Archive for the ‘Key Legal Concepts’ Category

HEAL seminar: 11 February Bernadette Richards on ‘Exploring a duty to encourage innovative treatment’

In Key Legal Concepts, Meetings on January 26, 2015 at 9:00 am

On 11 February 2015, we’re delighted to welcome Dr Bernadette Richards, Associate Professor, Law School, University of Adeleide to speak on ‘Exploring a duty to encourage innovative treatment’. This seminar will run from 1pm in room 4005/4.  All welcome.


On the 27th July 2006 Bethany Bowen died during an elective laparoscopic splenectomy. It was later determined that the cause of death was the unauthorised use of a surgical instrument approved for gynaecological use but without any supporting research or approval for paediatric use.  She died as a result of misguided and misinformed surgical innovation.  When innovation fails and patients suffer significant harm questions are raised about the appropriateness of such innovation and there are public calls for safeguards.  The media is filled with demands of legal intervention to make sure that tragedies such as this never happen again.  Minds quickly turn to ways to control innovation and protect patients, implicit in many recommendations is a view that innovation is bad and causes harm.  However, this is not the case. There is a role to be played by the law in the process of introducing new medical and surgical procedures but care must be taken to avoid the temptation to introduce policy that stifles innovation, such a policy would be against the broad public interest in a functioning healthcare system.

This seminar will explore the appropriate parameters of surgical innovation and assert that the law must not stifle innovation, rather it must encourage and support responsible innovation (this will include critical consideration of the Medical Innovation Bill (the Saatchi Bill).  It will demonstrate that it is consistent with the medical duty of care to identify a duty to encourage medical advancement, to ensure that we look to the future and seek improved medical  care.

This week’s HEAL event: Jonathan Montgomery on ‘What is Medical Law “For”?’

In 2013, Key Legal Concepts, Meetings on October 28, 2013 at 7:00 am

Jonathan‘s swansong before he moves to pastures new, namely the Faculty of Laws at UCL, is a HEAL seminar where he will speak on ‘What is Medical Law “For”?’

Abstract  Should Health Care Law seek to resolve issues of bioethics or merely regulate the ways in which they are addressed? Does it matter that conflicting ethical advice can be said to leave patients’ rights unprotected (Miola, J., ‘Medical law and medical ethics – complementary or corrosive?’ (2004) 6 Medical Law International 251-274)? Is Health Care Law doomed to develop into a value-neutral subset of consumer law (Brazier, M. and Glover, N., ‘Does Medical Law have a Future’ in Hayton, D. (ed) Law’s Futures, (Oxford, Hart Publishing, 2000) 371-388)? This paper considers whether it is acceptable for health care lawyers to accept that there may be ‘no right answer’, or whether any theory of Health Care Law that accommodates indeterminacy represents a betrayal of the rule of law. It develops arguments explored in Montgomery, J., ‘The Legitimacy of Medical Law’ In McLean, S. (ed) First do no harm: Law, ethics and healthcare (Aldershot: Ashgate, 2006), 1-16, and Montgomery, J. ‘Law and the demoralisation of medicine’ (2006) 26 Legal Studies 185-210, in order to address some of the challenges identified in those papers. It considers whether an analogy with judicial adjudication might be instructive. 

This event will run from 4-6pm in 2007/4 (Highfield). If you would like to attend please confirm by email to A.M.Viens@soton.ac.uk, thank you.

MMR, Patients’ Beliefs, and Legal Coercion

In 2013, Case of the week, Key Legal Concepts, Vaccination on October 21, 2013 at 7:00 am

Over the last week or so, there’s been a lot of media coverage of a case in which Theis J, sitting in the High Court, issued a declaration that two sisters aged 15 and 11 should receive the MMR vaccination. Although the courts will (rightly) tell us that any such decision concerning the MMR vaccine is applicable only to the particular case under issue, some observers may now sense a trend developing in the jurisprudence on this question.

In the particular case, various stock health care law issues arise: what should practitioners and the courts do in the face of practical disagreement between parents?; how much weight should be given to the views of ‘mature minors’?; can practical problems legitimately interfere with a principled, ‘coercive’, legal decision? (it has been reported that, despite the judgment, the vaccinations have not been given)

A further question, raised in the case, and which causes continuous tension in English health care law concerns the treatment of patients’ (and, for minors, their parents’) beliefs. It is interesting to assess this from a wide range of angles, but here let us focus on two ways that beliefs are expressed in health care decisions.

