There are three particular features of the judicial enterprise which suggest that a compromise table can indeed be moved into the courtroom. First, the courts are already engaged, to some extent, in the sorts of value enquiries we seek. Some members of the judiciary openly acknowledge the ethical import of their endeavour: Lord Coleridge CJ famously opined that ‘It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation’,2 a sentiment echoed by some of his successors in Airedale NHS Trust v Bland [1993] 2 WLR 316.³ On occasion, the courts have also been willing to examine the particular ethical commitments professed by the health care professionals they encounter, which are enshrined in guidance issued by the General Medical Council (GMC) and the like.⁴ There are also moral presumptions stitched into the very fabric of the law, such as the presumption that illegal contracts are unenforceable.⁵ All of this suggests that the language of ethics can be translated into the language of law. Indeed, the legal lexicon in the cases we have considered appears sufficiently flexible (or malleable?) that it can convey the plurality of ethical positions and thus the main parameters of principled disputes. Precedent autonomy and best interests each find a place in English law and permit of sufficiently broad interpretation as to facilitate reflection on the values they might ensnare in the individual case. By such means communication, on which compromise relies, is fostered.

Secondly, the courts have authority, which will be useful in setting the legal parameters within which resolution may be sought and in settling ongoing disputes. Judges therefore tend to be the officials most obviously empowered to declare which behaviours or outcomes are il/legal. Jurisprudential disagreements about whether the judicial role really involves making, as opposed to declaring, law might persist,6 but either way the judges are able to declare when a purportedly principled compromise has crossed the line into illegality. The judges can also say when a particular result must obtain; in other words, they have the power to make a principled compromise attainable, since their decisions are backed by sanctions. Decisions will therefore be binding, with evidence given under oath, and there are rules and procedures governing contempt of court and the like. Such backing can promote the goal of action-guidance, whilst helping to ensure that ground rules such as reliability are observed.

Thirdly, the courts aspire to procedural rigour, with rules governing such matters as rights of audience, equality of arms (in the sense of evidence disclosure) and the role of expert witnesses. Rules like these can help to ensure that each of the parties has their case heard, thus promoting communication and negotiation, which is reflective, reliable and respectful.

7.2.2 Against the courts as vehicles of values

Although the courts therefore could be viable vehicles for values-based decision-making, there are at least three obstacles in their path. First, and central to the analysis in this book, there is the objection that the courts frequently fail to issue sufficient guidance. Secondly, underpinning these failures, there is the persistent ethics-resistance of the judges. More common than remarks like that from Lord Coleridge CJ (above) are comments to the effect that ‘I myself am not concerned with any ethical issues which may surround this case’,⁷ and ‘this is a court of law, not of morals’.⁸ Even where the ethical dimensions of a case do come to the fore, as in Bland, many judges would prefer to look away or to push the problem in the direction of some other, purportedly more suitable, arbiter (like Parliament). But the ethics of the case at hand do not simply evaporate and, as such, they deserve more substantial scrutiny than they currently receive.

What scrutiny there is would scarcely satisfy the standards Regan and Pollock would set for moral discourse:⁹ hasty reference to a single – contested – argument about the primacy of respect for autonomy does not count as a robust assessment of the merits of the ethical arguments.¹⁰ Parodies of autonomy and welfare fail to convince.¹¹ Neither is the plurality of ethical perspectives available on a particular scenario necessarily represented. As we saw in the previous chapter,12 unlawful outcomes fall outside principled compromise – but this does not mean that lawfulness entirely equates to ethicality. Significant ethical arguments may be left out of the legal account, such as resource considerations in cases concerning the provision of costly life-prolonging treatment.¹³ Those ethical viewpoints that are explicitly allowed in – as provided by amici curiae – tend to offer a distinctive religious (Christian or Catholic) account.¹⁴ We might therefore doubt whether all the (appropriate) voices are heard, especially in a system where appeals to law are seldom cheap. Little wonder, the critics might say, that conservatism reigns in the rulings, with doctors trumping families, and life trumping choice. On this account, the effective and sincere communication on which compromise relies is not best served by the courts.

The fact that one party can trump another discloses a third problem with the courts’ capacity to craft compromises: courts are adversarial arenas, in which conflicts may be settled, but seemingly only by a loser submitting to a winner. This inclination towards ‘winner-take-all outcomes’¹⁵ seems to be not only ill-suited to the clinical encounter,¹⁶ but also at odds with the compromising spirit.¹⁷ Indeed, sometimes there appear only to be losers: Charlotte Wyatt’s case, for example,

As Meller and Barclay comment:

We find ourselves at another crossroads: one fork points us towards the courts as the location for principled compromise; another fork points us away. In their favour, the courts have procedural rigour and the power to decide; they are equipped to guide. Legal officials are, as Annas notes, ‘expert at procedure’.20 Sheila McLean adds that law’s capacity to direct action is also beyond doubt:

On this account, law triumphs over other alleged authorities – like moral philosophers – who purport to say how we should (not) live. As Birks puts it:

James also recognises the burden of the judicial task,²³ recalling Thorpe LJ’s extra-judicial opinion that

