Is English law incoherent about life?
English lawyers once proudly maintained that English law was the envy
of the world for its protection of individual rights and for its
fairness. However, few lawyers today would uphold the present English
law as protecting the rights of the individual, especially if that
individual were aged or sick.
One of the world’s leading authorities on law and ethics, Professor
John Keown, recently said that when it came to the protection of life,
“English law is morally and intellectually incoherent and is now left
laughing at itself.” Professor Keown is the Rose F. Kennedy Professor
of Christian Ethics at Georgetown University, Washington DC and a
former Cambridge senior lecturer in law and ethics.
Many lawyers agree with him. And they believe English law will be even
more incoherent if a proposed bill allowing assisted suicide, ever
becomes law. This is a private member’s bill put forward by Lord Joffe
which would have doctors help patients with incurable illnesses kill
themselves and thus make doctors and nurses be involved in what would
be murder or suicide.
Lord Joffe maintains he is doing this because of his concern for the
sick and the vulnerable. But it was Lord Joffe who was the joint author
with Mr. David Lipsey of the minority report of the 1999 Royal
Commission on Long Term Care in old age. The majority recommended that
the Government should continue to fund social care for those needing
it, as well as nursing care. Lord Joffe, however, thought not, and the
Government accepted Lord Joffe’s report and withdrew its funding.
How did English law get into such a mess and sink to such depths that
it is now considering whether doctors or nurses should or not help kill
patients? Professor Keown believes that one of the most important cases
ever decided in English legal history was the Tony Bland case.
Tony, a victim of the 1989 Hillsborough football disaster, had been in a
“persistent vegetative state” in Airedale General Hospital in Yorkshire
after being crushed. He needed a great deal of nursing care and
attention. The Hospital Trust, using taxpayers’ money, applied for a
declaration from the law lords that it would be lawful to stop feeding
Tony Bland’s lawyer, James Munby QC, argued that stopping feeding him
would be murder. It would be exactly the same as severing the air pipe
of a deep sea diver.
And three of the Law Lords accepted that the doctors’ intention by
stopping his tube feeding was to kill Tony. One of the three, Lord
Browne-Wilkinson, said, “Murder consists of causing the death of
another with intent to do so… What is proposed in the present case is
bringing about Anthony Bland’s death... the whole purpose of stopping
artificial feeding is to bring about the death of Anthony Bland.”
Eventually Tony's feeding tubes were disconnected and he died in March
Why then did the Law Lords decide that this was not murder and that the Hospital Trust could kill him?
“Because,” says Professor Keown, “they decided stopping feeding was not
a positive act but an omission. Many English lawyers refer their
Lordships’ reasoning as the Alice in Wonderland judgement. Their
Lordships' reasoning, Professor Keown says more politely, "appears
vulnerable to several criticisms.
"The main criticism is that they wittingly or unwittingly shifted the
law from the ethics of the 'inviolability' of human life approach which
English law has traditionally espoused to a 'quality of life' approach.
The traditional 'inviolability' approach says life is a basic good.
Therefore one should not attack that basic good. But one needn't
preserve it at all costs. In a medical sense it means no intentional
lethal injections, no euthanasia. Palliative drugs that may have
a side effect of shortening life can be given.
“Ending life is not the aim, but the alleviation of suffering.
Similarly one may withhold or withdraw treatment if the treatment would
serve no useful purpose or if the treatment is too burdensome, even
though the patient may die earlier as a result. Again it is not a case
of intentional killing. The traditional approach asks: would the
proposed treatment yield any benefits, would it be worthwhile? Or would
it yield excessive burdens such as agonising pain? If the treatment
would not be worthwhile there is no duty to provide it.
The 'quality of life' approach, however, is not concerned whether the
treatment will be worthwhile, but with whether the person's life is
worth living. Irrespective of the benefits or burdens of this
treatment, do we feel this particular life should be prolonged?
“The Law Lords in the Tony Bland case adopted the 'quality of life'
approach. Life for Tony Bland was no longer worthwhile so therefore he
could be legally killed,” says Professor Keown
The implications of the Bland case were challenged last year in 2004
when Leslie Burke, 45, who has a degenerative brain condition called
spino-cerebellar ataxia, won a High Court ruling to stop doctors
withdrawing food and drink during the final stages of his illness. But
this year the British General Medical Council appealed against this.
A panel of three judges overturned the high court decision. Under the
Court of Appeal ruling, hospital and doctors are now required to
provide life-prolonging treatment, such as water and artificial
feeding, if a mentally competent terminally ill patient asks for it.
But also as part of this ruling, once a patient loses the ability to
express his or her wishes or lacks mental capacity, doctors will be
able to withdraw such treatment if they had not previously received
instructions from the patient.
So this is the present state of English law. Hospitals now cannot
starve a patient to death while he remains conscious or mentally
competent. But then when he loses consciousness or becomes
mentally incompetent they can kill him by refusing him food and
liquids. But a lethal injection is illegal.
However, the likes of Lord Joffe and his backers, are trying to change
even this with their proposed Assisted Suicide Bill and would very much
like to see the legalising of the lethal injection under what they
claim is the right of self-determination..
Professor Keown, however, is highly critical of those who maintain that
the decriminalisation of suicide by the Suicide Act of 1961 was a
recognition that the principle of self-determination should prevail
over the sanctity of life. That is, that patients may now commit
suicide by refusal of treatment or attempt to kill themselves in other
ways. And that doctors may lawfully intentionally assist or encourage
such refusals of treatment.
"The reason for decriminalisation," says the professor, "was not
respect for self-determination but the belief that a suicidal person
needed help rather than punishment. In other words, suicide was
decriminalised not to help people commit suicide but to help them not
to commit suicide."
And finally the professor points out that English law as it now stands
is still clearly in breach of the European Convention on Human Rights.
Article 2 lays down that no one should be intentionally deprived of
life. The only answer, surely, is for English law to return to the
basic moral and common-sense concept of upholding the inviolable right
to life for all human beings.
William Keenan is a British author and a former investigative journalist with the Daily Mirror in London.
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