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My view of the sanctity of life: a rebuttal of John Keown’s critique

Published online by Cambridge University Press:  02 January 2018

David Price
David Price*
Affiliation:
De Montfort University School of Law, Leicester
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Abstract

In a previous paper in this journal I responded to Professor John Keown’s criticisms of the British Medical Association guidance on withholding and withdrawing life-prolonging treatment, arguing that the sanctity of life principle he endorses is indefensible as a juridical and moral guide. Professor Keown replied recently, also in this journal, alleging that I wrongly caricatured the sanctity of life position he supports, which continues to illuminate the proper decision-making path in relation to the withdrawal or withholding of life-sustaining medical treatment. In this present paper it is submitted that Keown’s riposte is misconceived and disguises the true nature of the sanctity of life stance, which both rests upon unconvincing premisses and tends towards unacceptable repercussions, thus leading to its inevitable and rightful rejection.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 4 , December 2007 , pp. 549 - 565
Copyright
Copyright © Society of Legal Scholars 2007

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References

Notes

1. J Keown ‘Restoring the sanctity of life and replacing the caricature: a reply to David Price’ (2006) 26(1) LS 109. This was a response to D Price ‘Fairly Bland: an alternative view of a supposed new “Death Ethic” and the BMA guidelines’ (2001) 21(4) LS 618.

2. Indeed, as Pattinson has observed, virtually no one supports naked vitalism today; see Pattinson, S Medical Law and Ethics (London: Thomson/Sweet & Maxwell, 2006) p 18.Google Scholar My reference to the ‘modified’ sanctity-of-life position was intended to reflect the distinction between Keown’s thesis and the commonly held conflation of SOL and vitalism.

3. Pattinson, amongst others, notes that Keown’s position is not the only sanctity-of-life position; see ibid, p 19. Others have remarked upon the difficulty of using this expression, with its religious overtones, within a secular context; see, eg, Honecker, M. ‘Dignity in law and morality’ in Bayertz, K. (ed) Sanctity of Life and Human Dignity (Dordrecht: Kluwer Academic, 1996) pp 271–272.Google Scholar

4. British Medical Association Withholding and Withdrawing Life-Prolonging Medical Treatment (London: BMJ Books, 2nd edn, 2001)Google ScholarPubMedpara 1.2.

5. Keown, above n 1, at 111.

6. This is evident from his interpretation of their Lordships’ judgments in Airedale NHS Trust v Bland [1993] 1 All ER 821 (HL).

7. Keown, above n 1, at 110.

8. Ibid, at 111.

9. Ibid.

10. Ibid.

11. Indeed, this was the determination of the appellate court in Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421. Whilst the homicide prosecution in R v Arthur (1981) 12 BMLR 1 failed in circumstances where a newborn with Down’s syndrome was simply allowed to die, it is broadly agreed that this case should be simply consigned to legal history as an anomaly.

12. Keown, above n 1, at 111.

13. Ibid, at 115.

14. Ibid, at 111.

15. Ibid, at 112.

16. R (Burke) v General Medical Council [2004] EWHC 1879 (Admin), [2004] 2 FLR 1121 at [18]–[20]. In certain types of very advanced lung cancer, for instance, it appears that artificial nutrition fails to increase weight, nutritional status or life expectancy.

17. Keown, above n 1, at 112.

18. J Keown ‘Restoring moral and intellectual shape to the law after Bland’ (1997) 113 LQR 481 at 486.

19. Keown, above n 1, at 112.

20. The BMA guidance, above n 4 states, at para 11.1, that a patient might perhaps seek a short prolongation of life in order to sort out one’s affairs or achieve a particular goal.

21. Re A (Children)(Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 at 1010f.

22. Keown, above n 1, at 112.

23. An NHS Trust v MB [2006] EWHC 507 (Fam), [2006] 2 FLR 319 at [95].

24. Keown, above n 1, at 112.

25. Ibid, at 113.

26. Ibid.

27. Ibid, at 112.

28. Ibid, at 113 and 114.

29. An NHS Trust v MB, above n 23, at [26].

30. See D Price ‘Remodelling the regulation of postmodern innovation in medicine’ (2005) 1(2) International Journal of Law in Context 121 at 125–126.

31. Simms v Simms [2002] EWHC 2734 (Admin), (2002) 71 BMLR 61 at 77.

32. Ibid, at 76.

33. Oxford: Oxford University Press, 1993.

34. ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ (World Health Organisation definition of health).

35. Boorse, C. Health as a theoretical concept’ (1977) 44 Philosophy of Science 542.CrossRefGoogle Scholar

36. Grmek, M. The concept of disease’ in Grmek, M. (ed) Western Medical Thought from Antiquity to the Middle Ages (Cambridge, MA: Harvard University Press, 1998) p 241 Google Scholar at p 241.

