RICHARD EYRE’s powerful film adaptation of Ian McEwan’s novel The Children Act has rightly received plaudits for its dramatic but realistic depiction of the human story at the heart of a medico-legal dilemma.
Emma Thompson plays the part of the Hon. Mrs Justice Fiona May, a High Court judge called on to give an emergency decision in the case of the ferociously intelligent 17-year-old Adam Henry.
Adam suffers from leukaemia, but refuses a life-sustaining blood transfusion because, so we are led to believe, of his religious scruples as a Jehovah’s Witness. Jehovah’s Witnesses reject blood transfusions on doctrinal grounds based on various biblical texts.
After a touching interview at his hospital bedside, Mrs Justice May decides to override Adam’s refusal, and there follows the development of a moving but professionally inappropriate, emotional relationship between the two of them. Upon the recurrence of his medical condition, Adam, now 18, decides to refuse further medical intervention, which, as a legal adult, he can do unhindered. He dies as a result.
THE narrative of The Children Act is deeply coloured by actual decided cases that raise questions about the relationship between law and morals. The film opens showing Mrs Justice May working deep into the night rounding off a judgment in a harrowing case involving the legality of “killing” one conjoined twin to save the other. She justifies it as the “lesser of two evils”, reminding the packed courtroom in which she delivers judgment that hers “is a court of law, not an arbiter of morals”.
Her language echoes precisely the judgment given by one appeal-court judge in a “real” conjoined twins case decided in 2000. Sir Alan Ward, the judge in question, was one of McEwan’s key legal consultants, and makes a cameo appearance in the film as Lord Chief Justice.
The rhetorical division between law and morals articulates an influential philosophy associated with the legal philosopher H. L. A. Hart. But, as the film dramatically demonstrates, this strict separation is wrong headed. Ethics is inescapably embedded into medical law, and the profound moral qualms that judges — both real and, in this case, fictional — experience demonstrates that they are not simply “brains-on-legs” but moral beings who are attempting to do the “right thing” in intractable circumstances.
Sir Alan testifies how he was kept up at night mulling over the ethical dimensions of his judgment. The humane dimension of judgment-giving is somewhat belied by the popular view of judges as remote, forbidding figures dispensing justice from a lofty pedestal. As the film portrays, the layout of the courtroom is designed to give the judiciary an elevated status and encourage attitudes of deference (as is customary, everyone bows as the judge enters the chamber).
Mrs Justice May’s appearance at Adam’s bedside is not mere dramatic licence, but redolent of a 2002 case conducted entirely at the bedside on a tetraplegic, ventilator-dependent adult who wanted her life-sustaining ventilation switched off. Again, law and ethics were inextricably intertwined.
The law was straightforward in that case. An adult patient with mental capacity (which the patient undeniably had) has an unqualified right to refuse all treatment, even if the outcome is the patient’s immediate death. The patient’s treating clinicians, however, initially refused her request to switch off the ventilator because they felt they were being asked to “kill” her. Three-quarters of the lengthy judgment was, in substance, an ethical justification for an otherwise straightforward legal decision.
CONSENT to treatment is the legal expression of the ethical principle of autonomy and right to self-determination. While the law relating to adults is straightforward, the position in relation to children is more complicated. In court, Adam’s barrister argues that Adam is so close to adulthood that to override his treatment refusal would be perverse. English law supports a child’s positive wishes if he or she is deemed, on the basis of a context-dependent assessment, sufficiently mature and intelligent to decide for him- or herself. Nevertheless, the law allows parents and the courts to override a child’s refusal of treatment if they consider it to be in the child’s “best interests”: a concept enshrined in the eponymous Children Act 1989 (as amended).
Accordingly, the courts have consistently refused to endorse parental decisions to withhold life-sustaining blood transfusions from children on religious grounds, holding that such vicarious refusals are manifestly not in the best interests of the children concerned.
They have also been highly attuned to the dangers of coercion associated with tensions between religious identity and community. As one celebrated United States Supreme Court decision put it, “Parents may be free to become martyrs themselves, but it does not follow that they are free, in identical circumstances, to make martyrs of their children, before they have reached the age of full and legal discretion when they can make that choice for themselves.”
The dramatic dilemma at the heart of The Children Act is whether Adam is truly autonomous, and whether Mrs Justice May’s benign maternalism is justified. It beautifully exemplifies the mutually embedded nature of law and ethics in the medico-legal context.
The Revd Dr Mark Bratton is Rector of St John Baptist’s, Berkswell, near Coventry. He is a former practising barrister and currently Associate Fellow of the Warwick Medical School, where he teaches medical ethics and law. He is the Bishop of Coventry’s Adviser on Medical Ethics and a member of the General Synod.