Judging law and ethics at the limits of life
Judging law and ethics at the limits of life The common law is tolerant of much illogicality, especially on the surface; but no system of law can be workable if it has not got logic at the root of it. Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 at 516 (Lord Devlin) David Glass was born in 1986 with hydrocephalus, spastic quadriplegia, learning difficulties and no ability either to walk or talk.1 His family, in particular his mother Carol, provided him with 24-hour care. Having become particularly unwell in July 1998, he was admitted to St Mary’s Hospital, Portsmouth, where an operation to alleviate an upper respiratory tract obstruction was undertaken. Post-operative complications, including infections, led to David being placed on a ventilator. The health care team advised David’s family that he was dying and that further intensive care was inappropriate. Although the family members were not satisfied with this judgment,2 they twice declined the team’s offer to arrange an independent second opinion. In the event, David was well enough by the end of July to be moved from intensive care to the paediatric ward. Around this time, the possibility of using morphine to relieve David’s distress was explored, to which his mother objected. David was discharged in early September but was readmitted on a number of occasions for treatment for respiratory tract infections. The use of morphine was again discussed when David was hospitalised on 8 September; Mrs Glass remained firmly opposed to this and she also instructed that efforts should be made to resuscitate her son in the event of cardiac arrest. One of the doctors recorded that he thought an outside view should be sought, perhaps from the courts. David’s GP also contacted the team, noting the family’s concern that David would be ‘helped on his way’ with morphine.3 Other notes taken by the doctors that day and the next suggest that Mrs Glass accepted that intubation would be inappropriate (although oxygen would be offered) and, as the Official Solicitor had advised,4 that morphine could be used to relieve David’s distress even without her consent. One of the team, Dr Hallet, noted Mrs Glass’s opposition to ‘euthanasia’ and explained that this was not the team’s intention; he recorded that Mrs Glass agreed with the use of morphine if it was needed to control pain.5 Satisfied that agreement had been reached, Dr Hallet concluded that ‘involvement of the court may not be necessary’.6 In October, David’s condition again deteriorated, necessitating readmission. By 20 October, the doctors felt that David was ‘dying from his lung disease’.7 Mrs Glass and her family disputed this view, and objected to the proposed use of diamorphine (which is a more soluble and potent opioid than morphine). Once more the doctors recorded that ‘the use of Morphine is not euthanasia – it is to relieve [David’s] distress’.8 By this time, the police had become involved; an officer advised the family that any attempt to remove David would result in arrest and that they themselves would be removed if they attempted to interfere with the administration of diamorphine. The dose of the analgesic was also disputed (1mg per hour, which the family argued was an adult dose), but the doctors replied that David had built up tolerance to opioids and that the dose was appropriate given his weight. Security guards then intervened and threatened to eject the family after they attempted to prevent the doctors from entering David’s room. Around this time, a ‘Do Not Resuscitate’ (DNR) order was placed in David’s notes, without Mrs Glass’s knowledge.9 The doctors also recorded that the diamorphine was achieving its intended purpose, although the dose was reduced following further objections. The next day Mrs Glass was alarmed at David’s deterioration and demanded that the diamorphine be stopped. Dr Walker was willing to do this provided that the family did not attempt to revive David, and thus disturb his current ‘peace’.10 A fistfight broke out between some family members and two of the doctors, during which time Mrs Glass apparently ‘resuscitated’ her son.11 The police intervened, and they – along with a mother visiting another patient – were also assaulted. All but one of the patients on the ward had to be evacuated. The day after these incredible incidents, David’s condition had improved sufficiently that, after arrangements were made for home care (albeit incomplete arrangements, according to Mrs Glass), he was discharged. In a letter in November 1998, the Portsmouth Trust notified the family that it could no longer offer treatment to David and, given the disagreements, explained that any future care should be provided in Southampton General Hospital. Unsurprisingly, this difficult situation generated a flurry of legal activity. The criminal law was brought to bear, which resulted in some of the Glass family being convicted of assault and imprisoned (although their sentences were reduced on appeal).12 The Crown Prosecution Service meanwhile found insufficient