‘subjecting human conduct to the governance of rules’ (The Morality of Law, revised edn (New Haven, Yale University Press, 1969) 96). If law is to succeed in its goal, explained Professor Fuller, the rules and their practical applications must meet various criteria, such as those requiring clarity, certainty and consistency; criteria which, I note, have been cited with approval in the Court of Appeal by Arden LJ (FP (Iran) v Secretary of State for the Home Department; MP (Libya) v Secretary of State for the Home Department [2007] EWCA Civ 13 [74]). [4] In one sense, the law governing assistance in dying is already clear. It advances a fundamentally prohibitive proposition: there is no right to be assisted to die, whether by one’s own final actions or by those of another, and so to assist will involve the commission of a criminal offence (R (on the application of Pretty) v DPP [2002] 1 AC 800; Purdy, ibid). [5] We have, however, had the opportunity to clarify the law as it pertains to the prosecution of such an alleged offence, specifically by requiring the Director of

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Public Prosecutions to clarify the guidance to Crown Prosecutors regarding the prosecution of complicity in suicide (Purdy, ibid). Such clarification was necessary in order to ensure law’s proper functioning as law, ie as a body of rules by which people’s behaviour can be guided. Our decision on that occasion accordingly clarified the manner in which the rules would be applied. [6] Our decision achieved more than this, however. In so ruling, we were able to satisfy the dictates of justice. People do, of course, disagree about what justice requires whenever the difficult dilemmas presented by assisted dying arise. The law, for its part, will seek to do justice as the case requires and may even, where necessary, modify its principles, provided that its rules remain clear. According to Lord Brandon (R v D [1984] AC 778, 804–05), [t]he common law … while generally immutable in its principles, unless different principles are laid down by statute, is not immutable in the way in which it adapts, develops and applies those principles in a radically changing world and against the background of radically changed social conventions and conditions.

As Lord Reed has noted with approval, Professor Fuller similarly believed that the law must be prepared to change with the times (AXA General Insurance Ltd and others v HM Advocate and others [2012] 1 AC 868, 935B). [7] Sometimes, of course, only Parliament can take the necessary step in changing the rules, after thorough consideration of each of the relevant factors. Pending such a step, however, there remains a role for the court. As Lord Scarman once recognised, ‘[u]nless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them’ (Gillick v West Norfolk AHA [1986] 1 AC 112, 186C). [8] Law must, therefore, be both clear and just, and sometimes justice will require flexibility. As I have indicated, these elements came together in our decision requiring the elaboration of distinct guidance for the prosecution of complicity in suicide. Few would say that the paradigmatic case of assistance in suicide—in which a loved one provides aid to a suffering individual at that individual’s explicit request—is a situation in which the assistant should expect to endure the full force of the criminal law. The resultant policy has, I note, been applied leniently, particularly whenever relatives have helped their loved ones to travel to Zurich, so that they may take up the offer of assistance in suicide which is available there. We see, in this compassionate prosecutorial policy, justice at work. [9] Perhaps, however, the policy still lacks the requisite clarity. It is in the nature of such guidance to prosecutors that the relevant factors will only be listed, without any particular weight necessarily being assigned to any particular factor. Clarifying the weighting could better inform citizens about how the rules will be applied. But here we reach the limits of the courts’ function. Such a radical change in the rules would necessitate Parliamentary intervention. Only Parliament could properly assess the relevant features and, indeed, the likely wider ramifications of such

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a proposal for prosecution policy more broadly. As Lord Scarman has indicated, the court is confined ‘by the forensic process to the evidence adduced by the parties and to whatever may properly fall within the judicial notice of judges’ (Gillick, ibid [186C]). [10] Having said all this, we know that Parliament remains disinclined to legislate in favour of assisted dying. Is there, then, more that the courts can do to ensure that the law in this area is clear and just? Precedent reveals that our brethren and sistren are not afflicted by timidity, when justice requires a bold stand. We have, for example, found legal support for the surgical separation of conjoined twins, even where this will result in the death of one sibling, and we have also authorised the withdrawal of life-supporting treatment from a permanently incapacitated individual (Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961; Airedale NHS Trust v Bland [1993] 2 WLR 816). As Lord Fraser remarked in another landmark decision, ‘[s]ocial customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance’ (­Gillick, ibid [171E]). In that decision, as in those others just mentioned, a defence was therefore found, which there enabled a medical practitioner to issue advice and treatment to a competent, consenting minor, without fear of legal redress. [11] Perhaps bolder still are those occasions, albeit rare, on which we have found to be criminal an action which offends against justice. On occasion, justice requires us to increase the exceptions to a general rule. ‘This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes’, Lord Lane CJ once suggested, adding: There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour (R v R [1991] 1 AC 599, 610D).

In that case, our learned colleagues found that there was no longer a rule of law by which a wife was deemed to have consented to sexual intercourse with her spouse; the corollary was, therefore, that a husband could be found guilty of rape or its attempt. [12] The latter decision did, however, attract criticism, including from the venerable Professor John C Smith (‘Rape: Whether Defence that Complainant and Defendant Married (Case Comment)’ (1992) Criminal Law Review 207). Professor Smith’s objection was itself founded on the idea of the rule of law, with which Professor Fuller had been similarly concerned. Professor Smith suggested that the House had extended the law, thereby usurping Parliament’s function, and had done so at a time when Parliament was preparing to address the matter, following recommendations formulated by the Law Commission (Criminal Law: Rape within Marriage (HMSO, Law Com No 205, 1992)). The House, nevertheless, sought to give effect to the dictates of justice. Times had changed and the law had to be brought in line with the moral inclinations of right thinking persons.

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[13] What bearing has any of this on the present appeal? There are certainly some important differences, to which we must be alert. The situation before us, unlike that which confronted the House in 1992, is one on which right thinking persons do not agree. As Lord Hope recognises, recent debates in the Parliamentary chambers about the merits and demerits of assisted dying leave us in no ‘doubt as to the strength of feeling on either side’ (Purdy, ibid [385]). We would be wise to view with caution the results of some unofficial commissions that have examined the issues, such as the recent Commission on Assisted Dying (The current legal status of assisted dying is inadequate and incoherent… (London, Demos, 2011)). We should, however, be mindful that Parliamentarians have twice in recent years undertaken their own, very thorough, explorations (House of Lords Select Committee, Report of the Select Committee on Medical Ethics (HMSO HL Paper 21, 1994); House of Lords Select Committee, Assisted Dying for the Terminally Ill Bill [HL], Volume I—Report (HMSO, HL Paper 86-I, 2005)). On neither occasion did the Select Committee favour a permissive change in the law. Nor, lest we forget, have the Parliamentary chambers voted in favour of changing the rules in the ways proposed by Lord Joffe, in his Assisted Dying for the Terminally Ill Bill, which was rejected in 2006, or, more recently, by Lord Falconer, in his Assisted Dying Bill of 2013. [14] Parliament’s reluctance appears to stem from the strength of the arguments against any move towards allowing assisted dying on request. We ourselves have had cause to visit the relevant objections, both principled and pragmatic. We are, therefore, bound to honour the principle of the sanctity of human life, which, according to Lord Hobhouse of Woodborough, ‘is probably the most fundamental of the human social values’ (Pretty, ibid, [848D]). So too have we encountered concerns about the need to protect the vulnerable, preserve patients’ trust in their physicians, and avoid any step onto a dangerous ‘slippery slope’ (Pretty, ibid [831D], per Lord Steyn). But weighed against the foregoing concerns are calls to relieve the suffering of patients, coupled with appeals to the principle of respect for patient autonomy, which is elsewhere writ large in the law (Pretty, ibid [831B], per Lord Steyn). If an individual like Mr Lamb or, previously, Mr Nicklinson, wants assistance in escaping an unwanted life of suffering, why should that wish be denied? [15] In short, this may be a court of law, but it is also a court of morals. As the occasion requires, we are alert to the moral dimensions of the case at hand. Unfortunately, where assisted dying is concerned, we find that the morals of the matter are murky and muddled. Sometimes matters are made worse, when a single idea is forced to bear two entirely opposing interpretations, such as when appeals are made to ‘dignity’, both by those in favour of, and by those opposed to, assistance in dying (D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, Oxford University Press, 2001); J Keown, Euthanasia, Ethics and P ­ ublic Policy: An Argument Against Legalisation (Cambridge, Cambridge University Press, 2001) 40). Yet whichever terms are employed, there are evidently powerful arguments on either side.

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[16] So what does and should the law do? For my part, I believe the law is currently alert to the competing sets of concerns just outlined. Prohibitive arguments such as those premised on the sanctity of life find support in the law of homicide, as well as in the legal endorsement of various distinctions, including the distinction between actions that end life (which are prohibited) and omissions that end life (which may be permitted, subject to certain criteria being satisfied). Permissive arguments, such as those premised on appeals to mercy and autonomy, meanwhile, find support in those rulings which afford a competent adult the right to refuse even life-saving treatment, as well as in those which recognise when the limits of treating a life of poor quality have been reached. Of course, these examples do not directly tackle the contested case, with which we are concerned, in which an individual seeks positive assistance in dying. But, in these cases too, we see the law’s ability to attend to concerns on both sides: assistants might expect a measure of leniency from the law-as-applied, but the law-as-stated leaves the prosecutor free to proceed, where the circumstances seem to require this. [17] The law therefore conveys a compromise, attending simultaneously to different sets of scruples. I think this appropriately captures the justice of this specific situation, on which right thinking persons can and do disagree. But do the relevant rules, and their associated practices, measure up to Professor Fuller’s demands for clarity? Here, I suspect, more can be done. [18] There are, I believe, two options, either of which could enhance the clarity of the rules governing assistance in dying. One option, to which I earlier referred, would involve a more explicit weighting of the factors for and against prosecution. The second option is bolder still, since this would involve the creation of an explicit offence of assistance in dying, which could also be made available as a partial defence to any other homicide charge. [19] The idea of creating a distinct offence of this sort is not new, having been explored by various respectable committees (Royal Commission, Royal Commission on Capital Punishment 1949–1953: Report (HMSO, Cmnd 8932, 1953) 63–64; Criminal Law Revision Committee, Working Paper on Offences against the ­Person, 1976 (HMSO) 31–34; House of Lords Select Committee, Report of the Select C ­ ommittee on Murder and Life Imprisonment, HL 78 I-III (HMSO, HL 78 I-III, 1989)). The Law Commission more recently revived the idea, when it provisionally proposed that so-called ‘mercy killings’ be brought explicitly within the purview of manslaughter by virtue of diminished responsibility (Law Commission, A New Homicide Act for England and Wales? A Consultation Paper (Law Com Consultation Paper No 177, 2005) 215). That proposal was, however, withdrawn (Murder, Manslaughter and Infanticide. Project 6 of the Ninth Programme of Law Reform: Homicide (Law Com No 304, 2006) 145–55), and perhaps wisely so, given doubts expressed by one of my former learned colleagues about whether such a defendant can properly be considered to be acting with diminished responsibility (­Lawton LJ, ‘Mercy Killing: The Judicial Dilemma’ (1979) 72 Journal of the Royal Society of Medicine 460–61). Alternative models for the type of offence I have

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in mind may yet become available; we lack a blueprint at present, but scholarly defences of the basic idea, and its essential components, are emerging (R Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (London, RoutledgeCavendish, 2007); H Keating and J Bridgeman, ‘Compassionate Killings: The Case for a Partial Defence’ (2012) 75(5) Modern Law Review 697–721). [20] I therefore suspect that more can be done to clarify the contours of the middle ground in which we all, as citizens, seek to navigate. There appear to be two options, either of which would enhance the clarity of the relevant rules. I have acknowledged how the court has a role to play in providing such clarification, especially where such clarification aligns with the interests of justice. As I have demonstrated, there have been other situations in which my brethren and sistren have felt able to achieve justice in the instant case by advancing a particular reading of the relevant rules. I doubt, however, that I can do more, in the present appeal, than offer these remarks as to how the law might be honed. If I were to go further today I believe this would involve trespassing on Parliament’s territory. Of course, on this fundamental matter, if on so few others, Lord Coggon and I disagree, since he envisages no such impediment. [21] For my part, I would hope that, when next it is asked to consider such matters, Parliament will give thought to clarifying the compromise. Professor Mitchell’s research for the Law Commission revealed a measure of public support for such a move (Law Commission, 2006, ibid 148–49). Notably, most of the respondents felt that police investigation was warranted and, where this resulted in prosecution and conviction, ‘a community-based disposal, with the emphasis on counselling for the killer, would be appropriate’ (ibid 149). That, to my mind, demonstrates due regard for the competing conceptions of justice available in these difficult cases. [22] Whether Parliament will be inclined to take the route I have sign-posted remains to be seen. But Parliament’s job this must be. As Lord Mustill once so accurately stated: The formulation of the necessary broad social and moral policy is an enterprise which the courts have neither the means nor in my opinion the right to perform. This can only be achieved by democratic process through the medium of Parliament (Bland, ibid 890).

As such, for the reasons given, I would dismiss the present appeal, although I would urge Parliament to consider again how best to clarify the rules governing assisted dying, in a manner which does justice to the arguments on both sides.

Judgment 2—R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 LORD COGGON OF BEDMO (JOHN COGGON)1

[1] With the ethical controversies intrinsic to this case it has, quite ­understandably, raised widespread concern and interest. Yet, whilst at its core there are profound moral questions, this Court’s role is to establish and apply the law as we properly find it to be. Doing so clearly requires examination of the substance of moral views, but also an understanding of the right relationship (or lack thereof) of our laws with different theories of philosophical ethics. It would be wrong for the Court unduly to impose a singular moral view. But it would be equally wrong for the Court to shirk its responsibility to make a ruling in order to pretend to moral neutrality. [2] On appeal are two sets of questions. Regarding the first, the appellants Jane Nicklinson (the widow of Tony Nicklinson) and Paul Lamb challenge the outright prohibition of assisted suicide found in section 2(1) of the Suicide Act 1961. Mr Lamb seeks either to establish that the law allows him assisted suicide, or that it should be amended to do so. In the courts below, these appellants sought to establish the lawfulness of ‘mercy killing’, rather than—as now—assisted suicide. To be clear, my opinion here is addressed to the lawfulness of assisted suicide. The second set of appeals is brought by the Director of Public Prosecutions (DPP) and an appellant named Martin. The DPP challenges the majority decision in the Court of Appeal that more detailed guidance should be given on her policy concerning the exercise of prosecutorial discretion under section 2(4) of the Suicide Act. Martin, meanwhile, argues in a cross appeal that the DPP’s guidance must be made clearer still than was demanded by the Court of Appeal.

I.  Mr Lamb’s and Mrs Nicklinson’s Appeals [3] In relation to the first appeals, it has proven (to my view, somewhat strangely) necessary to address a constitutional question before considering the appellants’ 1  I acknowledge the feedback on an earlier draft of this judgment from participants at the E ­ thical Judgments Project Workshop on 15 September 2014, at the University of Birmingham. I am also ­grateful to Paul Scott for comments on that earlier draft.

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substantive claims. The courts below, like Lords Huxtable, Reed, and Hughes, have judged that Parliament is the only body competent to speak to the legality (or otherwise) of assisted suicide and mercy killing. In order to rule, as I will do, that the appellants’ claims have merit, I will therefore first explain why I agree with the majority in this Court that we may validly come to a decision on this matter.

A.  The Role of the Court [4] Section 3(1) of the Human Rights Act 1998 states that the courts are obliged, as far as is possible, to interpret legislation in a way that is compatible with rights under the European Convention on Human Rights (ECHR). Section 2(1) of the Suicide Act, however, is unambiguous, providing that an offence is committed if: (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D’s act was intended to encourage or assist suicide or an attempt at suicide.

Before considering in detail the substance of the appellants’ case, I would emphasise that these provisions clearly prohibit absolutely the assisted deaths that they seek, and cannot be read to do otherwise. [5] Nevertheless, under section 4 of the Human Rights Act, the courts may issue a declaration of incompatibility where primary legislation is found to be incompatible with Convention rights. It has been suggested that on an issue as ethically divisive as assisted suicide, which falls within the margin of appreciation and so is a matter of law to be determined domestically, it would be inappropriate for a court to make a ruling because of its lack of a democratic mandate. A recurring theme in several judgments in this case has also been to highlight the danger that judges may impose, or appear to impose, a personal moral position in adjudicating on the merits (or otherwise) of the appellants’ claims. As the majority in the Court of Appeal put it at paragraph [60]: Parliament as the conscience of the nation is the appropriate constitutional forum, not judges who might be influenced by their own particular moral perspectives[.]

The Court of Appeal’s view on this accorded with that of Toulson LJ in the Divisional Court. There it was also held that concerns about judges’ susceptibility to their own moral compulsions were complemented by the perceived lack of competence to review the full range of relevant issues, and the danger of perilous and unforeseen consequences of a decision favourable to the appellants. [6] I do not accept these concerns. I will not repeat here in full the dicta quoted at [192] by Lord Mance, taken from Lord Bingham’s speech in A v Secretary of State for the Home Department [2005] 2 AC 68. I would, however, emphasise some of Lord Bingham’s words in his powerful defence of the role of the judiciary as a democratic institution: It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true… that Parliament, the executive and the courts

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have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 [Human Rights] Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right […]. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6))[.]

[7] It would be a strange affront to the dignity of this institution, and an indictment on our whole legal system, to hold that judges are not to be trusted (indeed should not trust themselves!) to make a ruling. For a functioning, democratic system to operate, the last thing the courts must do is shirk their responsibilities simply because of moral controversy and ethical disagreement. Parliament, through the Human Rights Act, has afforded us discretion to assess the compatibility of legislation with the State’s obligations under the ECHR. I will thus proceed to examine the nature and merit of Mrs Nicklinson’s and Mr Lamb’s appeals, alive to the reality that this Court might quite properly make a declaration of incompatibility.

B.  Ethics, Law, and the ECHR [8] The appellants’ challenge to the Suicide Act is brought under Article 8 of the ECHR, which protects people’s right to respect for private and family life. In order to assess the strength of their claims, it needs to be established first whether the UK is interfering with this right by imposing a complete ban on assisted suicide, and second, if so, whether that interference is justified under Article 8(2) as a lawful and proportionate measure that advances a legitimate aim. Before making these assessments, and given the repeated focus throughout the judgments in this case on the question of morality, I will make some preliminary comments about how the Court should approach matters in light of conflicting ethical values that present themselves in analysis of the legal claims here. [9] In this context, consideration of moral views, at least if the claims are to be taken seriously, is inevitable. With respect to Lord Sumption, I do not consider that this is best achieved through bold statements about purportedly fundamental values and their relationships with moral theories such as utilitarianism (not least as, however this matter is decided, one class of persons is bound to suffer, or risk suffering, for the benefit of others). I would, furthermore, demur at judicial pronouncements that profess to find what might be ‘the most fundamental of all human social values’ (per Sumption L, [209]) and proclamations about specific legal rules made on the basis of these. Doubtless respect for human life is a crucial legal principle, but we do risk imposing values unduly if, for example, we categorise the act of (unassisted, and perfectly lawful) suicide as ‘morally repugnant’

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(per Sumption L, [212]). I would note here two core reasons why it is unnecessary for us to formulate such expressions, and why we should avoid them. [10] First, as the law develops in this controversial field, we find that our deliberations lead to a ‘pick your dicta’ exercise in support of contentions about the very concept of law; we demote ourselves from judicial actors to indirect protagonists in disputes between competing ethical views. Moral principles are important to the development of the common law, and can rightfully inform our understanding of how the law should be interpreted and applied in different cases. However, given the abstract formulation of something such as the sanctity of life doctrine, we lend ourselves to only simplistically answering a specific legal question on the basis of too general a principle. Whilst a clamour of authority can be found asserting the place of something called ‘the sanctity of life principle’ within our law, the very meaning of ‘sanctity’, and its basis, scope, and limitations, are, respectfully, far from usefully explicated in the law reports. Indeed, key supporters of the doctrine, such as Professor John Keown, lament the poverty that they see in our (ie judges’) understanding of sanctity (see eg J Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 Law Quarterly Review 481). In works such as Keown’s, the sanctity principle is reflective of a whole theory of law. In many judgments, by contrast, it means no more than that life is but one of several important values. High-sounding but poorly-applied principle neither helps the resolution of the immediate case, nor the sound development of law. [11] Second, it follows from this that we should seek to take the law on its own terms, rather than appeal to ideas that (rightly or wrongly) we see as underpinning specific legal questions in a more diffuse or general sense. Where clear, specific legal principle can be found, we are better to attach our reasoning to that. Lord Neuberger, with respect, is right at [90–91] in his interpretation of the moral justification of the prohibitions under section 2(1) of the Suicide Act. The rationale in support of the law, as explained for example in Pretty v UK (2002) 35 EHRR 1, is the protection of vulnerable others; a legitimate aim under Article 8(2). It is not based on an absolutist moral concern about the sanctity of life, or indeed an ‘expressivist’ concern about the message that the law should be seen to send regarding the value of human life. In terms of Article 8(2) of the ECHR, in other words, if there is an interference with Mr Lamb’s freedom to have assistance in the ending of his life (to which point I shall come shortly), its justification is founded in the protection of health and of the rights and freedoms of others. Indeed, Lord Sumption himself, at [235], seems to accept as much, considering a justification in the protection of morals a mere ‘possibility’.

C. The Compatibility of Section 2(1) of the Suicide Act and Article 8 ECHR [12] And so we come to the question of whether the appellants’ Article 8(1) rights are being infringed by section 2(1) of the Suicide Act. I have noted that this ­cannot

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be resolved by reference to the sanctity principle, and I would stress equally that it should not too quickly be solved by unthinking reference to the principle of autonomy. It is widely recognised that ‘autonomy rights’ are protected under ­Article 8 of the ECHR. However, as Lord Hughes states at [263–64], we need to be careful in our articulation of what right we aim to explore. Although Article 8 envelopes a great range of ‘autonomy rights’, what it really provides for is some protection of a private sphere; a sphere within which interference by the State, or potentially by other third parties, is protected against with the force of law. As Lord Hughes clearly demonstrates, there are plenty of potentially ‘autonomous’ decisions that are not caught within the sphere of privacy afforded by Article 8. [13] Where we respect a right to privacy, we do not take a direct interest in the morality of the conduct that is to be permitted. Rather, we submit to a political morality—protected by law—wherein people make their own moral decisions; a system of modus vivendi. Such a view functions well in a context where restrictive laws are found to be based on concerns about harm to others. The Court’s engagement with morality here is not to decide what is right to the exclusion of other moral views (say, to impose a sanctity of life ethic on everyone regardless of their own view of its validity). Rather, it is to find where concerns for liberty give people a rightful dominion over the morality that defines their life choices, and through recognition of a private sphere enjoy the freedom to live (and indeed die) accordingly. [14] The authorities are clear that personal decision-making on end-of-life decisions is engaged under Article 8(1) (see Pretty v UK; Haas v Switzerland (2011) 53 EHRR 33). The question here is whether a prohibition on receiving assistance infringes the right. Lady Hale is, with respect, correct in her analysis of rights in this regard (see especially [307]). When considering the scope of the private sphere protected by Article 8, there is an important, qualitative distinction between a claim against others (say, against doctors) demanding their assistance, a claim by others (say, by doctors) that they have a human right to assist, and what we are interested in in this appeal: an individual’s right, in a narrowly circumscribed situation, to avoid State interference with willingly provided assistance in committing suicide. [15] Choosing how one dies, especially when faced with the tragic situation of Mr Lamb, or previously Mr Nicklinson, is self-evidently enough to engage ­Article 8(1), requiring though it does a freedom to receive willingly provided assistance in suicide. Is the interference with this freedom, absolutely prohibited as it is under the Suicide Act, justified under Article 8(2)? [16] The aim of the legislation—to protect vulnerable persons in situations different to that of Mr Lamb—is plainly legitimate. However, it is not plainly proportionate. I agree with Lady Hale and Lord Kerr in finding that what quite legitimately might serve as a general prohibition, cannot lawfully serve as an absolute (or, in their terms, universal) prohibition. I am sympathetic with the arguments that a court is not well placed to design a policy here (albeit that various suggestions have been made in several of the speeches in tentative support of d ­ ifferent regulatory models, notably including a role for judges). But regardless, to make a declaration

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of incompatibility, it is not necessary for me to design such a system. It is sufficient for me to have found that there is an unjustified interference with the appellants’ rights. This I have done. [17] For what it is worth, and without aiming to propose a policy, I believe it repays stressing that the courts, the medical profession, the professional regulators, and the DPP, have managed to regulate a great range of end-of-life issues. Parliament too, with the Mental Capacity Act 2005, has afforded a framework wherein persons in situations far less dire than those of Mr Lamb and Mr Nicklinson can choose to end their lives. Both chicanery in the acts/omissions distinction, and the distinctions—such as they may be, and not now requiring adjudication in this appeal—between mercy-killing and assisted suicide, throw up evident failings in our current legal framework. But working sometimes within, and sometimes around these matters, sound regulation is possible. These comments are not intended to hint at a proposed regulatory resolution. Simply, they serve as reaffirmation of my view that it cannot be beyond the wit of our legislators to devise a proportionate scheme here that could at once protect the rights of the appellants, and the rights of those who might feel vulnerable if some form of assisted suicide were permitted, and who thus justly would argue for a requirement that the regime provide protection as would be required under Article 8(2).

