Chapter 1

The Legitimacy of Medical Law

Jonathan Montgomery

The Legitimacy Problem One of Ken Masons inuential works, Law and Medical Ethics,1 places as its frontispiece the nineteenth century judicial comment that:
It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.2

He noted in the preface to his study of Human Life and Medical Practice that his work explored difcult and controversial matters and observed that:
The subjects covered are very emotional and must inevitably be subjectively coloured. I think it is important that authors in this eld show their colours and I think it only fair to readers to say that I am a practising Roman Catholic; but this does not mean that I can have no individual conscience. In any case, what I am trying to speak of is the ethical practice of medicine, not the application of religious precept. Any bias in my conclusions is, I hope, attributable to reasonable deduction alone.3

In these beginnings can be seen one of the most difcult questions now facing the practice of medical law its legitimacy. If it is true both that legal obligations are founded on moral ones and that the moral questions raised are prone to controversy and subjectivity, then how does the law justify its coercive impact on individuals? It is one thing to act to protect individuals against abuse by others (even doctors) who fail to respect their moral choices. However, the law claims the right to go far beyond this. In the case of euthanasia, the law prohibits deliberate killing even where
1 Mason, J.K., McCall Smith, R.A. and Laurie, G.T., Law and Medical Ethics (6th Ed), London, Butterworths, 2002. 2 R v Instan [1893] 1 QB 453, per Coleridge LJ. 3 Human Life and Medical Practice, Edinburgh, Edinburgh University Press, 1988, vii. In accordance with Ken Masons openness, I should declare that I seriously contemplated ordained ministry and remain an active member of the Church of England. Like him, I seek to ensure that the arguments presented stand or fall in their own right, irrespective of the historical path that led me to explore them.

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the patients and doctors individually concerned believe that such killing would be morally justied. It assumes the right to dictate to individuals a moral position. In a modern liberal democracy, this presents a major problem of legitimacy. What gives lawmakers, in Parliament or the courts, the right to promote or proscribe a particular course of action in the face of controversy? The importance of the issue was starkly illustrated by the divisions between the majority and minority views set out by the House of Commons Committee on Science and Technology in its report Human Reproductive Technologies and the Law.4 Unusually, the Committee was fundamentally divided on the approach to be taken and the report was issued only with the recognition that ve members of the Committee disagreed with its conclusions.5 The crux of the disagreement concerned the proper function of regulation in the context of medical advances. The majority view was characterised as an extreme libertarian approach by the dissenters and said by them to pay insufcient regard to public opinion and the evidence submitted to the inquiry, to disregard ethical arguments against an extreme libertarian approach, and to lack balance in adopting libertarian interpretations of principles or propositions, which are subject to debate.6 The approach that was criticised in this way was based on the view that:
assisted reproduction and research involving the embryo of the human species both remain legitimate interests of the state. Reproductive and research freedoms must be balanced against the interests of society but alleged harms to society, too, should be based on evidence Many of the decisions about what to regulate or to legislate about depend on the approach taken with regard to the balance of harm and benet or potential harm and potential benet alleged harms to society or to patients need to be demonstrated before forward progress is unduly impeded.7

On this analysis, there is a presumption on non-intervention into what are principally conceived as matters of individual freedom. It is legitimate to control the manner in which scientic advances are made in order to enable consideration of the risks that may be involved but not to rule out particular activities on the basis that they are otherwise unethical. This can be seen to be similar to the framework that underpinned the decision of the European Court of Human Rights in Pretty v. UK.8 The case concerned the compatibility with human rights of restrictions on assisted suicide. Diane Pretty contended that English laws prohibition of her chosen mode of death, killing by her husband at her request, breached her rights to determine how she died. Claims built on article 2 (the right to die) and article 3 (protection from inhumane and degrading
4 HC 7 2004-5. 5 Eighth Special Report HC 491 2004-5. 6 See the formal minutes of the Committee for Wednesday 23 March 2005, published with the Eighth Special Report. 7 HC 7 2004-5 paras 46-47. 8 Pretty v UK [2002] 2 FCR 97.

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treatment) were rmly rejected, as they had been in the House of Lords.9 However, her rights under Article 8 of the European Convention on Human Rights required more careful scrutiny. A blanket ban on assisted suicide was acceptable only if there was a legitimate aim in restricting Mrs Prettys personal autonomy and if the restrictions were proportionate to that aim so as to be necessary in a democratic society. In the view of the European Court of Human Rights, the vulnerability of those who might be affected (although not Diane Pretty herself) and the risk of abuse if the law was relaxed were sufcient to permit States to prohibit assisted suicide.10 This argument is similar in structure to that used by the libertarian majority in the Select Committee. The starting point was non-regulation of patients choices, subject to interference only if a harm condition was met. The outcome of the application of this analysis was very different, in that the Court accepted that there was risk even though there was no direct evidence, while the majority of the Committee refused to accept claims of risk without proof. However, the assumption that the role of the law was to control harm resulting from the exercise of choices by patients and professionals, rather than determine the morality of the activities in question, was common to both decisions. It was a very different approach to that put before the ECHR by the Catholic Bishops Conference of England and Wales. They contended that:
Actions with the purpose of killing oneself or another, even with consent, reected a damaging misunderstanding of the human worth. Suicide and euthanasia were therefore outside the range of morally acceptable options in dealing with human suffering and dying.11

