TY - JOUR
AU - Foster, Charles
AB - Whenever there are lawyers involved, there are rarely any real conversations about end of life decision-making. Instead, there are simultaneous speeches, usually at high volume, peppered with theological, anti-theological, or quasi-theological assertions. They tend to drown out the quiet voice of the dying patient, and make impossible the things that dying can do well; engendering reconciliation, reflection, and remembrance, and mitigating the trauma of bereavement. Richard Huxtable's splendid book demonstrates why such conversations are crucial, indicates how they are often frustrated by the substantive law and the procedural structures erected to enshrine it, and proposes both a forum in which worthwhile conversations can occur, and some rules to facilitate them. Its structure is logical and easily comprehensible, and the writing always lucid and accessible. Huxtable is a good advocate, carefully timing the introduction of his best points so as to make the most of them, and being consistently generous to his opponents, giving them ample opportunity to speak. This is not merely a forensic ruse; he models throughout the book the method of respectful listening he commends at the end. There is no crowing; there are no straw men. He knows the literature, but this is no treatise from an ivory tower. He has also paced the wards and is invigoratingly practical. After each bit of analysis, he returns to the wards to take stock. His consistent question (depressingly rare in academic writing) is ‘so what?’ He writes as if he wants to make a difference. That can be a nasty thing in writers. It often makes them preach. Huxtable does not. That is unusual. His starting point is a quotation from the Association for Children's Palliative Care; a quotation designed to apply, of course, in the most harrowing of contexts. ‘Usually the best decisions and the best outcomes are those where the parents and professionals can reach agreement’ (p. 2).1 This, his foundational premise, sounds too trite to need justification. Certainly Huxtable assumes, rather than argues, that it is obvious. But is it? Certainly, it begs many questions; notably what one regards as the ‘best’ outcome, and why? We get to hear what Huxtable thinks about some of the issues involved in those questions when, a little later, he looks critically at the ‘best interests’ test,2 but the generally best outcome (taking into account the interests of all stakeholders, and weighting them appropriately so as to enable a holistic utilitarian calculation) is not necessarily the same as the best outcome for the individual patient. Huxtable's failure to dissect his premise is one of the few weaknesses. Huxtable contends that one of the main reasons for the obvious dysfunctionality of much end of life decision-making is the wrong assumption, by lawyers and laymen, that the law does a good job by dictating sensible, workable principles which decision-makers can and do apply, and, if it comes to it, by making, through the courts, good decisions. If that assumption is made, Huxtable argues throughout that people will abdicate their own responsibility for right decision-making, delegating it to the law. They will not even try to be seriously reflective. And if the assumption is wrong, and the law is not fit for purpose, the delegation will be disastrous. That contention requires a detailed, critical survey of the current law. And that is what we get. First, though, we are shown in more detail, and with more drama, why we need it. Chapter 13 starts with Glass v UK,4 in which a fist fight between some of 12-year-old David Glass's family and his treating clinicians highlighted some of the shortcomings of existing methods of dispute resolution. The case is well known to all medical lawyers, but Huxtable uses it to ask the simple, useful, and seldom asked question; what can parties to such a case expect of the law? The short answer is guidance as to how to behave (and, if that fails, adjudication; although that is not his focus at this stage).5 To discharge properly their job of guiding, laws must fulfil three criteria. They must be consistent (it cannot, for instance, have been right both to resuscitate David Glass and not to resuscitate him), instrumentally rational (and hence capable of being followed), and the substance of the rules must be legitimate. Answers to the many questions raised by this third criterion have been attempted by Fuller, Hart, Finnis, Rawls, Dworkin, Beale, and Raz,6 and every undergraduate debating society. The questions are so numerous and so difficult that there is a strong temptation to avoid asking them at all. The courts have repeatedly given in to the temptation, and sought to justify it. Ward LJ stated in Re A (Children) (Conjoined Twins: Medical Treatment) that ‘this is a court of law, not of morals’,7 and that is the general judicial tone. But ethics cannot be dodged so easily. As Huxtable points out; ‘this rings hollow when principles such as the sanctity of human life provide the focal point in cases of life or