Judges have to decide between seeming irreconcilables, sayElizabeth Butler-Sloss
I had a conversation with Archbishop John Habgood in unusuasurroundings some years ago. I was sitting on the Woolsack on the side facinthe Bishops seats in the House of Lords. I was there with other judges in fulrobes at the State Opening of Parliament, and we were waiting for the QueenArchbishop Habgood leant forward and said to me: "How do you reconcile youjudicial duties with your Christian beliefs?"
To my enormous relief, we had to be silent as the Queen waarriving. The honest answer would have been: "I dont know. I havent thoughabout it very much."
I have reflected on the question since, although I am stilnot sure I have the answer. I have now retired from the law. It remainshowever, a valuable exercise, because I am uncomfortably aware that the timwill come when I also shall be judged.
The background to my response lies in the origins of thEnglish law in Judaeo-Christian principles. The majority of lawyers and judgein England will have absorbed those principles. In my view, the human-rightlegislation has not dramatically changed English law, but has underlined anilluminated evolving judicial attitudes to moral and ethical issues.
It is less than 50 years ago that the death penalty waabolished in this country. Judges had the awe-inspiring task of putting on thblack cap and pronouncing the death sentence. Very few judges objected to it ogrounds of principle, although it was a distasteful task. I saw the deatsentence pronounced in court on several occasions.
My father, who was a High Court judge, told me of aoccasion in North Wales when a number of local dignitaries brought their wiveinto court to hear a notorious murder case. Several were seated on the BenchMy father did not have time to send them out before pronouncing the deatpenalty. As he put on the black cap, the ladies fainted all round him.
At that time, it did not occur to me that the death penaltwas morally wrong; nor can I remember ever hearing a denunciation of it frothe pulpit. Now, if a Government were ever to consider reintroducing the deatpenalty for murder or any other crime, such as terrorism, the vast majority ojudges, including myself, would almost certainly be unwilling to try thoscases.
A major issue in many cases is whether a medical patient ior is not competent to make a decision. I tried a case called Ms B, whicattracted some publicity. She was in her 40s, and had a bleed at the base othe neck, which caused her to be entirely paralysed. She could breathe onlthrough an artificial ventilator.
She was in intensive care, and wished the ventilator to bturned off, which would cause her to die. The doctors could not bear to do soand decided that she lacked the mental capacity to make the decision. A yealater, she found lawyers and, from her hospital bed, made an application to thcourt.
The only question was whether she was competent to make decision about her medical treatment. No one is obliged to have treatment twhich he or she does not consent, and doctors who give such treatment withouthe consent of a competent patient risk being sued for the civil tort oassault.
I went to the hospital to hear Ms Bs evidence. It waobvious that she had the appropriate mental capacity, and I so found. She habeen a devout member of the Pentecostal Church, but, in her evidence, she saiher faith had been dented. She was a wonderful woman, and, in my judgment, asked her to reconsider her decision to have the ventilator turned off becausI felt she still had a great deal to offer. But she chose to die.
The issue of mental capacity was easy to decide, but thcase is to be contrasted with that of another case, which I did not try. DianPretty had motor neurone disease, and was unable to move, though she coulbreathe and be fed normally. She wanted her husband to help her to die, but dinot want him to be prosecuted.
Mr and Mrs Pretty asked for assurances from the Director oPublic Prosecutions that Mr Pretty would not be prosecuted if he caused hedeath. The Director refused to give that assurance. Mrs Pretty took her casthrough all the tiers of English courts, and to the European Court of HumaRights at Strasbourg. All the courts, including the European Court, wersympathetic to the plight of Mrs Pretty, but upheld the decision of thDirector of Public Prosecutions.
The European Court held that the right to life in Article of the Human Rights Convention did not have a negative corollary, and could nobe distorted so as to confer the diametrically opposite right, namely a righto die.