evidence to charge the doctors with attempted murder, conspiracy to murder, or any offences against the person. The General Medical Council also declined to find the doctors guilty of unprofessional behaviour; Mrs Glass had alleged that the doctors assaulted David in administering ‘heroin’ without parental or judicial approval.13 Efforts to invoke the civil law of tort, albeit this time against Mrs Glass, also failed, as the trust was unable to prove trespass to the person. Mrs Glass also looked to administrative law for a remedy, by seeking judicial review of the Trust’s decisions in relation to David’s care. Scott Baker J rejected the case, finding that this was an inappropriate legal mechanism for assessing a situation that no longer obtained (as the Portsmouth Trust no longer provided David’s care) and that any prospective advice would be worthless as it would rest on speculation and might inhibit future treatment. On appeal,14 Woolf MR felt it unnecessary to worry about which legal mechanism was employed in a case such as this. However, he also ruled that the numerous ‘questions of judgment involved’ prevented the court from making any decision in advance of the situation which might materialise.15 He nevertheless reiterated Scott Baker J’s advice that the courts would be available if needed. On 5 June 2000, David and Mrs Glass brought an action to the European Court of Human Rights, complaining that their rights under the European Convention on Human Rights had been breached. They specifically claimed violations of Articles 2 (the right to life), 6 (the right to a fair trial), 8 (the right to respect for private and family life), 13 (the right to an effective remedy) and 14 (freedom from discrimination in the enjoyment of the Convention rights). The Court admitted the case for a full hearing, albeit only on the basis of those claims pertaining to Article 8.16 At this hearing, the Court unanimously ruled that the right had been violated. Although Judge Casadevall felt that the non-consensual DNR order should also have been considered, the majority of the judges focused on the use of diamorphine: in the face of Mrs Glass’s ‘firm opposition’, this amounted to an interference with David’s ‘right to respect for his private life, and in particular his right to physical integrity’.17 The doctors had legitimately sought to serve David’s interests; it was clear also that they had not intended to hasten his death; but it was the Trust that fell short of its obligations, in failing to refer the matter to the High Court, particularly in the face of the doctors’ comments to this effect. The Trust could not have anticipated the fracas but it certainly could have obtained an emergency hearing. In addition to costs incurred, damages of €10,000 were awarded jointly to David and his mother. Did the law respond appropriately to the dilemmas in David Glass’s case? Or, more accurately, were the responses of the various legal officials and bodies (such as the prosecutors and judges), and the statements and principles of law on which they relied, appropriate to this case? And how are we to judge that which is appropriate and inappropriate here? The temptation to delve directly into the substantive issues posed by David Glass’s case is great; indeed, it is probably the standard approach in a book like this. However, I think it worth breaking with convention and postponing this enquiry until later chapters in favour of first developing a set of criteria for judging whether (any) law is ‘good’ or ‘bad’. In order to assess how law fares with the dilemmas arising in David Glass’s care, we first need to find some ground rules for judging law. More than a moment’s reflection on this task is merited, since the ground rules are often too readily assumed in the campaign to criticise the old and craft the new. Distinctions emerge depending upon the standpoint from which one views law, and the substance with which one fills the criteria for judging law. Starting with the standpoint, one might view law from elsewhere, that is, from some external perspective, such as might be offered by ethical theory.18 This will often be entirely appropriate, certainly in a case like David’s, but we need also to be satisfied that we are judging law on its own terms, that is, from within, mindful of that which law is capable of achieving and, indeed, that which it is not. In the words of Alastair MacIntyre, we want to get within the practice known as ‘law’, where ‘a practice’ can be understood as: … any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.19 It is also important to consider whether the criteria against which we will judge law are substantive or formal (content-free) in nature. Ongoing disputes between natural lawyers and legal positivists over whether law is a moral enterprise illustrate some of the differences between the two. Members of the former group tend to believe that law is committed to a particular moral substance, whilst the latter deny any necessary relationship between law and morality.20 Of course, the particular moral content in