death’ (p. 22). Whether they like it or not (and by and large they do not), the judges have to be moral philosophers. However, there is a loud, busy moral marketplace. How should the courts (or anyone making the sort of decisions that sometimes come to the courts for a final determination) choose between the wares on offer? Here Huxtable relies heavily on Tom Regan, who concludes that the best moral theory: (1) systematizes the maximum number of our considered beliefs, thereby having maximum scope; (2) systematizes them in a coherent fashion, thereby achieving consistency; (3) does this without compromising the degree of precision it is reasonable to expect and require of any moral principle(s); and (4) satisfies these other criteria of evaluation while making the fewest possible assumptions necessary to do so, thereby meeting the criterion of simplicity. (p. 28)8 This is easier said than done. Huxtable, knowing this, calls in Lansing Pollock's help. Pollock's main contribution is to insist that ‘the assumptions of a moral theory should at least be consistent with what is known about human nature and society’ (p. 28).9 I would prefer, myself, to put this in terms of dignity. Good laws are those that maximise human dignity; dignity is objective human thriving. We can determine empirically what constitutes human thriving by looking at human beings. It sounds as if Huxtable and Pollock would not dispute that formulation very violently. In the next two chapters, Huxtable examines the existing law relating to the ending of life with a view to seeing whether it measures up to these standards. He concludes, unsurprisingly and rightly, that it does not. These chapters contain little that is new to experienced medical lawyers, but each is a model of clarity, brevity, and non-prescriptive reflection. They should appear routinely on student reading lists. Chapter 2 deals with children.10 It starts with the tangled saga of Charlotte Wyatt and notes, valuably, that the law behind Wyatt can be traced back to reports, many emerging in the 1970s, that treatment was routinely being withdrawn or withheld from severely disabled neonates.11 Duff and Campbell, in 1973, reported that 43 out of 299 consecutive neonatal deaths in a special nursery were due to a denial of treatment.12 That was worrying, but it was not the sort of background that was likely to produce a nuanced legal response. The criminal law had a brief and unsatisfactory foray into the arena,13 but thereafter, starting with Re B (a minor) (wardship: medical treatment),14 the law has evolved under the curious, erratic natural selective pressures that characterise the Family Division. The courts have acknowledged that the default position is the preservation of life and, for a while at least, used the notion of intolerability to entrench evidentially the presumption in favour of continued existence.15 They are, though, ready to find that a life is futile, and often uncritically deferential to clinicians' views about the continued value of life. ‘Balance sheets’ are routinely employed in the assessment of ‘best interests’,16 and give, I suggest, a wholly spurious impression, to the uninitiated, that the process is scientific. The law relating to adults (Chapter 3)17 is similar, but complicated by, in particular, precedent autonomy. Huxtable highlights the tensions often inherent in litigated cases by describing the stand-off between Terri Schiavo's parents and her husband. It is a shame for the law in this area that so many of the reported cases relate to PVS. PVS cases, assuming the diagnosis is correct, should be relatively straightforward. Much harder, and more philosophically demanding, are those cases where patients hover in the twilight between life and death. Litigate about the fate of a few more patients in a minimally conscious state and you would force the judges to show their true ethical colours. They would run gratefully to Regan and Pollock. In Chapter 4,18 Huxtable demonstrates very well just how amorphous and inconsistently defined is the notion of best interests. The relationship of current best interests to previously expressed ideas about one's own interests is famously obscure. Section 4 of the Mental Capacity Act (MCA) 2005 requires those previous expressions to be taken into account in determining best interests, while section 26 makes them definitive, if they are embodied in the form of an appropriately executed advance decision. Can one coherently read both sections together? I have previously overstated the case for discordance,19 as Huxtable rightly points out (p. 95), but still there is real uneasiness. And what about substituted judgement? The undergraduate medical law books tend to insist that we do not have substituted judgement in England, but section 4 seems to demand of decision-makers a sort of substituted judgement. But these criticisms pale into insignificance beside an objection to the best interests business so obvious that it is usually missed. This is simply that the common law, the Children Act 1989 and the MCA 2005 all require the