The purpose of the Suicide Act, the Court said, was tprotect the weak and vulnerable, especially those not in a condition to takinformed decisions against acts intended
to end life or to assist in ending life.
The result of these cases is that the individual has thright to make decisions for himself about his own death, and the right tinstruct others to refrain from treating him, but he does not have the right task for anyone elses assistance to enable him to die.
In this way, the law makes a somewhat technical, buabsolutely fundamental, distinction between a failure to treat (which is termean "omission"), and a positive act designed to bring about a persons deathThe former is permitted, but the latter is not. To aid, abet, counsel, oprocure a persons suicide remains an offence.
In one sense, it is difficult to justify the decision in MBs case, since someone else had to turn off the artificial ventilator. It washowever, treatment to which she did not consent, and which she was not obligeto receive. Mrs Pretty had the misfortune not to be kept alive by artificiameans.
I support this distinction because I am very stronglopposed to euthanasia, and was immensely relieved when Lord Joffes privatBill did not succeed in the House of Lords. The cases of Ms B and Mrs Prettare not, however, altogether easy to reconcile.
The High Court has been asked to go one stage further, aneffectively bring about the death of a certain group of people those who havsuffered trauma that has caused them to be in a permanent vegetative stat(PVS). This is a condition in which a patient has lost all cognitative abilitand all sense of feeling. There is no chance of even a partial recovery. It isometimes called living in a twilight world.
The most famous case was Anthony Bland, who had beecrushed, but not killed, when the tiers at the Hillsborough Stadium collapseand killed more than 90 people. He would have been better dead. After threyears, his devoted family gave up hope, and asked the doctors to allow him tdie. He was receiving nutrition and hydration through a tube in his stomach.
I sat in the Court of Appeal in this case, and we alpondered on what we were being asked to decide. The issue was whether it woulbe lawful for the doctors to remove the feeding tube, the result of which woulbe his death in a few days. The case went to the House of Lords, who held thathe use of a feeding tube to keep someone alive was medical treat-ment, whicthe medical profession was not obliged to continue, if to do so was nobenefiting the patient.
There was a balance to be struck between the sanctity olife and the right not to have medical treatment that served no useful purposeThe House of Lords also held that the decision in each such case should be madby a judge, in order to pro-
tect the patient, who is always separately represented bthe Official Solicitor.
When I became President of the Family Division, I trieseveral cases each year. There are about 1500 patients in this condition iEngland, and only about 15 or so a year came to the courts. I followed thdecision of the House of Lords, and had no hesitation in making the decision tdeclare that it was lawful to discontinue artificial feeding by a stomach tubin cases where there was no prospect of recovery, but where the patient mighremain in that condition for several years.
I must confess, however, that it was an uncomfortable, eveawesome task, which I carried out because it was my duty as a judge to do soThe Roman Catholic Church has raised concerns about these cases, particularlduring the passage of the Mental Capacity Bill. The Act as passed does norefer at all to this group of patients.
The decision in Bland has been much criticised by academicsThe alternative argument is that the sanctity of life requires itpreser-vation at all cost, despite the pain and suffering a patientparticularly a child, might endure, or the lack of any medical benefit from thmedical treatment to be given for a PVS patient. I do not, myself, accept thaargument, but I appreciate that many do.
Judges have to make the decisions in accordance with thlaw, and, having taken the oaths of office, cannot pick and choose whether onot to hear a case. There has to be a balance between the competenindividuals right to self-determination, and the states interest ipreserving the sanctity of life. In the case of those lacking capacity, thwelfare test requires a different approach: the criterion of best interests.
I do not see the resolution of these issues by judges whare Christians as incompatible with their religious beliefs. It is, howeverimportant that the wider public should be aware of these issues and how theare being dealt with in the courts, and should have the opportunity to debatthe ethical and moral issues that arise.
This is an edited extract from the Niblett Memorial Lecturgiven by Baroness Butler-Sloss at Sarum College last month.