First, we may find challenges to a patient’s conclusions on a decision, brought by reference to the quality of the reasoning that led to those conclusions. Sometimes, the courts set aside patients’ expressed wishes because of patients’ apparently faulty logic. In the recent MMR case it was noted that whilst the 15 year old child objected to the vaccination on ethical grounds (she is a vegan and says she objects to the products within the vaccine being introduced to her body), she had voiced no such objection to, hypothetically, receiving treatments that also seem to offend her vegan principles, should she fall ill. This apparent inconsistency contributed to the reasons for finding her beliefs less than compelling.

Where judges decide carefully and openly (when is it otherwise?), many will argue that it is proper—especially in the case of child patients—that the courts should not uphold a patient’s ‘rights’ to harm herself, with harm judged even by the patient’s own standards; that we can legitimately, in some circumstances, protect people from their own harmful and inconsistent reasoning.

Yet a second challenge regarding beliefs, which we also find in health care law and which is much harder to resolve, is found in cases where courts essentially disregard a belief by virtue of its very content. Here, we don’t face a flaw in the patient’s process of reasoning. In theory, English health care law aims to be deferential on belief systems; legal principle tells us that generally the basis of our decisions is not for the courts or carers to question. Yet sometimes, ‘the science’, or ‘common sense’, or ‘basic reason’ seem to lead to compelling reasons to disregard a patient’s views.  In these instances, it can be much harder, on terms consistent with legal principle, to frame a judgment that sets aside the patient’s (or parent’s) decision. If such a judgment is to enjoy legitimacy, the law needs to develop coherent means of accommodating such an approach explicitly, for children and for adults.

John Coggon

What is ‘proper medical treatment’?

In 2013, Conferences, Key Legal Concepts on September 18, 2013 at 7:52 am

It makes a big difference to the legal, social, and to many minds moral acceptability of interventions to know that they are—or are not—‘proper medical treatment’. In English medical law, even for people who aren’t found to lack decision-making capacity, consent alone is insufficient to make an intervention lawful; it has, according to some external standard, to constitute treatment that serves a person’s interests. But where does medicine find its legitimacy? What about a medical act attracts legal protection when a qualitatively identical act undertaken by a non-medic would not be deemed to serve someone’s interests, and be criminal? How far can ‘medicalisation’ legitimise what would otherwise be beyond the pale; assisted dying, cosmetic procedures, and so on?

In an impressive, wide-ranging series of discussions at a conference I attended last week, some of the key questions were raised and explored about how we understand ‘proper medical treatment’, and challenges were made to the reverence that we might offer it. The meeting, organised by Sara Fovarague and Alex Mullock, was built on the theme “Transforming wrong(s) into right(s): The power of ‘proper medical treatment’”. The legitimacy—or as Margot Brazier suggested on Thursday perhaps the magic—of medicine, forestalling prosecutions for what would on their face be criminal acts, is found in the legal concept of the ‘medical exception’. But to be proper, it is insufficient simply that treatment is given by a doctor, or even that its provision is recognised and endorsed in the professional opinion of a number of doctors. Coming to a clear understanding of ‘proper’ is as hard as coming to a clear understanding of ‘medical’. Yet these terms have crucial importance in practice.

I was lucky enough to be a discussant on a panel with speakers Julian Sheather and Cam Donaldson, who respectively interrogated the theme from political and economic perspectives. Julian demonstrated how political ends can be achieved through medicalisation, even in the face of serious objections from the profession itself, whilst Cam provoked interesting questions about how a health economist might assess the idea of ‘proper’ in proper medical treatment. Cam also made clear how important it is to include a health economics perspective in these ethical and legal debates.

Reflecting on the ideas from a legal perspective, I would question—regardless of whether we are convinced by the moral weight of designating something ‘proper medical treatment’—how much conceptual grip we can get on the idea of medical treatment by looking at what judges, practitioners, and policy-makers have to say. If the NHS is to afford what amounts to a right to healthcare, and if we are to recognise the importance of healthcare practitioners’ expertise, it seems inevitable—and right—that we should conceive of robust central cases of medical treatment. But at the fringes, there will be fuzzy, contestable claims about whether something should be seen as proper treatment or not. In those instances, we may look to decided cases and existing regulations, but the bases of their rationales will be wide and varied: for example, tax law cases based on European Union law; individual claims for intervention based on the European Convention on Human Rights.

