ArticlePDF Available

The value of life in English law: revered but not sacred?: The value of life in English law

August 2016
Legal Studies 36(4)

License
CC BY 4.0

Authors:

The University of Manchester

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.

Available via license: CC BY 4.0

Content may be subject to copyright.

The value of life in English law: revered but

not sacred?

Rob Heywood* and Alexandra Mullock*

UEA Law School and University of Manchester

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.

Rob Heywood, Professor of Medical Law, Deputy Head of School, UEA Law School, Earlham Hall,

University of East Anglia, Norwich NR4 4TJ, UK. Email: r.heywood@uea.ac.uk. Alexandra Mullock,

Senior Lecturer in Law, University of Manchester, School of Law, Williamson Building, Oxford Road,

Manchester M13 9PL, UK. Email: alexandra.mullock@manchester.ac.uk

INTRODUCTION

Understanding and interpreting the value of human life has troubled ethicists,

theologians, philosophers and lawyers since the dawn of time. The extent to which life

should be regarded as intrinsically valuable, weighed against the extrinsic value and

quality-of-life considerations, is one of the most challenging and important legal

questions. Unsurprisingly, the academic literature concerning this dilemma is

voluminous.

Some prefer to use the language of sanctity of life,

whereas others

suggest that this is misleading and instead refer to the inviolability of life.

In their

recent work, Margaret Brazier and Suzanne Ost introduce a new term that they

1. See inter alia J Keown The Law and Ethics of Medicine:Essays on the Inviolability of Hu-

man Life (Oxford: Oxford University Press, 2012); R Dworkin Life’s Dominion:an Argument

about Abortion and Euthanasia (New York: Alfred Knopf, 1993); J Harris The Value of Life

(London: Routledge, 1985); G Williams The Sanctity of Life and the Criminal Law (London:

Faber and Faber, 1957).

2. See Williams, above n 1.

3. See Keown, above n 1.

* 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].

Legal Studies, 2016

DOI: 10.1111/lest.12131

behalf of Society of Legal Scholars

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

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.

Theysuggestthattheterm

reverence for life should be utilised as an alternative that better reﬂects the nuances

and the realities of the dilemma.

The language of reverence, it is argued, ‘might

bridge the gaps between the different philosophical attitudes’

that infuse the debate

concerning the acceptability of various end-of-life decisions. In this paper, we analyse

evolving academic and judicial conceptions regarding the value of life in the context

of dilemmas in end-of-life law.

The delicate moral and ethical questions that underpin the meaning and value of life

have taken centre stage in a number of recent high-proﬁle cases.

It is clear from these

cases that judges have sometimes struggled to separate the moral arguments from the

legal ones. Attempting to explain and understand their reasoning by reference to a co-

herent judicial interpretation of the value that should be attached to human life has

therefore become something of a challenge. Brazier and Ost suggest that adopting their

language of reverence for life may be helpful in allowing us to rationalise the judgments

that have touched on end-of-life. They suggest that cases should ‘rest on a strong pre-

sumption in favour of reverence for life’,

but then further indicate that ‘the presump-

tion is not and should not be irrebuttable’.

Drawing on the work of Brazier and Ost, this paper explores some of the conceptual

difﬁculties inherent in assessing the value and importance that one should attach to

human life. We assess how judges have come to understand and interpret the meaning

and value of life by reference to a number of recent cases involving withdrawal of life-

sustaining treatment and physician-assisted suicide (PAS). While these cases clearly

raise different legal questions, resolving the profound disquiet over the value of life

within all such decisions is a fundamental priority. Our analysis exposes some of

the problems that have been left in the wake of contemporary case-law, before identi-

fying certain situations in which it may be possible to end life without offending cer-

tain core values and beliefs. We conclude by arguing that a more coherent and ethically

consistent approach can and should be developed by means of the reverence principle.

The principles of dignity and autonomy demand that a more consistent and principled

approach is taken to identifying the circumstances that might rebut the presumption of

preservation of life. While we do not have the space to examine in detail exactly when

the presumption should be rebutted in every case, we suggest a starting point for a

more productive and effective debate. Consequently, it is clear that the language of

4. M Brazier and S Ost Bioethics,Medicine and the Criminal Law Volume 3:Medicine and Bio-

ethics in the Theatre of the Criminal Process (Cambridge: Cambridge University Press, 2013).

5. Ibid, p 89.

6. Ibid.

7. ‘End-of-life law’encompasses both criminal and medical law principles. See J Coggon

‘Assisted dying and the context of debate: “medical law”versus “end-of-life law”(2010) 18

Med L Rev 541.

8. See, in particular, M v N and Others [2015] EWCOP 76; (2015) 18 CCL Rep 603; R

(Nicklinson and Another)v Ministry of Justice,R(AM (AP)) v DPP [2014] UKSC 38; [2014]

3 WLR 200; Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67;

[2014] AC 591; WvM[2011] EWHC 2443 (Fam); [2012] 1 WLR 1653; R(Purdy)v DPP

[2009] UKHL 45; [2010] 1 AC 345; Pretty v United Kingdom (2346 / 02) [2002] 2 FLR 45;

Airedale NHS Trust v Bland [1993] AC 789.

9. Brazier and Ost, above n 4, pp 90–91.

10. Ibid.

2 Legal Studies

behalf of Society of Legal Scholars

sanctity and/or inviolability presents a barrier to resolving the intractable tensions over

this issue and thus, we argue, reverence for life is capable of capturing a workable

compromise.

CONCEPTUAL DIFFICULTIES WITH THE VALUE AND IMPORTANCE OF

HUMAN LIFE

One of the main problems when discussing the value of human life is the eclectic

terminology that pervades the debate. The term ‘sanctity of life’is commonly used in

the literature and also in the case-law.

This, as Brazier and Ost point out, is a

‘misnomer as a description of how the criminal process in England does and should

approach the value of lives’.

Sanctity of life evokes strong religious connotations that

do not sit squarely with modern conceptions of the role, aim and purpose of the criminal

law. As Jackson states, the ‘idea that God alone should have the power to decide the

moment of an individual’s death’

is incongruous in a society that is no longer

dominated by religious values and beliefs. The vernacular of sanctity has a tendency

to give the impression that life should be preserved at all costs, a belief that is sometimes

referred to as vitalism.

In view of the sanctity of life being so closely aligned with re-

ligious beliefs, it has become possible for legal scholars to hone in on its weaknesses,

identifying the fact that religion no longer dictates the contours of the criminal

law.

Thus, proponents of the intrinsic value of human life who deploy the language

of sanctity to argue against allowing regulated assisted dying, for example, are imme-

diately placed on the back foot.

Supporters of vitalism aside, very few scholars have tried to articulate an argument

that supports preservation of life at all costs. Keown embraces the term ‘inviolability

of life’,

which for him removes the debate from the domain of religion and places

it within the framework of the common law and human rights by recognising the intrin-

sic value of life itself. This allows Keown to construct a robust argument against

allowing doctors to intentionally kill patients, which, he claims, is not based in religion,

nor is inconsistent with fundamental principles of law. His criticism of those who elide

the concepts of sanctity and inviolability is that they ignore key principles that are

crucial to the sustainability of his argument.

The key principle is that the inviolability of life prohibits intentional killing by act

or omission. It follows that a doctor cannot intentionally shorten the life of his pa-

tient by undertaking a positive act to accelerate death, and equally is prohibited from

withholding or withdrawing treatment, with the intent to shorten life.

Accordingly,

Brazier and Ost seek to distance themselves from the language of inviolability be-

cause they suggest it is ‘a more absolute command allowing no exception’.

Yet

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 [90]–[98].

12. Brazier and Ost, above n 4, pp 83–84.

13. E Jackson and J Keown Debating Euthanasia (Oxford: Hart Publishing, 2012) p 37.

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.

The value of life in English law 3

behalf of Society of Legal Scholars

if one remains true to the inviolability ideology, this may not be an accurate interpre-

tation. While the inviolability of life principle recognises no exceptions, it is perhaps

misleading to say it is absolute in the sense that it holds that life should be preserved

at all costs. The inviolability of life principle, as conventionally understood, permits

the withholding and withdrawing of life-prolonging treatment that is not worthwhile

because it is futile or too burdensome for the patient. Thus, even though it would be

wrong to withhold treatment because the patient’slife was thought to be worthless, it

would be acceptable to withhold treatment based on the fact that the treatment itself

was deemed to be worthless, provided that the only intention of the doctor in with-

drawing or withholding the treatment was to alleviate the patient’s pain and suffer-

ing, with death being a foreseen consequence of that act.

This position was

described by David Price as a ‘sop’,

in which Keown concedes some ground where

a patient is being sustained in the most hopeless of situations, while at the same time

enabling him to present what is, prima facie, an internally consistent argument that,

in real terms, maintains an unduly restrictive approach to end-of-life decision

making.

There are other more pragmatic concerns. First, the inviolability principle holds the

doctrine of double effect in too high a regard, without considering the practical impli-

cations of the House of Lords’decision in R v Woollin.

There are now some situations

in which foresight of a virtually certain consequence may amount to intent and, as this

question rests on the interpretation of a jury, any doctor seeking to rely on the double

effect must surely be advised that she is traversing the most uncertain of legal terrains.

Secondly, determining the question of futility is not straightforward. For every convinc-

ing argument in favour of suggesting that a treatment is in fact futile, a convincing coun-

terargument can be raised.

This allows the supporters of the inviolability principle to

argue the case for justiﬁably sustaining a patient in a given situation. Finally, where the

question converges on ‘treatment’, there is always room for disagreement as to what

may actually amount to treatment.

Nonetheless, in theory at least, the inviolability

principle is only absolute in the sense of the intrinsic value it affords to human life itself,

but is not absolute in that it does not rule out withdrawal of treatment completely in

certain types of cases.

The cases in which the inviolability principle would condone certain end-of-life

decisions made by doctors are narrow and thus perhaps too restrictive. Some scholars

therefore encourage the assessment of quality-of-life considerations when determining

end-of-life questions.

The contrasting view offered in resistance to Keown is that the value of life is self-

determined. Singer, for example, would suggest that a patient who is suffering from a

terminal and/or degenerative illness should have the right to harbour her own view

on the value of life and, as such, any right to life should not be enforced on her,

20. Keown, above n 1, p 12.

21. D Price ‘Fairly Bland: an alternative view of a supposed new “death ethic”and the BMA

guidelines’(2001) 21 Legal Stud 618 at 638.

22. R v Woollin [1999] 1 AC 82.

23. See, amongst others, RK Mohindra ‘Medical futility: a conceptual model’(2007) 33 J Med

Ethics 71; NS Jecker and RA Pearlman ‘Medical futility: who decides?’(1992) 152 Arch Intern

Med 1140; See also Sir Alan Ward’s analysis in Aintree University Hospitals NHS Foundation

Trust v David James and Others [2013] EWCA Civ 65 at [35].

