Posts Tagged ‘doctrine of necessity’

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.

Case of the week: September 22, 2000

In Case of the week, Cases 2000, Death and dying on September 19, 2011 at 8:46 am

Re A (Children) EWCA Civ, Sept 22, 2000.  

The twins, named Jodie and Mary in the reports in order to preserve their anonymity, were born on August 8, 2000 in Manchester, after their parents travelled to the UK from Gozo, Malta (as it was known they were expecting conjoined twins and local resources were limited). They were joined at the lower abdomen/pelvis and – crucially – shared an aorta. Whilst Jodie was reported to have an ‘anatomically normal brain, heart, lungs and liver’, showing normal reactions to stimuli etc [para 6, CA transcript, below], Mary was reported to have a ‘primitive brain’, poorly functioning heart, and an absence of ‘functioning lung tissue’ [at 7], and was therefore dependent on Jodie for survival. The surgical team and hospital were in favour of surgical separation in order to maximise the chances of Jodie’s survival; the pressure placed on her heart in supporting both her and Mary was, according to expert evidence, highly likely to lead to the premature deaths of both children, whereas separation might enable Jodie to survive, albeit it that it would concurrently lead to Mary’s immediate death.

The parents disagreed, noting the influence of their devout religious faith (Roman Catholic) that it should be ‘God’s will’ to decide whether or not either or both of the children should survive. The hospital sought, and was granted, a declaration that the operation might go ahead – it was granted by Johnson J on 25 August 2000. The parents’ appeal was, a month later, dismissed by a unanimous Court of Appeal panel, comprised of Ward LJ, Brooke LJ and Robert Walker LJ. Unsurprisingly this case raised a plethora of legal and ethical/moral dilemmas for the court including – but not exhaustively – the role of parents in decision-making; questions over comparative ‘quality of life’ issues; welfare/best interests; murder, intention & the doctrine of necessity (in defence); role of religion; relevant aspects and intersections of Family Law and Criminal Law; & the sanctity of life (including some comments on the (then) forthcoming Human Rights Act 1998. However, the unanimity of the agreed outcome masks the divergent routes by which the individual judges arrived at their decisions.

For those who wish to read further, the case transcript is freely available to all via  BAILII:  http://www.bailii.org/ew/cases/EWCA/Civ/2000/254.html. Permission to appeal to the House of Lords was granted, but the parents chose not to appeal – nor was a direct application to Strasbourg (ie an alternative route to challenge the decision) undertaken.


Coverage of the CA decision: http://news.bbc.co.uk/1/hi/health/937586.stm  


Coverage of reactions to the decision: http://news.bbc.co.uk/1/hi/health/937377.stm

This decision is also reported at [2001] Fam 147, [2000] 4 All ER 961, [2001] 2 WLR 480, [2000] 3 FCR 577, [2001] 1 FLR 1, [2001] Fam Law 18, 57 BMLR 1; but access to these resources may be restricted (subscription required).