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Should Sufferers of Anorexia Nervosa Be Fed And Would It Be Ethical To Do So?

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Anorexia Nervosa (AN) is a psychological eating disorder characterised by “an abnormally low body weight, an intense fear of gaining weight and a distorted perception of body weight”. Symptoms of Anorexia Nervosa includes extreme weight loss, fatigue, insomnia, dizziness and various other telltale signs. This is a life-threatening mental illness with the highest mortality rate of any psychological disorder, standing at a disturbing 5-18%, where death could be due to multiple consequential medical troubles (such as early onset of osteoporosis and heart complications) or to the biggest perpetrator yet, suicide. The evident solution to this issue would simply be for sufferers to once again start eating healthily to avoid lethal repercussions, but with their perpetual fear of putting on weight and stubborn refusal to nourish their bodies, an ethical problem is created.

Whether or not force feeding is a viable option to sustain an anorectic life has been a continuously vague and controversial debate in the modern world. Under Article 3 of the European Convention on Human Rights (ECHR), any “inhuman or degrading treatment or punishment” inflicted upon a person is illegal. This applies to all 47 parties of the Council of Europe. The act of force-feeding would include the holding down, full body restraining, or even sedation of anorectic patients, stripping away their free will and human rights. This could result in various physical injuries, such as the bleeding of the gums and breaking of teeth – as concerned with oral refeeding, or immense pain, tissue damage and nosebleeds – as with nasogastric tubes, especially in the case of contesting patients. This means that, not only do refeeding programs cause a feeling of lack of control, fear, anxiety, etc., it also causes physical harm to the patient. It has hence been recognised as demeaning and degrading, and has even been condemned by the American Medical Association and Red Cross as a form of torture. Furthermore, while it may be done under goodwill and unintentional infliction of harm, force feeding is still considered a violation to the fundamental non-maleficence pillar of medical ethics. However, under section 3 of the UK Mental Health Act (MHA) of 1938, as AN is considered a mental illness in this country, sufferers may be detained in hospitals, provided it is necessary for the health of the patient to receive treatment that cannot be given unless detained. This means that, contrasting Article 3 of ECHR, it is legal for British doctors to implement force feeding treatments should they see fit. It should also be noted that the duty to prevent prognosticated loss of life as outlined in Article 2 of ECHR contradicts the aforementioned article. With the undeniable flaw of controversiality found in the the European Convention on Human Rights, it may be put into question the credibility of this law to dictate the illegality of refeeding.

When considering medical ethics, patient autonomy must be taken into consideration. A significant argument in support of the use of force-feeding treatments, as well as the enactment of section 3 of the UK MHA, would be that anorectic patients are mentally unfit to refuse treatment. Other than their irrational fear of gaining weight and body dysmorphia, restricting self-nourishment has further adverse physical, and hence mental effects on the brain. These consequences include bradycardia (the slowing of heart rate), debilitated responses of the response circuitry, negative impacts on the brain’s emotional centres and a general shrinking of the brain. All such complications, whether separate or concurrent, impairs cognitive functions such as rational thinking and prioritisation. Evidence of this is given by a 2010 research conducted in Yale, where MRI images of 32 anorectic female patients were compared to that of 21 mentally healthy females. The first brain scan was given to each patient prior to an in-patient weight-gain treatment. When they reached 90% of their ideal weight, the second MRI was taken. The average grey matter (area responsible for intellectual capacity) of anoretic patients was disturbingly low compared to that of the healthy females, standing at 648ml and 680ml respectively. However, after their treatment, it was found that this had increased to an ever-promising 663ml. It may be possible to confidently trust such findings, not only because it was conducted in a well-controlled environment (a hospital), but also because the results were measured by reliable and sophisticated medical instruments (MRIs). This means that confounding variables that could influence the brain activity – and hence brain scan – of the females were controlled for. Furthermore, multiple healthy participants and ill patients were involved in the study, so it is ensured that the MRIs were not unique to the individuals and can be generalised to the wider population. It may hence be argued that Anorectic patients do not have the right to autonomy, allowing the clinical physician to enforce treatment. However, an important criticism of the research is that no males had taken part, meaning that these findings can only be applied to the female population. It has also been outlined by the Care Quality Commission (CQC) in the guidance on treatment of AN under the MHA that autonomy can only be disregarded under severe manifestation of the illness. While there may be formal assessments of capacity (i.e. directed clinical interview and formal assessment tools), such evaluations are subjective to the physician and psychiatrists conducting it. Their judgement can hence be influenced by predisposed assumptions about the patient’s condition and their ability for autonomy.

In a study conducted by Guarda et al, 139 patients with eating disorders were assessed to evaluate whether or not their negative perception of forcefeeding and resistance to treatment persisted in the short term. Each of them had completed a 13-item self report scale prior to admission to a behavioural inpatient specialty program, and then again after two weeks. Within these 2 weeks of hospitalisation, nearly half of the patients had changed their minds and agreed that they required involuntary clinical admission and medical care. Not only does this reinforce the idea that anorectic patients lack the capacity to make decision regarding their health, it also supports the argument that force-feeding is necessary in order to treat the psychological aspect of AN. As fore mentioned, starvation heavily and deleteriously affects proper functioning of the brain. Only when a healthy body weight is attained can a psychiatrist tackle the patient’s groundless fear of gaining weight and body dysmorphia, as well as any other psychological roots of the problem.

Another fundamental pillar of medical ethics is beneficence, which takes into account a patient’s pain, their physical and mental suffering, the risk of disability and death, and their quality of life. In the popular and pressing debate of whether forcefeeding should be administered, it is commonly argued that life is more valuable than dignity. It has already been established in previous statements that anorexics often suffer from both physical and mental dysfunctions that will persist if not treated, and that death would result if the patient remains malnourished. It is the elemental responsibility of any physician to sustain human life under any cost, insinuating that forced treatment must be implemented where necessary. This is outlined in the Hippocratic oath that any and all doctors must assume, as demonstrated in the line “I will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of overtreatment and therapeutic nihilism”. In 2015, the Israeli parliament had authorised the force-feeding of prisoners on hunger strikes as they feared that Palestinians held in their jails would meet their demise. Knowing that this issue is sensitive and contentious, the decision to force-feed their prisoners undertook a lengthy and extensive debate, resulting in 46 in favour and 40 opposing in a seat of 120 in the Knesset. The Knesset Interior Committee chairman David Amsalem even argues that this resolution “creates the correct balance between the state’s interest to defend the life of the prisoner and his right and sovereignty over his own body.” Despite this, there is a need to question whether or not the bill was well founded. It should be bore in mind that of the 46 lawmakers in favour of the bill, none are trained physicians. This authorisation was met with powerful criticism and opposition both within Israel itself and in the rest of the world. Israel’s own Medical Association considers force-feeding a treacherous medical solution and denounces it as a form of immoral torture. Not only did they urge doctors not to abide by it, Physicians for Human Rights-Israel had also dubbed the law shameful. If Israeli doctors dispute and resist their own governments ruling, then it cannot be made certain that this was the most equitable decision legally, medically or even politically.

An important way to determine whether a medical treatment is ethical or not is to assess its effectiveness. The general opinion, as held by multiple health organisations (e.g. Mayo Clinic, National Institutes of Health, etc.), is that damages done to the brain by starvation is, to a certain extent, reversible. However, the duration and severity of the disorder greatly influences the level of reversibility. Yet, it is the patients that suffer from critical states of AN and/or for the longest periods of time that truly require refeeding. Around one third of these patients recover fully, another one third improves significantly and the last third do not recover. Other than the violation of human rights that come with force-feeding anorectic patients, there is also not one safest and most successful form of refeeding. Whether this is done orally or through tube feeding, all patients run the risk of experiencing refeeding syndrome. This is a potentially fatal condition that is thought to be due to fluid and electrolyte imbalances, as well as vitamin deficiencies. Sufferers of AN are known to be deficient in important minerals such as potassium and magnesium, and are also low in fluids and lacking in the vitamin thiamine. When these are restored, the consequential nutrient imbalances could result in mortal conditions such as heart failures, breathing difficulties, seizures and paralysis. However, this is only in the case of negligent medical attention. Refeeding syndrome can be easily prevented by identifying the risks that the individual patient faces. Once this is done, food and/or nourishment should be presented slowly and cautiously, starting from small portions and then gradually building it up. A licensed dietician can undoubtedly deduce the volume of foods and fluids a patient needs without falling victim to refeeding syndrome.