II.  The DPP’s Policy [18] Briefly, I state my overall agreement with the rest of the Court that the DPP’s appeal should be upheld, and thus also the cross appeal by Martin dismissed. I have little to add to reasons given, but would wish explicitly to state agreement particularly with Lord Sumption, especially at [247]. In his words there, ‘although presented as a complaint about the lack of clarity in the published policy, it is in reality a complaint about its substance’. [19] It is right that this whole area of law be revisited, but, as indicated above, the problem is with the Suicide Act. It is no more possible—or proper—for the DPP to assume a role in drafting legislation than it would be for the court to do so.

III. Conclusion [20] I would therefore allow the appeals of Mr Lamb and Mrs Nicklinson, and would make a declaration of incompatibility between the Suicide Act and ­Article 8 of the ECHR: these appellants have rights to privacy that afford a right to assisted suicide, and the interference with this right is not a proportionate means of achieving the legitimate aims that underpin the prohibition in the Suicide Act. I would also allow the DPP’s appeal, and dismiss Martin’s cross appeal.

Legal Commentary—Assisted Suicide: Unpicking the Warp and Woof of Politics, Ethics and the Law in Nicklinson CLARK HOBSON

I. Introduction Nicklinson is a complex and detailed case. Yet both judgments deal with the issues arising in as detailed and considered a way as can be expected in such a short space. I only focus directly upon the judgments of Lords Coggon and Huxtable here. Other Law Lords in Nicklinson will be referred to where appropriate. Lords Coggon and Huxtable grasp at the beginning of their judgments that the ethical validity of their decision is not the only important consideration; it also concerns ‘the right relationship … of our laws with different theories of philosophical ethics’ ([1] (Lord Coggon)). However, one main theme running through this commentary is that this relationship between law and particular philosophicalethical theories will in turn also depend upon the different political-philosophical­ and jurisprudential theories advocated. These latter theories will impact upon the form in which judges deal with ethical principles. In this respect, Lords Coggon and Huxtable offer differing theoretical viewpoints, which ultimately impact upon the decisions they reach. This theme shares elements with the concept of jurisdiction; the concern shared by the Court and Lords Coggon and Huxtable with demarcating the sphere of competence within which judges have the power to speak with legitimacy on constitutional, institutional and inherently ethical issues.1 This is frequently seen in the Court’s use of the terms ‘competence’ and ‘authority’ to decide on various issues. It shall be shown that, ultimately, Lord Coggon’s and Lord Huxtable’s judgments still leave space for the possibility that the Court could yet be handed a large degree of regulatory and symbolic power under proposed frameworks for dealing with cases of assisting suicide. At the outset it is interesting to note that not only do 1 

See further K Veitch, The Jurisdiction of Medical Law (Farnham, Ashgate, 2007).

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we end up back at this specific jurisdictional question, but that such an important, well-trodden debate (should judges be given more power or be more proactive in Medical Law) is, in one context, given less prominence in the circumstances of this case.

II.  Lord Coggon It is interesting why Lord Coggon thinks it strange to address first a constitutional question regarding Mr Lamb’s and Mrs Nicklinson’s appeals; whether the Court has constitutional competence to decide if s 2 of the Suicide Act 1961 infringes the claimant’s rights under Art 8(1) ECHR. He notes, ‘this Court’s role is to establish and apply the law as we properly find it’, and that it is not the role of the Court ‘unduly to impose a singular moral view’ [1]. Therefore, he is not unaware of his political responsibility, nor of those political-moral principles underpinning this responsibility, ones that he must engage to ensure his decision fits with the wider jurisprudence in the area. That terrain concerns the UK’s margin of appreciation on assisted suicide and competence under domestic law, and this (as Lord Neuberger outlines at [58]–[60]) leads naturally to this constitutional point, and the institutional point of whether a domestic court should consider whether s 2 infringes Art 8 (Lord Neuberger [76]). Nonetheless, this constitutional question is handled with conviction by Lord Coggon. He presents his argument for constitutional competence persuasively, identifying the crux of the issue as how judges must see their own political-moral principles as sound in order to make a judgment at all. His Lordship quotes Lord Bingham in A v Secretary of State for the Home Department2 to further demonstrate that, far from the Courts lacking ‘a democratic mandate’ [5], those politicalmoral principles underpinning the democratic authority of the legislature extend to entrusting judges with this competence. Lord Coggon additionally recognises that it is just as contestable (from a political-philosophical perspective) for Lord Huxtable, Lord Reed and Lord Hughes to leave the issue solely to Parliament, than it is to argue that the Court has the ability in principle (and in light of the Human Rights Act 1998) to speak to the legality or otherwise of assisted suicide [7]. Indeed, four other Lordships similarly argue that the grounds for this ability can be found in domestic law under the Human Rights Act 1998, in broadening the scope of In Re G (Adoption: Unmarried Couple).3 Lord Coggon’s ‘preliminary comments’ regarding how courts should approach the issues at hand in light of competing ethical claims also raise some interesting

2 

A v Secretary of State for the Home Department [2005] 2 AC 68 at [42]. In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173 (see Lord Neuberger [71]–[76], Lord Mance [163]–[170], Lady Hale [299], and Lord Kerr [346], respectively). 3 

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issues from a legal perspective. His warning against ‘only simplistically answering a specific legal question on the basis of too general a principle’ (directed forcefully at Lord Sumption) and becoming ‘indirect protagonists’ in ethical disputes by ‘a “pick your dicta” exercise’ [10] might be applied analogously in a legal sense to Lord Huxtable’s judgment in advocating a Fullerian approach to the concept of law (see below). This speaks to the idea outlined in the introduction: as well as judges being ethically aware, it is just as important to recognise that the abstract jurisprudential stance each judge takes up impacts upon the discussion of how they should deal with the ethical issues in hard cases. It also impacts upon the form this dealing with ethical principles takes. Finally, has not Lord Coggon himself become an ‘indirect protagonist’ about the role of the Court and its place in judging upon the merits of constitutional competence? This is not a criticism; it simply shows that in hard political and ethical cases, one simply cannot be neutral on all moral matters, despite Lord Coggon’s promotion of the dignity (and thus implicit impartiality) [7] of the judiciary (see also Lord Mance [164]). The points above can be summed up by the following observation. For Lord Coggon, the question is not so much ‘can we (as judges) involve ourselves in moral argument?’ Instead, the appropriate and important question to ask is ‘which moral arguments can we involve ourselves in?’ Indeed, these questions are useful to separate out the more proactive and deferential jurisdictional claims in Nicklinson. With Lord Coggon and Lord Huxtable included, six Justices thought that in principle the Court had the jurisdiction to decide whether s 2(1) does infringe Art 8, to five deciding against. This also highlights that whichever way the first question is answered, political-moral reasons must be brought to bear in support of the conclusion, and that stating Parliament has a more appropriate jurisdiction to consider such a claim is not in fact some sort of ‘default’, value-neutral answer.4 Turning to the substance of Lord Coggon’s discussions, he finds the proper ‘point’ of Art 8 is to provide ‘some protection of a private sphere’ of action [12]. The implications of this are explained at [13]; Art 8 guarantees that the law (borrowing from his extra-judicial writings) is ‘presumptively permissive’.5 This more general view of Art 8 is correct, inasmuch (as Lord Hughes identifies at [263]–[264], which Lord Coggon relies upon) as a careful reading of the relationship between Art 8(2) and 8(1) shows that whilst the law is presumptively permissive, the justified actions of the State do set restrictions. Therefore, the question of whether a more specific right to the act in question (in this case, assisting suicide) is available can only be answered by the question of whether the parameters drawn by the State are, as Lord Coggon puts it, ‘proportionate’ [16]. From this, Lord Coggon insightfully identifies the relationship between those in Mr Nicklinson’s and Mr Lamb’s situations, and those willing to help them achieve 4  cf implicitly the High Court’s reasoning in [2012] EWHC 2381 (Admin) [119] and [148]; and the Court of Appeal’s reasoning in [2013] EWCA Civ 961 [111]–[114]. 5  J Coggon, The Wonder of Euthanasia: A Debate that’s Being Done to Death (2013) 33 (2) Oxford Journal of Legal Studies 401, 404.

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their aims, by stating the matter of principle as the following: whether Art 8(1) is engaged by ‘an individual’s right, in a narrowly circumscribed situation, to avoid State interference with willingly provided assistance in committing suicide’ [14]. Having decided that this right does engage Art 8(1) [15], the important question is then whether the interference with this specific aspect of private life under the Suicide Act is justified under Art 8(2). He believes it is not justified, and so ultimately we end up with a right to assist in suicide protected under Art 8(1). Given the foregoing tone of his judgment, his Lordship then (like Lady Hale [300]–[321] and Lord Kerr [326]; [361]) makes a declaration of incompatibility. This is not surprising, and although it does ultimately put Lord Coggon in the dissenting minority, it is to be welcomed. Though Lord Neuberger’s cautioning that there can be ‘times when an indication, rather than firm words are more appropriate and can be expected to carry more credibility’ ([117]) is understandable, it seems that his Lordship (along with Lord Wilson, [201]–[202]) is caught in somewhat of a halfway-house, given his further warning that if Parliament does not satisfactorily address the section 2 issue, ‘there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made’ ([118]).

III.  Lord Huxtable Whilst Lord Huxtable would also dismiss Mrs Nicklinson’s and Mr Lamb’s claims, putting him with the majority, his judgment is notable for its dedication to considering the values and demands that the law should be sensitive to in light of a commitment to a Fullerian jurisprudence, and the role of the court in satisfying these demands. Yet his initial portrayal of Fuller’s jurisprudence is interesting.6 Lord ­Huxtable highlights that Fuller believed the ‘point’ of law to be ‘subjecting human conduct to the governance of rules’, and that if it is to succeed in this, those rules and their applications must be clear, certain, and consistent (in short, coherent) [3]. But, without more at this point, there is little to distinguish between Fuller’s natural law and many positivist theses that he argued so passionately against. The demands (as they appear in Lord Huxtable’s argument) for ‘clarity, certainty and consistency’ [3] do not look like a distinctly Fullerian thesis. Given Lord Huxtable’s latter arguments concerning satisfying ‘the dictates of justice’ [6], perhaps he would have been better served highlighting how Fuller saw law as ‘a complex of rules designed to rescue man from the blind play of chance and put him safely on the road to ­purposeful and creative activity’ with certain ‘conditions essential 6  It must be noted at this point that Lord Huxtable has written in an extra-judicial capacity on ­ rofessor Fuller, and the way in which his jurisprudence can be used to shape end-of-life debates; P R Huxtable, Law, Ethics and Compromise at the Limits of Life: To Treat or Not to Treat? (London, ­Routledge, 2013).

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for a rational human existence’.7 This would have given further direction to Lord Huxtable’s invocation of these demands, as it would have indicated how Fuller saw them as necessarily furthering the purpose of law—good order—in the broad sense of the flourishing of human agency. This also leads to the implication that (as there are references to Fuller’s demands for clarity) [17] Lord Huxtable’s invocation of Fuller’s jurisprudence which shapes the form in which he deals with the ethical principles in his judgment does a little more work than is advertised. Furthermore, this advocation of Fuller reveals a tension within Lord H ­ uxtable’s judgment. Whilst he believes the current law relating to assisted suicide does appropriately balance competing conceptions of justice, and that this is good [16], he also highlights how different parts of the law lay different emphasis on competing principles. Yet, if Lord Huxtable is also striving for coherence so law can flourish (given his discussion of Fuller), then one value may have to be sacrificed in order to achieve another. Whilst it may be that on a Fullerian jurisprudence, justice and coherence (and the moral underpinnings behind the latter value) are reconcilable, there are instances in which the two contest and coherence, or something like it, ought to win.8 Further, whilst it is good that the law is attentive to different concerns, there is no real inquiry into what it is about certain cases which means that particular underpinning principles are weightier in ethical argument; for example, why sanctity of life principles are given lesser weight in refusal of medical treatment scenarios. Lord Huxtable then offers two options to ‘enhance the clarity of the rules governing assistance in dying’ [18]. The first involves setting out more clearly the weighting of particular factors in the DPP’s prosecution policy regarding assisted suicide ([9]; [18]). Whilst this has similarities to Lady Hale’s suggestion that it may be time for the DPP’s guidance to include certain cases that are likely to be accepted, as far as constitutional requirements will allow ([323]), both offer different elements of certainty. Lord Huxtable’s suggestion offers a lower level of, but more general, certainty, whereas Lady Hale’s suggestion offers a greater certainty, but in narrower circumstances. The second option, creating an explicit offence of assistance in dying, is set out as patiently as the rest of his judgment [19]–[21], while rightly urging Parliament to think about how a community committed to competing principles can clearly and coherently govern itself.

IV.  Concluding Thoughts Two final points arise. First, it would have been interesting for both Lords ­Huxtable and Coggon to engage explicitly with what was taken by the other members of the Court to be one of the most important passages concerning the proportionality 7  8 

L Fuller, The Morality of Law, rev edn (New Haven, Yale University Press, 1969) 9. cf; R Dworkin, Law’s Empire, (Oxford, Hart Publishing, 1986).

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of s 2(1) of the 1961 Act; the passage in Pretty v United Kingdom.9 Lord Sumption takes this as the ‘sole directly relevant authority’ to the question of whether s 2 of the Suicide Act is compatible with the Convention ([216]). The ECHR notes at [76] how the blanket ban imposed by s 2 is not disproportionate, given that the DPP’s prosecutorial discretion is placed on a statutory footing by s 2(4). Is [76] to be taken to mean s 2(1) is compatible because of the discretion in s 2(4), and thus the two sections are both vital to the Suicide Act’s compatibility? Or is the latter part of the passage no more than a façon de parler, and s 2(4) is not relevant to the proportionality of s 2(1) in any important way? Arguably, the proper interpretation of this passage is the unresolved legal point which might in fact be vital to any later case that comes to court.10 Further, it does not seem such a simple matter of mapping Lord Huxtable and Lord Coggon’s arguments on to the question of how [76] should be read. For there is an argument to be made that if [76] is to be taken as holding that s 2(1) is proportional because of the existence of s 2(4), then despite Lord Coggon noting that generally the legislation is disproportionate to its aim ([16]), there are important, potentially binding, arguments of principle (possible ethical robustness notwithstanding) that militate against that view. Likewise, such an engagement by Lord Huxtable with [76] would potentially strengthen his argument (at [5]–[8], [17]–[18]) that greater clarity regarding the governance of assistance in dying is needed, and that the Court still has a role to play in clarifying these matters. Finally, Lord Coggon only notes in passing that the Court is not well placed to design a particular regulatory framework, yet the courts have managed to appropriately regulate certain end of life issues [16]–[17]. Likewise, Lord Huxtable touches on the idea that discussion of alternative regulatory models for the (yet to be created) offence of assistance in dying is emerging [18]–[19]. Yet, declaration of incompatibility or not, traction was found with three separate Justices (Lord Neuberger [89]; [123], Lord Wilson [204]–[205], Lady Hale [314]–[316]) that Parliament may devise a system whereby a High Court judge rules on whether a person has made a settled, voluntary and informed decision to be assisted in committing suicide. Such a power would not be completely alien to the High Court; for example, it was accepted in Re B (Consent to Treatment—Capacity),11 that the High Court did have the power, which it subsequently exercised, to grant the relief sought by a patient that her life support machine be turned off. Lord Huxtable in his judgment also sets out those instances in which the Court has delivered fundamental decisions based upon the ‘dictates of justice’ underpinning the entire legal system [10]–[12]. Further, Lady Hale thought that such a system would be better in terms of principle, given that matters would be settled in advance, rather than potentially having to rely on ex post facto discretion to solve the problem ([316]).

9 

Pretty v United Kingdom (2002) 35 EHRR 1 at [76]. J Rogers, ‘Assisted Suicide Saga-the Nicklinson Episode’ (2014) 7 Archbold Review 7, 8. 11  Re B (Consent to Treatment—Capacity) [2002] 1 FLR 1090. 10 

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Their Lordship’s judgments leave open this possibility that the courts could eventually act as final arbiters of this inherently ethical decision. To state whether their judgments incline in this direction would be a little speculative. However, it does reveal that the jurisdictional question outlined in the introduction is inescapable in Medical Law cases. It also appears that the real nature and importance of this jurisdiction, in all of its manifestations (symbolic, political, ethical), relative to this situation must be further considered. The tools for this consideration are the ones that have already been canvassed; inescapable judgments of political morality, situated within a wider network of ethical principles, both of which are co-dependent on one another. Ultimately, in tying together the various strands of Lords Coggon and ­Huxtable’s judgments with the rest of the Court, perhaps the fabric of the decision in N ­ icklinson is not as neat as it could be. But this is to be expected, given the space that Nicklinson sits in, between more overtly political-moral issues and ‘narrower’ medico-legal questions with an inherent ethical content. But the tension generated from this relationship, the texture of Nicklinson, tells us something important about the evolving jurisdictional claims in Medical Law. Discerning what that real message is (as always) lies within the detail.

Ethical Commentary—Nicklinson and the Ethics of the Legal System STEPHEN W SMITH

I. Introduction The judgments of both Lord Huxtable and Lord Coggon provide us with a ­number of rich and interesting issues to explore. Indeed it is not possible, in a commentary this short, to truly explore all of the concerns which are raised by these two judgments either separately or combined with the original judgments of the Supreme Court in the case. Instead, I wish to highlight some themes I think are crucial to understanding the difference in opinion between the two. Perhaps the most crucial distinction between the two judgments is one that neither of the judges expressly state, but is implicit in the way they address the various issues before them. Since this is a case which has an impact upon the whole of society, both Lord Huxtable and Lord Coggon spend a considerable amount of time with ethics on a macro level. By this, I mean that both Lord Huxtable and Lord Coggon are concerned about the ethics of the system as a whole. They are concerned with the role that society plays in the decision as well as the proper role of the courts, Parliament and other societal actors. This is to be expected in a case as important as Nicklinson. Crucially, though, they address these issues in significantly different ways.

II.  The Ethics of the System at Large Lord Huxtable, if I understand his position correctly, sees societal ethics as ­distinct. These societal ethics are not, then, individual ethics scaled up but separate principles which are predominately at play in a group context. In particular, he references consistency, clarity and justice as fundamental principles required of a legal system. See paragraphs [3] and [6]. For example, he claims that clarity is ‘necessary in order to ensure law’s proper functioning as law’ [5]. He further specifies that law must be ‘both clear and just’ [8]. He even notes that the court has sometimes ‘found’ actions to be criminal if they offend justice (although, in reality,

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courts in such cases are creating rather than finding anything) [11]. He sees these as institutional requirements which the system must provide in order to be an ethical one, irrespective of the instantiation of those principles in individual cases. This does not mean, of course, that those principles do not apply in individual cases. Nothing that Lord Huxtable says prohibits the claim that, for example, individual decisions ought to be consistent or clear. He does, however, appear to claim that a system’s coherence, clarity and justice do not depend on individual cases. A system might, for instance, be just overall even if it is not so in a particular case. This is why Lord Huxtable cites Lon Fuller as an important influence. For Fuller, the institution of law is vital because it is necessary for the provision of good order. As a consequence, there are distinct and separate moral principles which are relevant and necessary for the functioning of law. Lord Huxtable does not use Fuller’s complete list of eight principles, but he does reference at least three which do have complements in the ones described by Fuller. The one principle which does not correspond to Fuller’s list of eight (or at least not directly), however, is the most important. That is the principle of compromise. Lord Huxtable is particularly concerned about the law’s ability to maintain a ­middle ground, especially on issues of moral dispute. For Lord Huxtable, since the question of assisted dying is one which is subject to legitimate moral debate, the most valid thing for the Court to do is to avoid forcing a decision on one party or the other [13]–[15]. It must maintain a morally neutral stance which prioritises neither view of the assisted dying debate. Parliament, should it wish to grasp the nettle, is entitled to do so; the courts are not. So, while Lord Huxtable insists that ‘we are alert to the moral dimensions of the case at hand’ he immediately then goes on to note that ‘we find the morals of the matter are murky and m ­ uddled’ [15]. As a consequence, since the morals are unclear and the courts are not designed to deal specifically with these sorts of moral cases, then the best the court can do is to maintain a studied neutrality and seek a resolution which does not put the views of one side above the other. In the case of assisted dying, this means a position where the current prohibition maintains its symbolic force even if, in particular cases, very little happens to people who might decide to die. This, Lord Huxtable argues, allows us to continue to express our adherence to the general principle of the sanctity of life, while still allowing needed flexibility in cases in which it might be appropriate (however those are designated) [17]. He does think that there are ways in which the courts can help to further clarify this compromise but his general concern is with the maintenance of that compromise. Lord Coggon, in his typically blunt style, disagrees with both larger points about the role of ethics in law and the benefits of compromise in this situation. First, it appears that Lord Coggon’s position is that, at least for the principles relevant to this case, the principles that are relevant for the social system (including the courts) are merely the aggregate of the principles which exist in an individual case. He does not ever explicitly set out this position. However, nowhere in his judgment does Lord Coggon make reference to the same overarching system-wide principles that Lord Huxtable does. Instead, his concern is with whether there is

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an ‘unjustified interference with the appellants’ rights’. [16] Moreover, he states that ‘if there is an interference with Mr Lamb’s freedom to have assistance in the ending of his life… its justification is founded on the protection of health and of the rights and freedoms of others’ [11]. In other words, the rights of others might provide a justifiable reason to prevent someone from doing something but he does not specify any case where the interests of the system as a whole (except as an aggregate of those individual interests) can do so. This is all consistent with Lord Coggon’s concern that ‘we lend ourselves to only simplistically answering a specific legal question on the basis of too general a principle’ [10]. It is the specific, then, and not the general (as with Lord Huxtable) that forms the basis of Lord Coggon’s decision. Thus, while it is conceivably possible (although extremely implausible) within Lord Huxtable’s view to have a system which was just even if no case within that system satisfied the requirements of justice, it is not possible for Lord Coggon. In order for a system to be just, the decisions within it must also be just. Neither, of course, would hold that each and every case must be just in order for the system to be. Such a view would be difficult if not impossible to implement since general rules, no matter what they are, invariably throw up bad results. However, Lord Coggon takes the position that those individual decisions are how we evaluate whether the system overall is just. To that extent, an unjust decision in an individual case becomes a system-wide failure and it is the purview of state actors, including the judiciary, to make sure that does not happen.

