Calculating the value of life at the limits of life

Calculating the value of life at the limits of life

Is the court to assume the role of God and decide who should live and who should die?… This is not an area in which any difference can be allowed to exist between what is legal and what is morally right. The decision of the court should be able to carry conviction with the ordinary person as being based not merely on legal precedent but also upon acceptable ethical values.

Airedale NHS Trust v Bland [1993] 2 WLR 316 at 350F–G (Hoffmann LJ)

5.1 Looking for values in English law

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

5.3 Calculating the value of life

We see in English law three prominent accounts of the value of human life vying for a primary (perhaps even an exclusive) position. But which, if any, should be law’s guide to making decisions about (not) treating incompetent patients? An answer to this question should come into view as we extend the immanent critique, by exploring the logic of each set of claims, and comparing that which they appear to endorse and require with that which actually obtains in English law at present. The criteria developed in Chapter 1 will help us to judge the adequacy of each of these moral contenders, examining (inter alia) their clarity, consistency and empirical ‘fit’. We begin, again, with the intrinsic value of life.

5.3.1 The intrinsic value of life: the disutility of futility?

Central to the principle of the sanctity or inviolability of human life is the idea that death should not intentionally be sought, either by action or omission. This idea owes much to Judeo-Christian thinking and specifically to Roman Catholic doctrine. This is certainly true of the version visible in English law, notwithstanding its more recent secular expression in human rights discourse.42 The harm of intentional killing may be inflicted on God, in its rejection of his gift of life,43 or it may be conceived as an affront to human dignity.44 Everybody has worth – and, indeed, every body has worth, such that the mind cannot reject a failing body, as the two exist in partnership.45 This does not mean that life is accorded an absolute value, requiring its defence in all circumstances.46 Insistence on the absolute value of life amounts to vitalism; the intrinsic value of life is different, because it recognises that there are limits on the obligation to protect and preserve life. Two such limits are particularly pertinent in the cases with which we are concerned.

The first limit arises from the doctrine of double effect, which distinguishes between intending to end life (which is prohibited) and merely foreseeing that death will ensue (which may be permitted). Striving to secure a positive outcome can be permitted, even if this incidentally involves inflicting harm, provided that on balance it was better to proceed than not. Different defenders describe the idea differently, but usually four conditions must be met: the action (or omission) must not be morally wrong; the agent must intend to secure the good result; the good result must not be brought about by the bad result; and the harm in the bad result must be outweighed by the benefit brought by the good result.47 The terms ‘good’ and ‘bad’ are undoubtedly given content by the overarching philosophy, which strives to safeguard life against its intentional ending. Although (too often) the doctrine is associated with the use of powerful pain relieving drugs,48 it can apply to the removal of life-support, where the aim may be to remove burdensome treatment but not with the direct purpose of ending life.

The second limit comes with the distinction that is drawn between acting and omitting. Both will be prohibited where the intention is to end life, but where there is no such intention, a degree of flexibility is allowed in relation to omissions. AH Clough famously satirised the basic idea: ‘Thou shalt not kill; but need’st not strive/Officiously to keep alive’.49 Proponents of the sanctity of life replace Clough’s reference to taking ‘officious’ steps with terms like ‘extraordinary’ or, more often nowadays, ‘disproportionate’. Such efforts are not morally required. These labels can be applied when a treatment is judged ‘futile’ or when its burdens outweigh its benefits; if the reverse holds, then intervention looks ‘proportionate’ (or ‘ordinary’) and is therefore morally obligatory.50 The requisite judgments do not hinge on the ‘heroic’ or ‘hi-tech’ nature of the intervention in question and nor do they involve judging the instrumental value of the patient’s life. Keown seeks to make the latter point by distinguishing between ‘quality of life’ judgments and ‘Quality of life’ judgments.51 The former attach to the treatment (‘Given this patient’s quality of life and condition, does this treatment offer a reasonable prospect of improving it?’); the latter concern the patient’s life (‘Given the patient’s Quality of life, is it a life worth living?’).52

There is much to commend the intrinsic value of life and its associated precepts. The long history of the principle, plus its occupation of various theological and secular domains, mean that ample attention has been given to its coherence and robustness as a source of moral guidance. The idea that life should be protected certainly has a strong intuitive appeal, but it also appears capable of withstanding critical scrutiny. As Keown argues, the inviolability of life offers something of ‘a middle way’ between the opposite extremes of vitalism and an approach in which the instrumental value of life is all that counts.53 Even leaving aside any historical religious affiliations, it is not surprising that the concept continues to echo throughout contemporary law and professional guidance.

At the same time, there are numerous ways in which this approach fails to meet the standards we can expect from moral guidance. The clarity, applicability and consistency of the principle warrant particular scrutiny. First, the judgments and injunctions associated with the intrinsic value of life are seldom sufficiently clear. The key terms on which the principle and its associates rely – like ‘intention’, ‘omission’, ‘futility’ and ‘burden’ – are all contestable. James Rachels complains that adherents to the doctrine allow agents to ‘purify the intention’ by using such words to describe their behaviour in ways that demonstrate compliance.54 Notice, indeed, how Johnson J in his initial ruling authorising the separation of the conjoined twins Jodie and Mary felt obliged to characterise this as the ‘omission’ of life support from Jodie to Mary, since he apparently felt unable to embrace the (inevitable) bringing about of Mary’s death by positive means.55

Confusion and obfuscation like this means, secondly, that the idea is not simple to apply in the real world. Agents are required to draw sometimes extremely fine lines between (for example) the intended and the foreseen, and between an action and an omission. Even Keown has not indicated precisely what he would decide in a case like Anthony Bland’s. One would presume, given the force of his objections to that ruling and its progeny, that he would require the continuing provision of life-support in such a situation. But that is not quite what he concludes: instead, he says, the ‘traditional ethic does not, as yet, unequivocally rule out the withdrawal of tube-feeding on the ground that it is futile medical treatment’; indeed, ‘the ethic may currently allow for a legitimate range of answers on tube-feeding those in pvs’.56 If Keown cannot bring himself to issue a clear instruction in such a case, then what hope have clinicians and families of finding the moral steer which the sanctity of life purports to provide? Although the respective parties may have varied in their personal accounts of the principle, it is telling that different parents who claim to be guided by the same beliefs have arrived at conflicting decisions for their offspring, even in strikingly similar cases, such as those pertaining to the care of conjoined twins.57

Both of these groups of problems have a bearing on the third, major area of difficulty, which concerns the traditional ethic’s claim to consistency. Keown’s approach initially looks internally consistent but appearances deceive. This becomes particularly apparent when we reflect on the moral load being borne by terms like ‘futile’ and ‘burdensome’ treatment. It emerges that the moral load can only be laid down in one of two locations, neither of which Keown wishes to visit.

Let us start with the words Keown actually uses, when he discusses the possible use of cardiopulmonary resuscitation (CPR) in the hypothetical case of Mary: