Published online by Cambridge University Press: 02 January 2018
Terms such as sanctity and inviolability have failed to provide a legally coherent or ethically sound principle upon which to determine the scope of the intrinsic value of life against extrinsic, quality-of-life considerations in a medical context. In their recent work, Margaret Brazier and Suzanne Ost introduce a new term, reverence for life, which they suggest may be more appropriate when attempting to navigate the murky waters of the meaning of life and the value that should be attached to it. They suggest that reverence should be utilised as an alternative that better reflects the nuances and the realities of the dilemma. This paper explores the existing difficulties before considering how the principle of reverence might provide a principled compromise over when the presumption in favour of preserving life should be rebutted.
This longer paper was adapted and developed from a short chapter originally published in an edited book: C Stanton et al (eds) Pioneering Healthcare Law: Essays in Honour of Margaret Brazier (London: Routledge, 2016). The work for this paper was supported by the Wellcome Trust [108858/Z/15/Z].
1. See inter alia Keown, J The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford: Oxford University Press, 2012)CrossRefGoogle Scholar; Dworkin, R Life's Dominion: an Argument about Abortion and Euthanasia (New York: Alfred Knopf, 1993)Google Scholar; Harris, J The Value of Life (London: Routledge, 1985)Google ScholarPubMed; Williams, G The Sanctity of Life and the Criminal Law (London: Faber and Faber, 1957)Google Scholar.
2. See Williams, above n 1.
3. See Keown, above n 1.
5. Ibid, p 89.
8. See, in particular, M v N and Others  EWCOP 76; (2015) 18 CCL Rep 603; R (Nicklinson and Another) v Ministry of Justice, R (AM (AP)) v DPP  UKSC 38;  3 WLR 200; Aintree University Hospitals NHS Foundation Trust v James  UKSC 67;  AC 591; W v M  EWHC 2443 (Fam);  1 WLR 1653; R (Purdy) v DPP  UKHL 45;  1 AC 345; Pretty v United Kingdom (2346 / 02)  2 FLR 45; Airedale NHS Trust v Bland  AC 789.
9. Brazier and Ost, above n 4, pp 90–91.
11. In terms of the literature, see in particular Williams, above n 1. The sanctity of human life is discussed at length in the House of Lords’ decision in Bland, above n 8. More recently, see the judgment of Lord Neuberger in Nicklinson, above n 8, at –.
12. Brazier and Ost, above n 4, pp 83–84.
14. Keown, above n 1, p 4.
15. Williams, above n 1.
16. Keown, above n 1, at 5–22.
17. Ibid, at 13–16, 332–335.
18. Ibid, at 12.
19. Brazier and Ost, above n 4, p 89.
20. Keown, above n 1, p 12.
22. R v Woollin  1 AC 82.
23. See, amongst others, Mohindra, RK ‘Medical futility: a conceptual model’ (2007) 33 J Med Ethics 71 CrossRefGoogle ScholarPubMed; Jecker, NS and Pearlman, RA ‘Medical futility: who decides?’ (1992) 152 Arch Intern Med 1140 CrossRefGoogle ScholarPubMed; See also Sir Alan Ward's analysis in Aintree University Hospitals NHS Foundation Trust v David James and Others  EWCA Civ 65 at .
24. For discussion, see Keown, above n 1, pp 330–332.
25. See Jackson and Keown, above n 13; and also Harris, above n 1.
26. Singer, P Practical Ethics (Cambridge: Cambridge University Press, 2nd edn, 1993) at 194–196.Google Scholar
27. Harris, J ‘Euthanasia and the value of life’ in Keown, J (ed) Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University Press, 1997) pp 10, 20.Google Scholar
28. Rachels, J The End of Life: Euthanasia and Morality (Oxford: Oxford University Press, 1986) p 26.Google Scholar
29. For a discussion of the DPP's decision not to prosecute, see http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/ (accessed 14 February 2016). See also Purdy, above n 8.
31. Huxtable, R Euthanasia, Ethics and the Law: from Conflict to Compromise (London: Routledge Cavendish, 2007) p 15.Google Scholar
33. Schweitzer, A Out of My Life and Thought: an Autobiography , tr AB Lemke (New York: Henry Holt, 1990) pp 154–155.Google Scholar
34. Schweitzer, above n 32, p 31.
38. Schweitzer, A A Place for Revelation: Sermons on Reverence for Life , ed Strege, M and Stiehm, L, tr DL Holland (London: Macmillan, 1988) p 37.Google Scholar
39. Brazier and Ost, above n 4, p 89.
40. Ibid. The authors simply state that it will become ‘apparent’ that they do not intend to use the phrase in the same way as Schweitzer.
41. Brazier and Ost, above n 4, p 90.
43. See Barsam, above n 37, p 30. See also Schweitzer, above n 33, p 237.
44. See Barsam, ibid, p 40.
45. Brazier and Ost, above n 4, p 90.
46. Ibid, p 91.
47. For an alternative and interesting discussion, see Huxtable, R Law, Ethics and Compromise at the Limits of Life: to Treat or Not to Treat? (London: Routledge, 2013).Google Scholar
48. Bland, above n 8. For a general critique, see Keown, above n 1.
49. Airedale NHS Trust v Bland (1992) WL 896030; (1992) 142 NLJ 1755, per Hoffmann LJ (as he then was).
50. Keown, above n 1, p 340.
51. Bland, above n 8.
52. This approach is actually advocated by Keown, above n 1.
53. W v M; Aintree, above n 8.
55. Indeed, this would seem to be a key reason as to why Brazier and Ost have sought to develop their reverence for life argument.
56. Brazier and Ost, above n 4, at 90–91.
57. Pretty, Purdy and Nicklinson, above n 8.
58. W v M; Aintree; Nicklinson, above n 8.
60. See Heywood, R ‘Withdrawal of treatment from minimally conscious patients’ (2012) 7(1) Clin Ethics 10–16 CrossRefGoogle Scholar; Mullock, A ‘Deciding the fate of a minimally conscious patient: an unsatisfactory balancing act? (2012) 20(3) Med L Rev 460–469 CrossRefGoogle ScholarPubMed; Mullock, A ‘Best interests and the sanctity of life after W v M ’ (2013) 39(9) J Med Ethics 553–554.CrossRefGoogle ScholarPubMed
61. Section 4(6) of the Mental Capacity Act 2005 requires the decision maker to ‘consider, as far as reasonably ascertainable, the person's past and present wishes and feelings … and the beliefs and values that would be likely to influence his decision …’
63. The evidence produced painted a very uncertain picture about M's quality of life, including evidence of suffering, distress and some contentment. Some have questioned the assumption that something is better than nothing in this context. See eg Ashwal, S and Cranford, R ‘The minimally conscious state in children’ (2002) 9 Seminars in Pediatric Neurology 19.CrossRefGoogle ScholarPubMed
65. The treatment in question was not ANH but invasive support for circulatory problems, renal replacement therapy and CPR (in the event of cardiac arrest).
66. Aintree  EWHC 3524 COP.
67. Aintree  EWCA Civ 65.
68. Lord Neuberger, Lady Hale, Lord Clarke, Lord Carnwath and Lord Hughes.
69. Aintree, above n 8, at .
70. Ibid, at . This supports the decision in R (Burke) v General Medical Council  EWCA Civ 1003 CA.
71. Substituted judgment is employed in some US jurisdictions. See In re Quinlan (1976) 355 A.2d 647; Cruzan v Director Missouri Department of Health (1990) 110 S Ct 2841 (USA Supreme Court).
72. M v N, above n 8.
73. Per Hayden J in M v N, above n 8, at .
74. Per Hayden J in M v N, above n 8, at .
75. For another recent case in which significant emphasis was placed on the subjective position of the patient, see Wye Valley NHS Trust v B  EWCOP 60;  COPLR 843.
76. This is especially pertinent in the light of the UN Convention for the Rights of People with Disability (UNCRPD), Art 12. This provision seeks to promote a ‘supported decision-making' scheme for those who lack capacity, which creates a tension if the patient seems to prefer a course of action that is not in his medical best interests. Also, if the patient is unable to communicate or indicate any preference, it would appear to be effectively impossible to achieve ‘supported decision-making’.
78.  EWCOP 16.
79. Ibid, at –.
80. Sheffield Teaching Hospital NHS Trust v TH and TR  EWCOP 4.
81. Ibid, at .
82. See Nicklinson, Pretty and Purdy, above n 8.
83. Lady Hale and Lord Kerr.
84. See the judgments of Lord Neuberger, Lord Wilson and Lord Mance.
85. See eg Haas v Switzerland (2011) 53 EHRR 33; Koch v Germany (2013) 56 EHRR 6; and Gross v Switzerland (2014) 58 EHRR 7.
86. Nicklinson, above n 8, at .
87. Ibid, at .
88. See B v NHS Hospital Trust  EWHC 429 (Fam);  2 All ER 449.
89. Nicklinson, above n 8, at –; and Bland, above n 8.
90. See Nicklinson, above n 8. Lord Kerr agreed with Neuberger regarding the logic of using the sanctity argument to prevent those who need assistance while those able to act independently are not prevented .
91. Purdy, above n 8.
92. Nicklinson, above n 8, at .
94. Ibid, at .
95. Ibid, at .
96. Ibid, at .
98. Purdy, above n 8.
99. Ibid, at .
100. Ibid, at .
101. Ibid, at .
102. The Assisted Dying (No. 2) Bill, MP Rob Marris’ private member's bill – which, like the recent HL Bill (below) sought to legalise physician-assisted suicide (PAS) for terminally ill, mentally competent people expected to die naturally within 6 months – was defeated at second reading on 11 September 2015.
103. House of Lords Bill (24 (2013), 6 (2014)). The Bill reached Committee Stage before parliamentary time elapsed; however, it is significant that some of the debates reflected an appreciation of the judgment in Nicklinson.
104. See Hansard HL Deb, vol 756, cols 1851–1898, 7 November 2014; and cols 1001–1047, 16 January 2015.
105. B v NHS Trust, above n 88.
106. See eg Mason, JK and Laurie, GT Mason and McCall Smith's Law and Medical Ethics (Oxford: Oxford University Press, 9th edn, 2013) p 549 CrossRefGoogle Scholar; and Orentlicher, D ‘The alleged distinction between euthanasia and the withdrawal of life-sustaining treatment: conceptually incoherent and impossible to maintain’ (2012) 1998 U Ill L Rev 837.Google ScholarPubMed
107. Mental Capacity Act 2005, s 4(6)(a)–(c).
108. Bland, above n 8, at 866.
109. See eg Kass, LR ‘Death with dignity and the sanctity of life’ in Kogan, BS (ed) A Time to be Born and a Time to Die: the Ethics of Choice (New York: Aldine de Gruyter, 1991) p 117 Google Scholar; Macklin, R ‘Dignity is a useless concept: it means no more than respect for persons or their autonomy’ (2003) 327(7429) Br Med J 1419 CrossRefGoogle Scholar; Schroeder, D ‘Dignity: Two riddles and four concepts’ (2008) 17(2), Camb Q Healthcare Ethics 230 CrossRefGoogle ScholarPubMed; Dworkin, G The Theory and Practice of Autonomy (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar; O'Neill, O Autonomy and Trust in Bioethics (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; McLean, S Assisted Dying: Reflections on the Need for Law Reform (London: Routledge, 2007).Google Scholar
110. See Neal, M ‘Respect for human dignity as “substantive basic norm”’ (2014) 10 Int'l J Law in Context 26 CrossRefGoogle Scholar; Neal, M ‘Dignity, law and language-games’ (2012) 25 Int'l J for Semiotics L – Revue Internationale de Sémiotique Juridique 107 CrossRefGoogle Scholar; Neal, M ‘“Not gods but animals”: human dignity and vulnerable subjecthood’ (2012) 33 Liverpool L Rev 177.CrossRefGoogle Scholar
111. Ibid, Neal ‘Human dignity and vulnerable subjecthood’, at 179.
112. Above n 8.
114. See eg Fischer, S et al ‘Reasons why people in Switzerland seek assisted suicide: the view of patients and physicians’ (2009) 139 Swiss Med Weekly 333 Google ScholarPubMed; Ruijs, CDM et al ‘Unbearable suffering and requests for euthanasia prospectively studied in end-of-life cancer patients in primary care’ (2014) 13(1) BMC Palliative Care 62.CrossRefGoogle ScholarPubMed
115. For two interesting decisions that illustrate the extent to which the criminal law permits autonomous choice in relation to certain activities, but not others, see R v Wilson  QB 47; R v Brown and Others  1 AC 212.
116. Nicklinson, above n 8, at .
118. See eg the British Medical Association's Policy on assisted dying, available at http://bma.org.uk/practical-support-at-work/ethics/bma-policy-assisted-dying (accessed 14 February 2016), and Assisted Dying for the Terminally Ill Committee Assisted Dying for the Terminally Ill Bill tteeics/bma-po (2005) at 42.
120. Fischer et al, above n 114, at 333; Ruijs et al, above n 113.
121. Brazier and Ost, above n 4, p 83.
123. Montgomery v Lanarkshire Health Board  UKSC 11;  AC 1430.