Drawing this to a close, the question of forcefeeding is essentially a debate between beneficence vs autonomy, non-maleficence vs effectiveness and ethicality vs legality. As demonstrated in this essay, there are countless arguments and diverse points of view for each factor considered in this ever-continuous dilemma. For now, it may be argued that the decision to force-feed sufferers should be made on a case-by-case basis. The severity of a patient’s condition should only be determined through intensive interviews, data logging, mental and physical competence assessments and various other necessary methods. While this may be a lengthy process and, in instances as such, quick decisions must be made, there seems to be no other course of action until a dependable and secure alternative is found. Further research must be conducted into the complex nature of Anorexia Nervosa as a mental disorder, as well as force-feeding a treatment, in order to be able to dictate whether or not it is appropriate to apply aid of this sort to anorectic patients. One eminently crucial aspect of such research is into the causes of this convoluted illness; speaking in terms of the scientific method, by recognising the cause of a complication, it will enable a field of development of ministrations that target this cause in order to felicitously expel the problem. In practise, this may include finding the precise link, an algorithm of sort, between multiple contributing factors, including family dynamics, genetics, brain chemistry, personal relationships, etc. and being able to generalise such a link to the human population. In reality however, individuals are unique, and each of these factors affect each person differently, having to be taken into context of the person’s life. Hence, after engaging in extensive and in depth research on the matter, it may be concluded that it is currently unfeasible to reduce the answer to the question of force-feeding to a yes or a no.

Legal

To Defame Or Not To Defame?

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Defamation laws have existed from as early as the Roman times, protecting reputations from unwarranted abuse. As these laws have remained throughout the years, social norms towards freedom of speech have greatly developed. This begs the question of whether defamation still has a place in the 21st century. The pertinent question of whether the infringement on freedom of speech is justified in defamation laws is vital to a democratic society, as it enables public debate, inclusive of political figures and their policies, producing an informed electorate. Criticism must not be stifled to produce checks and balances holding governments accountable, preventing abuse of power.

The common law definition of a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower them in the esteem of right-thinking members of society. According to these laws, the claimant must prove three things: (1) that the statement was defamatory, (2) that it was directed at them, and (3) that it was published to third parties. In the common law, there are three main available defenses for the plaintiff: (1) justification (ie truth), (2) fair comment on matters of public interest, and (3) qualified privilege.

Even with these constitutional structures, there are instances where defamation laws appear to be unjust in a democracy, favouring large organisations and infringing on freedom of speech, disregarding public interest. There are also cases where in which defamation laws have outlined a standard for good journalism, and helped truth to triumph.

Mcdonald’s v. Steel & Morris

McDonald’s Corporation v Steel & Morris is first of the 2 cases that provide some insight into the issues involving defamation laws.

The longest trial in the history of common law to date, started with a leaflet titled, “What’s wrong with McDonald’s”, containing libellous information about the multinational’s food products, inhumane conditions for cattle, and treatment of its workers. This case is often said to highlight how defamation laws have a tendency to favour wealthy multinational organisations over individuals. This is mostly for two reasons.

Firstly, at the time, legal aid could not be provided in defamation cases. Hence, Steel and Morris became their own litigants in person, as they could not afford to pay for a private lawyer. When up against high-caliber lawyers representing McDonald’s, it was apparent that the relative lack of resources, in the form of legal knowledge, was a major disadvantage.

Secondly, the balance of probabilities places the burden of proof on the plaintiffs in defenses of justification and fair comment, giving the upper hand to large companies. Especially since the defamation laws assume damage to reputation without proof, as it is more difficult to prove quantifiable and immediate damage to a company’s reputation when compared to reputation of an individual. Large organisations are thus largely capable of suing any person who is supposed a risk to their reputation at no expense to themselves, all whilst subjecting plaintiffs to proving the truth of every defamatory statement made. This expensive and time-consuming burden has greater tangible effects on individuals than on wealthy organisations, which is not mitigated or considered in any way by these defamation laws.

These two factors lead to the ruling in the European Court of Human Rights that these laws violate Article 6 of the European Convention of Human Rights – the right to a fair trial.

Lèse Majesté Laws in Thailand

Although they differ slightly from the common law, Thailand’s lese majeste laws perfectly illustrate the potential harms defamation laws pose to freedom of speech and other liberties.

Article 112 of the Thai Criminal Code states that “anyone who defames, insults or threatens the King, the Queen, the hier-apparent, or the regent may be punishable by 3-5 year of imprisonment.” The values underpinning this law are further enshrined in recent constitutional developments, which state that, “the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.” This charge can be filed by anyone, against anyone, but must be investigated formally by the police.

Since the military coup in 2014, the number of arrests has more than doubled from the previous 12 years, gathering worldwide attention. The laws have been criticized for being used as a political weapon to silent dissenting views and political opposition. There are several reasons to believe that these accusations are true. One of them being that the laws have no clear definition as to what constitutes as insulting, allowing a broad interpretation and application of the law. This results in trivial cases where posting images on Facebook of the late King Bhumibol’s favourite dog, and liking it is deemed to be offensive, hence warranting years of imprisonment.

Another reason is that the laws sidestep the concept of equality before the law, and enable authorities to detain the accused for excessive pre-trial periods, denying the right to a fair trial. This unreasonable pretrial detention deters activists and public figures opposing the monarchy, as they will still be stripped of their liberties, even before being given the opportunity to prove their innocence. Moreover, the punishment is massively disproportionate, as the jail penalty without bail applies to each charge. The longest lese majeste penalty to date is 70 years without bail for 10 counts, reduced to 35 years upon confession. Even when taking into account the widespread respect for the King amongst members of the public, this law leads to penalties greatly disproportionate to the crime’s worth. In addition to this, the trials actively defy an order by the Prime Minister for lese majeste cases to be tried at civilian courts, instead trialling at military tribunals. Not only does this lead to far harsher sentences, but this also leads to poorer representation of the defendant, due to the relative strictness of the courts. More importantly, the act of the military-led government in openly going against an order is authoritarian, and suggests a disregard for constitutional values.

The laws do not allow truth to be a defense, but rather, sees it to be an exacerbating factor. This is highly questionable, especially upon realisation that the defamed in the context of these lese majeste laws is always a public figure. Even in a monarchy, public figures who claim to always act in the interest of the public will be subject to scrutiny, which acts as a form of deterrence of acts against the public interest. In fact, there are even fewer checks and balances in a monarchy, compared to a democracy, as there is no voting mechanism with respect to royalty. This means that with these lese majeste laws, there are little to no practical disincentives preventing abuse of power by royalty, and there is no means by which the public will be informed, as it would also be considered to be defamatory. If anything, public figures, including the royalty, should be expected to be able to defend themselves against the truth, and should be held responsible otherwise, especially when it is in the public’s interest to know.

From this, we can see the potential harms posed by authorities in defamation laws.

However, there have also been cases where defamation laws have proved to be beneficial in protecting the dissemination of truth.

Reynold’s v. Times Newspaper ltd.

Reynolds v Times Newspaper Ltd. was a landmark case which lead to the development of the defense of public interest in the Defamation Act 2013. In this, Lord Nicholls outlined 10 criteria for the defense of qualified privilege, with regard to the publication of defamatory statements in the public’s interest. These 10 criteria are:

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.

These criteria help defamation laws clarify the line between protection of reputation and freedom of speech. In particular, public figures such as politicians, who are constantly subjected to public scrutiny by virtue of their occupations, will not be wrongly protected by these laws.

Especially with regard to political figures, it is crucial that freedom of speech be maintained in order to act as checks and balances preventing abuse of authority. Being subjected to harsh criticism deters these figures from abusing the mandate provided to them upon being voted into the government by the public. Should the people know that authorities are not acting for the public interest, through the media, they are able to take measures against the figures in question, by simply not voting for them.

In addition to this, freedom of speech is integral in democratic systems. The diversity of ideas and spread of information through the media is an important means by which voters decide who to vote for. If journalists were blocked from publishing their work, despite it being in the public’s interest to do so, then the various ideas members of the public are exposed to are vastly limited, leading to a misinformed voter base. This undermines a democratic system, as the very voters may fail to vote for the politicians whom they believe will act in their best interests, meaning that representation of the people is inaccurate.