A strong degree of coherence is needed if we are to enjoy a healthcare system whose legal and ethical rationale is not arbitrary. Yet too constraining a rationale will stifle innovation, and damage protections of plural values that healthcare law protects. A project aimed at understanding ‘proper medical treatment’ is an important one. At its end, I wonder if an exhaustive definition will necessarily be the best one.

John Coggon, Southampton Law School.

Court declines to make new law in Nicklinson test case

In 2012, Death and dying, Key Legal Concepts, Testing project on August 21, 2012 at 4:30 pm

Judgment was given in the latest phase of the Nicklinson litigation on 16 August 2012. The court rejected the suggestions either  (a) that there was a common law defence of necessity that protected those who carried out voluntary euthanasia and or (b) that further clarifications were required of the prosecution policy set out by the Director of Public Prosecutions in 2010. Two cases were heard together, and as they raised significant constitutional issues the Attorney General was joined as a party at the request of the court.

The court acknowledged that these were ‘tragic cases’. Tony Nicklinson had suffered a catastrophic stroke in June 2005 that left him paralysed below the neck, unable to speak or move anything but his head and eyes. He communicated by blinking to indicate a letter on a Perspex board or through an eye blink computer. He said

‘My life can be summed up as dull, miserable, demeaning, undignified and intolerable. …it is misery created by the accumulation of lots of things which are minor in themselves but, taken together, ruin what’s left of my life. Things like…constant dribbling; having to be hoisted everywhere; loss of independence, …particularly toileting and washing, in fact all bodily functions (by far the hardest thing to get used to); having to forgo favourite foods; … having to wait until 10.30 to go to the toilet…in extreme circumstances I have gone in the chair, and have sat there until the carers arrived at the normal time.”

He had wanted his life to end since 2007, although not necessarily immediately. The court understood that he would probably wish to end it in a year or two, but he wanted to establish through the litigation the right to die with dignity at a time of his choosing.  His only options to achieve this were self-starvation or voluntary euthanasia. Assisted euthanasia, such as provided by Dignitas in Switzerland, would not have helped because he did not have the physical ability to carry out the final act himself.

Tony’s case was heard with a separate application from a man referred to by the pseudonym of ‘Martin’. He would be capable of physically assisted suicide, but this would have involved someone else committing an offence under the Suicide Act 1961, section 2. Martin’s wife, a nurse and devoted to his care, was not willing to support Martin for that purpose, with which she did not agree. Martin’s main claim was against the DPP, requesting clarification of the prosecution policy. However, the Solicitors Regulation Authority (SRA) and the General Medical Council (GMC) were also included in the proceedings.

Nicklinson argued for a defence of necessity in the following circumstances:

(a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case; (b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; that there are no alternative means available by which his suffering may be relieved; and that he has made a voluntary, clear, settled and informed decision to end his life; and (c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient’s suffering outweighs his or her duty to preserve life;

He contended that his rights under Article 8 of the European Convention on Human Rights required the law to recognise such a defence.

However, the court found that it would be wrong to do so, as it ‘would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament.’ In particular, three reasons were offered why the court should not take this step. These provide an important articulation of the constitutional restraints in relation to judicial law-making, which are significant for our wider project on test cases and hidden lawmakers.

The first was an issue of competence that derived from the difficulties involved in resolving broad conflicts of principles on which our society is divided through the resolution of specific cases. While it might be reasonable for a court to develop the implications of widely held principles, this did not make it competent to play the same role where those principles were controversial. The court’s analysis of the relevant human rights jurisprudence had led it to conclude that the issue of euthanasia was a matter within the margin of appreciation afforded to national legal systems to adopt their own conclusions. Consequently, the development that Nicklinson proposed was not justified as merely an interpretation of the common law to make it consistent with the requirements of the European Convention.

The second problem that the court saw with such judicial activism concerned its constitutionality as it would bring them into conflict with the sovereignty of parliament. The court thought it was being asked  ‘to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change’ (it noted such attempts in 2003, 2004, 2005, 2006, 2009 and 2012). This is a similar argument to that I made in the article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, about the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45. In Nicklinson, the court identified a number of cases where expressions of judicial restraint in deference to Parliamentary sovereignty can be found and felt that it should remain within that tradition.

Finally, the court expressed concern about the ability of case law to exercise the necessary control of the consequences that would be needed to develop the law in such a complex area. It suggested that safeguards would need to be designed that could only be properly done by Parliament. This could be said to be implicitly recognised by the terms of the declaration sought by Nicklinson, with its references to prior review by the courts and professional involvement in carrying out the ‘mercy killing’. If necessity really prevailed, then surely the circumstances would justify the killing whether or not the court had looked at it in advance.

Thus, the decision can be said to take a more orthodox approach to role of the courts than that adopted in Purdy. Rejecting the suggestion that further clarification was required of the DPP’s policy, the court suggested that to do so would be to require the DPP to impinge on Parliamentary sovereignty. It also noted that this would be too rigid an interpretation of the need for certainty implied by ‘in accordance with the law’ in Article 8(2) of the European Convention on Human Rights (again see my article for a similar argument), stating that

‘it would go beyond the Convention jurisprudence about the meaning of “law” in the context of the rule of law. Even when considering the meaning of “law” in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to “law” in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action.’ (para 141).

Finally, the court suggested that the argument being put forward was for so much detail in the policy as to be impractical. Again, as on the constitutional points, these positions seem to be a more orthodox account of the problems than set out in Purdy. An appeal is anticipated and it will be interesting to see how the constitutional issues play out in the higher courts.

Jonathan Montgomery

‘Don’t Blame Me’ – The role and scope of the principle of ‘Double Effect’

In 2012, Death and dying, Key Legal Concepts on July 30, 2012 at 9:00 am

On Friday 13th July, Jonathan Montgomery addressed the 6th international conference on paediatric palliative care in Cardiff at its meeting on Science, meaning and morality: the palliative package?  He was asked to explain the doctrine of ”double effect’. He argued that its general function is to explain why sometimes we may not attribute blame for actions that would normally be wrong but seem acceptable in the specific context. However, it is used both as a technical doctrine and more loosely to capture the idea that sometimes we have to make a ‘tragic choice’ – one that we would prefer not to have to make.

The work that we expect from the principle of ‘double effect’ depends on the general approach that we adopt to ethical judgments and responsibility. For some approaches to ethics, such as Utilitarianism, it may not be necessary to appeal to the idea of ‘double effect’ at all. If the rightness of an action depends on balancing the beneficial and negative effects of one’s actions, then this calculation will explain why it is thought acceptable to do something that may normally be wrong because, overall, the good outweighs the bad in the consequential calculus. However, for those whose approach to ethics is driven by the view that some actions are impermissible because they are intrinsically wrong, then problems are presented by cases in which decisions seem to involve choosing between two intrinsically wrong actions. It is this view that has led to the more precisely defined Doctrine of Double Effect’ , associated with Roman Catholic ethical traditions derived from the work of St Thomas Aquinas. Others who adopt the famous ‘Four Principles’ of autonomy, beneficence, non-maleficence and justice may consider the idea of double effect in the context of determining whether actions have breached the principle of non-maleficence and it is in this context that it is discussed in Beauchamp and Childress’s leading work.