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.

4 Legal Studies

behalf of Society of Legal Scholars

mandating her to live against her will.

Harris holds a corresponding view and

suggests ‘killing a person is only wrong when it deprives the person of something it

values: there is no such wrong if the person no longer values life’.

Rachels frames

a similar argument, albeit in a slightly different way. He suggests that life ought to be

protected in a biographical sense, and not merely in a biological sense. Thus, ‘from

the point of view of the living individual, there is nothing important about being alive

except that it enables one to have a life. In the absence of a conscious life, it is of no

consequence to the subject himself whether he lives or dies.’

Writers such as Singer,

Harris and Rachels therefore believe that life is only of instrumental value, and that the

worth of life ought to be self-determined.

In framing their arguments in the above way, these scholars attempt to eschew the

problems associated with any objective evaluation of quality of life. Where objective

considerations creep into the equation, there is the risk that certain types of life will

be signiﬁcantly devalued. Thus, for example, there may be a tendency for someone

looking through the lens of objectivity to suggest that the life of a severely disabled per-

son has no worth, value or quality. Ergo, it ought to be more readily acceptable to pre-

maturely end that life. The difﬁculty is that this view signiﬁcantly undermines the

position of disabled people in society, because they may be left with a feeling that their

existence is worth less than that of an able-bodied person. Thus, those opposed to any

relaxation of the law in respect of PAS are quick to point out the dangers that naturally

ﬂow from calculations about quality of life made from an objective perspective.

Scholars such as Singer and Harris therefore remain resolute in their view that the

value of life ought to be self-determined, and that this is the strongest position from

which to argue the case for legal reform. These perspectives are perhaps illustrated

by reference to the widely reported plight of Dan James, a story that attracted wide-

spread media attention in the build-up to the House of Lords’decision in Purdy. Dan

James was involved in a rugby ground training accident and was unfortunately rendered

tetraplegic as a result. After a number of unsuccessful suicide attempts, he eventually

travelled to Dignitas in Switzerland, with the assistance of his parents, where he

received help to end his life. After investigating the case, the DPP decided not to pros-

ecute his parents, and a family friend, for the role they played in helping Dan James

realise his wish to die.

The temptation from some objective observers may well be to agree that Dan James

was justiﬁed in making the decision that he did because there was no value in his life

once he became permanently and irreversibly paralysed. However, some other objec-

tive observers may have an entirely opposite view. There may be those who suffer from

a disability themselves –or, indeed, able-bodied individuals –who would recognise

worth in such a disabled life and who would argue that it remains a life worth living.

An important concern for these individuals is that if it becomes acceptable to justiﬁably

end a life, based solely on the grounds of disability, then a dangerous message is

26. P Singer Practical Ethics (Cambridge: Cambridge University Press, 2nd edn, 1993) at

194–196.

27. J Harris ‘Euthanasia and the value of life’in J Keown (ed) Euthanasia Examined:Ethical,

Clinical and Legal Perspectives (Cambridge: Cambridge University Press, 1997) pp 10, 20.

28. J Rachels The End of Life:Euthanasia and Morality (Oxford: Oxford University Press,

1986) p 26.

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.

The value of life in English law 5

behalf of Society of Legal Scholars

conveyed to those with a disability. Moreover, occurrences of assisted suicide might

escalate and perhaps spiral out of control.

Maintaining that the value of life ought to be self-determined avoids some of the

difﬁculties encountered by objective generalisations, which may devalue certain types

of life. Thus, it could be argued that assessing the value of Dan James’life, through the

lens of Dan James himself, is the correct way in which to determine the worth of life. If

asked, before his accident, Dan James undoubtedly would have testiﬁed to the fact that

his life had quality, and that for him it was well worth continuing to live. However, after

his tragic accident, viewed from his own perspective, this changed. His existence no

longer had sufﬁcient quality and value, to him. As such, he was justiﬁably entitled to

make a decision to die, and should have been legally allowed to receive help.

At this stage, a number of issues become visible. First, whichever perspective is

adopted, there is no one formula for reaching a view on the value of life and,

Huxtable has incisively observed, there is no escaping the fact that in some situations

in reality what is being claimed is ‘that a patient enduring a poor quality existence might

be better off dead’.

This, of course, is anathema to scholars such as Keown and thus a

pattern emerges in which it becomes evident that views pertaining to the value of life,

and the desirability of being able to choose the manner and timing of one’s death, and in

some instances to receive assistance in doing so, are polarised.

Secondly, different issues are at stake in different types of cases. On one view, argu-

ments about reverence and a rebuttable presumption in favour of life seem perhaps more

plausible where the patient lacks capacity to express a view about the worth of their own

life, as opposed to a situation in which a patient is able to express their own views about

the importance they attach to their life. In the latter, one may intuitively think that

conceptions of autonomy ought to be afforded greater priority and can do all the work,

but this offers too simplistic a view of the relationship between the law per se and

autonomy, and we penetrate deeper into this point as our analysis progresses. At

present, though, it sufﬁces to say that we acknowledge that different issues are in play

where the patient lacks volition. Nevertheless, we also suggest later in the piece that,

while our arguments may be stronger in PVS/MCS cases, the concept of reverence also

has a role to play in situations where active assistance is sought.

Before we move on to consider how Brazier and Ost’s use of ‘reverence’may

usefully adopt a middle ground between two extreme positions, it is ﬁrst necessary to

explore the origins of the concept itself.

REVERENCE FOR LIFE: EXPLORING THE TERM

Brazier and Ost do not claim ownership rights of the term ‘reverence for life’. Albert

Schweitzer introduced the phrase itself into modern ethical discourse.

His notion of

reverence for life was born out of a quest ‘to ﬁnd the elementary and universal

concept of the ethical’, which he ‘had not discovered in any philosophy’.

The ethic

30. For discussion, see J De Haan ‘The ethics of euthanasia: advocates’perspectives’(2002) 16

Bioethics 154 at 171; R Huxtable and M Moller ‘“Setting a principled boundary”? euthanasia as a

response to “life fatigue”’ (2007) 21 Bioethics 117.

31. R Huxtable Euthanasia,Ethics and the Law:from Conﬂict to Compromise (London:

Routledge Cavendish, 2007) p 15.

32. A Schweitzer The Teaching of Reverence for Life (London: Peter Owen, 1966).

33. A Schweitzer Out of My Life and Thought:an Autobiography, tr AB Lemke (New York:

Henry Holt, 1990) pp 154–155.

6 Legal Studies

behalf of Society of Legal Scholars

itself contains a multifaceted set of tenets, yet a central theme is that the principle of rev-

erence for life recognises ‘as good only the preserving and beneﬁting of life: any injury

to, and destruction of, life, unless it is imposed upon us by fate, is regarded as

evil’.

Thus, it is argued that ‘in every case we must decide ourselves to what extent

we may remain ethical and to what extent we will have to bow to the necessity of

harming and destroying a life, and thereby incurring the guilt of such actions’.

On one level, then, it may seem perplexing that Brazier and Ost have sought to

reintroduce a term into the value of life debate that has hitherto been understood as

not having ‘a large stock of compromises’and is premised on a gripping ‘desire to

preserve and beneﬁt life’.

While it is true that there are elements of Schweitzer’s phi-

losophy that acknowledge the importance of compassion and the justiﬁed ending of a

life out of necessity in certain situations, his acceptance that some ethical activity

may entail killing extends only to non-human life. Indeed, a criticism of his thesis is that

his notion of compassionate ending of life does not extend to humans

, which is en-

capsulated in the two statements that ‘reverence for life orders us not to take even the …

agonizing life of man’and ‘with a suffering person …I ought not to shorten his life

even by an hour’.

It follows that some considered reﬂection is required as to how,

if indeed at all, the concept of reverence for life, as used by Brazier and Ost, can be dif-

ferentiated from the traditional understanding associated with Schweitzer’s philosophy.

Brazier and Ost, while acknowledging the origins of reverence for life as being

grounded in the work of Schweitzer, submit that they do not intend to ‘use the phrase

to reﬂect in full Schweitzer’s central ethic’.

However, while they do state that they

share his emphasis on the intrinsic value of all life, they do not elaborate to any great

extent on the major differences in their usage of the term.

It is crucial to articulate

these differences in order that Brazier and Ost do not get accused of merely reinventing

the wheel, or that the term they are relying on does not capture accurately the message

that they are attempting to convey.

A key aim of Brazier and Ost in employing reverence is to remove the debate from

the domain of religion, at least to an extent. There may be a degree of scepticism as to

whether or not this objective is actually met. Reverence, it is argued, ‘lacks the conno-

tations of “holiness”inherent in sanctity, and the rather exclusive connections that link

sanctity to Christianity’.

This may well be true, but the author’s themselves concede

that reverence also carries with it ‘religious overtones’.

Moreover, if one looks to the

original philosophy of reverence, while there is some debate about it, it has been pointed

out by one prominent scholar that Schweitzer’s reverence for life has a ‘religious

character’and contains the ‘surmising and longings of all deep religiousness’.

Does

34. Schweitzer, above n 32, p 31.

35. Ibid.

36. Ibid.

37. See AP Barsam Reverence for Life:Albert Schweitzer’s Great Contribution to Ethical

Thought (Oxford: Oxford University Press, 2008) pp 36–37.

38. A Schweitzer A Place for Revelation:Sermons on Reverence for Life, ed M Strege and L

Stiehm, tr DL Holland (London: Macmillan, 1988) p 37.

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.

42. Ibid.

43. See Barsam, above n 37, p 30. See also Schweitzer, above n 33, p 237.

The value of life in English law 7

behalf of Society of Legal Scholars

the subtle linguistic variance of reverence really alter anything, then, by departing from

the holiness of sanctity, and the more restrictive position of inviolability, or is it just

being deployed as a smokescreen by Brazier and Ost, serving as little more than an

agreeable term used to mediate between their own differences of opinion concerning

the law in regard to end-of-life decision making? We agree that the manner in which

Brazier and Ost propose to use reverence is inherently different to the classic philoso-

phy of Schweitzer and we also agree that it could actually make a practical difference in

cases that touch on end-of-life issues. However, in order to make that difference more

pronounced, it is perhaps more appropriate to concentrate on the substance behind the

language of Brazier and Ost’s reverence in addition to focusing on the language itself.

Brazier and Ost suggest that in adopting the term ‘reverence for life’, their aim is not to

answer all the questions. In actual fact, once again, this attitude is not dissimilar from at

least one reading of Schweitzer’s original philosophy, which suggests that reverence is

not meant to establish speciﬁc rules for each possible circumstance, but is more

concerned with creating a general attitude of universal reverence.

To this end, both clas-

sical and contemporary uses of reverence bear at least some resemblance. Nevertheless,

the two ideas do diverge. Whereas Schweitzer was concerned with developing reverence

as a universal ethic, Brazier and Ost are more concerned with ‘offering a framework in

which the role of the criminal process can be located’.

Remaining cognisant of the fact

that reverence is being used here only as a framework is vital, as it allows us to consider

carefully the entwined relationship between the value of life, the law and autonomy. It

becomes especially pertinent to the argument that we construct later in this piece that

reverence has a role to play not only in withdrawal of treatment cases, but also in active

assistance cases. A relevant question at this stage, though, is how Brazier and Ost envis-

age the operation of this framework, as this marks out the most obvious departure from

Schweitzer’s philosophy and where the greatest potential for impact could be achieved.

Whereas both Schweitzer, and Brazier and Ost, share the sentiment of the intrinsic

value of all life, Brazier and Ost’s point of departure rests on the notion of a rebuttable

presumption. In regard to human life, Schweitzer would seemingly reject any notion of

being able to rebut the intrinsic value of life and for him it would be unethical, and ab-

horrent, to ever foreshorten human life, no matter what the circumstances. Brazier and

Ost’s proposal, however, focuses on a presumption in favour of reverence for life, by

which they recognise the intrinsic value of human life itself. Yet, they concede that this

presumption is capable of being rebutted, and indeed should be in appropriate

circumstances.

Their use of reverence for life would thus permit the ending of human

life in certain situations, if the facts of a given scenario were so compelling so as to pro-

vide convincing evidence that any emphasis placed on the intrinsic value of life was ca-

pable of being outweighed by competing factors that ought to allow the law some room

to manoeuvre away from the absolute position that life needs to be preserved at all costs.

Used in this way, reverence contains the hallmarks of a type of compromise, and so a

picture begins to emerge in which the midpoint of reverence could have the potential

to impact upon the outcome of certain cases. The systematised use of the term could de-

velop a more principled approach in which judges’minds are more focused upon the

delicate balance that needs to be struck when questions are at stake concerning the

end of life. It may cause them to become more sensitised to the issues by, on the one

hand, not losing sight of the importance of the intrinsic value of life and, on the other,

44. See Barsam, ibid, p 40.

45. Brazier and Ost, above n 4, p 90.

46. Ibid, p 91.

8 Legal Studies

behalf of Society of Legal Scholars

developing an acute awareness that it should not be afforded absolute priority in every

given case and that certain factors are capable of overriding it.

It is not the ﬁrst time that the idea of compromise per se has been posited in the ﬁeld

of end-of-life decision making,

but the aspect of Brazier and Ost’s work that marks it

out as being especially interesting is the manner in which they feel compromise could

be achieved and the evidence that would be required in order to rebut the presumption.

In order to assess how the term ‘reverence for life’may have been effectively relied

upon in the recent case-law concerning the meaning and value of human life, it is ﬁrst

helpful to consider why it may be more appropriate, and in turn effective, to consider

things from the perspective of a rebuttable presumption.

ACCOMMODATION, EXCEPTION OR REBUTTABLE PRESUMPTION?

Those who remain committed to the inviolability of life principle have always been

critical of the House of Lords’decision to sanction the withdrawal of life-sustaining

treatment in Bland.

Throughout its protracted lifespan, judges in the various courts

in which the case was heard sought to reassure us that their decision did not cast off

the intrinsic value that the law has always placed on life. For example, Hoffmann LJ

(as he then was) in the Court of Appeal declared:

In my view the choice the law makers must reassure people that the courts do have

full respect for life, but they do not pursue the principle to the point at which it has

become almost empty of any real content and when it involves the sacriﬁce of other

important values such as human dignity and freedom of choice.

The criticism of the decision, it is claimed, is based on the reasoning and not the out-

come. Keown suggests that their Lordships focused their minds on the wrong question

when they considered whether the patient’slife itself was worthwhile, rather than

assessing the question of whether or not the treatment being provided was worthwhile.

He argues that the correct questions that should be asked in withdrawal cases are: ‘is

tube-feeding “treatment”and, if so, is it worthwhile?’

However, even if these

‘correct’questions had been asked in Bland, there is still a convincing argument that

the treatment should still have been withdrawn. Yet, would the supporters of the invi-

olability of life ever truly admit this and accept Bland for the common-sense and

humane decision that it was? One suspects not. The argument would undoubtedly have

been put forward that the artiﬁcial nutrition and hydration (ANH) was not treatment but

rather ‘basic care’that can never be withdrawn, or if ANH is treatment, that the

threshold for futility ought to be incredibly high and was therefore not met.

To suggest that ANH is not medical treatment is a particularly weak argument that

has been dismissed judicially,

yet, for the interpretational reasons noted earlier, the

futility question is delicately poised and difﬁcult to deal with. The issue becomes even

more vexed when considering futility from the perspective of beneﬁts versus

47. For an alternative and interesting discussion, see R Huxtable Law,Ethics and Compromise

at the Limits of Life:to Treat or Not to Treat? (London: Routledge, 2013).

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.

The value of life in English law 9

behalf of Society of Legal Scholars

burdens.

In many respects, the assessment of the beneﬁts versus burdens of treatment

is actually a useful starting point in the context of assessing futility, but some would

argue the calculation should not be conﬁned solely to treatment per se, and so the

assessment of beneﬁts and burdens will not always be as clear-cut as it was in Bland.

In recent times, the courts have been faced with a number of challenging scenarios.

Where the patient is in a minimally conscious state (MCS), the assessment of futility de-

mands a more detailed forensic examination from a judge. The fact that the patient is re-

ceiving some beneﬁt from the treatment is much easier to identify than in, say, a patient

in a persistent vegetative state (PVS), but whether or not the burdens of the treatment out-

weigh the beneﬁts is a different matter. In cases such as WvMand Aintree,

explored in

more detail below, judges have adopted varied approaches to the question of futility, with

some placing emphasis on only the beneﬁts of treatment as a reason for preserving life, and

others implementing a more expansive balancing exercise yielding a rather different result.

To categorise the withdrawal of treatment cases as exceptions to the inviolability of

life principle may be misleading. Its supporters would simply suggest that, if correctly

reasoned, withdrawal of life-sustaining treatment where the treatment itself is deemed

futile is not ruled out and can thus be accommodated within the principle. Judges have

nonetheless been slow to explain and justify the decisions in which they have permitted

withdrawal of treatment by reference to acting within the margin of acceptability

recognised by the classic inviolability principle. Equally, the situations in which they

could actually do so, if they thought it appropriate, are limited to withdrawal type cases

and, for this reason, it may be necessary to identify actual exceptions to the fundamental

belief that recognises the intrinsic value of life.

As noted above, inclusive of, but not limited to, withdrawal of treatment cases, there

are those at the opposite end of the spectrum to the inviolability principle who suggest it

is appropriate to consider factors pertaining to the patient’s quality of life.

From this

reasoning a strong argument emerges in favour of greater ﬂexibility within the law that

not only allows passive withdrawal of treatment, but also the intentional and active

shortening of a patient’s life in certain circumstances. This approach is still problematic

for some though, as to distance oneself from recognising any intrinsic value to human

life is too radical a step.

In view of this, Brazier and Ost’s suggestion of a rebuttable presumption in favour of

the intrinsic value of life, in the form of reverence for life, could act as a happy

medium.

Whether or not one chooses to view it as an advantage or disadvantage,

reverence would certainly be wider in scope than the permissible withdrawal scenarios

accommodated within the inviolability principle; it could conceivably be extended to

permit active intervention, encompassing cases such as Pretty,Purdy and, more

recently, Nicklinson.

Tensions will naturally surround the concept of a ‘rebuttable

presumption’. Some thought would need to be given to the precise nature and type of

evidence that may be required in order to rebut the presumption in favour of reverence

for life. There would need to be convincing evidence that the plight of the patient did

52. This approach is actually advocated by Keown, above n 1.

53. WvM;Aintree, above n 8.

54. See discussion above at pp 6–8. In particular, see L Doyal ‘Dignity in dying should include

the legalisation of non-voluntary euthanasia’(2006) 1 Clin Ethics 65; Singer, above n 26.

55. Indeed, this would seem to be a key reason as to why Brazier and Ost have sought to de-

velop their reverence for life argument.

56. Brazier and Ost, above n 4, at 90–91.

57. Pretty,Purdy and Nicklinson, above n 8.

10 Legal Studies

behalf of Society of Legal Scholars

fall within one of those ‘hard’cases in which there was a solid justiﬁcation for permit-

ting a patient’s life to be shortened, whether by passive omission or active assistance,

and regardless of whether it was accompanied by a direct intention to shorten life.

Identifying those ‘hard’cases is where the difﬁculty will lie, but certainly the recent de-

cisions in WvM,Aintree and Nicklinson,

to which we now turn our attention, are

strong candidates for falling within this category. The legal determinations required

in Aintree, for example, compared to Nicklinson,

are, of course, palpably distinct.

Yet within all these cases the question over the extent to which the law can, and should,

allow medical interventions (acts or omissions) that intentionally cause death, is a fun-

damental concern. For this reason, we suggest that the reverence principle is capable of

enhancing the resolution of all such cases that involve medical matters of life and death.

RECENT JUDICIAL INTERPRETATIONS OF THE VALUE OF LIFE

The following cases compelled members of the judiciary to consider how the ‘sanctity’

principle should be weighed against other factors, principles and laws. We assess how

the presumption that human life has intrinsic value was regarded in the context, and

against the conﬂicting issues, of each case.

(a) WvM

In this case, Baker J prioritised the sanctity of life in the face of compelling evidence

that M, who was minimally conscious, would not wish to be kept alive in such a

condition. We have both (separately) argued that this narrow evaluation gave too much

weight to the intrinsic value of M’s life in the best interests balancing exercise,

while

giving too little weight to her past wishes and feelings,

the views of her family

and

also the grim reality of life at the lower limits of MCS. In the absence of a legally

binding advance decision to refuse life-sustaining treatment (AD), which would have

rebutted the presumption of preserving life, Baker J felt that the evidence of M’s sister

and partner regarding M’s wishes (that she would not wish to be kept alive in a state of

total dependency), was insufﬁcient to justify withdrawing ANH. The main reason given

was that in contrast to a person in a vegetative state, a minimally conscious person is

capable of experiencing life, whatever that might mean for that person.

However,

58. WvM;Aintree;Nicklinson, above n 8.

59. Ibid.

60. See R Heywood ‘Withdrawal of treatment from minimally conscious patients’(2012) 7(1)

Clin Ethics 10–16; A Mullock ‘Deciding the fate of a minimally conscious patient: an unsatis-

factory balancing act? (2012) 20(3) Med L Rev 460–469; A Mullock ‘Best interests and the sanc-

tity of life after WvM’(2013) 39(9) J Med Ethics 553–554.

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 …’

62. Mental Capacity Act 2005 s 4(7). For an interesting discussion, see S Halliday, C Kitzinger

and J Kitzinger ‘Law in everyday life and death: a socio-legal study of chronic disorders of con-

sciousness’(2015) 35(1) Legal Stud 55–74.

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 S Ashwal and R Cranford ‘The minimally

conscious state in children’(2002) 9 Seminars in Pediatric Neurology 19.

The value of life in English law 11

behalf of Society of Legal Scholars

Baker J indicated that the presumption in favour of preserving life should only (deﬁ-

nitely) continue if M’s clinical condition remained stable. He intimated that if future,

even trivial, infection threatens M’s life, it might be appropriate not to treat her. This

tells us that the presumption can be highly opportunistic and will often depend upon

the means of achieving death, a phenomenon that has been considered by Kitzinger

and Kitzinger, regarding the ‘window of opportunity’for allowing death in.

Accordingly, for Baker J, the appropriate window for rebutting the presumption for pre-

serving M’s life in the absence of a binding AD would be if an infection struck and the

treatment to be withheld is not ANH, or at least not only ANH.

(b) Aintree

Again, this case concerned a best interests evaluation in order to determine whether

treatment should be withheld for a patient in MCS.

Unlike M, however, the

evidence suggested that the patient, David James, initially experienced a greater

degree of consciousness before rapidly deteriorating to the point at which death seemed

imminent. At the point at which he had a sufﬁcient degree of response and awareness,

the evidence indicated that he might have expressed a wish for treatment to continue in

order to prolong his life. With or without treatment, however, the clinical evidence in-

dicated that Mr James was approaching the end of life, and indeed he died before the

Supreme Court considered his case. Considering the decision of Jackson J in the Court

of Protection, (broadly) in favour of continuing treatment,

and the subsequent Court

of Appeal decision that overturned Jackson J’s decision,

the Supreme Court sat as a

panel of ﬁve,

reaching a unanimous decision delivered by Lady Hale.

Conﬁrming that the ‘strong presumption that it is in a person’s best interests to stay

alive’

is not an absolute position, Lady Hale scrutinised the approach to the best

interests test in order to establish a more coherent principle regarding its possible re-

buttal. Lady Hale agreed with the Court of Appeal’s decision that it was not in Mr

James’best interests to have the treatments because by the time the case had reached

them his health had signiﬁcantly deteriorated. Yet, she held that their reasoning and

approach to the best interests test had been wrong. Rather, Jackson J had been correct

in his broad approach, which considered the question of futility from a subjective

rather than primarily objective perspective, taking greater account of the patient’s ap-

parent wishes and what he might regard as a worthwhile treatment. Thus, a treatment

that delivers ‘some beneﬁt’to the patient, even if it does not affect the underlying

disease, might be regarded as worthwhile despite its limited clinical value. The nu-

ances of the case concerning the particular treatments, however, led Lady Hale to

the conclusion that Jackson J had overlooked some aspects of the consequences

and burdens of some of the treatments. Moreover, notwithstanding the subjective in-

ﬂuence upon the question of futility, objective clinical appraisal of the burdens of

64. C Kitzinger and J Kitzinger ‘The “window of opportunity”for death after severe brain in-

jury: family experiences’(2013) 35 Sociol of Health & Illness 1095.

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 [2012] EWHC 3524 COP.

67. Aintree [2013] EWCA Civ 65.

68. Lord Neuberger, Lady Hale, Lord Clarke, Lord Carnwath and Lord Hughes.

69. Aintree, above n 8, at [35].

12 Legal Studies

behalf of Society of Legal Scholars

each treatment remained necessary and that as patients, ‘[W]e cannot always have

what we want’.

Whether or not the above message has been received and wholly understood is per-

haps debatable, particularly in light of contemporary developments. English law does

not endorse the substituted judgement approach, in which the decision maker attempts

to step into the shoes of the patient.

Best interests, at least in theory, remains an

objective question, with some very clear subjective elements that need to be considered

within that overall assessment. Nevertheless, the recent case of MvN,

which repre-

sents the ﬁrst time in which a judge in the Court of Protection has countenanced the

withdrawal of ANH treatment from a patient in a MCS, seems to indicate that the ob-

jective component to the best interests assessment may be withering on the vine.

Hayden J, in concluding that the treatment could be withdrawn, seemed to justify his

decision solely by reference to what he thought the patient would have wanted to hap-

pen. In suggesting that there ‘was no prospect of her achieving a life that she would con-

sider to be meaningful, worthwhile and digniﬁed’

(emphasis of Hayden J) and that it

would be ‘disrespectful to preserve her further in a manner I think she would regard as

grotesque’

(emphasis of Hayden J), there is clear evidence that the subjective views of

the patient were prioritised. In effect, his judgment was advocating a substituted judge-

ment approach in everything but name, at the expense of giving serious consideration to

any objective factors that may well have been relevant and could in fact have been

pulling in the opposite direction.

While it is fair to say that we welcome the outcome in the case, to transform the best

interests assessment into a wholly subjective assessment is potentially problematic.

First, the substituted judgement approach is not always autonomy enhancing. This is

because in attempting to view things through the eyes of the patient, a judge is still

effectively reaching her own conclusions about what she thinks the patient would want

to happen. These are the judge’s views, not the patient’s.

An inescapable conse-

quence of this is that in certain situations objective considerations may creep into a

judge’s reasoning and inﬂuence what she thinks about what the patient would want

to happen. Attempting to disguise this, via recourse to a notion of substituted judge-

ment, is dangerous and it is perhaps better that judges make overt reference to any

objective considerations within a more rounded balancing exercise.

Secondly, attempting to view things entirely from the patient’s perspective overlooks

the fact that in some cases there may well be objective evidence that is more compelling

70. Ibid, at [45]. This supports the decision in R(Burke)v General Medical Council [2005]

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. MvN, above n 8.

73. Per Hayden J in MvN, above n 8, at [74].

74. Per Hayden J in MvN, above n 8, at [75].

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 [2015] EWCOP 60; [2015] 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’.

The value of life in English law 13

behalf of Society of Legal Scholars

and persuasive, and that could point in either direction if correctly reasoned. It is with

these above dangers in mind that reverence for life once again becomes useful, as it

would not seek to completely privilege any one approach and would encourage a more

holistic and balanced best interests assessment that takes all factors, both subjective and

objective, into account when determining whether there was enough evidence in a

given case to rebut the presumption in favour of life. Moreover, as one of us as argued

in more detail, a more expansive evaluation that considers the wider social issues

together with a more nuanced approach to questions of futility and intolerability is

necessary to avoid an overly medical, paternalistic approach.

Reviewing other factually similar cases coming before the Court of Protection since

Aintree, the signs do indicate that judges are approaching the balancing exercise in a

more holistic manner. For example, in United Lincolnshire NHS Hospitals v N,

the

court decided not to reinstate ANH for a woman whose feeding tube had become

dislodged and who was physically resistant to attempts to reinsert it. N was in a very

similar condition to M and, according to her next of kin, she would have found it an

affront to her dignity to be subjected to continued interventions to maintain her life

in that condition.

Unlike M, however, N’s unequivocally negative physical response

to attempts to reinstate feeding seemed to indicate physical opposition to treatment, as

well as indicating that further attempts might be clinically unsuccessful and thus futile.

Accordingly, the court had more than N’s past expressions of preference to weigh in the

balancing exercise.

Also interesting is a case involving a minimally conscious man who was clinically

stable and whose partner and close friends gave evidence that clearly indicated he

would wish ANH to be withdrawn.

Mr Justice Hayden was critical of the Ofﬁcial

Solicitor’s apparent reluctance to accept a more holistic approach to determining best

interests:

I must record that the Ofﬁcial Solicitor’s lawyers appear not to share my analysis of

the cogency and strength of TH’s wishes regarding his treatment. I confess that I have

found this surprising. If I may say so, they have not absorbed the full force of Lady

Hale’s judgment in Aintree and the emphasis placed on a ‘holistic’evaluation when

assessing both ‘wishes and feelings’and ‘best interests’.

Ultimately, no decision was made at the time because the case was adjourned pend-

ing further medical evidence, yet we can detect in Hayden J’s words a clear willingness

to fully respect the patient’s autonomy and dignity, a position that he later concretely

reinforced in MvN.

In relation to assisted dying, the dilemma over preserving life is in some respects less

troubled when we know unquestionably that a person wants to die, provided, of course,

that they are able (and willing) to act alone. Here it could be reasonably argued that the

autonomous choice of the patient is all that counts, and that considerations in relation to

reverence’s rebuttable presumption are less relevant. If an informed and capacitous

patient has expressed a voluntary, clear and settled wish to die, it is of course within

77. R Heywood ‘Moving on from Bland: the evolution of the law and minimally conscious pa-

tients’(2014) 22(4) Med L Rev 548–571.

78. [2014] EWCOP 16.

79. Ibid, at [29]–[33].

80. Shefﬁeld Teaching Hospital NHS Trust v TH and TR [2014] EWCOP 4.

81. Ibid, at [55].

14 Legal Studies

behalf of Society of Legal Scholars

their reach to end their own life with the involvement of no one else should they wish to

do so. English law no longer criminalises suicide. Yet, some patients who have made a

decision to die will be physically incapable of taking their own life, for a variety of

reasons. In this scenario some type of assistance is required but, as English law

currently stands, no lawful help is permissible. Where the involvement of a third party

is required to assist another to die, arguably the debate concerning the appropriate role,

if any, of the criminal law moves more sharply into focus. It is here where reverence for

life, as a framework for locating the role of the criminal law, carries with it certain

advantages. Before we elaborate on these issues, we ﬁrst consider how the law has

recently dealt with cases involving active assistance.

The high-proﬁle case of Nicklinson primarily concerned the ban on encouraging or

assisting suicide under the Suicide Act 1961. The main appeal converged on the ongo-

ing development and possible expansion of the right of autonomy under Art 8 of the

European Convention on Human Rights.

The appellants failed in their attempt to

persuade the majority of the Supreme Court that the blanket ban on assisting a suicide

was incompatible with Art 8 (1). However, in addition to those dissenting,

three

Justices occupying what might be regarded as the middle ground in this case suggested

that a future attempt might be successful if Parliament failed to consider the ongoing

interference with autonomy in end-of-life issues,

which is ﬁrmly established under

Art 8.

A number of the Justices reﬂected on the diverse legal and moral arguments

that have shaped this debate, including the importance of the value of life.

Lord Neuberger considered various dimensions to the ‘sanctity’or ‘primacy’princi-

ple, as he put it, and how it relates to the ban on assisted suicide. In relation to the life of

a person seeking to die, he argued that the decriminalisation of suicide had substantially

undermined the principle, stating: ‘… if the primacy of human life does not prevent a

person committing suicide, it is difﬁcult to see why it should prevent that person seek-

ing assistance in committing suicide’.

This point raises comparative questions of legal

and ethical consistency within the laws regulating death and the varied, often

conﬂicting, messages that such laws seem to convey. Concerns over inconsistency

and illogical distinctions permeate the end-of-life debate and the judgment in

Nicklinson reﬂects this. For example, comparing the appellants’case to other end-of-

life dilemmas, Lord Neuberger suggested that withdrawing life-sustaining treatment

is a ‘more drastic interference in that person’s life and more extreme moral step’

than

assisting in a suicide where the person wanting to die is clearly in command.

Here, Lord Neuberger neatly illustrates some of the difﬁculties that are associated

with substitute decision making in a situation where the patient lacks volition, as

opposed to those cases in which a patient is able to articulate a view. For him, it would

seem that having to make a decision that would end the life of a patient when it is not

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 [90].

87. Ibid, at [94].

The value of life in English law 15

behalf of Society of Legal Scholars

possible to ascertain what that patient’s wishes would have been is of greater cause for

concern than those cases that rest on the expression of an autonomous wish of a

competent patient to receive assistance to die. It follows that reverence for life may

be more helpful, at least to Lord Neuberger, in cases where withdrawal of treatment

is the main issue, as it may provide some substantial guidance as to when any pre-

sumption in favour of preserving life could be reasonably rebutted. Yet, that is not

to say that reverence is incapable of providing some useful guidance as to when it

may be appropriate for the law to tolerate certain types of assistance in situations

where patients have requested it, and we elaborate on this in our principled approach

subheading below.

Lady Hale expressed similar concerns when she compared the request made by the

late Mr Nicklinson and Paul Lamb to other end-of-life decisions, such as Ms B’s

successful appeal to have life-sustaining ventilation withdrawn in order to allow her

to die.

Commenting that although the acts/omissions distinction sanctioned by the

House of Lords in Bland makes some legal sense, Lady Hale observed that it must often

make little sense to those affected who are denied a choice.

We can thus see that while the various issues that speak to assisted dying and treatment

withdrawal cases perhaps raise different issues at ﬁrst blush, in so far as the value of hu-

man life is a central feature in both types of case, they remain irrevocably intertwined.

This is especially so when fundamental concerns about safeguarding the vulnerable

are considered. To the extent that the objection to legal assisted dying rests on concerns

over preserving other human lives, Lord Neuberger suggested that it does little more ‘…

than replicate concerns about the lives of the weak and vulnerable’.

Lord Neuberger

was also inﬂuenced by an argument previously used by another assisted dying litigant,

Debbie Purdy.

Agreeing that concerns about legal change based on the sanctity of life

can be reversed, he pointed out that evidence shows that ‘some people with a progres-

sive degenerative disease feel themselves forced to end their lives before they would

wish to’,

while still able to act alone. Thus, Lord Neuberger argued, the blanket

ban ‘may serve to cut short their lives’.

Similar concerns were evident when Lord

Neuberger mentioned the shortcomings of the current approach, which leans against

prosecution and offers only retrospective assessment of the victim’s circumstances

and reasons for wanting to die once it is too late to prevent the suicide.

The importance of the value of life emerged repeatedly and, coincidentally, Lord

Sumption spoke of ‘reverence for human life for its own sake’.

Lady Hale alluded to

the religious foundation of the principle, stating that ‘respect for the intrinsic value of

all human life is probably the most important value in Judaeo-Christian morality’.

This, she suggested, should absolutely justify refusing to oblige a person to help another

to commit suicide, but it would not ‘so obviously justify prohibiting those who freely

88. See B v NHS Hospital Trust [2002] EWHC 429 (Fam); [2002] 2 All ER 449.

89. Nicklinson, above n 8, at [302]–[304]; 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 [358].

91. Purdy, above n 8.

92. Nicklinson, above n 8, at [96].

93. Ibid.

94. Ibid, at [108].

95. Ibid, at [209].

96. Ibid, at [311].

16 Legal Studies

behalf of Society of Legal Scholars

judged that, in the circumstances of a particular case, there was no moral impediment to

their assisting suicide’.

This view accords with Lady Hale’s earlier House of Lords’judgment in Purdy,

which she clearly identiﬁed the competing interests that collide with maintaining a

respect for the intrinsic value of human life above all else. She acknowledged the

tension in stating that ‘it is not for society to tell people what to value about their

own lives. But it may be justiﬁable for society to insist that we value their lives even

if they do not.’

This clear recognition of the value of human life in society was

somewhat tempered though by the fact that she suggested elsewhere in her judgment

that ‘if we are serious about protecting autonomy we have to accept that autonomous

individuals have different views about what makes their lives worth living’.

100

This

highlights both the tension between these competing ethical concerns and the

importance of establishing a compromise between valuing human life and valuing

autonomy.

Interestingly, Lady Hale stressed that it was important that some attention was paid

to the reasons why a person wished to be helped to end his or her life.

101

For her,

then, it seems clear that there may be some situations in which preserving life at

all costs on the basis that it has an intrinsic value is not a desirable position for

the law to adopt. Factors pertaining to why the patient may be requesting assistance

could be sufﬁciently convincing so as not to warrant prosecution if such assistance is

in fact provided.

Such willingness to open the door to rebutting the presumption in favour of life,

for a person whose Art 8 rights are engaged and who wishes to receive assistance

in suicide, seems to represent a signiﬁcant development in judicial thinking. In

weighing the presumption for life against other fundamental ethical concerns (mainly

autonomy, but also dignity), several members of the Supreme Court have provided

guidance for Parliament or even for future cases. While the most recent discussions

in the House of Commons indicate that legislative reform is not imminent

102

–

primarily, it seems, because of the possible danger for vulnerable people –the

amendments to the Assisted Dying Bill

103

in the House of Lords demonstrated that

resolving the valid competing concerns is challenging but not impossible.

104

offering a more principled approach to rebutting the presumption in favour of

preserving life, the reverence principle is capable of addressing such challenges.

Thus, in the ﬁnal section of this paper, we summarise recent developments in relation

to treatment withdrawal, before tentatively suggesting a more progressive and consis-

tent approach in assisted dying cases.

97. Ibid.

98. Purdy, above n 8.

99. Ibid, at [68].

100. Ibid, at [66].

101. Ibid, at [68].

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, men-

tally 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 par-

liamentary time elapsed; however, it is signiﬁcant that some of the debates reﬂected an appreci-

ation 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.

The value of life in English law 17

behalf of Society of Legal Scholars

REBUTTING THE PRESUMPTION: REVERENCE NOT SANCTITY?

Coherent and ethically acceptable principles have developed in relation to certain

questions about life and death. We know conclusively that a competent adult has

an inviolable right to refuse life-sustaining treatment.

105

This right to die via with-

drawal can extend to those who create a legally valid AD, and to those in a vegeta-

tive state, despite the argument that removing life-sustaining sustenance in such

circumstances may be regarded as indistinguishable from euthanasia.

106

Rebutting

the presumption in favour of life for those in MCS or a similar condition will often

hinge on a best interests evaluation, which has been subject to signiﬁcant judicial

discretion. The decision in Aintree has conﬁrmed that the test as to what is a worth-

while treatment must be inﬂuenced by the patient’s wishes, thus ﬁnally providing a

more satisfactory interpretation of the relevant provision of the Mental Capacity Act

2005.

107

Moreover, questions of the burdens and beneﬁts of treatment, together with assessing

the experiences of the patient, unavoidably, and rightly, involve certain quality-of-life

determinations. Accordingly, the principle of preserving life needs to holistically reﬂect

these wider concerns in a coherent and principled fashion. Each case will be decided on

its individual facts but we can, and should, endeavour to have a consistent and ethically

sound approach. If the early indicators from the cases discussed above prove to reﬂect

the general post-Aintree approach, we may be satisﬁed that the Supreme Court in

Aintree has done enough to sustain a more ethically coherent approach that properly

recognises the importance of the patient’s subjective preferences and values within a

holistic methodology for determining best interests, albeit in the wake of MvNthere

ought to be a degree of caution so as to ensure that it does not swing too far in one

direction.

Cases concerning active interventions foreshortening life, however, remain in thrall

to sanctity concerns and, understandably, the courts have been anxious to avoid allega-

tions of usurping parliamentary sovereignty. But as Lord Neuberger and Lady Hale

indicated in Nicklinson, other ethical concerns should be regarded as equally (and

sometimes more) important than traditional sanctity considerations in order to facilitate

a more subtle approach to this dilemma. In Bland, Lord Goff argued that the right to

self-determination should not be eclipsed by the fact of incompetence.

108

Similarly,

we question whether this right must continue to be eclipsed by the fact of physical

inability to end one’s own life by active measures. Notwithstanding the importance

of protecting the vulnerable, the recognition of the autonomous right of the competent

individual to choose death in order to avoid terrible suffering should lead to a more

nuanced and sensitive approach from the law. Thus a powerful imperative to develop

a more coherent and principled approach regarding the presumption in favour of

preserving life emerges.

105. B v NHS Trust, above n 88.

106. See eg JK Mason and GT Laurie Mason and McCall Smith’s Law and Medical Ethics

(Oxford: Oxford University Press, 9th edn, 2013) p 549; and D Orentlicher ‘The alleged distinc-

tion between euthanasia and the withdrawal of life-sustaining treatment: conceptually incoherent

and impossible to maintain’(2012) 1998 U Ill L Rev 837.

107. Mental Capacity Act 2005, s 4(6)(a)–(c).

108. Bland, above n 8, at 866.

18 Legal Studies

behalf of Society of Legal Scholars

DEVISING A MORE PRINCIPLED APPROACH

The ﬁnal section of this paper will begin to suggest an approach that accommodates, to

an extent, ethical principles such as dignity and autonomy, while protecting the vulner-

able and maintaining that life is presumed to be intrinsically valuable according to the

reverence principle. Devising a principled approach to rebutting the presumption for

life preservation ﬁrst requires some consideration of what we understand in relation

to dignity and autonomy, and in particular the law’s relationship with autonomy. This

is vital in order to address how reverence for life may be construed as a framework that

correlates with the criminal law.

Principles of dignity and autonomy are notoriously ambiguous and subject to diverse

and mercurial interpretations;

109

nevertheless, we attempt a necessarily brief explora-

tion in the context of reverence, beginning with dignity.

Mary Neal’s work is useful in drawing from the conﬂicting accounts within the law

and academic literature in order to consider the challenges of understanding dignity as a

concept or principle, an intrinsic human value, a virtue, a norm and/or a right.

110

Dignity’s‘messy appeal’, according to Neal, is that ‘the idea of dignity attracts us by

seeming to chime with some of our ethical intuitions, but as we attempt to analyse it,

we come up against an array of possible meanings’.

111

Such ambiguity means that it

is problematic to attempt to effectively deploy dignity in ethico-legal dilemmas, but

we suggest that there is a meaningful concept of dignity in relation to assisted dying.

We agree with Neal that to conﬂate dignity with autonomy (using Kantian principles)

only accounts for a segment of dignity’s potential application. Dignity is not essentially

synonymous with autonomy, yet, where assisted dying is concerned, the two seem

invariably connected.

Where a competent adult expresses an autonomous desire to die rather than to

continue to endure what they regard as an undigniﬁed and unendurably unpleasant or

painful existence, or to avoid what is likely to be –according to their understanding

–an undigniﬁed dying process, dignity and autonomy seem to be conjoined. The

way in which a person values their life, both physically and biographically, is often con-

nected to the way in which that person understands and values their human dignity. This

is necessarily nuanced and subjective, yet the narratives behind the important legal

challenges (Pretty,Purdy,Nicklinson),

112

suggest that people who seek death in this

context share a similar perception of the relationship between autonomy and dignity.

Indeed, the ‘right to a digniﬁed death’is the primary campaigning slogan of the main

109. See eg LR Kass ‘Death with dignity and the sanctity of life’in BS Kogan (ed) A Time to be

Born and a Time to Die:the Ethics of Choice (New York: Aldine de Gruyter, 1991) p 117; R

Macklin ‘Dignity is a useless concept: it means no more than respect for persons or their auton-

omy’(2003) 327(7429) Br Med J 1419; D Schroeder ‘Dignity: Two riddles and four concepts’

(2008) 17(2), Camb Q Healthcare Ethics 230; G Dworkin The Theory and Practice of Autonomy

(Cambridge: Cambridge University Press, 1988); O O’Neill Autonomy and Trust in Bioethics

(Cambridge: Cambridge University Press, 2002); S McLean Assisted Dying:Reﬂections on the

Need for Law Reform (London: Routledge, 2007).

110. See M Neal ‘Respect for human dignity as “substantive basic norm”’ (2014) 10 Int’l J Law

in Context 26; M Neal ‘Dignity, law and language-games’(2012) 25 Int’l J for Semiotics L –

Revue Internationale de Sémiotique Juridique 107; M Neal ‘“Not gods but animals”: human

dignity and vulnerable subjecthood’(2012) 33 Liverpool L Rev 177.

111. Ibid, Neal ‘Human dignity and vulnerable subjecthood’, at 179.

112. Above n 8.

The value of life in English law 19

behalf of Society of Legal Scholars

organisation pushing for legal change in the UK.

113

And in jurisdictions where PAS is

legal, notions of autonomy and dignity seem crucial to those seeking PAS.

114

With respect to autonomy per se, its compatibility with reverence for life is a little

more difﬁcult to articulate. This tension is born out of a problem that we made explicit

reference to earlier; arguments in favour of relying on reverence for life are more con-

vincing where a patient is in a PVS or MCS and lacks capacity, as opposed to where a

patient can express her own wishes. If a patient is capable of competently expressing a

clear and settled wish to die, it may reasonably be suggested by some that all other

considerations become redundant and that there is no need for recourse to reverence’s

purported compromise. Effectively, there would be no need to introduce any objective

considerations into the equation that may point in the direction of preserving life

because autonomy should prevail. With this in mind, it is sometimes difﬁcult to

conceive of a compromise between giving effect to autonomy on the one hand, and

any objective valuing of life on the other. The arguments are often presented as polar

opposites and the accusation could be made that in embracing some objective consid-

erations when assessing the value of life, reverence for life actually privileges preserva-

tion of life in a way that is not dissimilar to sanctity and inviolability.

This overlooks certain key features of the suggested role of reverence. First, it fails to

recognise that reverence only purports to offer a framework in which the criminal law

can be located and, secondly, that viewing reverence as a framework is the very thing

that allows it to neatly capture how the law treats and respects certain autonomous de-

cisions. The law respects and permits certain autonomous choices, but there are limits to

the extent that it does so; the conception of reverence offered here reﬂects this, and so

ﬁts neatly into the structure of the criminal law.

115

It does not privilege preservation of

life over autonomy, but it does take as its starting point the recognition of the intrinsic

value of all life, and its default position is that life should therefore be protected and pre-

served. However, it also accepts that in certain situations factors will be present that

would cause that presumption in favour of preserving life to be rebutted and so would

allow certain patients the right to receive assistance to die, and would not penalise that

patient or indeed any individual who provided the assistance.

Thus, if a patient made an autonomous request to receive assistance to die, reverence

would not automatically support the criminal law countenancing that choice, without

certain ‘other’factors being present that were sufﬁciently convincing to rebut rever-

ence’s presumption in favour of life. If, however, those factors were present, reverence

would support the criminal law in respecting the patient’s autonomous choice. An

autonomous wish, in the context of reverence, could therefore be described as necessary

but not sufﬁcient to prevent the criminal law from intervening in respect of every occur-

rence of assisted suicide.

By way of example, both authors would favour a more permissive law in respect of

PAS. However, neither of us would feel comfortable in supporting a situation in which

113. Dignity in Dying, see http://www.dignityindying.org.uk/about-us/ (accessed 14 February

2016).

114. See eg S Fischer et al ‘Reasons why people in Switzerland seek assisted suicide: the view of

patients and physicians’(2009) 139 Swiss Med Weekly 333; CDM Ruijs et al ‘Unbearable suf-

fering and requests for euthanasia prospectively studied in end-of-life cancer patients in primary

care’(2014) 13(1) BMC Palliative Care 62.

115. For two interesting decisions that illustrate the extent to which the criminal law permits au-

tonomous choice in relation to certain activities, but not others, see R v Wilson [1997] QB 47; Rv

Brown and Others [1994] 1 AC 212.

20 Legal Studies

behalf of Society of Legal Scholars

medical assistance could be provided, without any legal ramiﬁcations, for example, to

an 18-year-old patient who sought to end his life simply because he was feeling miser-

able that he had just been rejected by his girlfriend. His choice may well be autonomous

in the sense that he has concluded that his life is no longer of value, and he may well

have made a settled and informed choice, but reverence would not support his purported

autonomous choice as being one that is capable of rebutting the presumption in favour

of preserving life. In short, reverence would require something more for the law to give

effect to the autonomous wish of the patient.

With this in mind, change the above hypothetical scenario slightly. Our patient is

now a 50-year-old man who has requested assistance to die because of mounting

suffering and (what he sees as) indignity as a result of motor neurone disease, which

is an incurable, degenerative disease. In this scenario, his autonomous wish, coupled

with the objective factors that are present as a result of his condition, may bring him

within the reach of reverence supporting a choice to receive assistance to die, provided

that those objective factors were deemed sufﬁcient to rebut the presumption in support

of maintaining life.

We now begin to see that reverence could equally have a role in active assistance

cases as well as in withdrawal cases by functioning within a system of law that respects

certain choices made by individuals, but not every choice, especially where there may

be a strong justiﬁcation for impinging on that choice. It is in this respect that considering

certain objective factors in any assessment of the value of life could usefully operate as

an appropriate counterbalance to safeguard against exploitation of the vulnerable, to

prevent instances of assisted suicide from becoming too commonplace in society and

thus spiralling out of control, and to not diminish completely the importance of

recognising, at least to an extent, the intrinsic value of life. A corollary of this concep-

tion of reverence is that, in the same way that some objective determinations are needed

to weigh up where the presumption in favour of preserving life could be rebutted in

MCS/PVS cases, so too does some emphasis need to be placed on objective factors

in active assistance cases. In the context of active assistance, identifying precisely what

objective factors ought to be taken into account, and the emphasis that should be placed

on them, is certainly problematic. Thus, it becomes essential to at least make some

attempt to deﬁne what may amount to appropriate criteria that may be capable of rebut-

ting any presumption for life.

Needless to say, agreeing the criteria for eligibility for an assisted death is no easy

task. If terminal illness expected to prove imminently fatal is the requirement, many

people, such as the appellants in Nicklinson, will not qualify. Alternatively, if eligibility

rests on an assessment of the extent and intractability of suffering, there will be con-

cerns that the lives of the seriously ill and disabled might be seen as less valued and

so the system put in place would need to include safeguards to avoid this. Discussion

of exactly what this criteria should demand is beyond the scope of this paper, yet we

agree with Lady Hale that ‘it would not be beyond the wit of a legal system to devise

a process for identifying those people, those few people, who should be allowed help

to end their own lives’.

116

Lady Hale suggested four essential requirements: capacity,

no undue inﬂuence, full knowledge of their situation (the options available and

consequences of the decision) and ﬁnally, the person must be unable, due to physical

incapacity or frailty, to act alone.

117

116. Nicklinson, above n 8, at [314].

117. Ibid.

The value of life in English law 21

behalf of Society of Legal Scholars

Difﬁculties arise, however, where one of the qualifying factors would rest on the patient

being physically incapable of acting alone. This requirement is problematic for two rea-

sons. First, if this factor became a prerequisite for the non-prosecution of anyone who pro-

vided assistance, it might result in many patients having to postpone a decision to end their

life until the point at which they could not actually act themselves. For some diseases, such

as cancer, this point might not come until the closing weeks or days of life, which might

subject the patient to prolonged pain and suffering. This may be an unintended, and indeed

undesirable, consequence of including this particular qualifying criterion. As it stands,

some patients seek to avoid this very situation by requesting assistance to end their own

lives at an earlier point, before they become completely dependent on others, so that they

can avoid the discomfort, indignity and trauma that will occur in the latter stages of certain

illnesses. It follows that some patients will simply ‘desire’assisted suicide at an early stage

in proceedings, rather than actually ‘requiring’it at a point at which they can no longer act

themselves. Insisting that a patient has to be unable to act alone before the law will allow

assistance would therefore be problematic. Many patients who simply desire an earlier dig-

niﬁed death, and who seek the help of someone to facilitate this either by travelling with

them, or by making arrangements for them in some other way, as frequently happens at

present, would fall outside the scope of the qualifying criteria and thus would not trigger

reverence’s rebuttable presumption. This could well have the effect of causing those who

have provided the assistance to be prosecuted more frequently than is currently the case.

A second concern is that this requirement suggests that those able to act alone can

take matters into their own hands by committing suicide unaided. Given that taking

one’s own life can be difﬁcult, with a risk of botched attempts or resorting to violent

means of dying and additional distress for all involved, we see a further justiﬁcation

for avoiding the requirement of physical inability to act alone.

In the light of the above, we tentatively suggest that Lady Hale’sﬁnal requirement be

replaced with the need for a recognised medical condition that is permanent, irreversible

and/or degenerative, and that has the potential to cause the patient pain, suffering and in-

dignity if their life is prolonged unreasonably. The existence of such a condition would

need to be certiﬁed by two medical professionals. This would avoid treating those with

a physical disability differently, while also ensuring that the person has legitimate medical

grounds to justify assistance. Once determined and assessed, these conditions should be

capable of rebutting the presumption for life preservation. Accordingly, if a patient satis-

ﬁed the objective criteria that we would stipulate, and we acknowledge that the precise

contours of this would need to be debated in greater depth, then any compassionate assis-

tance provided by a third party to help a patient travel abroad to receive an assisted death

should not be prosecuted. Alternatively, if legislation were enacted to introduce a regulated

yet permissive medicalised model of PAS, which in the current climate seems unlikely,

then patients who meet the criteria should be entitled to receive medical assistance to

die, and any doctor who has operated within the provisions of the legislation should be im-

mune from prosecution for complying with that request.

Rebutting the presumption for life in order to allow any overt assisted dying will, of

course, raise many objections, not least from within the medical profession, who,

collectively, have traditionally opposed any legal change that might be seen to erode

the ethic of ‘caring not killing’.

118

Accordingly, the autonomy of those called upon

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.

22 Legal Studies

behalf of Society of Legal Scholars

to provide assistance must be taken into account. Any lawful assisted dying should

recognise a professional right to conscientiously (and sensitively) exempt oneself from

participating in PAS,

119

although this right should not allow the medical professionals

to abandon patients seeking PAS. It is also important to note that professional medical

cooperation and acceptance of PAS will assist in creating the best procedures to ensure

that patients are properly cared for within a system that succeeds in safeguarding the

vulnerable. Evidence indicates that physical pain is often the most important reason

for seeking death,

120

thus professional involvement will be essential to ensure that

people seeking PAS are aware of all the facts, especially other options to alleviate

suffering.

Having suggested that greater recognition of dignity and autonomy together with

carefully constructed criteria and a process for rebutting the presumption for life

could pave the way for a more coherent, consistent and ethical approach, we have

left a number of questions unanswered. Some of these include, inter alia, deﬁning

precisely when and why the presumption should be rebutted in differing scenarios.

In the above discussion, we have offered some examples of where we think it may

have been appropriate for this to happen, but they are by no means intended to be

an exhaustive list. The principal advantage of adopting reverence would be its ﬂuid,

fact-sensitive nature and so opinions and beliefs as to when and why the presumption

should be rebutted will naturally vary. Therefore, as a body of case-law builds up, it

would be of paramount importance to analyse the type of factual scenarios that would

warrant considering a departure from the presumption in favour of life and the

amount and type of evidence that would be needed in order for the rebuttal to

actually bite.

A number of inextricably linked further points ﬂow from this. How would the frame-

work of reverence provide adequate protection for the vulnerable individuals in

society? Given that this has proven to be the dominant concern for English law in the

end-of-life debate, some serious thought would need to be given as to how, if indeed

it all, it would be possible to placate those who viewed this as a source of anxiety. More-

over, there is the time-honoured argument of the slippery slope that is bound to rear its

head in opposition. Critics will no doubt point out that if judges are too quick to rebut

the presumption, then the importance of presumption itself may be eroded and this

would do untold damage to recognising the intrinsic value of life, and in turn the law’s

main priority of preserving life. Clearly, then, there would need to be some guidance as

to the exercise, and limits, of judicial ﬂexibility in interpreting the concept of reverence.

These questions are, however, impossible to determine at present, for to answer them

would require reverence to be adopted in contemporary legal parlance. This in itself

raises a key concern of how judges could be encouraged to incorporate reverence for

life and to inject it into mainstream judicial reasoning in a way that does more than

simply portray it as yet another mere variance in phraseology, by presenting it, and

using it, in the principled way that has been suggested.

If those questions can be answered to provide a model that adequately safe-

guards the vulnerable while maintaining a strong presumption in favour of life, a

more coherent, consistent, ethical and secular approach may be identiﬁed. Thus

119. For a discussion, see R Huxtable and A Mullock ‘Voices of discontent? Conscience, com-

promise and assisted dying’(2015) 23 Med L Rev 242.

120. Fischer et al, above n 114, at 333; Ruijs et al, above n 113.

The value of life in English law 23

behalf of Society of Legal Scholars

reverence could provide an ethically sound and coherent compromise between the

argument that life is intrinsically sacred or inviolable and the quality-of-life

position.

CONCLUSION

We sit on a ‘perilous perch’regarding the endless battles about the intrinsic value of

life.

121

Religious doctrines enshrining the ‘sanctity’of life invoke connotations that

do not reﬂect the concerns of a pluralistic and predominantly secular society.

Furthermore, as Price argued, sanctity may be a ‘hazardous distraction’, and ‘[R]espect

for speciﬁc patients not the sanctity of life is the proper legal and ethical

guide’.

122

While the concept of sanctity has evolved to encompass the alternative prin-

ciple of inviolability, this too provides a limited and theoretically ﬂawed approach to

this dilemma. Inviolability purports to cast off religious baggage yet causes confusion

over possible interpretations of treatment and futility and suffers from too heavy a reli-

ance on double effect, which may be seen as a ‘sop’, rather than a sound way to limit

any tendency towards vitalism. Both concepts offer an incoherent and sometimes

highly discretionary approach that has generally encouraged an overly paternalistic

attitude. Searching for an alternative, ‘respect’for life seems inadequate for a strong

presumption in favour of life. Lord Neuberger’s reference to ‘primacy’might be useful

in providing a simple numerical expression conveying importance while avoiding

being value-laden, yet we question whether a term so devoid of ethical signiﬁcance

is desirable. Does the concept of reverence for life assist us, then, in ﬁnding a principled

compromise and a more coherent approach?

Inevitably, there may be cynicism about the addition of yet another ambiguous

term into the never-ending debate concerning the intrinsic value of human life. There

is also the pragmatic question of whether in fact reverence would change anything at

all in terms of outcomes in these hard cases. We have suggested that, if incorporated,

it may well have the effect of altering the outcome in certain cases. While we would

both agree that signiﬁcant inroads were made by judges in the end-of-life cases such

as Bland,Purdy and Aintree (at least in the Court of Appeal and the Supreme Court),

we would argue that in other contemporary cases such as W v M and others,Aintree

in the Court of Protection, and even Nicklinson in the Supreme Court, the use of rev-

erence for life may have helped to hone the restrictive nature of some of the judicial

reasoning. Reverence, as we conceive it, may have helped to focus the minds of cer-

tain judges so that they were more acutely aware of the fact if the evidence was com-

pelling enough, they were entitled to become unshackled from the narrow view that

the law should be predominantly concerned with preserving life at all costs because

the intrinsic value of life is sacrosanct. As more and more difﬁcult cases come before

the courts concerning MCS patients or, indeed, those suffering from terminal, degen-

erative conditions who request active assistance to die, the embedded notion of a

rebuttal presumption may have a direct bearing by leading to a more compassionate

and humane outcome in certain situations. The recent defeat of Rob Marris’Assisted

Dying Bill in the House of Commons indicates that the courts will again be called

121. Brazier and Ost, above n 4, p 83.

122. D Price ‘My view of the sanctity of life: a rebuttal of John Keown’s critique’(2007) 27 Le-

gal Stud 549.

24 Legal Studies

behalf of Society of Legal Scholars

upon to resolve the tension between the rather nebulous autonomous rights protected

by Art 8 ECHR and the need to preserve life for vulnerable people. Moreover, as the

law seems to be developing incrementally to give greater respect to the right to

autonomy in the medical context,

123

a patient-centric approach that includes certain

objective considerations, which can be justiﬁed in order to protect the vulnerable,

seems appropriate.

Accordingly, we are of the view that Brazier and Ost mean reverence for life to be

something more than just a linguistic alternative. The idea has a much greater potential

in so far as it conveys importance to humanity, offering a less absolute position that re-

ﬂects the rebuttable presumption for preserving life in a way that might be developed as

a coherent compromise between sanctity, inviolability and concerns about autonomy,

dignity and the quality of life.

123. Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] AC 1430.

The value of life in English law 25

behalf of Society of Legal Scholars

The Italian law on informed consent and advance directives: New rules of conduct for the autonomy of doctors and patients in end-of-life care

Article

Aug 2018
J CRIT CARE

Purpose: Italy has long lacked a law regulating patients' informed consent and advance directives (ADs). All previous attempts to introduce a law on this matter failed to reach positive outcomes, and aroused heated ideological debate over the exact meaning of life and death. We report on the new law on informed consent and ADs approved by the Italian Parliament on 14th December 2017. Materials and methods: We analyse the new law and discuss the main ethical points connected with it, in the Italian context and in comparison with the international situation. Results: The law provides for fundamental ethical principles and important guidelines: respect for patients' self-determination in all phases of life, option to refuse or interrupt life-sustaining treatments, including artificial nutrition and hydration, the legitimacy of end-of-life decisions, and the implementation of palliative care to ease suffering and pain. Conclusions: The effects of the new law must be tested in the field. Its objectives will be achieved if, in clinical practice, ADs are able to satisfactorily represent informed personal preferences through patients' relationships with their physicians, as part of personalized advance care planning. Future studies are necessary to assess the impact of the new law in Italy.

OCHRANA HODNOTY ŽIVOTA A ZDRAVIA V RÁMCI MEDICÍNSKYCH ÚKONOV

Conference Paper

Full-text available

Oct 2024

Katarína Ševcová

Príspevok analyzuje vnímanie hodnoty zdravia a ľudského života ako ho zakotvuje slovenský právny poriadok a jeho praktická realizácia v právnej úprave vyhraných medicínskych úkonov. Na hodnotu života sa nahliada cez optiku posvätnosti, nedotknuteľnosti života. Takéto ponímanie je v mnohých ohľadoch veľmi zavádzajúce, absolútne, definitívne, pričom nie je nič rozmanitejšie, individualistickejšie, nestabilnejšie ako život. V praxi sa objavuje použitie nového flexibilnejšieho termínu úcta k životu.

Persuasion and Legal Reasoning in the ECtHR Rulings: Balancing Impossible Demands

Book

Full-text available

May 2023

This book analyses the case law of the European Court of Human Rights (ECtHR) from the point of view of argumentative tools used by the Court to persuade the audience – States, applicants and public opinion – of the correctness of its rulings. The ECtHR judgments selected by the authors concern justification of some of the most difficult issues. These are matters related to human life, human dignity and the right to self-determination in matters concerning one’s private life. The authors looked for paths and repetitive patterns of argumentation and divided them into three categories of argumentative tools: authority, deontological and teleological. The work tracks how ECtHR judges aim to find a consensual, universal and, at the same time, pragmatic and axiologically neutral narrative on the collisions of rights and interests in the areas under discussion. It analyses whether the voice of the ECtHR carries the overtones of an ethical statement and, if so, to which arguments it appeals. The book will be of interest to academics and researchers working in the areas of jurisprudence, human rights law, and law and language.