determination of the best interests of a wholly non-existent entity; the individual patient. This atomism is at odds with the way in which almost all of us see ourselves. We are quintessentially relational animals. You can not define me, or my interests, without describing the nexus in which I exist and of which I consist. And even if this communitarianism is too much to stomach, surely we would all agree that we are all different creatures, with different interests, at different times. Sometimes I am predominantly a father; sometimes a son; sometimes a friend; sometimes a relatively dispassionate commentator on human suffering and fate; sometimes a fearful, selfish atomist, worried about my own annihilation; and sometimes, in rare moments of integration, a reasonably well shaken cocktail of all of this and more. Huxtable is also troubled by the different approaches to the ending of life taken by the criminal and the civil law. Criminal law emphasises a duty to take care of incapacitated patients.20 The Family Division and the Court of Protection, however, quite readily countenance the withdrawal of life-sustaining treatment.21 Huxtable is no vitalist but he is uncomfortable with this discrepancy, and particularly with the fact that it is so under-discussed. He does not, I think, disagree with the upshot of Bland,22but he does not pretend that the route to the conclusion is an easy one. He is uneasy with the injection of the Bolam test into the determination (pp. 77–78 and 99–100), and he notes John Keown's simple, trenchant riposte to the House of Lords' conclusion that the tube feeding was ‘treatment’; ‘What is being treated?’ (p. 78).23 A couple of quibbles, both related to the sordid reality of litigation, rather than to the legal theory that underpins it. First, Huxtable sometimes gives too much deference to first instance decisions. Sometimes they decide only that the judge had not read the papers, or did not like the chief witness's tie, or wanted to catch an early train. A cynical practitioner could, using those very decisions, have given him even more reasons than Huxtable advances to question the objectivity of best interests determinations. Second, in Bland, Lord Goff concluded that naso-gastric feeding could be withdrawn because it was not serving Tony Bland's best interests; continuation was ‘futile’.24 Yet, says Huxtable, following Keown, if this truly had been the case, the situation would never have come before the court (p, 78). Not so; it was before the court not because of the operation or non-operation of the doctrine of futility but because someone, for right or wrong legal reasons or right or wrong emotional reasons, chose to take it there. The judges have to eat what is served up to them. This error, though, is an exception. Huxtable is usually very well aware of the realities. He emphasises something about Bland that is usually forgotten; it is all to be explained by the necessity of finding a way of ensuring that compassionate, well-meaning doctors were not charged with murder. Most judges start with the right answer and then find a way to justify it. That is what the House did in Bland. Can ‘best interests’ do its job as a legal principle? Can it guide behaviour? Coggon and others think that it can.25 Huxtable does not share their optimism (pp. 86–90), and nor do I. What is the test? I do not know. And even if it can be defined with the degree of clarity that a life-and-death-determining doctrine should be required to display, it is neither being deployed, nor is capable of being deployed, with the consistency proper to such an awesome exercise. Huxtable has shown that we cannot, simply by calling ourselves lawyers or judges, avoid ethics. Lord Coleridge CJ observed ‘[i]t would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation’.26 Quite right. Transparency and coherence both demand that if, as we must, we import ethics into law, we should specify what ethics, and what presumptions about the nature of human beings, we are importing. In Chapter 5, Huxtable identifies three accounts of the value of life which can be discerned in the law.27 First, of course, there's ‘intrinsic value’ expressed in the prohibition of homicide in Article 2 of the European Convention on Human Rights, and in the fact that Article 2 is the first of the substantive Articles. But while the law often starts its submissions using the absolute language of intrinsic value, it soon starts to insert caveats. There are many defences to homicide. The DPP has indicated that he will be unlikely to prosecute Dignitas-type cases of assisted suicide,28 and the withdrawal and withholding of life-sustaining treatment are commonly sanctioned. Second, there is instrumental value, which sees human life as valuable, and hence worth protecting, only insofar as the particular life in question is of sufficiently good quality. This is beset by difficulties which will be familiar to anyone who has followed Huxtable this far; who makes the call?, using what criteria of quality? Finally, there is self-determined value. My life has