Irving v. Penguin Books

Irving v Penguin Books also highlights this fact. Deborah Lipstadt, in her book “Denying the Holocaust: the Growing Assault on Truth and Memory” stated that Irving is a “falsifier of evidence”. Upon the publication of this, it is apparent that the words damaged Irving’s reputation. In reducing the sales of his books, and his image in the media, the publication reduced his income significantly, as he was financially dependent on these sales. Consequently, Irving sued Lipstadt for libel, seeing it as an opportunity for financial compensation, as well as to re-enter the media sphere. After proving Irving’s endless falsification of facts, Lipstadt won her case with the defense of justification.

Whilst the laws have infringed on Irving’s freedom of expression, and dismissed his views, they enabled Lipstadt to prevent Irving from publishing content denying the Holocaust ever again. In doing this, other Holocaust deniers will be less widely accepted, and the spread of these falsehoods will cease. This defamation case provided a way for the real truth to be heard, reducing the effect of relativism and multiple truths in producing a post-truth world.

It is clear from the above cases that defamation laws can be contentious, with benefits and disadvantages. Especially as the views towards free speech change and develop with time, it is a valid question to consider as to whether protection of reputations of legal entities can really supersede the fundamental values of freedom of speech.

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Sado-Masochistic Homosexuality: A legal case study

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R v Brown (Anthony Joseph) [1994] 1 A.C. (HL)

 Facts of the case

The appellants, a group of sado-masochistic homosexuals who, stimulated by drugs and alcohol, willingly and enthusiastically participated in acts of violence for sexual pleasure. The appellants were all above the required age of 21, but there was limited contact with a 15 year-old male, “K”. The activity took place in private; no complaint was ever made to the police; there were no permanent injuries or infections; safe words were used, and no medical attention was ever sought or required. Whilst the activity was recorded, it was not intended to be seen outside of this group, nor sold for profit. The police discovered this activity coincidentally through the course of Operation Spanner. Yet, there is some dispute as to whether animals were involved or not, which if they were would amount to an offence under s12 of the Sexual Offences Act 1956. Most importantly, with the possible exception on one occasion, everyone consented to this activity.

Outcome of the case

The court upheld the convictions and dismissed the appeal by a majority of 3:2. Lords Templeman, Jauncey and Lowry dismissed the appeal since it was argued that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason. Underlying this decision are two further claims: (1) where the victim has suffered harm which is actual bodily harm or worse, then the victim’s consent is no defence, and (2) the satisfying of sado-masochistic libido is no good reason. The majority also held that Articles 7 and 8 of the European Convention on Human Rights have no application here, to which the dissenting judges also agreed partially.

Lord Mustill and Lord Slynn dissented on the basis that consent is a valid defence, except in cases of grievous bodily harm or death. Lord Mustill, having assiduously examined previous cases, thought the court to be free to consider this case afresh, since the earlier cases were inconclusive. Lord Mustill used the doctrine of autonomy to posit that the law should not intrude on the private life of an individual. Lord Slynn disagreed with the majority in that such cases of private affairs, public interest should declare the defence of consent invalid.

Context of the decision

The relevant law surrounding consensual violence before the decision centres around one common law principle and three common law cases. I am discounting the Wolfenden Report because its somewhat dubious clauses only have influence amounting to the enactment of the Sexual Offences Act 1967.

Common law principle

That consent is a valid defence to common assault.

 Reg v. Coney (1882) 8 Q.B.D.

This decision held that a prizefight in public was unlawful – actual bodily harm or serious bodily harm is unlawful, notwithstanding the consent of those involved.

Cave J. argued that a blow not struck in sport and is likely or intended to do corporal hurt is an assault, unlawful and a breach of the peace, thus the consent of the person struck is immaterial. Cave J. said at p. 507

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it.”

Stephen J. added that consent is also not a defence when the activity is injurious to the public as well, and it is not in the public interest that the lives of the prize-fighters be endangered.

Rex v. Donovan [1934] 2 K.B.

This held that a private beating amounting to common assault for sexual gratification is unlawful. All of the judges disagreed with the reasoning in this case because of the common law principle stated above. Therefore, the decision in R v. Brown seems to overrule this case, thus changing the law. Yet this case may have importance in that it argues the offence is irrespective of consent.

Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715

This decision held that a fight between two consenting young men was unlawful because it was not in the public interest. Indeed, Lord Lane C.J. said at p.719

“It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason…it is immaterial whether the act occurs in private or in public.”