Ways of reasoning in end-of-life situations

Chapter

Full-text available

May 2023

Dignity at the end of life: from philosophy to health care practice - Lithuanian case

Article

Jul 2022

Regulation and clinical practices regarding end of human life care differ among the nations and countries. These differences reflect the history of the development of state health systems, different societal values, and different understandings of dignity and what it means to protect or respect dignity. The result is variation in the ethical, legal, and practical approaches to end-of-life issues. The article analyzes the diversity of strategies to strengthen dignity at the end of life of terminally ill patients and to highlight the legal preconditions and limitations for implementing these strategies in independent Lithuania, as a former state of the Soviet Union. It is based on the critical analysis of philosophical literature, legal national and international documents and scientific evidence related to the issue. The author argues that the legal system in Lithuania is not sufficient to ensure the patient's dignity at the end of life and remains far behind other Western European countries. Legal regulations in Lithuania do not guarantee the right of the patient to express his or her will regarding the future treatment, including the refusal of resuscitation, do not regulate the termination of burdensome, non-viable and meaningless treatment that is undesired by the patient, and limit the accessibility of palliative care with its necessary quality and comfort.

Neuroscience and End-of-Life Decisions: What Kind of Coexistence?

Chapter

Jun 2020

One of the most far-reaching challenges posed to the law by the development of neuroscience is the possibility to unveil some of the interior elements of human beings in the absence of external manifestations. The perception of pain, the presence of consciousness and the wishes of incompetent patients, once unfathomable because they could not be externalized, are nowadays accessible also from persons unable to express themselves (such as infants, people in comas, severely disabled people, etc.).

From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment: From ‘Doctor Knows Best’ to Dignity

Article

Mar 2018

Emily Jackson

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non-exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision-makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.

Medical Futility

Article

Full-text available

Jun 1992
ARCH INTERN MED

Nancy S Jecker

Futility is hardly a novel idea in medicine. Its roots in ancient medicine go back at least to the fifth-century BC physician Hippocrates.1,2 Yet debates over its meaning and ethical implications are surfacing with growing frequency. Increasingly, physicians seek to limit the lengths to which they must go to sustain the lives of patients who have lost the ability for conscious, interactive, and meaningful functioning. For example, in a recent case at Hennepin County (Minnesota) Medical Center, physicians invoked medical futility to support withdrawal of life-sustaining treatments from a patient, Helga Wanglie, who was irreversibly respirator dependent and unconscious (S. Miles, MD, written communication, March 22, 1991). Michael Belzer, MD, Medical Director of Hennepin County Medical Center, stated that although he sympathized with family members who insisted that everything possible be done, "We don't feel that physicians are obligated to provide inappropriate medical treatment that is not in the

Autonomy and Trust in Bioethics

Book

Apr 2002

Onora O'Neill

Why has autonomy been a leading idea in philosophical writing on bioethics, and why has trust been marginal? In this important book, Onora O'Neill suggests that the conceptions of individual autonomy so widely relied on in bioethics are philosophically and ethically inadequate, and that they undermine rather than support relations of trust. She shows how Kant's non-individualistic view of autonomy provides a stronger basis for an approach to medicine, science and biotechnology, and does not marginalize untrustworthiness, while also explaining why trustworthy individuals and institutions are often undeservingly mistrusted. Her arguments are illustrated with issues raised by practices such as the use of genetic information by the police or insurers, research using human tissues, uses of new reproductive technologies, and media practices for reporting on medicine, science and technology. Autonomy and Trust in Bioethics will appeal to a wide range of readers in ethics, bioethics and related disciplines.

The Theory and Practice of Autonomy

Book

Aug 1988

Gerald Dworkin

This important new book develops a new concept of autonomy. The notion of autonomy has emerged as central to contemporary moral and political philosophy, particularly in the area of applied ethics. professor Dworkin examines the nature and value of autonomy and uses the concept to analyse various practical moral issues such as proxy consent in the medical context, paternalism, and entrapment by law enforcement officials.

Reverence for Life: Albert Schweitzer's Great Contribution to Ethical Thought

Book

Jan 2008

Ara Paul Barsam

Albert Schweitzer maintained that the idea of "Reverence for Life" came upon him on the Ogowe River as an "unexpected discovery, like a revelation in the midst of intense thought." While Schweitzer made numerous significant contributions to an incredible diversity of fields -medicine, music, biblical studies, philosophy and theology - he regarded Reverence for Life as his greatest contribution and the one by which he most wanted to be remembered. Yet this concept has been the subject of a range of distortions and misunderstandings, both academic and popular. This book provides a new interpretation of Schweitzer's reverence and shows how it emerged from his studies of German philosophy, Indian religions, and his biblical scholarship on Jesus and Paul. By throwing light on the origin and development of Schweitzer's thought, we are led to a closer appreciation of the contribution that reverence makes to current ethical concerns. Life-centered ethics - in the broadest sense - has continued to flourish, though Schweitzer's pioneering contribution is often overlooked. Not only did he help put the issue on the moral agenda, but, most significantly, he also provided much sought after philosophical and theological foundations. Schweitzer emerges from this critical study of his life and thought as a remarkable individual who should rightfully be regarded as a moral giant of the 20th-century.

Debating Euthanasia

Book

Dec 2011

In this new addition to the Debating Law series, Emily Jackson and John Keown re-examine the legal and ethical aspects of the euthanasia debate. Emily Jackson argues that we owe it to everyone in society to do all that we can to ensure that they experience a 'good death'. For a small minority of patients who experience intolerable and unrelievable suffering, this may mean helping them to have an assisted death. In a liberal society, where people's moral views differ, we should not force individuals to experience deaths they find intolerable. This is not an argument in favour of dying. On the contrary, Jackson argues that legalisation could extend and enhance the lives of people whose present fear of the dying process causes them overwhelming distress. John Keown argues that voluntary euthanasia and physician-assisted suicide are gravely unethical and he defends their continued prohibition by law. He analyses the main arguments for relaxation of the law - including those which invoke the experience of jurisdictions which permit these practices - and finds them wanting. Relaxing the law would, he concludes, be both wrong in principle and dangerous in practice, not least for the dying, the disabled and the disadvantaged.

The Law and Ethics of Medicine: Essays on the Inviolability of Human Life

Article

May 2012

John Keown

The book explains the principle of the sanctity or inviolability of human life and its continuing relevance to English law governing aspects of medical practice at the beginning and end of life. It shows that the principle, though widely recognized as an historic and foundational principle of the common law, has been widely misunderstood, not least in the legal academy, at the Bar and on the Bench. Part I of the book identifies the confusion and clarifies the principle, distinguishing it from "vitalism" on the one hand and a "qualitative" evaluation of human life on the other. Part II addresses legal aspects of the beginning of life, including the history of the law against abortion and its relevance to the ongoing abortion debate in the US; the law relating to the "morning after" pill; and the legal status of the human embryo in vitro. Part III addresses legal aspects of the end of life, including the euthanasia debate; the withdrawal of tube-feeding from patients in a "persistent vegetative state"; and the duty to provide palliative care.

Assisted Dying: Reflections on the Need for Law Reform

Article

Nov 2007

Sheila McLean

Assisted Dying explores the law relating to euthanasia and assisted suicide, tracing its development from prohibition through to the laissez faire attitude adopted in a number of countries in the 21st Century. This book provides an in-depth critique of the arguments surrounding legislative control of such practices and particularly looks into the regulatory role of the state. In the classical tradition of libertarianism, the state is generally presumed to have a remit to intervene where an individual's actions threaten another, rather than harm the individuals themselves. This arguably leaves a question mark over the state's determined intervention, in the UK and elsewhere, into the private and highly personal choices of individuals to die rather than live. The perceived role of the state in safeguarding the moral values of the community and the need for third party involvement in assisted suicide and euthanasia could be thought to raise these practices to a different level. These considerations may be in direct conflict with the so called right to die espoused by some individuals and groups within the community. However this book will argue that the state's interests are and should be second to the interests that the people themselves have in choosing their own death. Assisted Dying is winner of the The Minty Prize of the Society of Authors, and winner of the Royal Society of Medicine Book Awards, 2008.

Bioethics, medicine and the criminal law: Medicine and bioethics in the theatre of the criminal process, volume iii

Article

Jan 2010

To date, little analysis exists of the criminal process's roles as a regulator of medical practice and as an arbiter of bioethics, nor whether criminal law is an appropriate forum for judging ethical medical dilemmas. The conscription of criminal law into moral controversy and the (perceived) rise in criminal investigations of medical errors sets the backdrop for this innovative historical and theoretical analysis of the relationship between medicine, bioethics and the criminal process. Case studies on abortion, end of life and the separation of conjoined twins reveal how judges grapple with bioethics in criminal cases and the impact of 'theatre' on the criminal law's response to ethically controversial medical cases. A central argument is that bioethics and criminal law are not necessarily incompatible; rather, it is the theatre surrounding interactions between bioethics and criminal law that often distorts and creates tension.

Voices of discontent? Conscience, compromise, and assisted dying

Article

May 2015
Med Law Rev

If some form of assisted dying is to be legalised, we are likely to hear voices of discontent, not least from the medical profession and some of its members, who might be expected to provide the service. The profession generally favours a position of opposition, premised on an ethic of 'caring not killing', which might be said to convey its 'professional conscience'. There will, of course, also be individual conscientious objectors. In this article, we initially explore the nature and sources of conscience and we argue that conscience does merit respect. We also recognise that professionals, qua professionals, are bound to serve their patients, some of whom will want (and may be entitled to) that which their doctors do not wish to provide. Reflecting on the different values in issue, we suggest that there is a case for principled compromise which would afford professionals a limited right to conscientiously object, while also protecting patients. We then relate these reflections to assisted dying specifically. In the absence of any definitive steer from the purported integrity of medicine, we suspect that the profession could adopt a neutral stance on this divisive issue. We nevertheless anticipate individual objections if the law does move to embrace assisted dying, and we argue that such objections should be respected, according to the terms of the compromise model we defend. © The Author [2015]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com.

Euthanasia, Ethics and the Law: From Conflict to Compromise

Book

Nov 2007

Richard Huxtable

Euthanasia, Ethics and the Law argues that the law governing the ending of life in England and Wales is unclear, confused and often contradictory. The book shows that the rules are in competition because the ethical principles underlying the rules are also diverse and conflicting. In mounting his case Richard Huxtable considers some familiar and topical debates, including assisted suicide and voluntary euthanasia, examining such situations as the Dianne Pretty litigation and Lord Joffe's Assisted Dying for the Terminally Ill Bill. The book also enters some important, but less well-charted areas, looking at the advent of 'death tourism' and the real status of involuntary and passive euthanasia in English law, in addition to clarifying the confusion that surrounds the use of powerful painkillers like morphine. Dealing with both legal and ethical issues, the text concludes that the time has come to more openly adopt a compromise position - one that more honestly recognises and accommodates the competing values, whilst also restoring a measure of coherence to the law.

The value of life in English law: revered but not sacred?: The value of life in English law

Abstract

Recommended publications

Israeli Law and Jewish Law — Interaction and Independence: A Commentary

'Adopt a Beach': Educational Praxis for Sustainability

ZAKRES ZASTOSOWANIA EDYKTU ‘NAUTAE, CAUPONES, STABULARII UT RECEPTA RESTITUANT’

ESL Teachers’ Acting Agentively Through Job Crafting