the value that I choose to place on it. Yet this claim too needs examination. Autonomy is an intoxicating buzz word, but buzzing is not always the most fluent analytical language. Onora O'Neill is surely right to observe that there is a lot of sloppy conflation, and modern theories of autonomy tend to reduce it to a vague form of individual independence, without saying much about its ethical importance and, in particular, without asking why that independence should be respected above other competing considerations.29 Coggon has sketched out a useful anatomy of autonomy, distinguishing between current desire, best desire, and ideal desire autonomy.30 Often, he observes, they tend in the same direction, but not necessarily. And when they do not, what do we do? Huxtable has searched diligently for a simple formula for choosing between these accounts in the event of a dispute between them. He has not found one that is not laced with a priori presumptions. It is not surprising; there is no such thing. By the end of Chapter 5 we are in despair. There is no ethical model which is so obviously superior to all others that it has a right to the casting vote. And yet decisions have to be made. We cannot spend our lives in happy, inconclusive chat about the merits of the various approaches. Ventilator switches have to be switched either on or off, cheques for the maintenance of a PVS patient have to be written or not written. What is to be done? We have to compromise, says Huxtable, in Chapter 6.31 The chapter begins with a robust defence of the notion of compromise. Huxtable is well aware that the very suggestion of compromise will raise hackles and prompt the allegation of moral spinelessness. His advocacy is subtle and effective; ‘should the effort to compromise necessarily prompt an apology? I think not – at least, not always. Rotten compromises might rightly be a source of sorrow, but principled compromises, which seek to afford space to competing moral perspectives, could be another matter’ (p. 124, original emphasis). It is a shame that this defence needs to be mounted, but there is no doubt that it does. Huxtable's arguments are directed not just at the theologically entrenched absolutist with his ancient, normative text, and the icily objective utilitarian with his cold calculus, but at the gladiatorial ethos of much modern discussion and litigation. ‘We shouldn't have that book in chambers’, I said once of ‘Foskett on Compromise’. ‘It's like a Staff College holding a lecture on retreat and surrender.’ It was a fatuous but revealing comment, of which I'm now very ashamed. Why should one compromise? Huxtable gives six reasons; simple prudence (if you do not give away a little, you might lose the lot), resources (conflict is expensive), necessity (sometimes decisions have to be made), the preservation of relationships (which tend to be chewed up by argumentation), when there is empirical/metaphysical uncertainty (and is not that, very plainly, just about always?), and where there is moral/conceptual complexity (and is not that just about always, when we have the eyes to see it?). Given the obvious need for compromise in legal and ethical disputes, it is depressing (although not particularly surprising) that it has been so little studied in those contexts. Economists and students of international relations have scrutinised compromise earnestly and productively, using the esoteric wisdom of the game theorists.32 There is a distinct limit to the help that lawyers and ethicists can get from the economists' models, which deal with massive macro problems, to which formulae and generalisations more happily apply, but the simple fact that a lot of energy and effort has been put into developing them should inspire lawyers and ethicists to look to their own laurels. Huxtable provides no algorithms. We should not trust him if he did. He proposes three ‘how to achieve compromise’ principles. First, the participants advance reflective moral positions. That is a big ask. Not all will be able to do it, at least without help. And, as Huxtable says, ‘[w]e should not be willing to endorse - as “moral” principles - any old bias or prejudice’ (p. 137). Second, the participants must be reliable, act in good faith, and in a trustworthy way. Finally, they must deal with one another respectfully. What about process? For Huxtable, there are two, non-mutually exclusive candidates, the courts and Clinical Ethics Committees (‘CECs’). Chapter 7 sets out their claims for candidacy.33 Unsurprisingly, since much of the book has been spent undermining the claim of the courts, this chapter contends that CECs have much to offer. Many will be sceptical, wondering whether CECs have any real expertise in ethics (and, anyway, what is expertise in ethics? Is it just the ability to translate common human dilemmas into the impenetrable jargon of moral philosophers?). They will be concerned, too, that CECs are just courts by another name, but without the safeguards against arbitrariness and downright stupidity built into the court system. CECs, after all, are