The position of the law before the case was roughly straightforward. However, there was a lack of clarity in the decision of Rex v. Donovan, which contradicts the common law principle for no good reason. But Coney and the Attorney-General’s Reference are both consistent with each other and the common law principlewhich leads me to disagree with Lord Mustill’s historical summary of previous cases that he asserted were inconclusive. Coney posits that actual bodily harm or worse cannot be consented to, and also adds that consent is not a defence when the activity is injurious to the public; the Attorney General’s Reference concurs on the point of public interest too.

Thus the decision in Brown affirmed the common law principle that common assault can be consented to (this underlies the court’s rejection of Donovan). The court’s decision also confirmed Coney as it states that actual bodily harm can only be consented to with good reason; in special circumstances such as boxing, which is properly regulated (Queensbury Rules), and conducted (with a referee and medical practitioners close by). Furthermore, the Court also reasserted the public interest measure, thereby also confirming Coney and the Attorney-General’s Reference.

It follows that this decision changed the law in Donovan and added the special circumstances exception to the charge of actual bodily harm or worse: it can be consented to with “good reason”.

Critical commentary

I believe that the court did reach the right decision for the following reasons:

  1. The court’s decision is consistent with earlier cases

As explained above the court’s decision is consistent with the ratio in both Reg v. Coney (1882) 8 Q.B.D. and Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715.

The line of actual bodily harm was chosen because it is consistent with the Attorney General’s Reference, not because it was easier to differentiate between no injury and some injury; it differentiates between actual bodily harm and common assault, the latter being less serious. The dissenting view that the standard of harm should be grievous bodily harm is based on no authority.

Furthermore, the court rightly holds that these acts were malum in se, and the issue of consent is not relevant. Consent is a defence in acts where there is a good reason. Boxing is permitted since it is conducted with rules, doctors and referees. The unregulated, drug-incensed activity of the appellants is unsafe and thus not a good reason.

Lastly, whilst horseplay (which has no intent to harm) has been seen as a good reason (Reg v. Bruce (1847) 2 Cox C.C. 262, Aitken [1992] 1 WLR 1006, Jones (1986) 83 Cr App R 375), I would hold that this reasoning is flawed and that does not have any impact on the present case. It is for Parliament to decide on the exceptions, such as horseplay and, in time, sado-masochism.

  1. The court is right to accept the use of the Offences Against the Person Act 1961 – it is not inappropriate

Firstly, it should not be relied upon that consent was not mentioned in the statute, as it is usual for such acts to use absolute language and leave definitions to the court[1].

Secondly, if it were construed otherwise the result would be that the infliction of serious physical injury should be exempted from the act, which is the very thing the act was enacted to protect against. The act is directed at protecting the person of individuals.

Lastly, it should be noted with care that legislation should be used to commit an act even if that legislation was not originally intended to prosecute the act. One needs only to remember the countless judgments of Lord Denning or the recent upskirting scandal involving Gina Martin, where the Metropolitan Police reopened the investigation of the basis of an old common law against ‘outraging public decency’.

  1. The court was not moved or influenced by personal morality

The court clearly acted in line with previous cases and the presence of disgust to these acts (which all judges shared) is the most humane and just reaction, and a judge must be humane and just. Furthermore, since all judges were repelled by these acts the argument that three were repelled so they dismissed the appeal and that two were repelled so they allowed the appeal is contradictory and made without proof. The oft-quoted statement of Lord Templeman that “pleasure derived from the infliction of pain is an evil thing” is in fact perfectly justifiable and sensible, and it is perfectly reasonable that a judge should pass moral judgement (provided it does not inform his judgment) in order to uphold societal values.

  1. The court was right to interfere with private affairs

This case clearly demonstrates the limits to the autonomy principle in favour of the welfare principle. Autonomy left unbound soon becomes no autonomy. As Cicero said, “we are slaves to the law so that we may be free”. Paternalistic laws, even those that are not utilitarian in nature, are often proclaimed as life-saving. One immediately recalls the law requiring each person to wear a seatbelt in a car.

Overall, I find the court’s decision to be satisfying and their view that Parliament should legislate on this matter as entirely appropriate and in line with parliamentary sovereignty.

[1] L.Q.R. 1993, 109(Oct), 540-544

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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