37. Englehardt, T. The Foundations of Bioethics (New York: Oxford University Press, 2nd edn, 1996) p 203.Google Scholar

38. Daniels contends that disease and disability are both properly seen as unfair circumstances; see Daniels, N. Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge: Cambridge University Press, 1996).CrossRefGoogle Scholar

39. Such commentators typically conflate concepts of ‘disease’ and ‘illness’ adopting the former term to embrace both, although Danner Clouser, Culvert and Gert proffer the concept of ‘malady’ in lieu; see Danner Clouser, K., Culver, C. and Gert, B. ‘Malady’ in Humber, J. and Almeder, R (eds) What is Disease? (Totowa, NJ: Humana Press, 1989).Google Scholar Although ‘illness’ as opposed to disease often focuses more centrally upon the impact of the symptoms upon the patient, both concepts employ the idea of a deviation from normal functioning.

40. BMA, above n 4, para 3.1.

41. [1995] Fam 26 at 29.

42. The context for their remarks was the decision in the prosecution in R v Arthur (1981) 12 BMLR 1, which was of course itself concerned with a baby who had Down’s syndrome.

43. Gene therapy generates the prospect of rectification of genetic anomalies manifesting in symptoms of all kinds, including mental limitations.

44. Mason, J. and Laurie, G. Mason & McCall Smith’s Law and Medical Ethics (Oxford: Oxford University Press, 7th edn, 2006) p 547.Google Scholar The Arthur case, above n 42, is seen by them as a withholding of ‘treatment’ on a wholly ‘social’ basis.

45. An NHS Trust v MB, above n 23. See also Simms, above n 31.

46. See Price, above n 1, at 629.

47. Re J (A Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930.

48. Re L (Medical Treatment: Benefit) [2004] EWHC 2713 (Fam), [2005] 1 FLR 491.

49. It is caused by a defective gene on the X chromosome.

50. R (Burke) v General Medical Council [2005] EWCA Civ1003, [2005] 2 FLR 1223.

51. Hauerwas, S Suffer the retarded: should we prevent retardation?’ in Dodecki, P. and Zaner, R (eds) Ethics of Dealing with Persons with Severe Handicaps (Baltimore: Paul H. Brooks, 1986) p 53 Google Scholar at p 67.

52. Meyers, D. Wyatt and Winston-Jones: who decides to treat or let die seriously ill babies?’[2005] 9(2) Edin LR 307 Google Scholar at 315.

53. See Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449.

54. Even where the sole burden is the (life-sustaining) treatment itself, a decision to refuse further treatment reflects a view that the counterbalancing benefits of living are insufficient to outweigh such burdens.

55. See R Scott ‘Interpreting the disability ground of the Abortion Act’ [2005] CLJ 388 at 393–395.

56. T Shakespeare ‘Choices and rights’ (1998) 13 Disability and Society 665 at 682.

57. Re Wyatt (A Child) (Medical Treatment: Parents’ Consent) [2004] EWHC 2247 (Fam), (2004) 84 BMLR 206; Portsmouth NHS Trust v Wyatt and Wyatt [2005] EWHC 117 (Fam) (unreported) 28 January 2005; [2005] EWHC 693 (Fam), [2005] 2 FLR 480; and Re Wyatt (A Child) (Medical Treatment: Continuation of Order) [2005] EWHC 2293 (Fam), [2006] Fam 188; [2005] EWCA Civ 1181, [2006] 1 FLR 554.

58. See D Price ‘Euthanasia, pain relief and double effect’ (1997) 17(2) LS 323.

59. Thus, despite Keown’s remarks at n 35 on p 117, above n 1, as to the ‘oddness’ of my assertions in this regard, my position is not only clear but surely it is also self-evident that if the negative aspects of living which have driven the individual’s decision were to be removed, that individual would no longer entertain such a prospect.

60. Keown, above n 1, at 116.

61. An alternative point of view is offered by J Coggon ‘Ignoring the moral and intellectual shape of the law after Bland: the unintended side-effect of a sorry compromise’ (2007) 27(1) LS 110 at 118 and 125.

62. See Price, D. Assisting suicide and refusing medical treatment: linguistics, morals and legal contortions’ (1996) 4(3) Medical Law Review 270 CrossRefGoogle Scholar at 277–281. I said there that ‘…to argue that it is the treatment rather than the existence that is unwanted is spurious. The treatment is part of the living. The patient’s decision is based on an assessment of quality of life taken as a whole’; at 278.

63. See G Widdershoven ‘Commentary: euthanasia in Europe: a critique of the Marty report’ [2006] Journal of Medical Ethics 34 at 34.

64. See M Brazier ‘An intractable dispute: when parents and professionals disagree’ (commentary on Re Wyatt (A Child) (Medical Treatment: Parent’s Consent) [2004] EWHC 2247 (Fam), (2004) 84 BMLR 2064; Portsmouth NHS Trust v Wyatt and Wyatt [2005] EWHC 693 (Fam), [2005] 2 FLR 480) [2005] 13(3) Medical Law Review 412.

65. BMA, above n 4, para 3.1.

66. See A-M Slowther ‘Medical futility and “Do Not Attempt Resuscitation” orders’ [2006] 1 Clinical Ethics 18.

67. Re Weberlist 360 NYS 2d 783 at 787 (1974).

68. J Keown ‘Restoring moral and intellectual shape to the law after Bland’ (1997) 113 LQR 481 at 483.

69. Dworkin, R Life’s Dominion (London: Harper Collins, 1995) p 217.Google Scholar