question is bound to attract criticism from those who cleave to competing accounts of morality. There are evidently difficulties with the four options for judging law generated by these two sets of distinctions (internal-substantive, external-formal, and so on). To my mind, there is most merit in starting with the view from within law and on criteria that do not presume to impose any content on law. By taking this approach, we leave open important questions about the validity of legal rules as judged from substantive, external standpoints, whilst also being able to say something about the success (or otherwise) of law in a particular area. Of course, in order to develop such criteria, we need to be clear about what is meant by ‘the law’. Here, it is advisable to start with law in a conceptual sense, thus ignoring the particularities of specific legal systems, such as the one within which David Glass, his family and his doctors found themselves.21 Inconveniently, the conceptual core of law is contested. However, probably the best candidate for getting this debate off the starting blocks is Lon Fuller’s claim that the legal endeavour is ‘the enterprise of subjecting human conduct to the governance of rules’.22 Not for nothing is a leading legal primer entitled How to Do Things with Rules, in which the authors define a rule as ‘a general norm mandating or guiding conduct or action in a given type of situation’.23 Lawyers are specialists in ‘rule-handling’, although (as the authors rightly admit) lawyers are not alone in this; indeed, rather than dilute Fuller’s definition, this admission may simply require us to acknowledge that there is more to (and captured by) ‘law’ than is often allowed. But, regardless of how far its domain extends, the question remains: what are the standards we might legitimately expect of law? Roger Brownsword, sometimes writing with Deryck Beyleveld and others, adopts Fuller’s concept of law since he thinks it provides us with a suitably neutral candidate for further debate, which does not beg any of the questions usually at stake in jurisprudential disputes about the necessary connection between law and morality.24 From this starting point, Brownsword argues that certain principles of ‘rationality’ flow from the concept of law.25 ‘Rationality’ itself permits of a variety of interpretations but Nozick nudges us in the direction in which Brownsword is heading: To term something rational is to make an evaluation: its reasons are good ones (of a certain sort), and it meets the standards (of a certain sort) that it should meet. These standards… may vary from area to area, context to context, time to time…26 Focusing on the legal context, Brownsword sees Fuller’s concept of law as implicitly connecting law to (practical) rationality: law is all about the regulation of human actions; rationality points the way to the ‘best’ actions; so, by definition, law ought to be rational.27 Brownsword accordingly derives three criteria for judging particular laws and legal systems: formal rationality (or ‘internal rationality’); instrumental rationality (or ‘system rationality’), which is divisible into generic and specific forms; and substantive rationality (or ‘norm rationality’). Formal rationality insists that legal doctrine should not be contradictory, that is, ‘within a particular legal system there should not be competing ground rules’.28 Mere tensions between legal doctrines will not suffice, since Brownsword is here concerned with upholding the logical principle of non-contradiction.29 Where the material facts of two cases are indistinguishable but the legal officials adjudicate differently would be such a failure; so, if David Glass’s case were to be resolved in a manner quite at odds with a ruling in a directly comparable case, the law in question could be criticised for formal irrationality. Reconciliation might be possible in some cases and, in any event, explicit contradictions are likely to be exceptional. Yet, formal rationality also forbids ‘less obvious contradictions screened from view by traditional compartments and categories’.30 The erection of traditional legal divisions (for example, contract and tort) and categories (for example, negligent acts and negligent statements) will not suffice to secure consistency. Understood in its generic sense, instrumental rationality demands that law be capable of guiding action. From this seemingly uncontroversial opening,31 Brownsword then proceeds to stipulate that this requires particular laws to observe what Fuller called the ‘inner morality of law’.32 There are eight requirements to satisfy: legal rules should be general (ie there must be rules, rather than, say, specific edicts), promulgated, prospective, clear, non-contradictory,33 and relatively constant; legal rules should not require the impossible; and there should be congruence between the rules as officially declared and the rules as administered. Brownsword sees these requirements as essentially procedural or formal, that is, lacking any substantive impingement.34 This is clearest in the case