III.  Compromise and Ethics This distinction between the views of Lord Huxtable and Lord Coggon on the ethical grounding of the legal system at large is of crucial importance because of the compromise position which Lord Huxtable takes. Lord Coggon, on the other hand, does not believe that compromise is a just ethical conclusion and this would appear to be at least partially because of his view about the ethics of the system generally. Compromises in general are not problematic but in the context of ethics they can be quite tricky things. Since good compromises generally involve both sides getting a bit of what they want while neither side gets all of what it wants, this is likely to cause problems within the ethical principles which underline our decision-making. In order to demonstrate this, it is perhaps better to start with a comparative example of a simple compromise. Let us suppose that I and a friend wish to go see a movie. I want to see a big-budget action film but my friend wants to see a character-driven drama. Let us further presume neither of us can convince the other to our view and there is no film which fits both of our criteria (a bigbudget, action-filled character drama?). We might then in that case decide upon a compromise. I may wish to see the action film because I am particularly interested in mindless fun; my friend might want to see the character drama because of its high-quality acting. We might then settle upon a third movie—a comedy,

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say—which had some mindless fun (but not perhaps as much as the action movie) but also had good acting (but not as good as the character drama). Neither of us, then, gets entirely what we want, but we get enough of what we want to agree. Ethical principles do not work in quite the same way as movie characteristics. Principles might be mutually exclusive. More importantly, it may be hard to compromise one’s moral principles while still professing to adhere to them. If I agree to compromise my principles, then I am either agreeing to the application of moral principles which I do not think appropriate, or I am agreeing to the application of my own moral principles becomes limited in cases where I do think they apply. I am subsuming my principles, in such a case, to the greater good (whatever we might mean by that). I would be saying something like ‘I do not think that principle is a valid one at least in this case (otherwise, I would use it) but I agree to its application nevertheless’ or ‘I think my principle is valid in this case, but I agree not to apply it.’ The act of compromise, then, seems to defeat the very idea of the principle in the first place. This is not a problem for Lord Huxtable since, for him, the compromise happens at a macro-level and thus no individual decision must be compromised in this way. For Lord Coggon, however, the institutional compromise would have to involve individual compromises and thus he is against it. That is why Lord Coggon thinks the Court would ‘shirk its responsibility’ if it attempted to pretend to ‘moral neutrality’ [1]. As a consequence, he believes that the decision that needs to be made is the defensible one in individual cases which will mean the decision of the system as a whole is appropriate. Lord Coggon would find it morally abhorrent if an individual’s case failed because it had to be sacrificed to save the overall system through a compromise. He further stresses that this is a duty that falls to all of the actors within the system. For him, it then applies as equally to the courts as it does to Parliament. He does not accept the argument presented by Lord Huxtable (and others in the case in the Supreme Court) that this is a decision best left to Parliament or other more democratically-elected actors to determine. If the decision at the individual level is incorrect, then it ought to be changed. Doing so can only make the system as a whole better.

IV.  Ethics in an Individual Case Notice, though, that there is a deep structural difference between the positions of the two judges. Lord Coggon could have raised objections to the application of the rule that Lord Huxtable suggests. He could, for example, have contested what is meant by legitimate moral dispute or whether this case was an example of such a dispute. Further, he could have queried whether the two suggested clarifications from Lord Huxtable would really provide the ethical gains Lord Huxtable asserts that they will provide. Lord Coggon’s dispute, however, is not with the application of the rules in the way that Lord Huxtable recommends. Instead, it is with the

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rules he suggests. Lord Huxtable argues that there is such a thing as a system-ethic which is a macro-level ethical guide which is distinct and separate from the ethical principles which might guide decisions in specific cases. He, consequently, prioritises the collective decisions over the individual ones. Lord Coggon, on the other hand, sees macro-level ethical decisions as the aggregation of individual cases and dependent upon them. He therefore prioritises the individual decisions since they form the foundation and precursors to whatever macro-level ethics a system has. Lord Coggon’s objections, however, are not just with Lord Huxtable. Instead, he puts particular focus on the use of ethics in these individual cases. He derides Lord Sumption (and by extension, any who hold similar views) for the position that ethical principles are broad, abstract monoliths [9]–[10]. These, Lord Coggon states, do not provide any practical benefit. They do not provide any reason sufficient to justify one decision over another. They do not provide any reason sufficient to convince someone that their position is incorrect. What they are instead are crude, clumsy soundbites that we fling at each other but which have little actual impact on our decisions. As he indicates, ‘high-sounding but poorly-applied principle neither helps the resolution of the immediate case, nor the sound development of law’ [10]. Instead, what Lord Coggon would prefer is that we have more specific, targeted principles which apply in particular instances which can better justify and explain the decisions we make. He therefore urges us instead of looking to a broad, unspecific principle like ‘an absolutist moral concern about the sanctity of life, or indeed an “expressivist” concern about the message that the law should be seen to send about the value of human life’ [11], we should look to more specific ideas like the protection of the health, rights and freedoms of others [10]. This, according to Lord Coggon, is more useful because it is one which can be subject to evidentiary proof, evaluation and (possibly most importantly) argument. It is a principle we can see whether it actually does apply and, if so, how. It is not a mere buzzword to be applied haphazardly in defence of a decision we have already made. It is instead a principle which can help us make these sorts of difficult decisions. The end result of Lord Coggon’s views is an expansion of the powers of the court to make these sorts of ethical decisions. He objects to the view, presented in the decision of the Supreme Court among others, that this is not an appropriate case for the courts to decide. He does not believe that judges should not be trusted, either by themselves or others, to reach a decision in these sorts of cases. Indeed, he sees it as being part of a ‘functioning, democratic system’ for judges to engage in these cases even if there is ‘moral controversy and ethical disagreement’ [7]. These are real cases involving real people with real issues and Lord Coggon argues that the resolution of these sorts of cases is not beyond the power of the courts. If the power exercised by the courts under Lord Coggon’s position is greater than that under Lord Huxtable’s, he also requires more from the judges making these decisions. They are required to engage more specifically with ethical principles and do so in a way which is more useful and provides greater support for the arguments they wish to provide. It would not be possible, under Lord Coggon’s view, to simply provide the broad, unreflexive, ethical claims which have long plagued

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the decisions of the courts. He wants courts to do ethics, but wants those ethics to be more robust and pragmatic. This would require judges to not only engage with these ethical views more systematically but also for them to engage with ethics generally at a deeper level than they currently do. It would be difficult for a judge to act as Lord Coggon wants without at least attempting to gain an expertise in ethical language and argumentation. Lord Huxtable does not require such a commitment from judges. A judge taking Lord Huxtable’s view would merely need to understand the general societal compromise which was at issue. They need only understand the general ethical duties that the system requires such as consistency, compromise, clarity, and justice. So, while the gains for the judiciary might be modest under Lord Huxtable’s views, so are the requirements.

V. Conclusion In conclusion, the decisions of Lords Huxtable and Coggon in Nicklinson are not merely about what ought to happen in cases such as those of Mr Nicklinson or Mr Lamb. These individual decisions are, of course, important. However, it is more important as to how the system is structured to determine those sorts of cases and who has the ultimate authority to decide. Lord Huxtable would rely on Parliament, the democratic process and compromise to reach decisions. Lord Coggon sees no bar to the courts’ involvement and urges them to explore the rights, duties and specific ethical principles which might be involved in each case. The strengths of these views will depend on some crucial factors, not least what kind of judge the reader envisages. While I have my own personal views and they align more with the position of Lord Coggon than Lord Huxtable, that does not mean all readers will feel the same. The views of both are worthy of our attention and consideration.

St George’s Healthcare NHS Trust v S [1999] Fam 26 Facts On receiving a diagnosis of pre-eclampsia, the applicant, who was 36 weeks pregnant at the time, refused medical intervention. The applicant understood that the refusal entailed great risk to her own health and that of her unborn child but eschewed invasive treatment in favour of the planned, natural delivery. Following the applicant’s refusal to take bed rest and consent to an induced delivery, she was detained under s 2 of the Mental Health Act 1983 and taken to a psychiatric unit for assessment. Shortly afterwards, the applicant was transferred to a general hospital. The hospital trust applied, successfully, ex parte to a judge in chambers for a declaration that dispensed with the applicant’s consent to treatment. Following the declaration, the hospital performed a caesarean section on the applicant. A few days after the safe delivery of her daughter, the applicant was returned to the psychiatric unit where her detention under s 2 was terminated and she discharged herself. At no point during her detention was specific treatment for any psychological or psychiatric disorder prescribed. The applicant appealed against the declaration dispensing with her consent to treatment and sought judicial review of the decision to detain her under the Mental Health Act 1983.

Outcome (Court of Appeal): Appeal allowed and application for judicial review granted A competent adult of sound mind is entitled to refuse medical treatment, regardless of the risks that such a refusal entails or how morally repugnant that refusal might appear. Although pregnancy increases the personal responsibility of a woman, it does not diminish her autonomy and the perceived needs of a foetus cannot justify invasive treatment, against a woman’s will. Judicial Makeup Butler-Sloss LJ, Judge LJ, Robert Walker LJ. Appellate History Queen’s Bench Division; 17 March 1997 Re S (Application for Judicial Review) (unreported).

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Court of Appeal; 3 July 1997 Re S (Application for Judicial Review) [1998] 1 FLR 790; [1998] 1 FCR 368; [1998] COD 52; [1997] Fam Law 790; Independent, 10 July 1997. Keywords consent, capacity, medical treatment, pregnancy.

Judgment 1—St George’s Healthcare NHS Trust v S [1999] Fam 26 NEAL LJ (MARY NEAL) [1] I have had the benefit of reading the judgments of my learned colleagues, Judge and Fovargue LJJ, and I am in agreement with their identification of the relevant legal rules. It seems beyond dispute that, according to the present law in England and Wales, the treatment of a competent patient without her consent constitutes the crime of battery and the tort of trespass to the person: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; and that our law therefore contains a rule according to which a patient with capacity has an absolute right to refuse medical treatment: In re T (Adult: Refusal of Medical Treatment) [1993] Fam 95; Airedale NHS Trust v Bland [1993] AC 789. Likewise, the observation that the human embryo or f­ oetus—at all stages of its development prior to birth—lacks the legal status of ‘person’ seems incontestable: Burton v Islington Health Authority [1993] QB 204; In re MB (An Adult: Medical Treatment) [1997] 2 FCR 541; Attorney-General’s Reference (No 3 of 1994) [1998] AC 245. In light of these rules, the conclusion reached by my learned colleagues in the case before us seems a difficult one to resist, despite the potentially tragic implications of that conclusion for any future case in which facts sufficiently similar to the appalling facts of the instant case might arise. Nevertheless, my own analysis of the issues of personal autonomy and foetal status—which are ethical as well as legal issues—differs somewhat from the analyses of my colleagues, and leads me to a different conclusion.

I.  Background to the Case [2] By the time she presented herself to Dr Chill’s surgery in London on 25th April 1996, Ms S had been diagnosed with depression; her relationship with the father of her child had apparently ended recently; and she appears to have indicated that she intended to hand the baby over to him when it was born. She was ‘tearful’ and ‘significantly depressed with low self-esteem’, and as my colleague Judge LJ observes, the professionals who interacted with Ms S noted ‘a number of contradictions in her position’. For example, we are told that during the discussion at Dr Chill’s surgery, Ms S expressed a preference for ‘natural childbirth’

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(despite having been informed that it would be impossible in her case). This seems consistent with her later claim, in her written statement, that: I have always held very strong views with regard to medical and surgical treatments for myself, and particularly wish to allow nature to ‘take its course,’ without intervention. I fully understand that, in certain circumstances this may endanger my life. I see death as a natural and inevitable end point to certain conditions, and that natural events should not be interfered with. It is not a belief attached to the fact of my being pregnant, but would apply equally to any condition arising.

Despite her claimed aversion to medical interventions, however, this was a patient who had voluntarily attended two separate doctors’ surgeries in the three days prior to writing these words (Dr Keogh’s surgery in Surrey, and Dr Chill’s surgery in London), and who had previously undergone a termination of pregnancy (in 1993). Ms S is also reported as saying that she ‘would not be bothered if she dies and [that] it would be better for the baby to be dead’. A wish that her baby should die is clearly in stark contradiction to a claimed preference for natural childbirth. She is described by Dr Jeffreys as exhibiting ‘profound indifference’, yet from the narratives available to us, her attitude to the child she was carrying in 1996 resembles antipathy more than indifference. Were this antipathy and her disregard for her own safety connected in any way to the recent demise of her relationship with the child’s father? In any case, the fact that Ms S could reach such an advanced stage in her pregnancy without seeking a termination implies that her attitude had altered during the course of the pregnancy (the fact she had previously terminated a pregnancy suggests that she has no principled objection to the practice). [3] Thus, the practitioners in this case were confronted with an individual who, besides being dangerously and urgently ill, was also distressed, clinically-depressed, and self-contradictory (contradicting herself not only about her attitude to the pregnancy, her reasons for refusing treatment, and her supposed opposition to medical interventions in general, but also about other things such as a claimed antipathy to needles). The overwhelming impression is of someone gripped by a dogged determination to risk both her own life and that of her nearly-born child, in defiance of medical and other professional advice. My colleagues take the view that we must accept all of this as reflecting the valid exercise of Ms S’s absolute legal right to refuse treatment; in other words, as an act of self-determination. Much is made by my colleague Judge LJ of the ‘articulate’ nature of her written refusal. So what would have been the right thing for the professionals to have done in these circumstances? What is the right thing for the law to do, now? [4] Every mainstream ethical theory takes, as its implicit or explicit starting-point, the fact that human beings are vulnerable to harm and suffering. To behave ethically is to respond appropriately to the vulnerability of other beings; this will sometimes involve providing them with positive assistance, and sometimes it will involve refraining from causing them harm. Without an acknowledgment of the universal vulnerability of the human condition, what sense could we make of a whole range of ethical injunctions about how we ought or ought not to treat

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­ thers, including the familiar bioethical principles of beneficence (the duty to o benefit) and non-maleficence (the duty not to harm)? And if universal human vulnerability is what creates the need for ethics, it is also what enables the need to be met, since it is the fact that we are all vulnerable which makes us able to respond appropriately to the vulnerability of others like ourselves. The correct ethical response in this case, as in all cases, consists in responding appropriately to Ms S’s vulnerability. I find myself unable to conclude, with my colleagues, that the right thing for the professionals to have done—the appropriate way for them to have responded to Ms S’s vulnerability—would have been for them to stand aside and ‘respect’ Ms S’s depressed disregard for her own safety and for that of the child which she said she no longer wanted.

II.  Respect for Autonomy and Self-Determination [5] The principle of respect for autonomy and the right of self-determination are clearly central within the roll-call of ethical values relevant to the healthcare context: TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 4th edn (New York, Oxford University Press, 1994). The idea that a person who has the capacity for autonomy is necessarily harmed if her autonomy is interfered with has assumed a totemic status in modern ethical and, particularly, medico-legal discourse. Schneider has recently written that ‘the law and ethics of medicine are today dominated by one paradigm—the autonomy of the patient’: CE ­Schneider, The Practice of Autonomy: Patients, Doctors and Medical Decisions (New York, Oxford University Press, 1998) 3, and the ultimate manifestation of this triumphant paradigm can be identified as the apparently-absolute right of the competent patient to refuse treatment for any reason or for none, described so powerfully by Lord Donaldson in In re T and by their Lordships in Bland. Lord Reid warns that we must hold fast to it lest we leave the door ajar for the unlimited erosion of personal freedom: S v McC (orse S) and M (DS intervener); W v W [1972] AC 24, a warning which is restated by my colleague Judge LJ in the instant case. [6] We value and respect autonomy not as an abstract phenomenon, however, but as part of the process of valuing and respecting persons. Childress, himself a defender of the principle of respect for autonomy, has cautioned that it ‘is not the only principle, and it cannot be assigned unqualified pre-eminence’, and that ‘overconcentration’ on respect for autonomy can lead to ‘neglect of other important moral considerations’: JF Childress, ‘The Place of Autonomy in Bioethics’ (1990) 20 Hastings Center Report 12–17, 16. He concludes that ‘we must not overextend or overweight respect for autonomy’ (17). Childress is of course correct to highlight that valuing autonomy is only part of the picture when it comes to valuing persons. In some cases, valuing persons will not involve considerations of autonomy at all (in the cases of very young children and adults with incapacity, for example) and in the majority of cases where autonomy is present, it will be

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one value among several that demand consideration. To value respect for autonomy to the extent that we are prepared to sacrifice persons’ lives for its sake is, in my opinion, to allow the principle of respect for autonomy to break loose from its ethical moorings—as one consideration within the overall scheme of valuing persons—and run amok. Ms S’s autonomy deserves to be respected only because we value Ms S herself; its value is secondary to hers, and we must not fetishise it. Moreover, whereas according to my colleagues we have a duty to leave Ms S alone, according to one mainstream ethical theory we have an ethical duty to care for Ms S: see, eg, N Noddings, Caring: A Feminine Approach to Ethics and Moral Education (­Berkeley, University of California Press, 1984). One influential theorist has claimed that ‘[t]he ideal of care is…an activity of relationship, of seeing and responding to need, taking care of the world by sustaining the web of connection so that no-one is left alone’. (C Gilligan, In A Different Voice: Psychological Theory and Women’s Development (Cambridge, Harvard University Press, 1993) 62.) It is difficult to see how we could care for Ms S, in the circumstances, by ‘leaving her be’. And even if we reject the formal ‘ethic of care’, I have already suggested that ethics is inevitably about responding appropriately to the vulnerability of others (whichever ethical theory one prefers). In my view, if the law requires us to stand aside and recognise Ms S’s self-destruction as ‘self-determination’, it fails to respond appropriately to Ms S’s vulnerability. [7] Nevertheless, it would be disingenuous to pretend that we would be here at all if the loss of Ms S’s life were the only unwelcome outcome of her treatment refusal. However ethically-questionable it may be to disregard the value of one’s own healthy life by refusing non-futile treatment, it is still more ethically-problematic­ to reject treatment where doing so will result in the loss of a life other than one’s own. It is because of the threat posed by Ms S’s purported refusal to the life of a viable foetus that this matter has ended up before the courts. This Court must consider whether or not Ms S has an absolute right to reject treatment which is essential to save the life of her healthy, viable foetus. Although I have said that I agree with my colleagues about which legal rules apply to this case, I also believe that our legal culture and its ethical underpinnings are capable of supporting the qualification of the right to refuse treatment contemplated by Lord Donaldson in In re T; namely, where refusal threatens the life of a viable foetus.

III.  The Status of the Foetus [8] Like the principle of respect for autonomy from which it flows, the right of self-determination is not absolute or unfettered; it is—in principle—qualified and limited. My right to self-determine is limited not only by practical factors such as my capacity for self-determination (I cannot self-determine while I am unconscious or lacking in mental capacity), and by the factual possibilities afforded to me (I cannot, for example, choose to belong to a different race, or to be a different

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height), but also by the rights and interests of others (including their rights of self-determination). Just as autonomy is not a natural absolute, so the parameters of the associated right of self-determination are likewise limited by the rights of others and by our responsibilities to them. [9] My colleagues Judge and Fovargue LJJ outline the reasons why foetuses do not count as ‘others’ under the present law of England and Wales. They provide an accurate account of the legal position, and I take no issue with their analysis on this point. However, my colleague Judge LJ considers that ‘while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment’. I presume that in referring to ‘personal responsibilities’ Judge LJ intends to denote the pregnant woman’s ethical responsibilities, as distinct from her legal responsibilities, since how could one’s legal responsibilities increase without there being any consequent restriction of one’s legal rights? And if my colleagues (for Butler-Sloss and Walker LJJ join with Judge LJ) do indeed regard the pregnant woman as having increased ethical responsibilities, the obvious question arises: to whom are these increased responsibilities owed? The most plausible answer seems to be: to the child she carries. [10] I have already stated that, in my view, all of ethics is about responding appropriately to the vulnerability of other beings. The call of human vulnerability should resonate within us in a uniquely strong way. An inability or unwillingness to recognise and respond to the vulnerability of other humans points to a particular sort of deficiency in our ethical faculties, and bodes ill for the ‘broadening out’ of our ethical concern to remoter entities. The vulnerability of the human foetus is human vulnerability: as my colleague Judge LJ observes, the human foetus ‘is certainly human’; and the vulnerability of a human foetus whose gestational parent is determined to destroy it, either by design or (as in this case) by disregard, is total. It seems to me that such abject human vulnerability should provoke some sort of ethical response from the human moral community; but what nature of response? [11] In the United States of America, where the foetus also lacks legal personhood, the Supreme Court has held that, throughout pregnancy, the State has a legitimate interest in protecting foetal life: Roe v Wade 410 US 113, 162, reaffirmed in Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833, 871. The Court confirmed in Casey that: viability…is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman’ (at 870 referring to Roe v Wade at 163).

In the United States, therefore, the legal non-personhood of the foetus is no ­obstacle to its being regarded as an appropriate object of state concern, or to that concern becoming sufficiently substantial, at viability, to outweigh the interest of the pregnant woman in autonomously choosing to end her pregnancy.

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[12] There is also evidence in our own legal system of the viable foetus being treated as something of value. First, the statutory crime of ‘child destruction’ in section 1(1) of the Infant Life Preservation Act 1929 criminalises the deliberate killing of a viable foetus. If a third party were wilfully to injure Ms S in the abdomen, causing the death of her 36- week-old foetus, s/he would be liable to be charged with child destruction, in addition to being charged with the assault on Ms S herself. Whereas the restriction on late abortion under the Abortion Act 1967 cannot be attributed to a valuing of foetal life, the offence of ‘child destruction’ can be so interpreted, since it criminalises the destruction of the foetus only, with any simultaneous harm to the woman punished under separate criminal charges (murder, manslaughter, grievous bodily harm, assault, etc). Second, in laying the ethical framework for the Human Fertilisation and Embryology Act 1990, the Warnock Committee ‘agreed that the embryo of the human species ought to have a special status’: Report of the Committee of Inquiry Into Human Fertilisation and Embryology (HMSO, 1984) 11.17. If embryonic human life deserves to be recognised as having a ‘special status’, presumably the status of the viable foetus is higher still. We can add to this the judicial acknowledgment by my colleague Judge LJ, in the instant case, that ‘[w]hatever else it may be a 36-week foetus is not nothing: if viable it is not lifeless and it is certainly human’.

IV. Conclusion [13] A duty to respect autonomy is (sometimes) part of the overall landscape of ethical obligation; but we are not obliged, at least ethically-speaking, to regard respect for autonomy as paramount. We may choose to respond to Ms S’s vulnerability by caring for her, rather than feeling bound to leave her alone. Furthermore, even if we did conclude that we are bound, ethically as well as legally, to regard Ms S’s self-destructive refusal of treatment as her own business, the law is nevertheless entitled to take an interest in the life of the viable foetus. The right to self-determination is not absolute, and if ever there were circumstances which justify derogation from it, these are they. I consider that, while it would be preferable to have an exception of the kind contemplated by Lord Donaldson in In re T enacted by Parliament, such an exception is already supported by existing legal and ethical principles, and could be made in the instant case. Lord Reid’s aforementioned warning about totalitarianism must not go unheeded; however to opt out of the difficult but necessary business of balancing ethical values by simply lionising autonomy is to shirk moral responsibility. The law must have the confidence to draw difficult distinctions.