These references to humanity and duty remind us that the judges do not wholly eschew the moral dimensions of their work. But, McLean insists, these latter dimensions come second to the law:

The interlinked point is surely right, perhaps more than McLean would admit. It is, after all, frequently the case that health care law cannot do its job without recourse to the ethical framework on which it rests. In short, legal arguments will often appeal to ethical justifications. Disputes about the necessity of this relationship are, of course, long-standing, as ongoing debates between natural lawyers and legal positivists demonstrate.²⁶ Amongst the more famous exchanges was that between Hart and Devlin about the legal enforcement of morality.²⁷ An additional layer of complexity has been added by the advent of ‘bioethics’ in the 1970s, which Brownsword sees as occupying the midway point between the respective domains of law and morality.²⁸ Philosophical and theological arguments about moral concerns have made a significant impression in this new field, but so too have contributions from the law. Annas, for example, believes that:

However, the transfer of ideas that Annas describes does not flow equally in both directions, since bioethical discourse – at least that which is associated with its academic expression – cannot necessarily claim to shape the law, neither in America nor, indeed, in England and Wales. James remarks that ‘English judges have only slowly, indirectly and tacitly absorbed academic critique into their decisions’.30 Legal training retains a distinctive vocational character, with extra-judicial opinion seen as lacking the requisite authority. Formally, at least, the judges decline to cite living academic scholars. Naturally, there are exceptions: as we saw in Chapter 5, academic articles anticipating a case like Bland featured in the actual ruling,³¹ while Keown’s opinion on the sanctity of life appeared alongside Sheldon and Wilkinson’s pioneering analysis of the surgical separation of conjoined twins in Re A (children) (conjoined twins: medical treatment) [2000] 4 All ER 961.³² Yet, reference does not equate with influence, as indeed we see in Re A, in which the Court of Appeal managed to depart from the scholarship on which it purportedly relied.³³

Having said all this, ethical considerations do, as an undeniable matter of fact, continue to exert influence on medical law; the two domains enjoy (or endure?) what Miola dubs ‘a symbiotic relationship’, each reliant on the other.³⁴ We have seen how different accounts of the value of life have their counterparts in law. Confronted with these rival ideas, law seeks a compromise of principles. Unfortunately, this prompts considerable confusion, since competing ethical principles are advanced, often discretely and covertly (perhaps even hidden from the judges themselves). This carries both the opportunity and the threat of indeterminacy;³⁵ a threat, since we are left with no clear way out of any conflict; an opportunity, because a plurality of answers appear to be available. The compromise that law has reached effectively signals that sometimes the intrinsic value of life will be our guide, sometimes the instrumental value (and thus quality) of life, and sometimes the patient-led, self-determined value of life. By plotting these three points, the law takes a position on the ethical boundaries within which clinicians and families must operate.

These boundaries look defensible: as I argued in Chapter 5, there are sound arguments for not allowing any one of these three positions to dominate and thus deny its rivals any dominion. Indeed, law might reasonably be tasked with holding the line and thus ensuring that the overall compromise persists.³⁶ Three examples should help to clarify this idea. First, the instrumental value of life could continue to feature in decisions to withdraw life-support from the critically ill, but legal and policy officials might reasonably resist any proposals to embrace neonaticide, of the sort practised under the Groningen protocol in the Netherlands.37 Secondly, precedent autonomy might rightly retain a role in relation to advance decision-making, albeit constrained by a prohibition on honouring patients’ demands and on requests for interventions like assisted dying.³⁸ Finally, the sanctity of life, and its associated bundle of ideas, can still furnish the law with its primary preoccupation with preserving life – but, again, within limits, such as (for example) that there be no greater restriction like that sought by MP Ann Winterton in her Medical Treatment (Prevention of Euthanasia) Bill, which would have reversed Bland.³⁹

Within the middle ground between these principles there is bound to be ample scope for choosing an answer which best suits the individual case. But how are we to decide which particular answer is best? Here our attention should shift from the substance of the compromise achieved in English law back to the procedures – and thus the ground rules – for achieving principled compromise and thus principled resolution. In the absence of agreement, negotiation is vital – even if we believe that a middle ground position exists, which splits the difference between the disputants. For example, I have suggested that a specific offence (and partial defence) of ‘assisted dying’, could be made available as an excuse rather than a justification, as this can split the difference between ethical arguments for and against the practice.⁴⁰ However, I have also acknowledged that the proposal needs further debate before we could expect to see any agreement on the matter.⁴¹ The need for discussion is possibly even more pressing in the present context, where the ‘right’ mixture of values appears to be beyond our grasp.⁴² In such cases, the ground rules for principled compromise will help guarantee that the various arguments are heard.

Importantly, there might be no ‘one-size-fits-all’ outfit in the pluralistic wardrobe: different mixtures of values might be appropriate according to the individual case and the parties around the compromise table. This conclusion is in keeping with the ontic uncertainty underlying the case for compromise.⁴³ It may be, then, that the outcome in an individual case more closely resembles or rests on one principle rather than another. As May put it, cited in Chapter 6, we are looking to establish when a principle has reached its ‘territorial limit [and thus] must yield to another principle’.⁴⁴