Legal rules may require objectivity but a central feature of the complaints canvassed in the previous chapter was the contamination of what (apparently) should be decisions based on the subjective wishes or interests of the individual patient with more ‘objective’ considerations, as judged by someone other than the patient, or his or her intimates. This does not mean that the patient is forced to adopt a ‘view from nowhere’,1 since that view is inevitably clouded by the subjective lens through which the ultimate decision-maker – typically a judge or a doctor – experiences the world. This additional layer of subjectivity undoubtedly contributes to the inconsistency and confusion written through the law pertaining to the removal of treatment from incompetent patients.

The subjectivity in the law – and the irrationality it appears inevitably to spawn – is scarcely unexpected given the close resemblance of modern judgments to the proposals and predictions made in the wake of the landmark US ruling in In re Quinlan (1976) NJ 355 A 2d 647.² As we saw in Chapter 2,³ in 1976, the New Jersey Supreme Court authorised the withdrawal of ventilation from Karen Ann Quinlan, at the request of her father, who was his daughter’s surrogate. Like Ms Quinlan herself, who survived for another decade after the treatment was stopped, the ruling has endured, since it laid the foundations for much of our current thinking about the withdrawal of life support, particularly in relation to clinically assisted nutrition and hydration (CANH).

In the wake of the decision, a host of scholars contemplated how English law would respond to a similar dilemma. They overwhelmingly concluded that permission to cease treatment would be granted, such that there would be no violation of the prohibition on homicide. How they arrived at this conclusion will be familiar: their first substantial manoeuvre involved viewing this as an omission in law, such that its lawfulness would turn on the duty of the doctor,4 which might encompass a duty to honour a patient’s refusal of treatment.⁵ Why this was seen to be the result is also revealing: implicit in each of the accounts given is the moral judgment that this is the ethically appropriate outcome. In other words, the theorists sought an answer to a perceived legal dilemma by reference to the ethical intuitions or arguments with which they themselves were aligned or which they otherwise felt the judges would endorse. The meld of proposal and prediction is apparent in the terminology employed, as we see the writers moving between accounts of what the law purportedly ‘will’ or ‘could’ say,⁶ and what it ‘should’ endorse.⁷ This becomes particularly apparent when different accounts of the legal position are offered in response to the ‘intruder’ – a person who behaves exactly as the doctor does in removing treatment, albeit from seemingly malevolent motives: in contrast to the doctor, this person ‘acts’ and is guilty of a crime.⁸

Some of these early attempts to spell out the (likely) legal position were mentioned in one of the leading judgments in this area, Airedale NHS Trust v Bland [1993] 2 WLR 316, so it is unsurprising that one can detect a distinct ethical undercurrent to the decisions that have followed Quinlan’s case. In which directions, then, do these currents pull the law, and from which wells do they spring? An immanent critique, along the lines described in Chapter 1, will allow us to surf the currents. We start, then, by looking for the waves they create, that is, for indications of the main ethical values which shape the law governing non-treatment decisions.

5.2 The value of life in English law

Embedded in the law pertaining to the best interests standard, alongside that governing attempts to give effect to advance decision-making (whether via advance directives or through the appointment of surrogate decision-makers), appear to be three (relatively9) distinct sets of ethical claims. These claims map onto three accounts of the value of human life, which latch onto its intrinsic, instrumental or self-determined value.¹⁰ The first two of these lurk within discussions of patients’ best interests, as does the third, although this often comes much further out into the open.

John Keown would have us start with the intrinsic value of life, since this has ‘consistently been stated by the courts to be a governing principle of English law’.¹¹ ‘We all believe in and assert the sanctity of human life’, as Lord Donaldson MR put it in the case of Re J (a minor)(wardship: medical treatment) [1990] 3 All ER 930,¹² with Anthony Bland’s judges adding that the principle ‘is the concern of the state, and the judiciary as one of the arms of the state, to maintain’.¹³ Keown’s view, to which others have subscribed,¹⁴ finds support beyond the cases with which we are concerned, in the simple fact that English law prohibits homicide, with murder ranked as the most heinous crime, and in the Human Rights Act 1998, which contains (indeed, opens with) the ‘right to life’.

For Keown, the basic idea to which the law clings is that there is a prohibition on the intentional ending of life. This prohibition might owe something to broadly Judeo-Christian (and often distinctively Roman Catholic) thinking, but it need not be so tethered, as more secular human rights accounts indicate. In the words of one Law Lord, when contemplating arguments against voluntary euthanasia, ‘the arguments in support are transcendental, and I agree. Believer or atheist, the observer grants to the maintenance of human life an overriding imperative, so strong as to outweigh any consent to its termination’.¹⁵

Yet, the judges will sometimes invoke distinctively theological terminology and even invite religious opinion into the courtroom.¹⁶ We see both in the Court of Appeal decision on the fate of the conjoined Attard twins: distinctions between intending and (merely) foreseeing death, as well as between acts and omissions, and also between ‘proportionate’ as opposed to ‘disproportionate’ treatment, all feature in the judgments, as do references to the submissions made by the Archbishop of Westminster and the Pro-Life Alliance. Keown himself is also cited, with approval.17

The problem – for Keown at least – is that English law does not restrict itself to the view that life has intrinsic value; the ensuing problem – which is potentially one for everybody – is that contradictory law seems to result. A statement such as the following from Cazalet J in the case of baby D conveys the essential message: ‘The court’s clear respect for the sanctity of human life must impose a strong obligation in favour of taking all steps capable of preserving life, save in exceptional circumstances’.¹⁸

The ‘exceptional circumstances’ are not always ones which Keown would accept,¹⁹ since they sometimes pull in the opposite direction to where he wants law to be. One even sees this in the case in which Keown was favourably cited, since the court ruled in favour of separation and, in so doing, it appeared to adopt an ethic more concerned with the quality – rather than the sanctity – of the twins’ lives (both together and apart).²⁰ According to this ethic, life has only an instrumental value: it is valuable only insofar as it enables the achievement of other goods. So, the argument goes, where the life is of sufficiently poor quality, it need not be preserved.

The emphasis on the instrumental value of life implicit in the twins’ case can be traced back to Re B (a minor)(wardship: medical treatment) [1981] 1 WLR 1421, although it becomes most apparent in Re J (a minor)(wardship: medical treatment) [1991] 1 FLR 366. In the latter case, Munby QC (as he then was) made two submissions: one ‘absolute’; the other ‘qualified’. The absolute submission was that it would offend against the sanctity of life if artificial ventilation were to be withheld from seriously disabled J. The court felt that there were ‘few, if any, absolutes’;²¹ in ‘exceptional circumstances’, like those in the present case, the strong presumption in favour of life would be outweighed.²²

Munby’s qualified submission, which he developed on the basis of Re B, also failed to find favour. Munby had argued that the balancing exercise encouraged by the judgments in Re B fell in favour of prolonging J’s life. The Court of Appeal resisted the idea that the references to ‘intolerable’ and ‘demonstrably awful’ lives could be used as a ‘quasi-statutory yardstick’ for determining when a child could be allowed to die.23 The test, as we saw throughout Chapter 2, was (and is) the best interests of the child. This would involve assessing ‘the pain and suffering and quality of life which the child will experience if life is prolonged’.²⁴ It would not necessarily involve rigid adherence to the sanctity of life, which could prove ‘inconsistent at its extreme with the best interests of the child’.²⁵

Similar evaluations can be detected elsewhere in the jurisprudence,²⁶ including that pertaining to incompetent adults. Critics and defenders of the Bland ruling tend to agree that the decision rests more on the instrumental than on the intrinsic value of life.²⁷ Peter Singer puts this with characteristic clarity and zeal: he detects a ‘revolution in British law regarding the sanctity of human life’.²⁸ As in Re J, the judges regarded the principle as ‘not an absolute’.²⁹ Controversially, they accepted that the ending of Bland’s life was not merely foreseen but also intended, although – in stark opposition to the prohibition promoted by the principle – this was viewed as justifiable.³⁰ The unified view of personhood inherent to the intrinsic value of life was supplanted by a Cartesian separation of mind from body:³¹ with his mind apparently gone, Anthony Bland’s value as a person diminished. He now seemed to lack ‘best interests of any kind’,³² and merely endured an existence offering ‘no affirmative benefit’.³³ The message seems to be that inhabitants of such a ‘twilight world’ need not have their occupancy extended.34

Keown continues to resist the advance of instrumental accounts of the value of human life, which he fears are gaining ground in the professional guidance succeeding Bland (from the British Medical Association, for example) and in developments including the Mental Capacity Act 2005.³⁵ The latter presents an additional threat to the intrinsic value of life since it unites with case law to provide a third account of the value of life, which is self-determined, by the autonomous individual. Whether the decriminalisation of suicide amounted to a victory for autonomy at the expense of the sanctity of life is a moot point,³⁶ but we can certainly see its dominance in the proclaimed priority of an autonomous refusal of treatment, even if this means death will follow and even if that is precisely what the patient wants.³⁷ Case law has confirmed that such a refusal may be issued here and now, or in advance of anticipated future incompetence: either way, provided that the refusal comes from a competent patient, it must be honoured, or else an action in trespass or prosecution for battery might ensue.³⁸ Advance decisions of the sort with which we are concerned (that is, those in which life is at stake) now fall within the ambit of the 2005 Act and they come subject to particular conditions, but, where these are satisfied, the end result should be the same: the patient’s refusal should be respected.³⁹

Keown and like-minded scholars are troubled by these inroads into the idea that life is inviolable. For them, English law misconceives autonomy, which should be tethered to – and given meaning by – the sanctity of life.⁴⁰ The law certainly goes too far, they think, when it respects even suicidal decisions to decline life support.⁴¹