of promulgation – legal rules might have any content, provided they are publicised. Neither is law obliged to have any particular content by the requirements of clarity, congruence, constancy and non-contradiction, although, with these, some reference to the content of other rules might be needed in order to establish that rationality is maintained. Meanwhile, says Brownsword, generality, prospectivity, and possibility of compliance might have some substantive impingement, but they do not commit law to what Fuller might term the governance of some ‘external’ morality. As the label implies, specific instrumental rationality moves from the general requirements that must be obeyed by any legal rule aiming to guide action to the appropriateness of particular legal interventions in specific situations.35 Here, the efficacy of steps taken to secure particular purposes is the central concern, and attention may be focused on the particular branch of law employed to achieve particular ends. For example, if the purpose is to prohibit, then the right tools and techniques should be chosen to achieve this, which might involve criminal law, private law or some other branch(es) entirely. Socio-legal enquiries into any ‘gaps’ between declared rules and official practices will help gauge the extent to which law succeeds in its endeavours. Moreover, Brownsword contends that the generic and specific requirements ‘must work together as a set of necessary and sufficient conditions for effective law’.36 Brownsword’s criteria so far appear readily applicable to any legal system, with any set of legal rules, with any substance. However, with his third criterion Brownsword questions the very legitimacy of the substance of such rules: does the law conform to some given justifying end or principle? For him, only when it does so can law be viewed as fully rational, and thus fully defensible. Candidate theories abound,37 and Brownsword favours a distinctive moral perspective, based on the work of rationalist philosopher Alan Gewirth.38 Gewirth claims to have derived the definitive moral principle, instructing us to respect the freedom and well being of moral agents, from non-moral premises (essentially the fact of agency itself). This argument, albeit with some modifications,39 is seen by Brownsword as the necessary cornerstone of practical (and thus legal) rationality, since to espouse any other criteria would be irrational. In other words, in the final analysis of David Glass’s case, Brownsword would insist that the particular answers given by the legal officials must accord with those generated by this rationalist moral philosophy. Brownsword’s final criterion is probably the most controversial aspect of his framework for judging law. It is a matter to which I shall return. In the meantime, it is worth reflecting on – and, where appropriate, revising – the preceding criteria, which otherwise seem to offer a fruitful starting place for judging law on its own terms. The next stop on this journey is the ‘Rule of Law’,40 as conceptualised by noted theorists including Dicey and Jennings, all the way up to Beale, Raz, Finnis, Rawls and Dworkin.41 Although no agreed definition exists, it is commonly accepted that the rule of law conveys the sovereignty of law over human agents; as Aristotle put it, ‘the rule of law, not of men [sic]’.42 Law therefore prescribes and proscribes the behaviour of citizens whilst also protecting them, by ensuring that the government acts according to law – hence Fuller saw his insistence on congruence between the law as stated and applied as ‘the very essence of the Rule of Law’.43 The connections between the rule of law and Brownsword’s criteria for rational law are strong. The aforementioned scholars have issued requirements that are strikingly similar to those described by Fuller.44 Thus, we are told that there must be rules, and that these must be promulgated, prospective, clear, consistent, constant and possible of performance. The requisite fit between the rules as stated and administered is also present. Additional requirements do occasionally feature, notably in Raz’s account: he requires the judiciary to be independent from the executive and the courts to be both accessible and capable of reviewing the implementation of other rules. Raz is also not alone in seeking ‘due process’ and in insisting that the dictates of natural justice (such as openness and fairness) be observed. With the reference to justice comes the suspicion that these principles might commit law to some particular content, such as might be imposed by external moral standards. Certainly, as Dworkin, Craig and Radin each recognise, there are accounts of the rule of law that adopt such a substantive (or ‘rights’) conception, in which the rule of law embodies tenets of a particular external morality. However, they also point out the existence of formal
1.1 Conflicts in the clinic: the case of David Glass
1.2 Judging law: rationality and the rule of law
1.2.1 Judging law from within
1.2.2 Criteria for rational law
1.2.3 Fuller and the rule of law