Courts of law or arbiters of morals?  

by
04 January 2019

Recent cases suggest an uncertain trajectory with regard to assisted suicide, says Mark Bratton

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Noel Conway outside the Telford Justice Centre, where he watched the appeal process, in May

Noel Conway outside the Telford Justice Centre, where he watched the appeal process, in May

NOEL CONWAY, a 68-year-old retired lecturer who is dying of motor neurone disease, last year challenged in the Court of Appeal the law’s absolute prohibition on assisted suicide. He was unsuccessful (News, 4 May, 29 June). In November, the Supreme Court, “with great reluctance”, refused him leave to take his case to appealand thus have it heard in full by the highest court in the UK (News, 30 November).

Notwithstanding, his failure will probably not deter future litigants from seeking to exploit loopholes in the law to achieve by judicial means what Parliament has steadfastly refused to countenance.

In 2014, in the case of Tony Nicklinson, the Supreme Court handed down a landmark judgment on the law of assisted suicide (News, 27 June 2014). Three severely disabled men, who were physically incapable of taking their own lives, challenged the lawfulness of the UK’s current “blanket ban” on assisted suicide. The Suicide Act 1961 had decriminalised suicide, but made assisted suicide a prime statutory offence, attracting a term of imprisonment of up to 14 years. The appellants failed in their attempt, but the Nicklinson case has not settled the matter.

Are they likely to succeed?

 

ON THE face of it, the prospects do not look good. All previous court cases challenging the legal status quo on assisted suicide have failed, as have repeated attempts to change the law democratically in the deliberative bodies of both Houses of Parliament. Nevertheless, the law is not an algorithm, but a social artefact. And, in the context of assisted suicide, law, ethics, and politics have intersected in complex and dynamic ways. Despite the strong line of precedents seeming to support the existing legal position, the law may not be as settled as these cases suggest.

The Nicklinson judgment is a good example of what medical lawyers have called a “stigmata case”: that is, it reveals, beneath the surface, disputed wider differences of value. Several ethical issues were touched on, including the sanctity of life, autonomy, the “slippery slope”, and the protection of the vulnerable.

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The judges disagreed on the ethical significance of the decriminalisation of suicide by the Suicide Act 1961. For example, Lord Sumption held that decriminalisation did not qualify the sanctity of life principle, but was, rather, a humane and practical response to the needs of survivors.

In contrast, the President of the Supreme Court, Lord Neuberger, suggested that decriminalisation undermined the sanctity of life principle by the mere fact that it was now lawful for a person whose life it was to end it. This difference of opinion reflects a deeper disagreement on a principle of legal philosophy: for Lord Sumption, the law is a carrier of value — namely, that life is sacred and should not be undermined; Lord Neuberger, meanwhile, is doubtful that the law has this kind of “sign” value.

 

ANOTHER disagreement relates to the degree of supremacy which the principle of autonomy has over other competing values. While the law has traditionally drawn and upheld the distinction between “acts” and “omissions”, or “killing” and “letting die”, some judges think that the distinction is ethically “asymmetrical”. Lady Hale implies that the current state of the law is a form of disability discrimination, in so far as it allows any patient autonomously to refuse life-prolonging treatment, but overrides autonomy where a patient is incapable of taking his or her own life, or desires the administration of an intentionally lethal dose of medication.

Lord Sumption justifies the asymmetry by distinguishing the state of the assisted person from that of the assister. The act of suicide, he contends, is an expression of personal autonomy, but the act of assisted suicide is not. This is because the ethical basis of assisted suicide is the assister’s underlying motivation of compassion rather than the assister’s functioning as an “extension” of the assisted person’s autonomy. For this reason, assisted suicide can be ethically distinguished from life-shortening treatment refusals.

Perhaps the most intractable disagreement concerns the scope of an individual’s autonomy, and the relative weight to be given to the needs of society over that of the desires of the individual. Both Parliament and the courts have, so far, consistently taken the view that the current blanket ban on assisted suicide is necessary to protect weak and vulnerable people who may otherwise be put at unacceptable risk of undue influence and coercion.

Nevertheless, in the Nicklinson case, several notes of equivocation were struck. While some judges, such as Lord Wilson, argue that the current assisted-suicide law reduced the risk of a “slippery slope” to an acceptable level, others, such as Lady Hale and Lord Kerr, contend that the absolute prohibition is disproportionate and therefore incompatible with human-rights law, especially the right to autonomy and private life protected by Article 8 of the European Convention on Human Rights. They maintain that the current legal position fails to strike the right balance between those who want to commit suicide but are unable to do so and wider community interests.

 

AT THE heart of the disagreement are differing views about the constitutional legitimacy of the courts to make decisions in highly contested areas of social and ethical policy.

The traditionally clear demarcation of the judicial and legislative positions has been blurred by the power that the courts now have under the Human Rights Act 1998 to consider the compatibility of the UK legislation, with its human-rights obligations, and to draw Parliament’s attention to any deficit.

In the Nicklinson case, four judges thought that to do so in the assisted-suicide context would be constitutionally improper; but five judges (the majority) held that the courts did have the authority to take a view, and might do so in future — although only two judges were prepared to do so in the case of Tony Nicklinson.

Judges often claim that they are courts of law rather than arbiters of morals, but assisted-suicide cases are inherently ethical in nature, and judges cannot avoid bringing their own values to bear on them. Despite the latest unsuccessful attempt to question the legitimacy of the assisted-suicide law in the case of Mr Conway, the relationship between law, ethics, and politics remains uneasy. It is difficult to predict whether and how that tension will be resolved.

 

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. He is the Bishop of Coventry’s adviser on medical ethics and a member of the General Synod.

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