Judgment 2—St George’s Healthcare NHS Trust v S [1999] Fam 26 FOVARGUE LJ (SARA FOVARGUE) [1] I want to apologise to S for the wrong and harm she has encountered, albeit at the hands of professionals who appeared to honestly believe they were acting in her interests. Their actions challenged some of the fundamental legal and ethical principles that underpin medical practice; respect for persons and autonomy, trust, patient-centred care, non-maleficence, beneficence, and justice. This case exemplifies what can happen when the desire for a ‘good’ outcome overwhelms adherence to these principles. We should not underestimate the harm that S has endured. That she was delivered of a healthy baby who she undoubtedly loves does not excuse or justify what she was subjected to. [2] We have been asked by the Court of Appeal ([1998] 1 FCR 368) to consider two key legal and ethical issues; individuals’ freedom to make decisions about their own bodies, and the State’s role in protecting those deemed unable to protect themselves under the Mental Health Act 1983. These are clearly wide-ranging matters, but I am only concerned with the case before me. I am conscious that this Court has been placed in the unfortunate position of being asked to adjudicate on a matter which has, in essence, been resolved. The professionals involved in this case wanted S to deliver via caesarean section, and this outcome was achieved. Regardless, I am required to consider whether the declaration which provided for this, and was acted upon, should have been made; similarly, the application of the Mental Health Act 1983 to enable this delivery. The appeal against the declaration and the application for judicial review are, legally, two separate matters, but they are connected and my remarks reflect this. [3] The appeal against Hogg J’s order is allowed, and the application for judicial review is granted. I have had the opportunity of reading my learned colleague Judge LJ’s speech and I agree with his reasoning, but not all of his comments. I wish to add some points relating, in particular, to the second ground (no jurisdiction to override an adult’s refusal of consent) and third ground (no jurisdiction over the foetus) of S’s appeal against Hogg J’s order. I also have some comments regarding the use of the Mental Health Act 1983.

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[4] The facts of the case have been set out in detail, but when S attended the GP practice and saw Dr Chill on the morning of 25 April she was 36 weeks pregnant and had not received any antenatal care. Dr Chill examined her and diagnosed severe pre-eclampsia. There is no treatment other than bed rest and monitoring until it is safer to induce delivery, usually at 37–38 weeks, or earlier in severe cases. S was such a case, but she did not agree to early delivery. With her permission, Dr Chill contacted Dr Keogh, a GP in Surrey who S had seen on 23 April, who stated that S had an earlier diagnosis of ‘moderate depression’. Dr Chill repeated her advice of early delivery, and, on S’s refusal, arranged for her to be seen by an approved social worker (Louize Collins) and the duty psychiatrist (Dr Jeffreys). These meetings occurred within about three hours of S attending the practice. S waited for these professionals to attend, and remained at the practice while they discussed her case. Throughout, S was clear that she did not want an early delivery as she wanted a natural birth, and she understood that if delivery was not started early she might die or be disabled, and the foetus would die. [5] Three points are noteworthy. First, ‘moderate depression’ is a wide and vague diagnosis, and it is not clear when it was made, what it entailed, or the effect it had on S. Nevertheless, it became the hook on which to hang the desire to achieve a ‘good’ outcome for all; the safe delivery of a healthy baby. Greater clarity on the medical facts upon which crucial decisions were made might have alerted those involved that assumptions were being made, and acted upon, without appropriate medical justification. Without such, trust (the essential element of the ­doctor-patient relationship) was undermined. Health professionals have an ethical obligation to build the relationship of trust, given the asymmetric nature of the relationship which will be exacerbated where the patient is, for example, frightened, distressed, or depressed. [6] Second, within about three hours of attending the GP practice S was told that she had severe pre-eclampsia, there was only one treatment option, and her ability to make decisions was questioned. I can only imagine how scared and confused S must have been at this diagnosis and subsequent activity. ‘Do no harm’ is a fundamental tenet of medical practice, but it is easy to see how it was challenged by this news and subsequent rush of activity. While there may be times where urgency is unavoidable, care must be taken not to overstate or enhance the urgency of a situation. Dr Chill sought to prevent harm and do good by informing S of her situation and persuading her of the value of adhering to the standard medical advice. While the health professionals were undoubtedly motivated to achieve the ‘best’ outcome for S and her foetus, they were limited in their ability to build a trusting relationship with S because of the urgency of the situation and the fact that they had no prior relationship with her. Indeed, S’s narrative suggests she has no (or very limited) trust in the medical profession, which adds to the complexity of the case. However, where resistance is shown by a patient, health professionals must

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try harder to establish and build trust, as real responsiveness will not lead to professionals (re)acting as they did here. [7] Third, we are not told why S attended Dr Chill’s surgery on 25 April, and it would have been useful to know this as she had only seen Dr Keogh two days previously. Was she or had she been feeling unwell? Did she sense that all was not right? The symptoms of pre-eclampsia include high blood pressure, severe headaches, blurred vision, and fluid retention resulting in swelling of the hands, feet, legs and face. It is hard to believe that S felt well given that two days later she was diagnosed with severe pre-eclampsia. I disagree with my colleague, Judge LJ, that S’s actions in attending the practice and remaining contradicted her subsequent refusal to comply with medical advice. Staying and discussing her position indicates that S wanted to understand her position, the options, and to explain her views to the involved professionals. This is the behaviour of a responsible adult. The presence of a social worker and duty psychiatrist must have caused S to realise that her ability to make decisions was being doubted; yet she remained able to express her views whilst (understandably) being tearful at times. It would be interesting to consider how the professionals would have reacted if S had left or tried to leave the practice. [8] The importance of an adult with capacity giving or withholding consent has long been an area in which law and ethics are aligned. Legal support for this proposition is found in, for example, the decision of this Court in Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, where Lord Donaldson of Lymington MR stated that ‘[a]n adult patient who … suffers no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered’, (at [652–53]). Furthermore, ‘[t]he patient’s interests consists of his right to self-determination— his right to live his own life how he wishes, even if it will damage his health or lead to his premature death’ (at [661]). [9] The legal protection of the decision-making ability of adults with capacity gives force to the ethical principle of autonomy. According to Professors Beauchamp and Childress, ‘[t]he autonomous individual freely acts in accordance with a self-chosen plan’, and essential to personal autonomy is ‘personal rule of the self that is free from both controlling interference by others and from personal limitations that prevent meaningful choice, such as inadequate understanding’, (TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 4th edn (New York, Oxford University Press, 1994) 121). They correctly state that ‘respectful action, not merely a respectful attitude is required’ (at 125, their emphasis), and that ‘[t]o respect autonomous agents is to acknowledge their right to hold views, to make choices, and to take actions based on their personal values and beliefs’ (at 125). [10] This protected legal and ethical principle holds for adults with capacity; thus, the relevant question here is did S have the capacity to consent to or refuse

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treatment? In Re MB [1997] 2 FLR 426, Butler-Sloss LJ, in this Court, summarised the common law on capacity: (4) A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when: (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. [437]

[11] S’s capacity should have been assessed according to this test. That this did not happen is of extreme concern to this Court. If the test for capacity had been applied to S it is difficult to see how she could be deemed to lack capacity. While it might be possible to suggest that her ‘moderate depression’ impaired or disturbed her mental functioning, there is nothing to support a finding that this rendered her unable to make a decision. Rather, the evidence supports my conclusion that S understood the information about pre-eclampsia, the treatment available, and the consequences of not being delivered early. S made a decision; a decision not to follow medical advice. It cannot be the case that that is enough to determine incapacity. On this basis, S’s refusal of treatment should have been respected. [12] Unfortunately, S’s refusal to agree to an early delivery was not the end of the matter. Following the discussions between S and the professionals involved, and the advice of Dr Chill and Dr Jeffreys regarding S’s capacity and depression, Louize Collins applied for S to be assessed under section 2 of the Mental Health Act 1983. As required by section 2(2), the claim must have been that S’s moderate depression was a mental illness of such a nature or degree that she needed to be detained in the interests of her own health and safety or to protect others. With regard to the latter, that ‘other’ can only be the foetus, and I address this matter below. Furthermore, under section 13(2) of the 1983 Act, Louize Collins must have been satisfied that detaining S in hospital was, in all the circumstances of the case, ‘the most appropriate way of providing the care and medical treatment’ which she needed for her moderate depression. [13] The required paperwork indicates how S’s position was viewed. Explaining why informal admission was required under section 2 of the 1983 Act, Dr Chill wrote, ‘Patient depressed and self neglectful refusing voluntary treatment. Has pre-eclampsia with potential severe physical complications which needs assessment, monitoring and treatment. Potential risk of self-harm or harm to unborn child if not treated’ (my emphasis). Similarly, Dr Jeffreys wrote The patient is refusing treatment and will not accept voluntary admission. She appears to be profoundly depressed with low self-esteem and a profound indifference to the consequences of refusing treatment for her serious physical condition. She is pregnant and her behaviour is putting her own life and the life of her unborn baby at risk (my emphasis).

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While her depression was mentioned by both doctors, the key issue was S’s refusal of treatment which was placing at risk her life and that of the foetus. Yet, as I discuss below, the foetus cannot and should not be treated as capable of legal protection in this regard. The foetus was not a relevant concern, nor (without an assessment of her capacity) was S’s refusal of treatment in the form of early delivery. Rather, the focus should have been on S and her mental illness (‘moderate depression’), and her detention could only be lawful if it facilitated care and treatment for that depression. [14] Nonetheless, and I emphasise this, at no time during her detention under section 2 of the 1983 Act did S receive treatment for her mental illness. I fail to understand how the professionals involved did not appreciate that delivering early via a caesarean section was not a treatment of S’s moderate depression, unless this was not the mental illness they were seeking to treat. The application of the Mental Health Act 1983 to S’s situation was inappropriate, and it is worrying that no-one involved recognised the legal and ethical issues inherent in their actions. [15] It is clear that a theme within the decision making processes of the professionals was concern for the health of the foetus. This (unspoken) agenda permeates the evidence from the professionals; yet it is well-established that the foetus has no legal status until it is born alive, and has an independent existence from its mother (Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 and C v S [1988] QB 135). However, while the legal status of the foetus is clear, its status remains ethically contentious. The reality and (personal) difficulties of implementing the legal status in practice should not be underestimated. Not many would volunteer to be a professional faced with the situation presented here; a woman with capacity who is near to term and refusing to undergo a procedure which will, usually, result in the safe delivery of a healthy baby from a surviving mother. [16] Nevertheless, in determining what course of action or treatment is appropriate for a pregnant woman with capacity, she must be the focus of those involved. The professionals should not pretend that the foetus does not exist, that would be nonsensical, but the patient is the woman and not the foetus. In the majority of cases, the decisions of the woman will ensure that both her interests and those of the foetus are protected; but where they do not we must be clear. If a woman has capacity she is able to decide what treatment she undergoes even if this results in the death of a foetus. Lord Donaldson MR’s much quoted obiter comments in Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649 regarding the position of a woman with capacity refusing treatment which will result in the death of the foetus cannot be correct given the implications of this position. As Lord Donaldson rightly noted, ‘if and when [such a case] arises, the courts will be faced with a novel problem of considerable legal and ethical complexity’ (at [652–53]). While society has an interest in preserving life if possible, ‘in the ultimate the right of the individual is paramount’ (at [661]), and the decision in Re S (Adult: Refusal of Treatment) [1992] 4 All ER 672 is an unfortunate example of this Court failing

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to address the issue of capacity and focusing, inappropriately, on the risk to the woman’s life and the risk to the foetus’. This error must not be repeated. [17] In setting out the options, Dr Chill advised S of the consequences of not following that advice; for her and the foetus. Once this information was provided, and S’s capacity to decide affirmed, the position of the foetus should have been of no separate concern to those involved. Provided S understood that her refusal to follow medical advice might result in her dying or being disabled and in the foetus dying, the professionals had met their responsibilities to S. This does not mean that they could not still discuss her decision with her, although there is a fine line between discussion, persuasion and influence, but they must respect and follow her decision. We cannot only respect the choices we like; respect for bodily integrity and autonomy demands more. [18] Although the foetus has no legal status, that does not mean that it can be ignored and anything can be done to/with it. Embryos and foetuses are, to some extent, legally protected under, for example, the Human Fertilisation and Embryology Act 1990 and the Offences Against the Person Act 1861. As my learned colleague, Judge LJ, states, the foetus is not nothing, and Lord Mustill was clear in the House of Lords in the Attorney-General’s Reference (No 3 of 1998) [1998] AC 245, 256 that the foetus ‘is a unique organism’ and that ‘[t]o apply to such an organism the principles of a law evolved in relation to autonomous beings is bound to mislead’. Difficult though this may be, when a pregnant woman has capacity and is refusing treatment which may result in her death or disability and the death of the foetus, her refusal must be respected. To do otherwise is to place pregnant women in a different position to others with capacity and the current law does not do this. Given the implications, any change in this direction must come from Parliament. [19] I have carefully considered the judgment of my learned colleague, Neal LJ, but I cannot agree with her conclusions. Health professionals are responsible for building and maintaining the relationship of trust, and the failure to do so here is notable. Decisions were made without careful reflection on their consequences, perhaps due to the apparent urgency of the situation. But urgency cannot be used as an excuse or reason not to comply with professional, ethical and legal obligations; otherwise, the temptation to delay until urgency becomes operative may be too great to resist. Lord Coleridge CJ in R v Instan (1983] 1 QB 450, 453 stated that ‘[i]t would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation’. We have a legal duty and moral obligation to respect the wishes of those with capacity, and S was not accorded this respect.

Legal Commentary—Giving Birth, Foetal Subjectivity, and Harm SHEELAGH MCGUINNESS

I. Introduction This commentary reflects on the actual judgment and the ethical judgments in the case of St George’s Health NHS Trust v S. My argument provides a feminist legal critique and through a wider socio-legal contextualisation, invites an ­understanding of the systemic harms to women and their reproductive freedom that may be achieved through the law, given not just the outcome of S’s case, but also the reasoning within and around it. My analysis is framed by the concept of ‘gendered harms’ in reproduction and pregnancy. I take this framing from Robin West, who suggests that legal systems can compound and legitimate harms that are experienced disproportionately or solely by women.1 Joanne Conaghan summarises the concept as follows: [T]he notion of ‘gendered harm’ is but one way of recognizing that injury has a social as well as an individual dimension: people suffer harm not just because they are individuals but also because they are part of a particular class, group, race or gender. Moreover, their membership of that particular class, group, race or gender can significantly shape the nature and degree of the harm they sustain. The problem with law then is its failure to recognize that social dimension.2

It is my argument that we must recognise how law’s manipulation of women and their (potential) reproductive choices shapes social norms and expectations.3 To fully understand how women are subjugated and oppressed in the sphere of reproduction, it is crucial to recognise the stark contrast between the respect afforded to non-pregnant persons’ medical decision-making and that of pregnant persons. Furthermore, it is not just pregnant women who are oppressed, but all

1 

R West, Caring for Justice (New York, New York University Press, 1997). Conaghan, ‘Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment’ (1996) 16 Oxford Journal of Legal Studies 408. 3  See for example R Kukla, Mass Hysteria: Medicine, Culture, and Mothers’ Bodies (London, Rowman & Littlefield, 2005). 2  J

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women with the capacity to become pregnant. In regard to the latter, their agency is contingent on a hypothetical state that they may never enter. As Drucilla Cornell tells us: The very constitution of selfhood cannot be separated from the protection of the future projections of the woman’s self as a whole body. The threat takes effect before any woman actually has to face an unwanted pregnancy. Here we have an important example of how the symbolization of a woman’s ‘sex’ has a constitutive effect on what we have come to think of as selfhood. Not only is a woman’s individuality not just given, it is limited in its very definition by certain symbolizations of her ‘sex’ in the law.4

Women with the capacity to become pregnant live in the shadow of this latent state of affairs. And, as evidenced by the circumstances of S’s case and the rhetoric in parts of the judgments, such women’s agency (legal, moral, and social) is contingent on pregnancy not arising. Given this, it is not just unwanted pregnancy that gives rise to contingent subjectivity, but all instances of pregnancy within legal cultures that allow pregnant women’s decision-making capacity to be treated with suspicion: or as stated by Fovargue LJ ‘place[s] pregnant women in a different position to others with capacity’ [18]. Decisions such as Neal LJ’s are therefore best understood, I will argue, as examples of how law legitimates and compounds a particular form of gendered harm. And it is not just the sanction of forcible treatment but the broader legal culture which makes forcible treatment possible. I will conclude that law is consistently disappointing in the sphere of reproductive ‘control’. Sorcha Uí Chonnachtaigh, in her ethical commentary, details the negative reproductive experiences that women continue to have, notwithstanding grand statements from the courts and legislators.5 As Carol Smart warns us: Just as medicine is seen as curative rather than iatrogenic, so law is seen as extending rights rather than creating wrongs. It is perhaps useful to coin the term juridogenic to apply to law as a way of conceptualizing the harm that law may generate as a consequence of its operations.6

It is my contention that a legal culture which attributes subjectivity to the foetus and prioritises foetal interests through enforcing treatment on pregnant women causes a specific form of gendered harm on women like S even where it appears to vindicate their rights.

4 D Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harrassment (London, Routledge, 1995) 52. 5  S Ui Chonnachtaigh, in this volume, drawing from Birthrights, Dignity in Childbirth: The Dignity Survey 2013: Women’s and Midwives’ Experiences of Dignity in UK Maternity Care (Birthrights, 2013). 6  C Smart, Feminism and the Power of Law (London, Routledge, 1989) 12.

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II.  The Importance of Autonomy in Medical Law Respect for patient autonomy is a foundational principle in English medical law.7 However, early judicial defences of the primacy of respect for patient autonomy provided a potential exception if the interests of a foetus were at stake. Consider Lord Donaldson MR’s famous dicta in Re T: An adult patient who … suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment… The only possible qualification is a case in which the choice may lead to the death of a viable foetus… This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.8

This reasoning provides a key legal cornerstone for Neal LJ’s decision and reflects a legal culture that is prepared to attribute subjectivity to the foetus. West highlights the importance of examining legal culture when considering the impact of gendered harms. She argues that to focus exclusively on ‘positivistic or instrumentalist’ forms of sanction misses how law influences how we perceive ourselves and as such shapes our behaviour.9 Within the sphere of reproductive control, I would suggest, judicial expressions of expectations of pregnant women lead to the reinforcement of some of the most archetypal examples of patriarchal oppression; legal judgments themselves reinforce societal expectations of limits that should be placed on (potentially) pregnant women, as a category that can and should be contrasted with other patients.10 This distinctive treatment is marked, and cannot be overstated. Forcible treatment of pregnant women constitutes a sharp departure from the principle of respect for autonomy; a principle whose importance extends generally in medical law not just to contemporaneous decision-making, but also to considering the previous wishes, feelings, and values of patients who come to lose capacity.11 Against this general absolutist respect for patient autonomy in medical law, and the high reverence given to individuals’ previously expressed values and wishes once they lose capacity, or even after they die, the preparedness even to consider forcing treatment on pregnant women presents a deviance that demands scrutiny. We come to this position as a consequence of attributing subjectivity to the foetus. This process of attribution robs the pregnant woman of her own s­ ubjectivity

7 J Coggon, ‘Varied and Principled Understandings of Autonomy in English Law: Justifiable ­Inconsistency or Blinkered Moralism?’ (2007) 15 Health Care Analysis 235–55. 8  Re T (Adult: Refusal of Medical Treatment) [1992] WLR 786. 9 West, Caring for Justice (n 1) 151. 10 See S Fovargue and J Miola, ‘Policing Pregnancy: Implications of the Attorney-General’s Reference (No 3 of 1994)’ (1998) 6 Medical Law Review 265–96. 11  Mental Capacity Act 2005, section 4(6).

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and reduces her to the physicality of her role as foetal incubator. Susan Bordo frames it thus: The essence of the pregnant woman… is her biological, purely mechanical role in preserving the life of another. In her case, this is the given value, against which her claims to subjectivity must be rigorously evaluated, and they will usually be found wanting insofar as they conflict with her life-support function. In the face of such conflict, her valuations, choices, consciousness are expendable.12

Thus law and medicine often collude in the sphere of reproductive decision-­ making to legitimate a specific form of gendered harm to pregnant women.

III.  Gendered Harms So what is the gendered harm that women face here? S was articulate and informed about her healthcare rights to the extent that she could challenge and assert how she would like to be treated. Yet in Judge LJ’s original decision he expresses sympathy for the professionals who have to deal with a woman who is failing to live up to societal expectations regarding appropriate maternal behaviour: ‘Faced with the serious consequent risk to the health of their babies very many mothers would be prepared to compromise their beliefs.’13 S is found to be ‘intransigent’ and the Court expresses admiration for the social worker who had S sectioned, noting her ‘courage in reaching any decision at all in such difficult circumstances when faced with a life and death situation and an unusual, unreasonable mother to be’.14 S is unusual; she is articulate and vocal and refuses to capitulate in the face of professional opposition. Yet the characterisation of her situation emphasises the pervasive and systemic way that her voice—like that of other women—is silenced and their subjectivity subsumed by concern for foetal interests. In deciding to act in a way that contradicts societal constructions and expectations, S is presented as somehow deviant and her sense of self not to be trusted. West’s analysis, which provides the gendered harm framing that I am employing here, focuses on instances of sexual violence and the experience of unwanted pregnancy.15 She argues that these are ‘defining harmful experiences for women’ and not just the experience of them, but the capacity of potentially experiencing them. I would extend her analysis and suggest that pregnancy can, regardless of

12 S Bordo, Unbearable Weight Feminism: Feminism, Western Culture, and the Body (Berkeley, ­University of California Press, 1993) 79. 13  St George’s Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All ER 673, per Lord Judge [694]. 14  Ibid [694] [emphasis added]. 15 West, Caring for Justice (n 1) Ch 4.

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whether it is wanted or not, constitute a harm to women. As much was appreciated by Hale LJ in Parkinson: Not surprisingly, their Lordships did not go into detail about what is entailed in the invasion of bodily integrity caused by conception, pregnancy and child birth. But it is worthwhile spelling out the more obvious features… From the moment a woman conceives, profound physical changes take place in her body and continue to take place not only for the duration of the pregnancy but for some time thereafter. Those physical changes bring with them a risk to life and health greater than in her non-pregnant state … Along with these … goes a severe curtailment of personal autonomy. Literally, one’s life is no longer just one’s own but also some-one else’s … Continuing the pregnancy brings a host of lesser infringements of autonomy related to the physical changes in the body or responsibility towards the growing child.16

This is the situation for all pregnant women and it is their preparedness to undertake this role that leads to what Bordo describes as the ‘biting injustice’ of cultural suspicion of pregnant women; pregnant women are, according to Bordo, ‘probably the “Best Samaritans” of our culture’.17 The harm done to women such as S through the threat, and perceived social acceptability, of enforced treatment, is taken further by understanding the experience of pregnancy as a form of intimacy. Margaret Olivia Little argues: To be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough-going nature. The fetus intrudes on the body massively; whatever medical risks one faces or avoids, the brute fact remains that the fetus shifts and alters the very physical boundaries of the woman’s self.18

S, in defining the boundaries of the reproductive experience she wanted, was setting intimate boundaries. The hallmarks of our social constructions of positive pregnancy are altruistic heroism in which the pregnant woman gives herself over to the interests of the foetus in the way Hale LJ describes above. The violence of forced caesarean sections constitutes an invasion of bodily integrity and intimacy that shares features of the gendered harms of both sexual violence and unwanted pregnancy. The process of labour and childbirth are physically and emotionally painful; the pain of the physical process but also the altering of the maternal bond between the pregnant woman and the foetus she has carried within her.19 When this happens in the context of coercion it transforms the birthing process into a traumatic and injurious experience; it becomes a form of ‘invasive terror’ which denigrates the woman’s selfhood objectifying her as a foetal incubator.20

16  Parkinson v St James & Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, per Lady Justice Hale at 56. 17 Bordo, Unbearable Weight Feminism (n 12) 83. 18  M Olivia Little, ‘Abortion, Intimacy, and the Duty to Gestate’ (1999) 2 Ethical Theory and Moral Practice 301. 19 West, Caring for Justice (n 1) 127. 20  Here I am drawing on both West, Caring for Justice (n 1) and Bordo, Unbearable Weight Feminism (n 12).