not bound by any doctrine of precedent and, hence, can and do make inconsistent decisions. Yet their guidance, though technically advisory, is easily seen as directive. They wield a power out of proportion to their expertise or the strength of their safety nets. Huxtable concedes the force of all these points. If CECs are to take the place he thinks they should, they should be consistent, subject to due process, and have real ethical expertise; by which he means an ability to reflect critically, multi-valently, and with philosophical literacy. CECs like that should identify the various values at stake, subject them to critical examination, and express a reasoned view. If the parties accept the view, great. If they do not, then the courts should remain the ultimate arbiter. Chapter 8 proposes a detailed framework within which these objectives can be realised.34 Huxtable's case for CECs is compelling. They have won their spurs in many disputes already. There is a danger that this book will be seen simply as a speech in favour of CECs. That would be a shame. It is very much more than that. It seeks to be, and is, an antidote to a toxic culture of confrontation. Taken by a critical mass of affected patients (found in the courts, in barristers' chambers, in solicitors' offices, on wards, and around death-beds), it could effect a real change in ethos. I hope it does. 1 Association for Children's Palliative Care, A Parent's Guide: Making Critical Care Choices For Your Child (Association for Children's Palliative Care, Bristol 2001) 8. 2 In Chs 2, 3, and 4. 3 ‘Judging Law and Ethics at the End of Life’. 4 [2004] 1 FCR 553. 5 He returns to this in Chs 7 and 8. 6 LL Fuller, Anatomy of the Law (Frederick A. Praeger, London 1968); HLA Hart, Law, Liberty and Morality (Oxford University Press, Oxford 1963); J Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford 1986); J Rawls, A Theory of Justice (Oxford University Press, Oxford 1972); RB Dworkin, Limits: The Role of Law in Bioethical Decision-Making (Indiana University Press, Bloomington and Indianapolis 1996; JH Beale, ‘The Nature of Law’ in LL. Fuller (ed), The Problems of Jurisprudence: A Selection of Readings Supplemented by Comments Prepared by the Editor (The Foundation Press, Brooklyn 1935); J Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 LQR 195. 7 [2004] 4 All ER 961, 969, CA. 8 T Regan, The Case for Animal Rights (2nd edn University of California Press, Berkeley 2004) 149. 9 L Pollock, ‘Evaluating Moral Theories’ (1988) 25 Am Phil Q 229, 233. 10 ‘Law at the Limits of Life: Children, Welfare and Best Interests’. 11 Eg, RS Duff and AGM Campbell, ‘Moral and Ethical Dilemmas in the Special-Care Nursery’ (1973) 289 N Engl J Med 890; A Children's Physician, ‘Non-Treatment of Defective Newborn Babies’ (1979) 2 Lancet 1123. 12 Duff and Campbell, Ibid. 13 R v Arthur (1981) 12 BMLR 1. 14 [1981] 1 WLR 1421. 15 See, for instance, Re B (a minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421; Re J (a minor) (Wardship: Medical Treatment) [1991] Fam 33; W Healthcare NHS Trust vKH [2004] EWCA Civ 1324. 16 See, for instance, Re A (Male Sterilisation) [2000] 1 FLR 549; Wyatt v Portsmouth Hospitals NHS Trust [2005] 1 WLR 3995. 17 ‘Law at the Limits of Life: Adults, Incapacity and Precedent Autonomy’. 18 ‘The Limits of Law at the Limits of Life: To Treat or Not to Treat?’. 19 C Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Hart, Oxford 2009) 152–5. 20 E.g., Gibbins vProctor (1918) 12 Cr App Rep 134; R vStone and Dobinson [1977] QB 354. 21 Cases where they do not, e.g., An NHS Trust v MB [2006] EWHC 507 (Fam), are unusual. 22 Airedale NHS Trust vBland [1993] AC 789. 23 Citing J Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 LQR 481, 492. 24 Bland, above, 372. 25 See, for instance, J Coggon, ‘Best Interests, Public Interest and the Power of the Medical Profession’ (2008) 16 Health Care Anal 219. 26 R v Instan (1893) 1 QB 450, 453. 27 ‘Calculating the Value of Life at the Limits of Life’. 28 Director of Public Prosecutions, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (Crown Prosecution Service, London 2010). 29 O O'Neill, ‘Some Limits of Informed Consent’ (2003) 29 J Med E 4. 30 J Coggon, ‘Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?’ (2007) 15 Health Care Anal 235. 31 ‘A Case for Compromise at the Limits of Life’. 32 See MP Golding, ‘The Nature of Compromise: A Preliminary Inquiry’ in JR Pennock and JW Chapman (eds), Compromise in Ethics, Law and Politics, Nomos XXI (New York University Press, New York 1979) 3–25. 33 ‘Crafting Compromise: Courts or Clinical Ethics Committees?’. 34 ‘Committees, Courts and Compromise at the Limits of Life’. © The Author [2013]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com
TI - Law, Ethics and Compromise at the Limits of Life: to Treat or not to Treat?
JF - Medical Law Review
DO - 10.1093/medlaw/fwt024
DA - 2014-07-01
UR - https://www.deepdyve.com/lp/oxford-university-press/law-ethics-and-compromise-at-the-limits-of-life-to-treat-or-not-to-t51X2gWUss
SP - 434
EP - 441
VL - 22
IS - 3
DP - DeepDyve
ER -