For justifications under the formal ‘doctrine’ of double effect, four conditions are usually required to be met. (1) The act being performed must be ascertained to be ‘good’, or at least neutral, without reliance on the anticipated consequences. (2) You intend only the good effect (using a concept nearer that of ‘motive’ than reasonably foreseeable consequences as the law  usually defines ‘intention’).  (3) The bad effect must not be the means to the good (this may be little more than spelling out a point that some would argue is implicit in (2) if you accept that we must be taken to have intended the means by which we set out to achieve things). (4) The good effect must outweigh the bad one (sometimes explained in terms of ‘proportionality’ or ‘sufficient reason’).
The law in England and Wales does not use this doctrine in any formal sense, but it has used a number of techniques to address the problem. One of these, derived from the decision in R v Adams (1957) is often described as an application of ‘double effect’, although this is not necessarily a helpful short-hand for a ruling that was justified on an overlapping but independent set of grounds (which in turn are slightly muddled and frustratingly implicit). That case suggests that health professionals can give care that may also incidentally shorten life provided that (a) the patient is close to death, (b) it constitutes ‘right and proper care’ and (c) the purpose is to relieve pain rather than to shorten life. These conditions are not easy to defend in the face of established legal principles. The third seems to conflict with the expectation in the criminal law that people must be taken to intend the reasonably foreseeable consequences of their actions so that ‘motive’ is not normally relevant to the definition of a crime, but may be appropriate to questions of sentencing rather than guilt. The second implies that health professionals can place themselves above the law by defining their own criminal liabilities. The first seems to suggest that the fact that someone is already about to die means that they can be murdered with impunity.
This is not the only case in which the law has grappled with the issues to which ‘double effect’ thinking  has been applied. In R v Arthur (1981) a paediatrician had used a drug in the care of a disabled neonate that was said to suppress its appetite. He was prosecuted and the judge invited the jury to consider whether his actions were best described as (a)  ‘a holding operation, in the nature of setting conditions where the child could . . . if it contracted pneumonia . . . or if it revealed any other organic defect die peacefully’ or (b) ‘a positive act…which was likely to kill the child . . . accompanied by an intent on his part that it should as a result of the treatment that he prescribed die’. The former was said to be lawful, but the latter was a crime.  The jury acquitted Dr Arthur.
This approach draws less on the idea of ‘double effect’ than on the distinction between acts and omissions. It implies that allowing someone to die, even if those conditions have been ‘set’ intentionally is categorically different from killing them. However, pushing someone in front of a train may be only ‘setting conditions’ in which they might be run down, but it would still be murder. In any event omitting to save someone’s life when you have a duty to save them can be murder. The question is more about the scope of the duty to act than the supposed qualitative difference between acts and omission. The application of this to health care was discussed in Airedale NHS Trust v Bland (1983).
A further example from the case law concerned the conjoined twins known in the litigation as ‘Jodie’ and ‘Mary’ (reported as Re A). As is often the case in difficult legal decisions, the different judges explored different rationales without clearly indicating which was to be preferred. One strand – the family law analysis – focused on the legal duty to act in the best interests of children whose welfare falls to be overseen by the courts. It was reasonably clear that saving Jodie by surgical separation of the twins was in her best interests as it would be likely to mean her survival. However, to describe the operation as being in Mary’s best interests when she would be not be able to survive was counter-intuitive (although one judge thought it was in her interests to be permitted to die with dignity). On the family law analysis, it is probably best to characterise the decision as the least detrimental alternative, saving at least one life rather than losing both.
There was also discussion of the possibility that the operation could be justified as ‘self-defence’ by Jodie because Mary’s reliance on her was threatening her life. However, it is unclear that this could really apply to the actions of the surgeon. Perhaps the stronger legal analysis lies in the application of the defence of ‘necessity’, where there was (a) a need to act to avoid irreparable harm, (b) the defendant did no more than was necessary to avoid it, and (c) the evil inflicted was not disproportionate to the evil avoided. This doctrine of necessity is wider that the doctrine of double effect, but it has a more robust pedigree in English and Welsh law.

What is a presumption worth?

In 2012, Capacity, Key Legal Concepts on July 9, 2012 at 9:00 am

Presumptions are a promising legal tool. They work in two ways. First to establish a default position – in the absence of specific evidence what should we presume the right position to be? Second to ensure that we only move way from that default position when we are satisfied that the evidence on which we are doing so is clear enough to justify displacing the presumption in question. These two separate but connected questions can be described in terms of the onus, or burden, of proof and of the standard of proof. Thus, the presumption of innocence in criminal law means first that the onus lies on the prosecution to prove that the accused has perpetrated a crime, and second to do so beyond all reasonable doubt (the criminal standard of proof, rather than against the civil standard – the balance of probabilities). The higher the standard of proof, the more weighty the presumption can be said to be.

Such presumptions can be used in health care law to point professionals  in the direction of what is thought to be the most likely desirable practice and, when appropriately weighted, may be used to ensure that they will only depart from that practice when they have a solid basis for doing so. In practice, however, courts may not apply presumptions in the way that is anticipated. A presumption with no weight at all (so that no real evidence is required to rebut it) is barely worth its place in the law.

These issues have been neatly illustrated in recent cases concerning decisions by adults that they wish to be allowed to die. The Mental Capacity Act 2005 section 1 established a presumption of competence to which the courts seem to have given little weight. Further, they seem to have created a strong presumption that life is to be preserved despite the absence of any weighting in the best interest checklist in s 4 of that Act.