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In S’s case, she maintains her refusal to consent but does not physically resist: In fact she had decided that to struggle physically and be overcome would be undignified. She therefore lay still offering no resistance when … she was sedated … Under the ­pressures of an exhausting and emotionally charged situation, and faced with the court order, S ceased to offer any resistance. This was not consent but submission.21

The outcome for S is a situation where a heightened concern for the foetus leads to the wiping out of her agency. S is robbed of her subjectivity and her ability to enter into an intimate relationship with her now born child is marred by a violent and traumatic invasion of her body. The forcible treatment constitutes an archetypal moment of controlling women to fulfil their mechanistic reproductive function.

IV. Conclusion S’s case was part of a series of decisions in English medical law that assessed whether women were to be assumed incompetent by virtue of their being in labour or indeed simply pregnant. Such cases are interesting in their presentation of foetal subjectivity. Imposition of treatment on the pregnant woman against her will is justified by reference to the interests of a not yet existing being. And this brings us to the crux of the matter. Existing legal frameworks are as likely to harm women like S as they are to help her, regardless of the actual legal outcome. This is underscored by language such as that used by Neal and Judge LJJ. In considering their decisions, we find an acceptance of the legal validity of framing a maternal/foetal conflict.22 In accepting this framing, we do two things. First, we accept the existence of the foetus as an independent entity; and second we accept that the pregnant woman constitutes a threat to this entity. In the original decision, Judge LJ spends approximately six pages considering ‘the status of the foetus’ but only a single page considering the importance of autonomy. Furthermore, he emphasises that most would have sympathy with the desire to forcibly treat S, notwithstanding that it was unlawful; judicially acknowledging such sympathies serves to legitimise what has been done to S. Foetal-centric thinking also permeates Neal LJ’s judgment. Her judgment radically reinterprets the ‘ethic of care’ to justify the abandonment of the pregnant woman’s autonomy to protect the life of the foetus. Her approach uses legal reasoning to mask how the pregnant woman’s sense of self cannot be disentangled from her decision to navigate the boundaries of the intimate relationship that she has with the foetus. Neal LJ uses the rhetoric of the ‘nearly-born’ to advocate for the primacy of the ‘foetus whose gestational parent is determined to destroy it’ [10]. Her judgment elevates the foetus’ status to ‘the life of another’ that S 21 

St George’s Healthcare NHS Trust v S (n 13) [684]. Feminism (n 12) 94.

22 Bordo, Unbearable Weight

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should not be allowed, by refusal of consent (to a breach of her bodily integrity) to refuse ‘non-futile treatment’ [7]. Neal LJ is right to hold, at the time of S, that ‘our legal culture and its ethical underpinnings [were] capable of supporting the ­qualification of the right to refuse treatment contemplated by Lord Donaldson in In re T’ [7]. However, this is not something to be celebrated. Therefore, I welcome Fovargue LJ’s approach, which departs from foetal-centric thinking acknowledging that: It is clear that a theme within the decision making processes of the professionals was concern for the health of the foetus. This (unspoken) agenda permeates the evidence from the professionals… [15]

Fovargue LJ displays sympathy with this approach, but cautions against it, reminding us that treatment must be in S’s best interests [15]. We should be concerned with S’s needs [14]. We should try and put ourselves in S’s position. Such an approach resists a pervasive attitude within forcible treatment cases where increased empathy with the foetus is taken to mean that women’s agency can be reduced [17]. Overall, though, we cannot confine a legal critique of S to the facts or legal reasoning in that case alone; law more widely and insidiously causes systemic harm to pregnant women. My intention here is not to ignore the value or dignity of foetal life but rather to recalibrate an approach to these cases that imagines ‘that the “life” of the fetus is inseparable from the physical and mental well-being of the women of whose body it is part’.23 Whilst judicial reasoning could have led to an outcome against or in S’s favour, a truly ethical judgment would not perpetuate law’s reproduction of gendered harms, and would instead place the woman and respect for her decision-making at its heart.

23 Cornell, The

Imaginary Domain (n 4) 32.

Ethical Commentary—A Necessarily Feminist Critique of the Judgments SORCHA UÍ CHONNACHTAIGH

I. Introduction This ethics commentary on the reimagined judgments for St George’s Healthcare NHS Trust v S (henceforth St George’s) will present a feminist ethics critique of the judgments and the case itself.1 The St George’s case concerns an intelligent, well-educated woman who is pregnant and who also has a mental illness. Though she is knowledgeable about healthcare and her rights, and thus in a far more advantageous position than many, the outcome for her is not a positive one. The world continues to be an unequal place for women (this is particularly the case for women with intersecting identities and experiences of oppression, including mental illness).2 An ethical analysis of St George’s that fails to acknowledge the contemporaneous and ongoing context of women’s oppression, particularly in and through obstetric care, is an incomplete, and flawed, analysis. Thus, this commentary will be unambiguously and unapologetically feminist.3 Feminism is a ‘broad church’.4 bell hooks provides the following short and simple definition: ‘[f]eminism is a movement to end sexism, sexual exploitation, and oppression’.5 Feminist theory, whether in philosophy, law or other disciplines, also has as its aim to counteract the historical exclusion of women and women’s experience both within academic disciplines and without, to redress the balance in our understanding of the everyday.6 1 

St George’s Healthcare NHS Trust v S [1998] 3 WLR 936. K Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ (1991) 43 (6) Stanford Law Review 124–99. 3  This book project itself owes much to its feminist progenitor, see R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (London, Bloomsbury Publishing, 2010). 4  For an overview of the history of feminism, see E Freedman, No Turning Back: The History of Feminism and the Future of Women (New York, Ballantine Books, 2007). 5  b hooks, Feminism is for Everybody (London, Pluto Press, 2000). For a discussion of the nature of Feminism and its definition, see S Haslanger, N Tuana and P O’Connor, ‘Topics in Feminism’ in EN Zalta (ed), Stanford Encyclopedia of Philosophy (Fall 2015 edn) http://plato.stanford.edu/archives/ fall2015/entries/feminism-topics/ (accessed 17 May 2016). 6 DE Smith, The Everyday World as Problematic: A Feminist Sociology (Toronto, University of Toronto Press, 1987) 17–18. 2  See

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Feminist ethics is the response to the epistemological and ontological a­ssumptions of mainstream Western ethics, its historical focus on the public sphere, and its exclusion of female perspectives. A central component to any ­feminist project is consciousness-raising. Thus, it is crucial that we understand individual actions in the context of broader social practices, evaluating the symbolic and cumulative implications of any action as well as its immediately observable consequences.7

II.  The Case The original judges identify a number of issues in discussing the appeals and applications before them (including the right to refuse treatment, capacity to consent, the autonomy of capacitous individuals, and the status of the foetus), in addition to dealing with the legality of specific actions (the initial detention, transfer, treatment and delivery via Cesaerean section).8 Fovargue LJ rightly points out that the issues relating to the legal principle of autonomy necessarily overlap with ethical principles as commonly used in healthcare.9 However, there is more to this case than autonomy. The case under reimagining here raises a number of ethical issues, not merely about consent in a medical context but about pregnant women’s consent in a medical context, not merely about bodily integrity but about pregnant women’s bodily integrity.

III.  The Context It must be noted that the treatment of pregnant women in our society takes place against a historical backdrop of patriarchal control. A recent case of forced caesarean section in the UK appears to have involved a women whose capacity was compromised, and no other cases of forced caesarean section have reached the courts.10 However, treatment of pregnant women in the UK remains problematic when it comes to consent, autonomy and risk to the foetus.11 The detention— 7 AM Jaggar, ‘Feminist Ethics: Projects, Problems, Prospects’ in C Card, (ed), Feminist Ethics ­(Lawrence, KS, University Press of Kansas, 1991) 98. 8  St George’s (n 24). 9 T Beauchamp and J Childress, Principles of Biomedical Ethics, 6th edn (New York, Oxford ­University Press, 2009). 10 Full information is not available, see news report on the case ‘Baby in Alessandra Pacchieri Forced Caesarean Case Adopted’ The Guardian (London, 14 April 2014) http://www.theguardian.com/ uk-news/2014/apr/15/pacchieri-baby-adopted-forced-caesarean-case-uk (accessed 16 June 2015). 11 Birthrights, Dignity in Childbirth: The Dignity Survey 2013: Women’s and Midwives’ Experiences of Dignity in UK Maternity Care (Birthrights, 2013); M Hill, ‘“Consent in Childbirth is a

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and forcible treatment—of persons with mental illness also has a sorry classed and gendered history in Britain.12 Despite close monitoring of the Mental Health Act (MHA) by the Care Quality Commission since 2009, their most recent report stated that inspectors ‘too often found services that are not routinely involving [psychiatric] patients in their treatment’.13 Worse still, in a quarter of cases there was no evidence of assessment of capacity to consent to treatment on admission.14

A.  Contextualised Critique Fovargue and Neal LJJ disagree on whether the social and healthcare professionals (S&HCPs) acted morally; Fovargue LJ finds them well-intentioned but morally wrong and Neal LJ finds their actions to be an appropriate moral response to S’s vulnerability.

B.  Fovargue’s (Mainly) Mainstream Ethics Approach Fovargue LJ is in agreement with Judge LJ for the most part. The ethical issues with the original judgment are more about what is omitted than what is included and Fovargue LJ addresses some of these omissions. She enriches our understanding of how S has been wronged by elaborating on the ethical reasoning behind the corresponding legal principles at play. Fovargue LJ mostly takes a mainstream ethics approach in which Principlism predominates. While not overt, her application of the principles to S’s case aligns with the Ethics of Care in some respects; Fovargue LJ demonstrates care, concern, and empathy for S in a number of statements in the reimagined judgment. Notably, she apologises to S, demonstrating empathy with her [1]. She also acknowledges and validates the legitimate distress and upset that must have been experienced by S over the days in question. Ultimately, however, Fovargue LJ focuses on two issues—‘individuals’ freedom to make decisions about their own bodies’ and ‘the State’s role in protecting those deemed unable to protect themselves’—from a mainstream ethics perspective [2]. I agree with Fovargue LJ that as individuals, the various S&HCPs who interacted with S may have believed they were doing the right thing, even the right

Joke”: How ­British Women are Silenced in the Delivery Room’ The Telegraph (London, 1 May 2015) www.telegraph.co.uk/women/womens-health/11574412/British-women-Consent-during-childbirthis-a-joke.html (accessed 18 June 2015); F Emmerich, ‘Power, Care and Risk: Personal Reflections on Pregnancy and Childbirth.’ (Symposium, Keele, 27 October 2014). 12  See, for example, E Showalter, ‘Victorian Women and Insanity’ (1980) 23(2) Victorian ­Studies 157–81. 13 Care Quality Commission, Monitoring the Mental Health Act in 2013/14 (Care Quality ­Commission, 2015) 9. 14  Ibid, 57.

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thing for S. However, there is more to this case than misplaced good intentions and a rightful concern for the foetus as a ‘second(ary) patient’. Elsewhere in the reimagined judgment, Fovargue LJ explicitly references the ‘theme within the decision making processes of the professionals’ of concern for the welfare of the foetus [15]. The professionals involved in S’s care compromised their legal and professional obligations to her for the sake of her foetus.15 This requires further discussion. In a statement submitted to the Court, the social worker outlines how the decision to detain S under s 2 of the MHA was made after S refused to be persuaded of a ‘less restrictive option’ (one nonetheless contrary to her position).16 S’s noncompliant behaviour led the social worker to implement a highly restrictive measure in the interests of the foetus. This meant S was ‘containe[d]’ in a psychiatric ward, which the social worker acknowledged was not in S’s best interests.17 All this was due to S’s ‘very severe condition’ (pre-eclampsia), which threatened the life of the foetus (and the health and life of S). The significance of this cannot be understated, nor can it be categorised as ‘well-intentioned’ or acting in the best interests of S [1]. Sonya Charles has highlighted the similar pattern of controlling behaviour between abusive male partners and obstetricians, and the motivation for it (failure to comply with role expectations).18 Though the professionals involved in S’s case are not all obstetricians, they are all hyper-aware of her obstetric state.19 The choices of pregnant women are heavily policed and there is a ‘pervasive belief in the propriety of women’s maternal, self-sacrificing behaviour’.20 Rebecca Kukla has analysed the nature of this policing (or ‘measurement of mothering’), identifying the ‘signal moments’ that are the (reductive) locus of so much evaluative attention.21 Many of these signal moments are prenatal, and this social concern with quality ‘mothering’ of the foetus is mirrored by the State.22 Kukla asserts that ‘“good” mothers are those who pass a series of tests’ at key moments during pregnancy, birth and child-rearing. She says that our cultural mythos around motherhood establishes that 15  For example, see General Medical Council, Good Medical Practice (General Medical Council, 1995). 16  St George’s (n 24) [944]. 17  Ibid. 18 S Charles, ‘Obstetricians and Violence against Women’ (2011) 11(12) American Journal of ­Bioethics 51–56, 55. 19  Weaver et al have shown that healthcare professionals are as susceptible to the influence of the media as the general public; it is not unreasonable to think they are as liable to be influenced by other socially mediated messages around womanhood, motherhood and pregnancy. See J Weaver, H Statham and M Richards, ‘Are there “Unnecessary” Cesarean Sections? Perceptions of Women and Obstetricians about Cesarean Sections for Nonclinical Indications’ (2007) 34(1) Birth 32–41. 20  TE Higgins, ‘Rethinking (M)Otherhood: Feminist Theory and State Regulation of Pregnancy’ (1990) 103 Harvard Law Review 1325–43, 1336. 21 R Kukla, ‘Measuring Mothering’ (2008) 1(1) International Journal of Feminist Approaches to ­Bioethics 67–90. 22 Higgins points out the State is much more reluctant to interfere with parenting after birth, ­Higgins, ‘Rethinking (M)Otherhood’ (n 43) 1336–37.

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good mothers deliver vaginally … Second-best mothers submit regretfully but docilely to whatever medical interventions the doctors recommend to correct and control their unruly bodies. ‘Bad’ mothers make other, selfish choices.23

It is clear that according to such a standard S would be classified as ‘one of “the bad” (or mad?) mothers who appear to put themselves (or their beliefs) above all else’.24 She failed to cooperate with the professionals and as a result was (unlawfully) punished by means of the Mental Health Act 1983.

C.  Neal’s Ethics of Care Approach I must contest Neal LJ’s application of the Ethic of Care. The reasoning and analysis deployed is often inconsistent with a truly caring ‘engrossment’ in the Other (here the other must be S).25 This is demonstrated in the somewhat misrepresentative description of the case, and more problematically in the evaluation of S’s reasons. Neal LJ asserts that S’s position is inconsistent because she ‘expressed a preference for “natural childbirth” (despite having been informed that it would be impossible in her case)’ [2]. Two points are pertinent here. First, vaginal delivery is exceedingly unlikely to result in the survival of the newborn but it is not impossible. Second, not wanting to follow medical advice does not make one’s position inconsistent. Healthcare professionals (HCPs) can give advice based on the information available to them but they can never identify the best interests of a patient better than that patient, whose interests go beyond the medical. Referring to S’s written statement (provided to the HCPs and subsequently to the courts) outlining her ‘very strong views with regard to medical and surgical treatment’ and, in particular, her wish to allow nature to ‘take its course’, Neal LJ identifies three facts she believes undermine S’s statement: 1. S’s attendance at two doctors’ surgeries that same week 2. S’s termination in 1993 3. S’s (alleged) statement to HCPs that ‘it would be better for the baby to be dead’ (which Neal LJ inaccurately describes as a ‘wish that her baby should die’) [2]. Some responses to this characterisation of S must be made whilst acknowledging that no one can know what is truly in the mind of another. First, one does not always attend a doctor’s surgery for treatment. It would be perfectly reasonable for S to go to a doctor to get more information about symptoms that she was experiencing and, like all patients, decide on the best thing to do in line with her interests after receiving information. Second, that S had had a termination three 23 

Kukla, ‘Measuring Mothering’ (n 44) 74. Morris, ‘Once Upon a Time in a Hospital… the Cautionary Tale of St George’s Health Care NHS Trust v. S, R v. Collins and others ex parte S [1998] 3 All ER 673’ (1999) 7(1) Feminist Legal S­ tudies 75–84, 82. 25  N Noddings, Caring: A Feminine Approach to Ethics and Moral Education (Berkeley, University of California Press, 1984). 24  A

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years previously is not evidence S felt differently before about medical and surgical interventions. It would be perfectly human of S to have done something that is inconsistent with her general views then for reasons she found significant enough to justify doing so (and this would not be inconsistent with her viewing current circumstances differently). Identifying this ‘fact’ from S’s history could only serve to imply that she is being dishonest about her position or to imply that if she was willing to compromise on her position then she must do so subsequently. There is insufficient evidence to support either implication. Third, the belief that one’s baby or child would be better off dead does not equate with ‘a wish that [they] should die’. The former is a judgement about the quality of the baby’s life and the latter a desire or hope that the baby cease to exist; while the former may lead to the latter, it is not necessarily so. Further, it is not clear how a belief that one’s foetus/ baby would be better off dead than alive is inconsistent with natural childbirth. Finally, even if we accept that S acts in a way inconsistent with her strongly held views, it is not demonstrated how this would or should be relevant in determining capacity to make the specific decision put to S (ie whether to consent to a Caesarean section). With respect to this decision, S demonstrated clearly and unambiguously that she had the relevant information, that she was able to understand and evaluate that information in relation to her personal beliefs and interests, and that she did not consent to the procedure. I agree with Neal LJ that an ethical approach to S’s case should respond to S’s vulnerability, and that an Ethic of Care approach could be a valuable ethical approach here. S is vulnerable in a way that goes beyond the inherent vulnerability of all human beings. While some of this vulnerability is unavoidable—arising from the condition of pre-eclampsia—some of this vulnerability was created by the focus on the welfare of the foetus and the legal mechanisms of detention and forced treatment. The avoidable vulnerability experienced by S is what Mackenzie et al refer to as ‘pathogenic vulnerability’.26 It consists in morally unacceptable vulnerabilities arising from ‘prejudice… social domination [and] oppression’.27 S was vulnerable not only because of her earlier diagnosis of depression or her pregnancy but because of how those things combined and interacted with problematic social conceptions of the ‘good’ mother. S accepted that she would not be able to stop the caesarean section and exercised the only agency left to her by deciding not to struggle28 but we must recognise the institutional ‘violence lurking’ here.29 The Court had ‘authorized an act of violence [restraints] against the woman even if the violence is obscured by her cowed compliance in the face of judicial power’.30 26  C Mackenzie, W Rogers and S Dodds (eds), Vulnerability: New Essays in Ethics and Feminist Philosophy (Oxford, Oxford University Press, 2014) 7–9. 27 C Mackenzie, ‘The Importance of Relational Autonomy and Capabilities for an Ethics of ­Vulnerability’ in Mackenzie, Rogers and Dodds (eds), Vulnerability (n 49) 39. 28  St George’s (n 24), [949 (A)]. 29  N Rhoden, ‘Cesareans and Samaritans’ (1987) 15(3) Journal of Law, Medicine & Ethics 118–125, 122. 30  Ibid.

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Returning to Neal LJ’s imperative to respond to S’s vulnerability, it has been shown that S’s needs were not met in enforcing treatment. Responding to S in a genuinely caring way would have involved caring for her without judgement even when her wishes failed to align with what most of us would choose. We can only speculate on the possible outcome, had this been the starting point of care for S, but it would undoubtedly have been preferable for S to have had a relationship of trust and support from the S&HCPs involved in her case.

IV.  Concluding Thoughts What we have in St George’s NHS Healthcare Trust v S is not a case of maternal-foetal conflict but a case of maternal-professional conflict that was resolved in a most unjust and uncaring manner.31 This commentary has shown that ­Fovargue LJ’s mainstream ethics approach does not quite go far enough and that Neal LJ’s Ethic of Care approach requires significant recalibration. To respond to a depressed, pregnant woman’s vulnerability appropriately, we must do what we can to empower her in her decision-making—by understanding the true causes of her vulnerability and ensuring we do not replicate them.

31  See V Held, ‘The Meshing of Care and Justice’ (1995) 10(2) Hypatia 128–32; G Clement, Care, Autonomy, and Justice: Feminism and the Ethic of Care (Boulder, CO, Westview Press, 1996); R Tong, ‘The Ethics of Care: A Feminist Virtue Ethics of Care for Healthcare Practitioners’ (1998) 23(2) Journal of Medicine and Philosophy 131–52.

Conclusion—Medical Law Rewritten? I.  A Court of Law and of Morals? In this collection we have imagined how key cases in medical law could have been decided. Reflecting on the development of the ethical judgments project in general, and more directly on the resulting contents of this book, various themes have emerged. The alternative judgments and the comments on them have proven a fascinating exercise for providing counterfactual medico-legal developments; alternative histories that the law might have created. They have also, naturally, highlighted more explicitly than the original judgments how ethical concerns might have impacted upon judicial reasoning. But in practical and academic terms, the lessons from the project run much deeper than the production of mere counterfactuals. In this Conclusion we consider some of what we have learned in our exercises in judicial reasoning. It is unsurprising that the previous chapters’ arguments and analyses highlight tensions between competing ethical positions, or interpretations of them: for example, in clashes between an ethic based on the sanctity of life principle and one based on individual liberty; or in differing opinions about what relative weight should be given to autonomy and welfare when they come into conflict. Ethical deliberation does not become less controversial when applied to real, practical problems. Rival ethical theories prioritise different ethical principles. Moreover, no authority in ethics is universally accepted as definitive. No one individual or body has the claim to ultimate authority and, as a consequence, none can claim supremacy in the way that, for example, a decision of the highest appellate court can. As an editorial team, then, we expected to see a variety of different ethical perspectives advanced by our many commentators and judges. Perhaps more surprisingly, the rewriting of and commenting on the judgments has revealed a wide range of different structural perspectives on law. For example, in Bolitho, José Miola and Jonathan Montgomery—writing as Law Lords—do not really dispute the rights and wrongs of the case itself, but differ instead on the place of ethics within the legal system. Sara Fovargue and Mary Neal, sitting as the Court of Appeal in St George’s NHS Trust v S, advance incompatible perspectives on the value and protection that the law should give to foetal life. While John Coggon and Richard Huxtable, writing as Supreme Court Justices in Nicklinson, appear

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to disagree in their ethical suppositions, their judgments’ differences r­ epresent a more foundational disagreement about ‘institutional macro-ethics’, rather than individual differences regarding the ethics of assisted dying. The incompatible outcomes in many of the cases serve to highlight that pursuing ethical consistency does not necessarily create predictability of outcome. Overall, the project has allowed us to gain new insights and perspectives not only into what different arguments tell us the law does and should say, but also into how we—non-judges—might approach controversial medico-legal questions when challenged to do so as (admittedly imagined) judges. As explained in the Introduction, we have allowed the law to exert some constraint: all of the judges were bound to argue within the legal rules and principles that existed at the time of the original decision. However, perhaps one limitation that this project has not been able to take account of the influence of medical law as an academic discipline upon the minds of the ethical judges. We expected to find there was still a great degree of freedom to exercise considerable discretion in judicial reasoning (notwithstanding Formalist claims that judges can and should simply find and apply the law). We were, perhaps, more surprised that the project exposed various other constraints affecting the process of judging—or at least, our approximation of it. In the two further sections of this short conclusion, we will first reflect on these additional constraints, and then note some key points that we, as editors, have taken from the project.

