Crafting compromise: courts or clinical ethics committees?

Crafting compromise

Courts or clinical ethics committees?

We observe… that it would be far better if judges were not called to patients’ bedsides and required to make quick decisions on issues of life and death. Because judgment in such a case involves complex medical and ethical issues as well as the application of legal principles, we would urge the establishment – through legislation or otherwise – of another tribunal to make these decisions, with limited opportunity for judicial review.

Re AC, 573 A2d 1235 (DC 1990) at 1237 (Terry J)

7.1 Conflicts in the clinic revisited: to treat or not to treat?

To treat or not treat? This book began by asking this seemingly simple – albeit fundamental – question, in relation to a range of critically ill patients who are incapable currently of expressing their views on the matter. The question was premised on the existence of conflict, such as might be detected between the professionals caring for a patient and the members of his or her family. High-profile cases like those of David Glass, Charlotte Wyatt and Terri Schiavo exemplify the dilemmas that can arise. Less acute cases, like that of Mr W from the introduction to the book, will also be familiar in the health care setting, although these too will not be free from difficulty and anxiety for the parties involved.

The existence and persistence of such conflict should not be overstated, but neither can it be denied. Where conflict is present, an answer will be needed and, indeed, unavoidable, since even failure overtly to tackle the matter will lead to an outcome, such as continued treatment, or failure to treat. Law tends to reign supreme here since, by its very nature, law is concerned with guiding human behaviour through the imposition of rules. But the problem we have seen is that the law which seeks to govern these cases fails frequently to do so: the rules are absent, inconsistent or unclear, making it difficult to say how best to answer the fundamental question.

The reason why law appears to fare so badly in guiding behaviour is that it seeks to give expression, and afford respect, to competing ideas of what it means to value life in cases like these. The legislation and jurisprudence seek simultaneously to declare that the value of life is a matter for the individual, and that it has an intrinsic worth, thus meriting protection from premature ending, and that its value resides in the uses to which it can be put, such that failing ‘machines’ need not be repaired. In doing so, the law oscillates between the personal and subjective at one extreme, and the abstract and objective at the other.

On this view, conflict in the clinic and in law will often derive from conflict between ethical principles – principled conflict, as I described it earlier. Little wonder, then, that the emergent legal messages appear so confused. Yet, a case can be made for commending not only English law’s capacity but also its willingness to accommodate a plurality of ethical viewpoints in these cases. On this view, law is trying to do the right thing by articulating a compromise at the level of principle, that is, affording space to plausible, competing values, through its dealings with precedent autonomy and the best interests of incompetent patients. The problem nevertheless remains that professionals, parents, proxies and even patients are left in confusion and uncertainty, since they do not know whether, for example, respect for autonomy or the sanctity of life will be the ultimate guide in any individual case; and nor can they necessarily conclude which should be their guide.

What we appear to need is a mechanism that is capable of providing an answer to the fundamental question, ‘to treat or not to treat?’, and thereby guiding the affected parties, and resolving the conflict. But we need more than this: we need the mechanism in question to be capable of drawing hidden – but undeniably influential – values out into the open, so that they can be scrutinised, with a view to securing not only resolution but principled resolution. In other words, what is needed is a place in which the values that obtain in any given case can be investigated, and practical proposals plotted.1 Although there may be a myriad of contenders, in this chapter I will consider two prime candidates: the courtroom and the clinical ethics committee. We will see that neither forum is entirely up to the task, although each has its merits, such that – in Chapter 8 – our concluding discussion will concern how best to capitalise on the opportunities, whilst avoiding the major risks.

7.2 Viewing values in the court

I suggested, in the previous chapter, that the principled compromise table will be a place where values can be examined, with a view to resolving principled disputes, and thus guiding the parties who find themselves in conflict. The achievement of principled compromise presupposes that the parties are capable of articulating their positions and bargaining effectively. Such bargaining will be bound by three ground rules, which hold that the parties will: advance reflective moral positions; behave sincerely, such that their opponents can rely on their words and deeds; and negotiate in a reciprocal, mutually respectful fashion, in which they recognise the legitimacy of their opponent’s interests. The peaceful coexistence of people with diverse moral perspectives is at the heart of the principled compromise process. The presence of a third party can help to ensure that the negotiation stays on these tracks. Is this a role suitable for members of the judiciary?

7.2.1 For the courts as vehicles of values

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,

… ended in a lose-lose-lose situation: an embittered and fragmented family, a child in foster care and six-figure costs for the hospital trust. The medical staff were left feeling battered and bruised and there was no real closure to this tragic case.18

As Meller and Barclay comment:

Using the courts to decide cases of ethical complexity inevitably leads to a position in which there are perceived to be winners and losers in situations which are not black and white, but are often composed of multiple shades of grey which would be better resolved by ethically acceptable compromise.19

7.2.3 Law and ethics in the courts and beyond

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:

… irrespective of the ethical views of decision-makers – legal or medical – there are rules under which they must operate, like it or not. Whether or not they are based on moral obligations… they nonetheless are superior (in practical terms) to the outcome predicted by adherents to one ethical school of thought or another.21

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:

Moral philosophers are not obliged day by day to solve the real problems of real people, nor are they called to daily account to justify to those same real people the substance of their tenets and the even handedness of their procedures. The law by contrast is under constant surveillance. Vigilant critics quite rightly pick over the substance of every judgment. And it is an unrelenting question whether, through time, but allowing for the changes of perception which come with the passage of time, the courts are or are not, can or cannot be, true to the aspiration impartially to treat like cases alike.22

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

… what is consistent in principle may not be practical in application. It is, perhaps, easier for an appellate court to discern principle than it is for a trial court to apply it in the face of judicial instinct, training and emotion… The responsibility and sense of duty of the judiciary are no less in the Family Division than in the other Divisions, but it is, perhaps above all for their humanity that they are appointed.24

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:

American bioethics has been driven by the law… The stress on autonomy and self determination comes from our Bill of Rights, our Declaration of Independence and the whole common law tradition. And law’s primary contribution to bioethics is procedural. Lawyers are expert at procedure. The common law itself is based on deciding individual cases and using these cases as the basis of creating law. Bioethics has adopted this technique. In the United States, with its pluralism of beliefs and people, the law is what holds us together. There is no other ethos. Thus, the law – procedural, autonomy based and case focused – came into bioethics.29

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

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