In Re E (Medical treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (15 June 2012) Peter Jackson J found that a 32-year-old woman who suffered from severe anorexia nervosa, who was refusing to eat and would accept only a small quantity of water, lacked capacity to make a decision about life-sustaining treatment. Although the judge recognised that there was a presumption that E had competence, he found that it was displaced by her ‘obsessive fear of weight gain’ (which made her ‘incapable of weighing the advantages and disadvantages of eating in any meaningful way’). He said that this ‘compulsion’ had become ‘the card that trumps all others’ and ‘overpowers all other thoughts’.  His evidence to support this was that when a conversation turned to the question of weight gain she began to cry, having previously been ‘smiling and laughing’ [Para 49]. In addition as a secondary reason for the conclusion of  lack of competence, she was in a ‘drug haze’ due to strong sedative medication [para 50]. The court reached this conclusion despite the views of the Official Solicitor’s representative, and of the two doctors who knew the patient best, that her views should be respected [para 51].

E had also made two advance declarations that she did not want to be resuscitated or to be given any medical intervention to prolong her life. Here, the Court of Protection had the power to rule on whether she had capacity when she made it (MCA Code of Practice, para 9.67) but Jackson J did not consider that any weighted presumption of capacity was applicable. To the contrary ‘where evidence of capacity is doubtful or equivocal it is not appropriate to uphold the decision’ [para 55]. The girl’s parents, all the health professionals treating her, her independent mental health advocate and her solicitor had all believed that she had capacity at the time that she made the advance decisions. However, Jackson J held ‘on the balance of probabilities’ that she had in fact lacked capacity; only a ‘full, reasoned and contemporaneous assessment evidencing  mental capacity’ would have led him to a different view [para 65]. In the absence of such evidence he would not accept that she was competent.  In effect, he held that there is a presumption of incapacity in advance decision cases, despite the terms of section 1 of the Act. Further, that presumption carried considerable weight and only strong evidence would rebut it.

He then turned to consider whether treatment (i.e. force feeding) was in E’s best interests, as required under section 4 of the MCA in relation to patients who lack competence.

One might be forgiven for thinking that the arguments in favour of palliative care, allowing E to die were considerable. Jackson summarised them as respect for E’s wishes and her personal autonomy, sparing her the risks associated with and ‘harrowing aspects of’ treatment which had limited prospects of success and about which E’s parents and clinicians were ‘at best sceptical’, allowing her to die with dignity and close to home [para 115]. These had to be ‘balanced’ [para 114]  against the fact that,without forcible feeding,E would die and lose the 10-15% chance to recover and lead a relatively normal life (after 1-2 years of hospital treatment) [paras 113, 116]. Further, ‘the longer E lives, the greater the opportunity for her to benefit from treatment and to revise her views about her future’ [para 116]. ‘At its simplest, the balance to be struck places the value of E’s life in one scale and the value of her personal independence in the other, with these transcendent factors being weighed in the light of the reality of her actual situation’ [para 118].

Jackson J accepted that the MCA ‘might have given absolute priority to the preservation of life’ but had not actually done so [para 121]. In fact, the MCA gives no priority to any one factor, let alone an ‘absolute’ one, setting out the test as one of ‘best interests’. Further, the only reference to the value of life is to exclude anything ‘motivated by a desire to bring about [the patient’s]  death’ (s 4(5)). Jackson J seems to have created a presumption in favour of preserving life in his suggestion that only where care was futile should it be stopped; ‘the prospects of her making a reasonable recovery are highly uncertain, but it cannot be said that treatment efforts are doomed to fail or that treatment would inevitably be futile’ [para 122]. He also created a presumption that it seems almost impossible to rebut by characterising  ‘the balancing exercise [as] not mechanistic but intuitive and there are weighty factors on each side of the scales’ [Para 129]; an approach that makes the conclusion a matter of personal judgment not reasoned argument. Any criticism of the balance struck is therefore an attack on the opinion rather than rationality of the judge. No reasons are given for the striking of the balance, only a description of the factor that inform judicial intuition.

So a clear statutory presumption of competence was neutralised and a weighty judge-made presumption was inserted into a statutory framework that lacked one. This does not tell us that presumptions are not useful, but it does make us sceptical as to the uses to which they might be put.

Jonathan Montgomery