II.  Sitting in Judgment in Medical Law: What Constraints? In 1977, the legal theorist HLA Hart published a famous paper about the process of judging.1 He frames his argument by reference to the idea that: ‘Litigants in law cases consider themselves entitled to have from judges an application of existing law to their disputes, not to have new law made for them’.2 Hart characterises the two extremes of the critical debates on how the judiciary does and should work as sitting on two poles: ‘the nightmare and the noble dream’. The nightmare represents the view that the judiciary might serve as a legislature: rather than adhere to the idea that judges are objective and impartial, and always simply find and apply the law, this view suggests that judges act politically and create new law. The noble dream, by contrast, is the idea that when a judge

1  HLA Hart, ‘American Jurisprudence through English Eyes: The Nightmare and the Noble Dream’ (1977) 11:5 Georgia Law Review 969–89. 2  Ibid, 972.

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declares what the law is, that is a straightforward finding of what was always the case. In the paper, Hart goes on to argue that judicial practice in fact reflects, at different times, both extremes. Judges, in other words, are not always constrained by Formalist concerns, but equally they do not have carte blanche to rule howsoever they wish. Here, Hart is tapping into a long-standing jurisprudential debate about the appropriate role of judges, a debate to which we found ourselves returning, following receipt of our numerous judgments. Some, foremost among them the Formalists,3 believe that a judge’s role is to apply existing law, not to create new law. Judges, on such a view, are mere repositories of knowledge and arrive at decisions in a mechanistic way. The other extreme view, advanced most strongly by the American Legal Realists, is the view that judges have a much more creative role in decisions. The Realists argued that the law and the facts of cases were uncertain, and that judges often had the ability to choose a rule from a selection of competing options that best fit whatever policy or principled goals they wanted to pursue. The Realists stressed that judges come to the law with a set of existing values, preconceptions, perspectives and outlooks. These, they argued, were at least as important as pure legal rules in the decision-making process. On the Realist view, then, judges are more active participants in the development of the law. These, of course, are only two possible positions and they represent what are often considered the extreme ends of the spectrum. Hart tries to adopt a middle position between the two extremes; others, like Ronald Dworkin, argue that moral principles constrain judges but that judging is a matter of interpretation,4 claiming a central role for judges in the development of law but without ascribing to them the open-ended discretion that Realists do. This collection, of course, does not seek to resolve this debate. Nevertheless, the judgments and commentaries do show how many different answers there can be to one particular legal problem and how many of those answers can be justified using the same rules and principles. Moreover, even the limits we put on our judges did not necessarily constrain their creativity and ability to reach innovative conclusions which emphasise a range of possible ethical and legal values. So what constrains a judge who faces a morally contentious medical question? As we have seen in real-life judgments, even where the legal rules appear straightforward, the finding may not follow them. It is trite to point out that it is often easy to criticise the seemingly inconsistent or arbitrary ethical underpinnings of medical law judgments, but harder to suggest a better way forward, particularly when one moves away from the free form of academic critique and enters into the confines of the court room. The nature of the cases that appear before the courts complicates matters further. In 1997, drawing on Hart’s conceptualisation of the

3  4 

See N Duxbury, Patterns of American Jurisprudence (Oxford, Clarendon Press, 1995) Chapter 1. R Dworkin, Law’s Empire (Cambridge, Massachusetts, Belknap Press, 1986).

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appropriate limits of law, Margaret Brazier summarised the situation in relation to medical law as follows: The disputes which reach the courts tend of necessity to be of the most heartrending kind. Less difficult dilemmas will have been settled by reaching some sort of consensus between the various other actors. The judiciary only gets ‘hard’ cases.5

It is important, therefore, to acknowledge the extreme nature of the cases that the courts are called upon to decide; they are cases that define the extremes of the interplay between medicine and law. It is also worth considering Sir Alan Ward’s observation that often, as a case progresses through the legal hierarchy, ‘the higher you climb, the less the essential oxygen of common sense is available to you’.6 ­Consider Blood, for example: there is a clear statutory rule, yet the Court of Appeal does not apply it, arguing that an ambiguity exists. Or Re A where, despite the apparently settled rule that necessity can provide no defence to a charge of murder, the Court decides the reverse. Nevertheless, the need to find legal reasons binds judges. In the course of this project, we have found that other rather less obvious matters seem to bear on judicial reasoning too.

III.  Judging Judges Many factors (role-specific and otherwise) complicate the role of the judge. In reconsidering the case of Bourne, Sheelagh McGuinness refers to an earlier decision of McCardie J, citing his dicta with approval. McGuinness notes that ­McCardie J was much criticised for this decision, and that his frankness came at huge personal cost, as the following summary from Alice Jenkins highlights: My husband told me that some of his colleagues cold-shouldered the judge, and that adverse rumours were spread about his private life, which, but for his outspokenness, would never have been circulated. I believe that mental distress may have affected his health and aggravated the recurrent attacks of influenza which he declined to treat seriously, and which finally brought about his end.7

It is interesting to consider what legacy this treatment of McCardie J might have had on later judges who were called upon to decide cases in this controversial area of medical practice. This story also highlights the limits of any ethical re-imagining of a case that was decided at a time when both common perceptions of morality and of the judicial role were dramatically different from those nowadays. McCardie J was censured as much for his liberal views regarding the

5 

M Brazier, ‘Hard Cases Make Bad Law?’ (1997) 23 Journal of Medical Ethics 341–43. Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2010] EWCA Civ 79 (15 February 2010) [41]. 7  A Jenkins, A Law for the Rich: A Plea for the Reform of the Abortion Law (London, Victor Gollancz, 1960) 24. 6 

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permissibility of abortion as for his open criticism of the state of the law (which it was considered entirely unacceptable for a judge to do). This links to another issue—the extent to which dominant language and principles influence the evolution of medical law. Certain ethical principles that now seem established within the medical law landscape were not so when these cases were first considered. This means that certain decisions that seem straightforward would have been controversial at the time. One of the biggest challenges posed by the cases discussed in this volume is that they often involve situations where there is no obviously right or wrong outcome. What value, then, is added by the pursuit of ethical rather than legal consistency? In our view, it is clear from this volume that a ‘court of morals’ would not necessarily achieve outcomes that were different or any more palatable than those arrived at by courts of law. The judgments given in this volume can themselves be subjected to ethical critique but, in the words of Sir Alan Ward, ‘one hopes that the law will arrive at a result which is consistent with the general feeling of right and wrong’.8 Having subjected ourselves and others to the role of being judges, we can only agree.

8  See C Simpson, ‘A Court of Morals? In Conversation with Lord Justice Alan Ward’ The Cambridge Student (31 October 2014), available at www.tcs.cam.ac.uk/interviews/0033233-a-court-of-morals-inconversation-with-lord-justice-alan-ward.html (accessed 2 March 2016).

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Here, we summarise some of the key terms arising in the judgments and commentaries and provide some further reading suggestions, citing both classic and more recent sources. The different terms outlined fall under four headings: —— ethical theories, frameworks, and approaches; —— central concepts in medical ethics and law; —— theoretical and technical terms regarding the concept of law and adjudication; and —— technical legal jargon. The Glossary should acquaint (different) readers with terms used in both (health care) ethics and law. As the fields from which the terms derive have their own traditions and approaches, each section also briefly provides an explanation of its overall unifying features.

I.  Ethical Theories, Frameworks, and Approaches Ethics, as we explain below, may be conceived as the study of morality. In order to systematise such study, or facilitate its application, scholars have developed different theories to allow us to understand the essence and basis of morality, and practically-focused means of understanding how we move from moral foundations to ethical practice. Accordingly, we may evaluate things ethically or advance ethical guidance on how to act (or who to be) at various points or levels of ethical reasoning. In health care ethics and law, we might find it useful to engage with complete ethical theories: these aim to explain what ethics obtains in and how it should be understood. Alternatively, we might be less interested in referring directly to a moral theory, and instead will look to robust ethical frameworks to guide our actions. This section outlines some key terms that you will find in discussions of ethical theories, frameworks, and approaches. Notably, many of these terms also arise in medico-legal judgments, and necessarily feature in literatures that examine ­medico-legal practices. Applied ethics: See Ethics. Bioethics: See Ethics.

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Casuistry Casuistry or ‘case-based reasoning’ is analogical (it seeks similarities and differences with other cases) and embodies a commitment to ‘treat like cases alike’. It is a ‘bottom up approach’ (anchored in the particular facts of the instant case) and contrasts with ‘top down’ approaches which begin with abstract rules and principles. Possible advantages of casuistry include that it is well-suited to the clinical context, where ethical problems present in the context of actual cases (rather than in the abstract), and that it allows a range of different ethical approaches to be drawn on. On the other hand, this approach may discourage critical distance, and it may also be conservative, since it looks only to previous/existing cases for guidance. What if, compared with previous cases, things ought to be done differently?

Communitarianism Communitarians suggest that the community, rather than the individual, should be the focal point of moral analysis. The concept of community, and the way in which it should be the focal point, varies between theorists. However, at base, communitarian theories require that we conceive of persons as members of a shared community, and that we understand ethics by reference to the interests of the community. In particular, communitarianism may be contrasted with libertarianism (see below). —— S Mulhall and A Swift, Liberals and Communitarians: An Introduction ­(London, Wiley-Blackwell, 1996). —— B Jennings, ‘Community in Public Health Ethics’ in RE Ashcroft et al (eds), Principles of Healthcare Ethics, 2nd edn (London, Wiley, 2007) 543–48.

Consequentialism Consequentialist theories define the rightness or wrongness of actions (or omissions) solely by reference to the goodness or badness of their consequences. Utilitarianism is a type of consequentialism, associated particularly with Jeremy Bentham and John Stuart Mill, which promotes ‘happiness’ or ‘pleasure’ as the favoured consequence. Some utilitarians (‘act utilitarians’) hold that we should individually assess any possible course of action when deciding what to do. Others (‘rule utilitarians’) favour rules that guide activity based on what generally would be expected to lead to the best outcome. In either case, the focus is on the end rather than the means. —— JS Mill, ‘Utilitarianism’ in M Warnock (ed), Utilitarianism, On Liberty, Essays on Bentham (by John Stuart Mill), together with selected writings of Jeremy Bentham and John Austin, 251–21, (London, Collins, The Fontana Library, 1962).

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—— JJC Smart and B Williams, Utilitarianism: For and Against (Cambridge, ­Cambridge University Press, 1973).

Deontology Deontological theories hold that moral worth is intrinsic to particular acts themselves. Deontology essentially promotes rules of conduct, by reference to whether a particular act (say, intentional killing) is intrinsically wrongful: if it is, then no justification can be provided for committing such an act. Deontologists such as Immanuel Kant accordingly propose that moral obligations derive from duties, rather than from the consequences of one’s dutiful behaviour. Some (especially modern) theorists argue that duties necessarily give rise to correlative rights, and vice versa. (See also Rights). —— I Kant, The Moral Law: Groundwork of the Metaphysic of Morals, translated and analysed by HJ Paton (London, Hutchinson and Co, 1991). —— O O’Neill, Autonomy and Trust in Bioethics (Cambridge, Cambridge University Press, 2002). Descriptive ethics: See Ethics.

Egalitaranism Egalitarian theories share a commitment to equality, but this commitment can become complicated when we ask ‘equality of what?’ As such, it is important when advancing or considering ethical claims to egalitarianism to be clear, for example, whether the concern is for equality of opportunity (does everyone have the same chance to do well?) or equality of outcome (does everyone enjoy the same benefits?). Quite distinct concerns will underpin different egalitarian theories, and thus it is important to be clear in what sense an egalitarian theory holds that equality matters. —— GA Cohen, Rescuing Justice and Equality (Cambridge, Harvard University Press, 2008). —— J Rawls, A Theory of Justice, revised edn (Cambridge, Harvard University Press, 1999 [1971]).

Ethics In this book we have used ethics as a synonym for morality. But in a more technical sense, ethics is conceived as the philosophical study of the ideas and concepts associated with practical moral reasoning: the study of ideas such as right, duty, good, obligation, virtue, rationality, choice, freedom, etc. Ethics divides into four

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areas of inquiry: normative ethics (focusing on what we should do or who we should be); applied ethics (application of normative theories to specific fields); meta-ethics (examines the nature of moral concepts); and descriptive ­ethics ­(analyses actual moral beliefs and practices). Medical ethics tends to focus on how moral questions in health care (and medicine particularly) should be understood and resolved, whilst bioethics is broader and encompasses the biosciences; both fields of inquiry encompass all four categories of ethics, and they notably take in views from not only philosophy, but also law, theology, the social sciences, and other disciplines. —— R Ashcroft, A Dawson, H Draper and J McMillan (eds), Principles of Health Care Ethics, 2nd edn (Chichester, John Wiley and Sons, 2007). —— J Harris (ed), Bioethics (Oxford, Oxford University Press, 2001).

Ethics of Care The ethics of care situates moral and ethical behaviours within personal and social relationships. Deontological or consequentialist approaches are often cast as impartial and universal. The ethics of care on the other hand is particularist, contextual, and relational; less concerned with justice than with helping and caring for those we have relationships with. They are more likely to be concerned with compassion and empathy than more abstract concepts such as justice or fairness and are often associated with Feminism. There is debate over whether the ethics of care constitutes a complete ethical theory or is better understood as a practice or orientation focused on the nurturing and flourishing of caring relationships. —— N Noddings, Caring: A Feminist Approach to Ethics (Berkeley, University of California Press, 1984). —— M Olivia Little, ‘Care: From Theory to Orientation and Back’ (1998) 23 ­Journal of Medicine and Philosophy 190–209.

Feminism The term feminism covers a range of quite distinct political and theoretical approaches with a unifying focus on overturning patriarchal societal structures and within feminist legal theory on deconstructing the implicit androcentrism in law (eg ‘the reasonable man’). Feminism critiques supposedly neutral liberal principles. As with other schools of thought, feminists differ in their accounts of the origins of patriarchy, and their proposals for overcoming it. Common to all feminist legal theory is a scepticism of the neutrality or impartiality of law and a concern with the capacity of law to propagate illegitimate and gendered power structures that results in the subjugation of women. (See also Autonomy and Ethics of Care.)

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—— R Hunter, C McGlynn, and E Rackley (eds), Feminist Judgments: From Theory to Practice (London, Hart Publishing, 2010). —— M Drakopoulou, ‘The Ethics of Care, Female Subjectivity and Feminist Legal Scholarship’ (2008) 8 Feminist Legal Studies 199–226.

Libertarianism Libertarian theories hold that persons should be treated in a way that is respectful of their basic, natural rights (cf the concept of rights and human rights in the next section). Canonically, libertarians are committed to defending individuals’ rights to life, liberty, and property, and do not accept apparent justifications, for example advanced by reference to good consequences or community benefits, for infringing such rights. Thus, within libertarian theories, rights serve as side-constraints on potential activities. —— J Locke (R Ashcroft (ed)), The Two Treatises of Civil Government (London, Routledge, 1989). —— R Nozick, Anarchy, State, and Utopia (New York, Basic Books, 1974). Medical ethics: See Ethics. Meta-ethics: See Ethics.

Moral/Non-Moral This is a distinction between types of judgements, values, or propositions. Although sometimes difficult to distinguish, a distinction tends to be drawn between (moral) concerns that affect others and mere (non-moral) matters of convention, etiquette or ‘taste’. For example, ‘Murder is wrong’ is a moral claim, while ‘Curry is good’ is a non-moral claim. We can also contrast moral reasons with other sorts of reasons. Prudential reasons, for example, are based on concerns to protect our interests. Whilst moral reasons are derivable from moral theories, other sorts of reasons are derived from other sources: for example, legal reasons to act derive from the law. —— B Williams, Morality: An Introduction to Ethics (Cambridge, Cambridge University Press, 1993).

Moral (or Ethical) Relativism Relativists claim that moral requirements are relative to cultures, places, times and, ultimately, individuals. Their position thus denies the idea that there is a ‘true’ or

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‘universal’ morality. To answer the question ‘what is moral?’, relativists look to the accepted norms in a given society at a given time. Their position thus contrasts with moral realism, which holds that there are moral standards that are true, independently of what any person, anywhere and in any circumstance, thinks of them. —— C Gowans, ‘Moral Relativism’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (Fall 2015 edn), available at http://plato.stanford.edu/archives/ fall2015/entries/moral-relativism/. —— G Harman, ‘Moral Relativism’ in G Harman and JJ Thompson (eds), Moral Relativism and Moral Objectivity (Cambridge MA, Blackwell Publishers, 1996) 3–64.

Moral Realism Moral realism is the theory that moral values are, ultimately, not human constructs. This theory depends upon the commitment that moral judgements are capable of truth or falsity, as opposed to simply expressing emotions or attitudes, and the commitment that attempts to capture moral truth are not systematically or pervasively in error. This theory can be (and has been) defended in two main separate ways. The first defence claims that moral truths are discoverable in the same way as scientific truths; that moral facts have the exact same nature as scientific facts. This is known as ‘moral naturalism’. The second defence claims that moral facts and scientific facts are dis-analogous in some important sense (we cannot touch or taste moral facts), but the objective truth of moral facts can be defended apart from natural scientific confirmation. This position is known as ‘moral non-naturalism’. —— P Railton, ‘Moral Realism’ (1986) 95 (2) The Philosophical Review 163–207. —— R Shafer-Landau, Moral Realism: A Defence (Oxford, Oxford University Press, 2003). Normative ethics: See Ethics.

Objectivism/Subjectivism This is the distinction between judgements or propositions about how things are (objectively) and how people feel or think about them (subjectively). Objective claims are seen to be true irrespective of what people happen to say, feel or believe. ‘Curry is a type of food’ is objective, ‘I like curry’ is subjective, while ‘The majority of the editors like curry’ is an objective claim about a subjective matter. —— R Dworkin, ‘Objectivity and Truth: You’d Better Believe It’ (1996) 25 (2) ­Philosophy and Public Affairs 87–139. —— R Brandt, Ethical Theory (Englewood Cliffs, Prentice Hall, 1959).

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Principlism Principlism, within the context of medical ethics, is most famously associated with US scholars Tom Beauchamp and James Childress. Their approach to biomedical ethics promotes the use of four principles to guide moral decision-making: respect for (patient) autonomy, beneficence (the obligation to confer a benefit), non-maleficence (the obligation to refrain from inflicting harm), and justice (the obligation to distribute benefits and harms equitably). Proponents of this approach claim that these principles can be reached whatever one’s normative commitments, and thus refer to it as a mid-level theory. —— TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 7th edn (Oxford, Oxford University Press, 2013). —— R Huxtable, ‘For and Against the Four Principles of Biomedical Ethics’ (2013) Clinical Ethics 8(2-3), 39–43. Utilitarianism: See Consequentialism.

Virtue Ethics Proponents of virtue ethics argue that moral value is derived from the character of moral agents. Most prominently in relation to the virtues, Aristotle promoted human flourishing through the acquisition and exhibition of particular moral virtues. Unlike consequentialist or deontological theories, which ask ‘What should I do?’, virtue ethics asks ‘Who should I be?’ or ‘How should I live?’: or more specifically in a health care context: ‘How would a good professional act in this situation?’ In answering these sorts of questions, different theorists of virtue ethics point to different virtues. —— P Foot, Virtues and Vices, and Other Essays in Moral Philosophy (Oxford, Oxford University Press, 2002). —— A MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, IN, University of Notre Dame Press, 1981).

II.  Central Concepts in Medical Ethics and Law Used well, concepts are what allow us quickly and clearly to explain potentially complex ideas. However, confusion can arise where a concept is incoherent (for example, because it entails a paradox), or where different protagonists understand different things by reference to the same term. Concepts may sometimes be seen as technical jargon: for example, a contract lawyer can take ‘consideration’ to mean something quite alien to most people’s understanding of that term.

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Unsurprisingly, medical law and medical ethics present a whole range of s­ pecialist concepts, sometimes used in conflicting ways. For example, a philosophical account of the sanctity of life may be rich in detail and qualifications regarding matters such as our attitudes and intentions in relation to killing; when judges use the term, it tends to denote an analytically sparser (and potentially rebuttable) presumption that human life should be preserved. In this section, we outline various concepts that arise in medical ethics and law.

Acts and Omissions Within both moral and legal theory, some argue that there is a meaningful conceptual distinction between an act (doing) and an omission (not doing), even if each has the same motivation and intention, and leads to the same outcome. However, others deny the relevance of the distinction either on the basis that there should be a focus on outcomes, that the ‘distinction’ does not always hold or that acts and omissions cannot always be so readily characterised (cf Lord Smith’s judgment in Bland). The act/omission distinction was fundamental in the House of Lords’ decision in Bland. —— T Hope, ‘Acts and Omissions Revisited’ (2000) 26 Journal of Medical Ethics 227–28. —— J Rachels, ‘Active and Passive Euthanasia’ (1975) 292 New England Journal of Medicine 78–80.

Autonomy Respect for autonomy is frequently presented as the cardinal principle of medical ethics and law. Generally, to be autonomous, a person must be free, informed, and competent (ie have capacity) about a particular choice or set of choices. Thus in medical law, respect for autonomy raises questions about being free from external influence (cf Nicklinson), able to decide given sufficient information (cf Chester v Afshar), and possessed of the capacity to reason (cf Axon and St George’s NHS Trust v S). Some scholars emphasise that autonomy is relational—that a proper understanding of autonomy requires recognition of the agent’s position within particular relationships (such as the family or society) (see also Communitarianism and Ethics of Care); others conceive of it as a concept that underscores our individuality and independence. —— J Coggon, ‘Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?’ (2007) 15 Health Care Analysis 235–55. —— C Mackenzie and N Stolljar (eds), Relational Autonomy (Oxford, Oxford ­University Press, 2000).

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Dignity Respect for human dignity, although notably absent from the dominant ‘principlist’ approach, is increasingly visible as a value in medical ethics, almost certainly because of the influences of human rights law, where dignity is widely-accepted as the pre-eminent animating value, and Christian ethics, within which dignity derives from humanity having been created in the image of God (‘imago dei’) and being an object of God’s love. As in human rights law, ‘dignity’ in medical ethics usually refers to the intrinsic worth and unique moral importance of human beings; however commentators disagree about what this consists in, and use ‘dignity’ in several other senses besides, leading some sceptics to claim that ‘dignity’ is too vague to give concrete guidance. Proponents maintain, however, that ‘dignity’ describes a distinctive value not captured by already-acknowledged principles such as respect for autonomy. —— D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, Oxford University Press, 2001). —— M Neal, ‘Not Gods but Animals: Human Dignity and Vulnerable ­Subjecthood’ (2012) 23(3) Liverpool Law Review 177–200.

Duties Sometimes a duty is conceived analytically as the correlative to a right: this means that if a right is asserted (eg a right as a patient to be informed of the risks inherent in a procedure), then a corresponding duty can be identified (eg a duty on a health care practitioner to ensure the risks are understood). In this sense, duties that are not paired with a correlative right are meaningless (and vice versa; cf Deontology, above, section I). Duties may alternatively be used as a term that is synonymous with obligations or responsibilities. Theorists disagree on whether each of these terms necessarily implies the same thing: for example, some suggest that a duty denotes something one must do, while a responsibility denotes something one should do. See also Rights, below. —— WN Hohfeld in WW Cook (ed), Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven and London, Yale University Press, 1964). —— MH Kramer (ed), Rights, Wrongs and Responsibilities (Basingstoke, Palgrave, 2001).

Human Rights Human rights are sometimes seen as fundamental concepts within moral theory, representing basic, absolute entitlements that all persons possess (see Libertarianism, above section I). At law, they also have a technical sense, denoting particular

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rights that individuals hold against public authorities. In the English courts, these derive significantly from the European Convention on Human Rights (ECHR), which is enforceable against public authorities under the Human Rights Act 1998. As such, the applicant’s claim in Nicklinson to be permitted physician-assisted suicide was based on autonomy rights claimed under Article 8 ECHR, which protects the right to respect for private and family life. See also Rights, below, and European Convention on Human Rights, section IV, below. —— AP Lester, D Pannick and J Herberg, Human Rights Law and Practice, 3rd edn (London, Butterworths, 2009). —— E Wicks, Human Rights and Healthcare (London, Hart Publishing, 2007).

Paternalism Sometimes labelled ‘parentalism’, paternalism refers to the treating of others in their best interests, regardless of their own view of what their best interests are. In the sphere of health care, this is associated with the idea that ‘doctor knows best’. Paternalism can be seen to conflict with the principle of respect for autonomy: to clarify this point, theorists contrast hard paternalism, where the State or a third party interferes with a person’s freedom for her own good, notwithstanding her having decision-making capacity and refusing consent (cf St George’s v S), and soft paternalism, where a decision is made in the best interests of a person who lacks decision-making capacity. —— J Feinberg, Harm to Self (Oxford, Oxford University Press, 1986). —— G Dworkin, ‘Paternalism’ (1972) 56 The Monist 64–84.

Rights Rights may be conceived as the correlatives to duties (see Duties, above). In alternative uses, they can be seen as protections of people’s choices or interests. In their strongest sense, rights operate as ‘trumps’ over competing claims: for example, a parent’s legal right to give or withhold consent to life-saving treatment ‘trumps’ any legal claims that his children might assert that he should submit to the treatment in order to be able to care for them. In weaker senses, rights refer to apparent entitlements or claims. (See also Deontology and Libertarianism, section I, above, and European Convention on Human Rights, section IV, below). —— MH Kramer et al (eds), A Debate Over Rights: Philosophical Enquiries (Oxford, Clarendon Press, 1998). —— R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977).

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Sanctity of Life Within legal cases, judges often simply refer to the sanctity of life when meaning to convey that life is, all things equal, a fundamental value that the law aims to protect. In theoretical literatures, the sanctity principle entails a more sophisticated position that embraces a broad range of theoretical and normative commitments. For example, in John Keown’s representation of the doctrine (which he also labels the ‘inviolability of life’), it is argued that human lives are intrinsically valuable, that our intentions when making life-ending decisions bear on the moral validity of such decisions, that we are responsible for our omissions as well as our actions, and that intentional killing/letting die is always wrong, but where we judge continued life-sustaining treatment (as opposed to continued life) to be futile or disproportionately burdensome it may be withdrawn. (See also Natural Law Theory, section III, below.) —— J Coggon, ‘Ignoring the Moral and Intellectual Shape of the Law after Bland: The Unintended Side-Effect of a Sorry Compromise’ (2007) 27(1) Legal Studies 110–25. —— J Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford, Oxford University Press, 2012).

Vulnerability The concept of vulnerability denotes different concerns about relative power dynamics between different persons (for example, concerns that patients are disempowered relative to their doctors, and thereby vulnerable (cf McGuinness’s commentary on St George’s v S)) and about relative susceptibility to risks in a given environment (eg a condition that renders a patient frail can be said to make her vulnerable). Conceptually a person may be considered inherently vulnerable: vulnerability obtains because of a specific characteristic of the person (eg it might be due to a disability). Alternatively, we might describe a person as situationally vulnerable: vulnerability obtains because of the circumstances in which a person finds herself (eg a person who is in an environment with a heightened exposure to pathogens). —— M Dunn, I Clare and A Holland, ‘To Empower or to Protect? Constructing the “Vulnerable Adult” in English Law and Public Policy’ (2008) 28(2) Legal Studies 234–53. —— M Finemann, The Vulnerable Subject: Anchoring Equality in the Human ­Condition (Princeton, Princeton University Press, 2013).

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III.  Theoretical and Technical Terms Regarding the Concept of Law and Judicial Decision-Making Section I considered different ethical theories. This section presents some core ideas from legal theories that seek to answer fundamental questions about the nature of law and adjudication. In a general sense, we might simply take law to refer to a body of rules that govern a society, which are implemented, interpreted, and applied by institutions that have due authority. However, there are disagreements about how we view ‘the law’ as well as how those decisions are implemented and explained by judges. Some theorists believe that law is only what is created by society or ‘posited’. Others believe that law must have a necessary moral component to it as well. Some theorists believe that judges, when making legal decisions, must limit themselves to legal decisions; others believe that judges can take into account a number of extra-legal factors in making decisions in specific cases. The salience of these questions to health care ethics and law is great: if, for example, we believe that laws are only valid if they accord with a sound moral theory, we will want to understand this concept of law and establish how it relates to specific questions.

American Legal Realism American Legal Realists argue that law is a social institution and thus subject to the same pressures, biases and influences that affect any other social institution. They highlight the role of individualised and particular factors on both the creation of law and decisions of judges. These include legal factors (eg the fact that many legal rules might apply in a particular case) as well as extra-legal factors (eg facts might be difficult to determine in a specific case). To the Realists, many if not all cases are legally indeterminate and most decisions are made because of the ­specific circumstances of the case before the judge. American Legal Realists are also proponents of the use of extra-legal sources in making legal decisions. —— K Llewellyn, ‘Some Realism about Realism—Responding to Dean Pound’ (1931) 44 Harvard Law Review 1222–64. —— B Leiter, Naturalizing Jurisprudence (Oxford, Oxford University Press, 2007).

Formalism Formalists advance a hard conceptual and a hard practical commitment. Within the formalist school of thought, a legal answer to any legal problem can be found with recourse to nothing but the law. Thus formalists consider the law to be a

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closed system of rules, and judges are required to answer legal questions simply by reference to rules found within this system. Because judges are supposed to apply legal (as opposed, say, to moral) rules, it is illegitimate for them to base their judgments on moral, social, or other rules. And because any legal question can be answered by reference to law, there is no need to draw from extra-legal sources. —— T Grey, ‘Langdell’s Orthodoxy’ (1983) 45 University of Pittsburgh Law Review 1–53. —— A Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 56 University of Chicago Law Review 1175–81.

Hard Cases/Open Texture of Legal Rules HLA Hart argued that in most cases a clear answer can be found to a legal question. But he rejected the formalist view that this is always the case. In some cases he argued that there is not a single, compellingly determinative, right answer. This may be, for example, because unforeseen legal circumstances have arisen (cf Re A). Alternatively, a judge may find that the legal rules are sufficiently open-ended to lead to disagreement about the meaning of a term: a famous example is Hart’s ‘No Vehicles in the Park’—does a bicycle count as a vehicle? A judge may face a hard case because a term used in the legal rule is too vague or general; in regard to Bourne, for example, it was unclear what was entailed by the term ‘unlawful’ in the Offences Against the Person Act 1861. —— HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994). —— R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977).

Law as Integrity This name is associated with the legal theory of Ronald Dworkin. ­Dworkin argues that in deciding whether a legal proposition is true, principles of personal and political morality necessarily feature in that decision. Dworkin argues that judges use these principles to help resolve hard cases by a process of ­interpretation—determining which principles reach the ‘right’ or ‘best’ answer. Dworkin believes that the practices of law should be seen through the ideal of integrity; the principle that a State should try to govern through a coherent set of political principles. —— R Dworkin, Law’s Empire (Cambridge, Massachusetts, Belknap Press 1986). —— R Dworkin, Justice in Robes (Cambridge, Massachusetts, Belknap Press 2006).

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Legal Positivism Legal positivists argue that law is a social phenomenon. To recognise whether something meets that conditions that allow us validly to say ‘this is a law’ we look to socially accepted criteria: for example, in England, we look to the accepted criteria that explain what a properly enacted statute is, or that allow us to recognise the ratio of a case (see Ratio Decidendi in section IV, below). Common to theories of legal positivism is the claim that law and morality are separate concepts. Some positivists (inclusive positivists such as HLA Hart) argue that law and morality may be the same thing within a particular legal system, but there is no necessary connection between law and morality. Other positivists (exclusive positivists such as Joseph Raz) argue that law and morality are necessarily always distinct concepts. On either view, the crucial point is that a law can be valid even if it is immoral. —— J Raz, The Authority of Law, 2nd edn (Oxford, Oxford University Press, 2009). —— HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 ­Harvard Law Review 593.

Natural Law Theory In contrast with legal positivists, natural law theorists hold that a necessary condition of valid laws is that they are moral. As such, conceptually, law and morality are intertwined. Some—but not all—natural law theories have theological links. —— J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press 2011). —— LL Fuller, The Morality of Law, revised edn (New Haven, Yale University Press, 1969).

IV.  Technical Legal Jargon In this final part, we offer brief definitions of different legal terms that will be familiar to lawyers reading this book, but may not be to readers who do not study or work in law.

Act of Parliament An Act of Parliament is a law enacted by a parliamentary legislative body. For the United Kingdom, this is primarily the Westminster Parliament, although other legislative bodies (eg the Scottish or Welsh Parliaments) may have power to ­create Acts in specific instances or places. These are often referred to as statutes. Acts are

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primary legislation and they may be supplemented by secondary legislation, such as ‘statutory instruments’, which might provide further detail on how the Act is to apply in practice (for example, such an instrument essentially explains how the Abortion Act 1967 is to apply in health care practice). Acts are also sometimes supported by Codes of Practice, which further spell out the meaning of the rules (as in the case of the Mental Capacity Act 2005).

Administrative Law This is a branch of public law. This branch of the law controls how public bodies, such as Government departments, councils and Members of Parliament (MPs), should operate.

Applicant The applicant is a party to any legal action. This term describes someone who files a petition or makes an application before the Court. For example, Tony Nicklinson is the applicant who seeks judicial review in Nicklinson.

Civil Law Depending on the context, a reference to the ‘civil law’ might mean one of two things. Sometimes a reference to ‘civil law’ means to distinguish the law in question from the criminal law. Alternatively, reference might be made to a civil law legal system, where the legal rules are found in written codes (for example, in the Netherlands), as distinct from a common law system, where the legal rules might also be found in judges’ rulings (for example, in England).

Claimant In civil law, this is the person (or group) bringing the claim, ie bringing an action against the defendant. In older rulings, this person (or group) was referred to as the plaintiff.

Common Law The common law refers to case law, which is the body of law made up by judicial decisions (or rulings). In a common law system, such as England and Wales, some of the rules that make up law will therefore be found in judges’ rulings; this contrasts with a civil law system (see further Civil Law).

276 

Glossary

Constitutional Law This is a branch of public law, which controls the method of government, and thus matters such as who is entitled to vote or become a Member of Parliament (MP).

Contract Law This is a branch of private law. Contract law governs agreements between two (or more) individuals or groups, which are intended to be legally binding. In contrast to tort law, here the parties to the agreement determine the terms of their agreement.

Criminal Law This is a branch of public law and can be contrasted with civil law. Criminal law controls serious breaches against the public or State such as murder, rape, or theft. Individuals or groups who violate the criminal law are at risk of prosecution and, if found guilty (ie convicted), may be punished (with imprisonment being the highest penalty that can be applied in England and Wales). The State usually brings such actions, ie prosecutes alleged wrongdoers, although private prosecutions (by individuals) are possible.

Defendant This term is used in both civil law and criminal law to refer to the alleged wrongdoer, against whom a case is being brought. In criminal law, the defendant is the person (or people) accused of a crime. In civil law, the defendant is the person (or people) accused of committing a civil wrong, such as the tort of negligence.

European Convention on Human Rights This is an international treaty that enumerates a set of fundamental human rights and freedoms in a series of ‘Articles’. Countries that have ratified this Convention are bound to take steps to defend the rights and freedoms set out. The Articles can detail absolute (eg Article 3: prohibition on torture and inhuman or degrading treatment) or qualified (eg Article 8: respect for ‘private and family life’) rights and freedoms. The former cannot be infringed in any way, whereas the latter may be proscribed in certain and limited circumstances.

Glossary

 277

European Union Law This is the body of treaties, legislation, and case law of the European Union consisting of Regulations, Directives, Opinions, and Judgments. It can have both direct and indirect effect. Direct effect means that the laws of the EU are directly enforceable in domestic courts. Indirect effect means that the courts are simply required to interpret domestic law in line with European law.

Family Law This is a branch of private law. Family law encompasses rules related to such familial matters as marriage, divorce, and the protection of children.

Hierarchy of the Courts This is the structuring of different courts within the legal system such that they have authority over different areas of law (eg the High Court contains three divisions: Queen’s Bench, Chancery, and Family) and different levels of authority over each other. In England and Wales, the High Court is the lowest level court, the Court of Appeal is the mid-level appellate branch and the Supreme Court (previously the House of Lords) is the highest level court.

Judicial Review This is a proceeding whereby the courts can review the lawfulness or legitimacy of a particular action carried out by a public body. Judicial review is an important tool in ensuring the accountability of public authorities.

Medical (or Health Care) Law Medical law has developed from various branches of law to form a body of rules in its own right. Medical law therefore borrows from various branches of both private law and public law, including (in particular) tort law, family law, criminal law and human rights law (see, for example, the ruling in Re A). The essence of medical law is hard to pin down, but it may be understood in terms of the relationships between health care professionals (and related institutions) and patients.

278 

Glossary

Obiter Dictum Obiter dicta (the singular is dictum) contrast with the ratio decidendi: the obiter is that said by the judge in passing, or ‘by the way’, and does not form the ‘core’ of their ruling. Obiter statements will not strictly be binding on subsequent judges, although they may prove persuasive in later cases, particularly if they were statements from the most senior courts.

Overrule A decision is overruled when a higher level court reverses the decision of a lower level court in that specific case. For example, the Supreme Court may overrule the High Court if it decides that the lower court has incorrectly stated the law.

Overturn A decision is overturned if a subsequent court decides that a decision of a court in a previous case was incorrect. It is possible for a court of the same level to overturn a decision (so the Supreme Court can overturn a previous decision by the Supreme Court). Plaintiff: see Claimant

Precedent The doctrine of judicial precedent requires judges to conform to the terms of stare decisis, ie ‘to stand by the decision’. This means that judges should look to—and be bound by—what previous judges have decided in similar cases, and they are particularly bound by the decisions of previous judges in superior courts (see also Hierarchy of the Courts).

Private Law Private law contrasts with public law and essentially concerns relationships between individuals (or groups other than those at the State level). The branches of private law include contract law, tort law, and family law.

Glossary

 279

Public Law Public law contrasts with private law and essentially concerns an individual’s relationship with the State. The branches of public law include criminal law, administrative law, and constitutional law.

Ratio Decidendi The ratio (the plural is rationes) decidendi is the ‘reason for deciding the case’, and this is the essence of a judge’s ruling in a particular case. This is a proposition of law that is (explicitly or implicitly) used by the judge as a necessary step in reaching their decision on the case and its material facts. The ratio will set a precedent, and therefore be binding on subsequent judges, depending on the superiority of the court in question (see also Hierarchy of the Courts, and contrast with Obiter Dictum).

Respondent The respondent is a party to a legal action. This term describes a person who responds to the petition or makes an application made by the applicant to the Court.

Sources of Law English law essentially comes from four sources: the Common law; Acts of Parliament; the European Convention on Human Rights; and European Union law. Statute: see Act of Parliament.

Tort Law This is a branch of private law. Tort law occupies the civil law, so a tort is a civil— not criminal—wrong. In contrast to contract law, the law itself (rather than the people involved) determines the scope of the duty owed by the defendant to the claimant. It is notoriously difficult to define the essence of tort law, but it can be seen as seeking to protect an individual’s rather than the State’s interests.

280 

Glossary

Victim In criminal law cases, this tends to be the term used to refer to the individual against whom the defendant is alleged to have committed a crime.

INDEX

A v Secretary of State for the Home Department  209–10, 215 abortion autonomy principle  52–3, 195 capacity to consent  40–1 decision in Gillick  39, 46–8, 51 foetal abnormality ground  176 following rape  145–71 good faith  145, 148, 153, 155–6, 159–61, 165–9, 171, 176 parental consultation  38–63 Department of Health guidance  38, 45, 51 right to private and family life  39, 48, 49, 58 ‘preserving the life of the mother’  145, 148, 150, 151, 153–5, 159–71 emotional distress  155, 160, 165, 168–70 R v Bourne  5, 145–71 right to confidentiality  39, 43–4, 46, 47, 49 statutory prohibition  152–4 ‘unlawfully’  146, 147, 151, 159, 164, 171 Abortion Act (1967)  140, 158, 176 Abortion Law Reform Association  147, 149, 158, 167 acts and omissions  65–6, 71–3, 78–9, 268 Airedale NHS Trust v Bland  5, 204 active and passive euthanasia  66 autonomy principle  85–8, 90, 182 best interests of patient  64, 73–6, 79–81, 88–90 Bolam test  126–7 death as foreseen consequence  66–7 dignitary harms  81, 87 duty of care  73–5 duty to sustain life  72–3, 119 ethical commentary  84–9 facts  64 legal commentary  77–83 medical opinion  64, 65, 70 murder  77 acts and omissions  65–6, 71–3, 78–9, 268 actus reus  65–6, 71, 78, 81 intention to harm  67–70, 72–3, 79, 81–3 killing or letting die  89–90 mens rea  65–9, 71, 77–8, 81, 82

nutrition and hydration, withdrawal  14, 64–89 act or omission  65–6, 71–3, 78–9, 268 nutrition and hydration as treatment  64, 73 purpose  67 parental consent  64, 65, 70 persistent vegetative state  3, 64–89 quality of life  82 right to refuse treatment  229, 231 American legal realism  257, 272 applied ethics  7, 264 Aquinas, Thomas  12 Archard, David  57–63 Arden LJ  202 Aristotle  267 artificial insemination donor consent  91–116 information and counselling  99, 105, 112 assisted suicide Nicklinson  5, 201–26 Associated Provincial Picture Houses Ltd v Wednesbury Corporation  102, 103, 128–30, 141, 143 Auckland Area Health Board v Attorney General  81 autonomy principle  2, 3, 268 abortion  52–3, 195 age of consent  52 Airedale NHS Trust v Bland  85–8, 90, 182 assisted suicide  268 Blood  93, 95, 101, 105–7, 114–16 capacity  268 Chester v Afshar  177, 181–99, 268 confidentiality  60–3 doctor-patient relationship  57–8, 192, 235 European Convention on Human Rights  21, 212 incoherence  51–3 informed consent  177, 181–6, 192, 197–8 legal protection  197–8, 243–4 loss of autonomy as harm  187–92 medical ethical guidelines  47 mental capacity  197, 232–3 minors  40–1, 42–3, 47–8, 49, 51–4, 56 parental consent  21 precedent autonomy  86

282  preeminence  192, 194–5 relational autonomy  53–4, 86, 196, 196n, 268 reproductive autonomy  114–16 right to refuse treatment  85–6, 90, 182, 206 St George’s Healthcare NHS Trust v S  5, 227–54 right to treatment  107 rights and interests of others  233–4 sanctity of life  182 temporally extended selves  86–8 AXA General Insurance Ltd and others v HM Advocate and others  203 B v An NHS Trust  182 battery failure to provide information  183 invasion of bodily integrity  94, 100, 107, 113 right to bodily integrity  120, 245, 247 right to refuse treatment  73, 80, 85, 229 Baylis, Françoise  164–71 Beauchamp, TL  101, 176, 196, 231, 237 beneficence  68, 101, 120, 231, 235 best interests Bland  64, 73–6, 79–81, 88–90 Blood  94–5, 100–1, 107–8, 113, 115–16 doctrine of necessity  64 duty to treat patient in  46–7, 64, 120 experiential interests  87 individuality of persons  27, 29 invasion of bodily integrity  94–5 least detrimental alternative  26 not limited to medical interests  27 proportionality  16, 27 Re A  13–14, 19–20, 24, 25, 26–7, 30, 32–4 Re T  122–3 surrogate decision-makers  87–8, 90 treatment of no therapeutic value  80–1, 84 value theory  19–20 Beyleveld, Deryck  195, 205 Bibbings, Lois S  157–63 Biggs, Hazel  45–50, 77–83 Bingham of Cornhill, Lord  172, 187, 188, 209–10, 215 bioethics  264 four principles approach  101 language used  31–2 Birch v UCL Hospital Trust  192, 192n Birmingham City Council v H (A Minor)  26 Bolam v Friern Hospital Management Committee  79n, 127 Bolam test  74, 75n, 117, 119–20, 126–7, 129, 131–3, 138–44, 183 Bolitho v Hackney Health Authority  117–44, 255 appropriate scope of deference  119–20, 131–2, 137, 140, 143

Index causation  117–18, 125 ethical commentary  138–44 expert opinion  118, 125–7 facts  117 legal commentary  131–7 negligence  5, 117–44 Bolam test  119–20, 126–7, 131–2, 138–44, 183 professional integrity  119–24, 133, 135 professional judgment  121–4, 126–8 Wednesbury principles  128–30, 141 Bonnington Castings v Wardlaw  184 Bordo, Susan  244, 245 Brandon, Lord  203 Bratton, M  36 Brazier, Margaret  258 Bridge, Lord  120, 123 Bridgeman, J  207 Brock, Dan  89–90 Brooke LJ  10, 16 Brown, Sir Stephen  71, 75, 94, 102 Browne, Stella  149, 161 Browne-Wilkinson, Lord  64, 118, 121, 124, 131, 133, 135, 143 Brownsword, Roger  195, 205 Burton v Islington Health Authority  229 Butler-Sloss LJ  27, 72, 74, 227, 233, 238 C v S  239 capacity autonomy principle  40–1, 42–3, 47–8, 56, 197, 232–3, 268 pregnancy  227–54 Blood  100 doctrine of necessity  64 Gillick  58 Law Commission report  127 minors  38–63 Fraser Guidelines  47 relational autonomy  53–4 right to confidentiality  59 right to refuse treatment  85–6, 90, 182, 206, 227–54 care ethics asymmetrical relationships  33 Re A  33–4 casuistry  7, 262 causation Bolitho  117–18, 125 ‘but-for’ test  175, 186 Chester v Afshar  173–99 negligence  184–6 Chambers, Tod  31 Chappel v Hart  178 Charles, Sonya  251 Chatterton v Gerson  183

Index Chester v Afshar autonomy principle  177, 181–99, 268 causation  173, 174, 184–5, 187–8, 199 ‘but-for’ test  175, 186 duty of disclosure  5, 173–99 ethical commentary  193–9 facts  172 inherent risk  5, 174 legal commentary  187–92 negligence  173, 174 Chetwynd, S  36 Children Act (1989)  24 Childress, James F  84–9, 101, 176, 196, 231, 237 Clarke, Lord  200 Clyde, Lord  118, 124 Coggon, John  193–9, 208–13, 255 Coleridge, Lord  193–4, 240 Collins, H  134 Collins v Wilcock  100 Commission on Assisted Dying  205 common law, development  203–4, 211 communitarianism  262 competency see capacity compromise, principle of  222, 224–5 Conaghan, Joanne  132, 241 confidentiality and autonomy  60–3 Axon  5, 48–63 patient’s right to  57 capacity  59 informational privacy  44, 59–60 justification  57–60 minors  39, 43–4, 46, 47, 49, 58 public good  59 role of the law  54–6 sexually transmitted diseases  44, 45, 55 and trust  43–4, 49, 59, 61 conjoined twins see Re A (Conjoined Twins: Surgical Separation) conscience and conscientious action doctors  167, 171 relational conscience  167–8 consent adults  94 and autonomy  181, 192, 197–8 see also autonomy principle cadaveric donation  113 Chester v Afshar  174–99 ethical concept  176–7 informed  176–7, 192, 198 duty to inform/risk disclosure  120, 129, 133–44, 173–99 sperm donors  99, 105, 112 understanding  179 and negligence  174, 177–80 right to refuse treatment  85–6, 90, 182, 206, 227–54

 283

sperm donor  91–116 see also parental consent consequentialism  7, 195, 262 contraception capacity to consent  40–1, 47 prescription without parental knowledge  38–63 decision in Gillick  39, 41, 46–8, 51, 55, 140 Department of Health guidance  38, 45, 51 respect for private and family life  39, 48, 49, 58 right to confidentiality  39, 43–4, 46, 47, 49 Cornell, Drucilla  242 courts development of the law  199, 200, 202–10, 219–20, 256–8 jurisdiction  214–20, 221, 225–6 Criminal Law Revision Committee Working Paper on Offences against the Person  206 Customs and Excise Commissioners v Schindler  96–7 damages for negligence  188 Dawson, Angus  195 death as foreseen consequence  66–7 legal definition  77–8, 94 posthumous use of gametes  95 DeGrazia, David  19–20 Dellapenna, Joseph  151–6 Denning, Lord  123 deontology  2, 7, 102, 263 descriptive ethics  7, 264 Devaney, Sarah  181–6 Devlin J  13, 69, 71 dignity see human dignity, concept of Diplock, Lord  123 doctor-patient relationship autonomy principle  57, 192 beneficence  68, 101, 120, 231, 235 Bolam test  74, 129, 131–7, 183 clinical freedom  120–1 confidentiality see confidentiality conscience and conscientious action  167 deference  119–20, 131–2, 137, 140, 143 duty of care  73–4, 120, 125, 232 duty to inform/risk disclosure  5, 120, 129, 133–44 Chester v Afshar  173–99 good faith see good faith liability  119–20 negligence see negligence professional integrity  119–24, 133, 135 professional judgment  121–4, 126–8

284  right to care  120 ‘social contract’  122, 142–3 therapeutic privilege  120 treatment in best interests  46–7, 64, 120, 122–3 trust  43–4, 49, 59, 61, 235, 236–7, 240 see also medical profession Donaldson of Lymington, Lord  13, 19, 52, 56, 72, 121, 182, 231, 232, 234, 237, 239, 243, 247 double effect doctrine best interests  13–14, 24 harm to third party  29, 30 intended and foreseen consequences  12, 14–15, 28 morally direct action  15 morally indirect effect  15, 28–9 more than one person affected  16 murder  12–17, 28–9, 69–70 philosophy and ethics  12 proportionality  16, 27 R v Adams  13, 69–70 R v Cox  13, 14 Re A  12–17, 28–30, 34–6 Re J  13 self-defence  29 when applicable  12 Down syndrome  69–70 Dreger, Alice  18, 23, 35 duties  269, 270 duty of care  73–4, 120, 232 Bolitho  117–44 nutrition and hydration  73–5 see also best interests duty to inform  5, 120, 129, 133 battery  183 Chester v Afshar  5, 173–99 inherent risk  120, 129, 133–44, 174–99 negligence  120, 129, 133–44, 173–99 Dworkin, Ronald  87, 199, 257, 273 egalitarianism  263 embryo destruction  106 legal protection  240 legal status  229, 234 storage and use  91–9, 104, 111 Equal Franchise Act (1928)  149 equity  122 ethics  7, 263–4 ethics of care  32–4, 250, 252–4, 264 European Convention on Human Rights  270, 276 English legislation ambiguities in  102 ECHR incompatibility  209–13, 217, 219 freedom of thought, conscience and religion  21 personal autonomy  21, 212

Index respect for private and family life  21, 39, 46, 48, 49, 58, 210–13, 217, 270, 276 right to die  200–26 European Union law  91, 96–7, 102–3, 277 euthanasia  206–7, 208 active and passive  66 see also right to die Evans, R  134 expert opinion Bland  64, 65, 70 Bolitho  118, 125–8, 131–7 competing  131–2 Re A  9, 11, 18, 25 welfare of child  25 F v West Berkshire Health Authority  126, 127 Fairchild v Glenhaven Funeral Services Ltd  184–5, 186 Falconer, Lord  205 family ethics Re A  34 right to private and family life  39, 48, 49, 58, 210–13 Feinberg, Joel  67–8, 79, 83 feminist theory  4, 7, 35, 161, 264 autonomy principle  194–5 pregnancy  241–54 relational autonomy  196, 196n foetus abortion see abortion child destruction  234 legal protection  240, 250–1 legal status  229–54 refusal of treatment  227–54 see also abortion; pregnancy foreseen consequences Bland  66–7 death  66–7 double effect doctrine  12, 14–15, 28 Re A  12, 14–15, 28 formalism  2, 256, 257, 272–3 Foster, Charles  25 Fovargue, Sara  235–40, 255 Fox, Marie  26 FP (Iran) v Secretary of State for the Home Department  202 Fraser, Lord  41, 50, 204 Guidelines in Gillick  47, 48, 51, 55 Fuller, Lon  202, 203, 204, 206, 216, 217–18, 222 gamete consent of donor  91–116 export from UK  93, 96, 99–100 gendered harm  241–54 Gillick v West Norfolk and Wisbech Health Authority  140, 203, 204 competence  58 parental consultation  39–63

Index Gilligan, C  232 Gillon, Raanan  194 Goff of Chieveley, Lord  14, 64, 100, 182 Gold v Haringey HA  120 Goldsworthy, Chris  131–7 good faith abortion  145, 148, 155–6, 159–69, 171, 176 conscience and conscientious action  167 doctor-patient relationship  121 negligence  121 Gostin, Larry  140 Green, Sarah  191 Gregg v Scott  190–1 Grubb, Andrew  14 Haas v Switzerland  212 Habermas, Juergen  139 Hale, Lady  181, 200, 202, 212, 217, 218, 219, 244, 245 hard cases  273 harm autonomy principle  189–92, 236 dignitary harms  87 duty to disclose risk  175 gendered  241–54 intention to  67–70, 72–3, 79, 81–3 negligence  176 Harrington, John  25, 138–44 Harris, John  195 Hart, HLA  256–8, 273, 274 Hastings LJ  21 Haughian v Paine  179 Hayek, Friedrich von  139, 140 health, definition  170 Henry, Sir Denis  181 Henry LJ  91 Herring, Jonathan  39–44 Heywood, Rob  174–80 Hobhouse of Woodborough, Lord  205 Hobson, Clark  214–20 Hoffman, Lord  72, 118, 124, 172, 184, 186, 187 Hogg J  235 Honoré, Tony  178 Hope, Lord  202, 205 Hope of Craighead, Lord  172, 187 House of Lords Select Committee Reports Assisted Dying  205 Medical Ethics  205 Murder and Life Imprisonment  206 Hucks v Cole  126, 127 Hughes, Lord  200, 212, 215, 216 human dignity, concept of  2, 3, 269 Bland  81, 87 Blood  95, 109–10 confidentiality  60 Re A  26 Human Fertilisation and Embryology Act (1990)  93, 98, 104, 176, 234, 240

 285

Human Fertilisation and Embryology Authority  91, 92, 98–9 human rights  269–70 parents  38 right to die  201–26 see also European Convention on Human Rights Human Rights Act (1998)  270 incompatibility with ECHR  209–10 personal autonomy  21 Hume, David  153 Huxtable, Richard  18–23, 202–7, 255 in vitro fertilisation Blood  91–116 consent of donor  91–116 export of gametes  93, 96, 99–100 posthumous use of gametes  95 individuality of persons  4–6, 27, 29 Infant Life Preservation Act (1929)  148, 151, 153, 154, 155, 159, 170 child destruction  234 inherent risk duty of disclosure  5, 120, 129, 133–44, 174 causation  175 Chester v Afshar  5, 172–99 integrity bodily  93 invasion as battery  94, 100, 107, 113, 120 pregnancy  247–54 law as  273 medical profession  119–24, 133 personal  60 relational conscience  167–8 intersex individuals  36 Jackson, Emily  98–103 Jenkins, Alice  258 Jepson v Chief Constable of West Mercia  176 Joffe, Lord  205 Johnson J  9, 22 Jones, David A  71–6 Jones v Kaney  136n Judge LJ  227, 229, 230, 233, 235, 237, 240, 244, 246, 250 judiciary impartiality  256–7, 273 role  1–8, 256–9 justice, principle of  101, 235 Kantian Imperative  102 Keating, H  207 Keith of Kinkel, Lord  64 Kennedy, Ian  14, 127, 128, 129, 140 Keown, John  23, 72n, 205, 211 Kerr, Lord  200, 202, 212, 217 Kirby J  181–2 Kukla, Rebecca  251–2

286  Lane, Lord  204 Laurie, Graeme  92–7, 193 Law Commission A New Homicide Act for England and Wales?  206 Criminal Law: Rape within Marriage  204 Mental Incapacity  127 Lawton LJ  206 least detrimental alternative  26 Lester, Lord  96 libertarianism  195, 265 Little, Margaret Olivia  245 Llewellyn, Karl  2 Lord Ellenborough’s Act (1803)  152, 153 Lowry, Lord  64 Luisi and Carbone v Ministero del Tesoro  96 Lybert v Warrington Health Authority  179 Lynn, Joanne  84 McCardie J  150, 161, 258–9 McGhee v National Coal Board  184 McGuinness, Sheelagh  146–50, 241–7, 258 McLean, Sheila  140 Macnaghten J  145, 158, 159–60, 162, 164–6 McNair J  119, 128 maleficence  68, 101, 231, 235 Mance, Lord  200, 209 Mansell, W  132 Mason, JK  193 Matrimonial Causes Act (1937)  149 Maynard v West Midlands AHA  119, 122, 126, 128 medical decision  127–8, 140–1 deference  119–20, 131–2, 137, 140, 143 medical opinion see expert opinion medical profession duty to inform/risk disclosure  120, 129, 133 Chester v Afshar  173–99 expert evidence see expert evidence negligence accepted medical practice  119 assessment of  128–9 Bolam test  119–20, 131–3, 138–9, 183 liability  119–20 malpractice  120 privileged position  119 professional integrity  119–24, 133, 135 relational conscience  167–8 professional judgment  121–4, 126–8, 150 risk of prosecution  119 treatment in best interests  120 see also doctor-patient relationship Meehan, F  16–17, 27 Mellis, A  136 Mental Capacity Act (2005)  213 Mental Health Act (1983)  227, 235, 239 meta-ethics  7, 264

Index minor autonomy principle  40–1, 42–3, 47–8, 49, 51–4, 56 age of consent  52 relational autonomy  53–4 capacity  38–63 parental consultation/consent  38–63 prescription of contraception  38–63 reproductive advice  38–63 right to confidentiality  39, 43–4, 46, 47, 49, 58 Miola, José  25, 125–30, 187–92, 255 Montgomery, Jonathan  119–24, 255 Montgomery v Lanarkshire Health Board  133, 136, 144, 192 moral and legal rights  193–4 moral naturalism/non-naturalism  266 moral realism  266 moral reasoning  265 moral relativism  265–6 Moreton, Kirsty  24–30 MP (Libya) v Secretary of State for the Home Department  202 murder acts and omissions  65–6, 71–3, 78–9, 213, 268 actus reus  22, 24, 65–6, 71, 78, 81 Bland  64–73, 77 definition  77 double effect doctrine  12–17, 28–9, 69–70 infanticide  153 intention  12, 14–15, 28, 77–8 intention to harm  67–70, 72–3, 79, 81–3 killing or letting die  89–90 malice  68 mens rea  22, 24, 28, 29–30, 65–9, 71, 77–8, 81, 82 necessity  22–3, 30 R v Arthur  68–70 Re A  9, 13–14, 22–4, 28, 29–30 self-defence  9, 12, 16, 23, 29, 30 separation of conjoined twins  9, 13–14, 22–4, 28, 29 Mustill, Lord  64, 207, 240 natural, concept of  26 natural law theory  141, 274 Neal, Mary  104–10, 229–34, 255 necessity, doctrine of conjoined twins  9, 11, 13, 15, 22–3, 29–30 murder  22–3, 30 treatment in best interests  64 negligence clinical  119–20, 131 accepted medical practice  119 assessment of  128–9 Bolam test  74, 75n, 117, 120, 131–3, 138–44, 183

Index Bolitho  5, 117–44 causation  184–6 Chester v Afshar  173–99 clinical freedom  120–1 duty to disclose inherent risk  175–99 evidence see expert opinion good faith  121 malpractice  120 medical decision  127 professional judgment  121–4, 126–7 Wednesbury principles  128–30, 141 and consent  174, 177–80, 183 understanding  179 damages  188 harm  176 purpose of law of  183–4 Neuberger, Lord  200, 202, 211, 215, 217, 219 Nicholls, Lord  185 Noddings, N  232 Nolan, Lord  124 normative ethics  7, 264 nutrition and hydration duty of care  73–4 right to refuse  85–6 as treatment  64 withdrawal  5, 64–83 act or omission  65–6, 71–3, 78–9, 268 ethically acceptable  84 foreseen consequence  66–7 objectivism  266 Offences Against the Person Act (1861)  145–71, 240 Ognall J  13, 14, 71 organ donation, cadaveric  113 Ost, Suzanne  11–17 parental consent  45 abortion  38–63 asymmetrical relationships  33 Axon  5, 38–63 Bland  64, 65, 70 Bourne  147, 149, 158 capacity of minor  48 deriving from parental duty  41, 54–5 Gillick  39, 41, 46–8, 51 prescription of contraceptives  38–63 refusal  122–3 personal autonomy  21 Re A  1, 9, 11, 18, 19, 20–2, 27–8, 32 transplant surgery  20 parental rejection R v Arthur  69–70 parental rights  9–37 private and family life  48, 49 parentalism  270 Parkinson v St James & Seacroft University Hospital NHS Trust  245

 287

Parliament, role of  199, 200, 202–10, 221 paternalism  51, 55, 183, 270 Paton v British Pregnancy Advisory Service Trustees  239 Pearce v United Bristol Healthcare NHS Trust  174, 183 persistent vegetative state Bland  3, 5, 64–89 surrogate decision-makers  87–8, 90 withdrawal of nutrition and hydration  64–89 Pius XII, Pope  73 Planned Parenthood of Southeastern Pennsylvania v Casey  233 positivism  217, 274 pregnancy autonomy principle  241–54 bodily integrity  247–54 right to refuse treatment  227–54 St George’s Healthcare NHS Trust v S  5, 227–54 see also abortion; foetus Priaulx, Nicky  131–7 Prince v Massachusetts  20 principlism  7, 101, 109, 250, 267 privacy informational  44, 59–60 see also confidentiality private and family life, right to  39, 48, 49, 58, 210–13, 217 procuring miscarriage  145, 164 professional integrity  119–24, 133, 135 relational conscience  167–8 professional judgment  121–4, 126–8, 150 proportionality double effect doctrine  16, 27 Re A  16, 27 right to die  212–13, 218–19 prudential reasoning  265 quality of life Bland  82 Re A  11, 19–21, 26 R (on the Application of Axon) v Secretary of State for Health autonomy principle  40–1, 42–3, 47–8, 49, 56, 268 justification  57–8 capacity of minors  38–63 consent  38 ethical commentary  57–63 facts  38 legal commentary  51–6 parental consultation  5, 38–63 reproductive advice for minors  38–63 respect for private and family life  39, 46, 48, 49, 58

288 

Index

right to confidentiality  39, 43–4, 46, 47, 49, 58 justification  57–9 role of the law  54–6 R (on the application of Burke) v General Medical Council  107n R (on the Application of Nicklinson and Another) v Ministry of Justice  5, 255–6 assisted suicide  201 autonomy principle  268 courts’ jurisdiction  214–20 ethical commentary  221–6 European Convention on Human Rights  200–26 facts  200 legal commentary  214–20 proportionality  212–13, 218–19 right to die  200–26 sanctity of life  200–65 R (on the application of Pretty) v DPP  202, 205, 211, 212, 219 R (Purdy) v DPP  202, 203, 205 R v Adams  13, 66, 68–70, 71, 78n, 119 R v Arthur  68–70, 119 R v Bourne  5, 145–71, 258, 273 ethical commentary  164–71 facts  145, 147, 157–8 good faith  145, 148, 153, 155–69, 171 legal commentary  157–63 parental consent  147, 149, 158 ‘preserving the life of the mother’  145, 148, 150, 151, 153–5, 159–71 emotional distress  155, 160, 165, 168–70 ‘unlawfully’  146, 147, 151, 159, 164, 171 R v Brown  93 R v Collins  148 R v Cox  13, 14, 71 R v D  203 R v Dudley and Stephens  22 R v Gibbins & Proctor  71–2, 79 R v H Windsor Bell  150 R v Human Fertilisation and Embryology Authority, ex parte Blood  5, 91–116, 123, 258 alive or dead  94–5, 96–7, 112–13 artificial insemination  91–116 autonomy principle  93, 95, 101, 105–7, 114–16 reproductive autonomy  114–16 best interests  94–5, 100–1, 107–8, 113, 115–16 bodily integrity  93, 94–5, 107, 113 capacity  100 consent  91–116 EC Treaty rights  91, 96–7 ethical commentary  111–16 export of gametes  93, 96, 99–100 facts  91 human dignity  95, 109–10

information and counselling  99, 105, 112 legal commentary  104–10 in vitro fertilisation  91–116 what constitutes a patient  107–8 what constitutes treatment  107–9 R v Instan  193–4, 240 R v Malcherek and Steel  78n R v Maloney  68 R v R  204 R v Sasun  146 R v Woollin  14, 22, 28, 81 Rachels, James  66 Raz, Joseph  274 Re A (Conjoined Twins: Surgical Separation)  1, 5, 204, 258 appeal  9 best interests  13–14, 19–20, 24, 25, 26–7, 30, 32–4 dignity  26 double effect doctrine  12–17, 28–30, 34–6 ethical commentary  31–7 facts  9 individuality of persons  4–6, 27, 29 intended and foreseen consequences  12, 14–15, 28 language used  31–2 least detrimental alternative  26 legal commentary  24–30 medical opinion  9, 11, 18, 25 murder  9, 13–14, 22–4, 28, 29–30 actus reus  22, 24 mens rea  22, 24, 28, 29–30 necessity  22–3, 30 self-defence  9, 12, 16, 23, 29, 30 natural, concept of  26 necessity  9, 11, 13, 15, 22–3, 29, 30 outcome  9 parental consent refused  1, 9, 11, 18, 19, 20–2, 27–8, 32 positive act, whether  9 proportionality  16, 27 quality of life  11, 19–21, 26 right to life  23, 36 self-defence  9, 12, 16, 23, 29, 30 time as dimension  25 unjustified invasion  29 welfare  19–21, 24, 25, 30, 31, 32–4 Re B (Consent to Treatment—Capacity)  219 Re C (Adult: Refusal of Treatment)  21 Re F (Mental Patient: Sterilisation)  94, 120, 229 Re G (Adoption: Unmarried Couple)  215 Re J (A Minor)(Wardship: Medical Treatment)  13, 20, 72, 121 Re MB (An Adult: Medical Treatment)  27, 182, 229, 238 Re Q (Parental Order)  95 Re R (a Minor)  52 Re S (Adult: Refusal of Treatment)  239–40

Index Re T (A Minor) (Wardship: Medical Treatment)  20, 21–2, 27–8, 122–3, 243, 247 Re T (Adult: Refusal of Medical Treatment)  93, 182, 229, 231, 232, 234, 237, 239, 243, 247 Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)  19, 52 reasonableness  141, 143 Bolam test  126–7, 138–44, 183 expert evidence  126–7 Wednesbury principle  102, 103, 128–30, 141 Reed, Lord  200, 203, 215 Reid, Lord  231, 234 relativism  265–6 reproduction, assisted Blood  91–116 consent of donor  91–116 export of gametes  93, 96, 99–100 information and counselling  99, 105, 112 posthumous use of gametes  95 reproductive advice, minors  38–63 Rex v Code  152 Rex v Haule  152 Rex v Kyltavenan  152 right to die acts and omissions  213, 268 Commission on Assisted Dying  205 Nicklinson  201–26 proportionality  212–13, 218–19 right to life abortion  152–4 conjoined twins  23, 36 duty to sustain life  72–3, 119 entitlement to law’s protection  20 presumption in favour of treatment  72 quality of life  11, 19–21, 26, 82 rights  269, 270 Roe v Wade  233 Royal Commission on Capital Punishment  206 S v McC(orse S) and M (DS intervener)  231 St George’s Healthcare NHS Trust v S  5, 255 battery  229 contradictions in patient’s position  229–30 ethical commentary  248–54 facts  227 legal commentary  241–7 right to refuse treatment  227–54 trespass  229 vulnerability  230–4, 250, 253–4, 271 sanctity of life  3, 23, 72–3, 182, 206, 211–12, 218, 222–5, 255, 271 Bland  73, 80, 82 Chester v Afshar  182 Re A  19–20, 23 right to die  200–26 Scarman, Lord  41, 48, 119, 120, 126, 128, 203, 204 Schiavo, Terri  90

 289

Schneider, CE  231 Schuldprinzip  68 Scully, Jackie Leach  31–7 self-defence double effect doctrine  29 separation of conjoined twins  9, 12, 16, 23, 29, 30 self-determination see autonomy principle sexually transmitted diseases advice to minors  45 confidentiality  44, 55 Sheldon, Sally  195 Shepherd, Lois  89 Sidaway v Board of Governors of Bethlem Royal Hospital  119, 120, 123, 126, 129, 133, 174, 179, 183 Silber J  38 Simester, AP  29–30 Slade, Sir Christopher  181 Slynn of Hadley, Lord  118, 124 Smart, Carol  242 Smith, John C  204 Smith, Stephen W  65–70, 221–6 Smith v Salford Health Authority  179 Smith v Tunbridge Wells Health Authority  122, 124 Society for the Protection of Unborn Children Ireland Ltd v Grogan  96–7 State of Qld v Alyssa Nolan & Anor  23n Steyn, Lord  172, 187, 189, 205 subjectivism  266 Suicide Act (1961)  200, 208, 209, 212–13 compatibility with ECHR  210–13, 217, 219 see also right to die Sumption, Lord  200, 210–11, 213, 216, 219, 225 Superintendent of Belchertown State School v Saikewicz  80n surplusage, rule against  164n surrogate decision-makers  87–8, 90 Szasz, Thomas  127, 129 tautology, presumption against  164n Teff, Harvey  127, 129 teleological ethics  101–2 Templeman, Lord  120 Teubner, Gunther  142–3 Thake v Maurice  120 therapeutic privilege  120 Thornton v NIHE  136n time in medical law  25 Toulson LJ  209 transplant surgery parental consent  20 treatment Bolitho  117 no therapeutic value  80–1, 84

290  nutrition and hydration as  64, 73 parental consent refused  122–3 patient autonomy  107 presumption in favour of  72 right to refuse  85–6, 90, 182, 206 Re T  93, 182, 229, 231, 232, 234, 237, 239, 243, 247 St George’s Healthcare NHS Trust v S  5, 227–54 what constitutes  107–9 trespass  229 Truman v Thomas  179 Uí Chonnachtaigh, Sorcha  248–54 UN Convention on the Rights of Children  40–1 unjustified invasion  29 utilitarianism  2, 101–2, 210 value theory and best interests  19–20 virtue ethics  102, 267 vulnerability  50, 54, 79, 81, 97, 196, 205, 211–13, 230–4, 250, 253–4, 271 situational  271

Index W v W  231 Waite LJ  20–1, 91 Wakefield, Andrew  133 Walker LJ  10, 12, 28, 172, 187, 227, 233 Ward LJ  1–2, 10, 14, 16, 18, 23, 25, 26, 29, 35, 258, 259 Warnock Committee Report  95, 234 Watt, Helen  29 Weinel, Martin  131–7 welfare, concept of  2, 19–20 Children Act (1989)  24 medical opinion  25 West, Robin  241, 244 Whitehouse v Jordan  119, 120–1, 123, 132 Wicks, Elizabeth  51–6 Widdows, Heather  111–16 Wilberforce, Lord  123, 184 Williams, Bernard  75 Wilson, Lord  200, 217, 219 Wisniewski v Central Manchester Health Authority  136n Women’s Property Act (1882)  149 Woolfe, Lord  91, 183 Yousef v Netherlands  49