This is an argument that the law should be shaped around the intrinsic morality of actions. Some actions should be proscribed even without evidence of specic harms because they are incompatible with human dignity. Even if safeguards could be put in place to ensure that the vulnerable were protected and abuse effectively controlled, suicide and euthanasia would remain immoral. This is a view that can be characterised as a sanctity of life approach whose supporters Ken Mason once suggested may turn out to be major custodians of the human conscience.12 This chapter explores the problem of the legitimacy of medical law and asks whether the close connection between law and morality that inspired Ken Masons work can be maintained in an increasingly consumerist society. It uses some of the examples that he explored in Human Life and Medical Practice which were terminal illness, euthanasia, suicide, brain damage and death, the neonate, abortion and embryocide to explore how the context has changed since he discussed the issues and how medical lawyers can justify their right to seek to shape health care practice through the coercive force of the law. If law has no such right, then medical law is
9 10 11 12 R (Pretty) v DPP [2002] 1 All ER 1. See paragraphs 68-78 of the ECHR judgment. See paragraph 29 of the ECHR judgment. Human Life and Medical Practice, supra cit, at p. 124.

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probably doomed to collapse into some form of value-neutral consumer protection enterprise.13 While bioethics would remain rmly established as a legitimate area of enquiry, its focus would be on identifying what the right courses of action should be for individuals. It would become exceptional to nd a basis for requiring those who see things differently to take (or refrain from) a course of action merely because it is morally right to do so. Persuasion would always remain appropriate, but coercion, whether by force of law or social pressure, requires additional justication. The Enforcement of Morals While still rarely debated as an issue for medical law, the question of when it might be legitimate to enforce morality has been extensively discussed in relation to sex in society, especially homosexuality and prostitution in the 1950s14 and the pornography industry in the 1970s and 1980s.15 Out of those debates has emerged a loose orthodoxy that is drawn from J.S. Mills harm principle that:
The only purpose for which power can rightfully be exercised over a member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufcient warrant.16

That basis for identifying when private behaviour was a legitimate subject of legal regulation was established as prevailing political orthodoxy after an extensive public debate in which the main protagonists were Patrick Devlin, then a High Court judge and subsequently a Law Lord, and Herbert Hart, Professor of Jurisprudence at Oxford.17 It has generally been held by lawyers that Hart got the better of this debate. Devlin argued that society was entitled to protect its continued existence by enforcing the common values that formed its moral infrastructure. If those common values were destroyed, then the future existence of the society would be placed at risk. Consequently, to undermine those common values was to attack society and such attacks could be seen as analogous with the crime of treason. Hart retorted that this confused current social values (positive morality) from the moral arguments used when it was necessary to undertake a critical appraisal of social institutions, including prevailing moral values. He described this second type of argument as
13 Brazier, M. and Glover, N., Does Medical Law have a Future, in Hayton, D. (ed.) Laws Futures, Oxford, Hart Publishing 2000.371-388. 14 Report of the Committee on Homosexual Offences and Prostitution (HMSO 1957, CMD 247), known as the Wolfenden Committee. 15 Report of the Committee on Obscenity and Film Censorship (HMSO 1979, Cmnd 772), known as the Williams Committee. 16 On Liberty (1859) Chapter I. 17 The key texts are brought together as Devlin, P., The Enforcement of Morals, Oxford, Oxford University Press, 1965, and Hart, H.L.A., Law, Liberty and Morality, Oxford, Oxford University Press 1963.

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critical morality and argued that it was in this critical morality that justications of coercion needed to be located. He then defended Mills harm principle as the basis of this critical morality when issues of enforcing moral values were concerned. Consequently, he argued, society was not entitled to prohibit homosexuality merely because people disapproved of it. Only if its practice could be shown to harm people would enforcing the moral disapproval be justied. This debate shows a similar pattern to the two approaches identied in the Pretty decision and in the Science and Technology Committee. The Roman Catholic Bishops argued that euthanasia was morally wrong, but that was not thought by the Court to be sufcient to justify its prohibition. The justication lay for that lay in assessing the risks of harm to others not directly involved. That is an essentially an empirical issue. The ECHR found that it was open to the UK to form the view that the risks were signicant enough to justify criminalising assisted suicide. The Select Committee formed its libertarian view by demanding hard evidence of such risks, which was not available. When this approach is linked with the antipaternalistic dimension of Mills harm principle it can be seen that much medical law is vulnerable. Where consenting adults (here patient and health professional) agree that they would like to cause the death of the patient, sell some of their organs, try highly experimental and dangerous treatment, abort a fetus, or become pregnant with a non-human animal, then what is the legitimate public interest in those private activities? Yet these issues have been meat and drink to medical lawyers. The traditional subject matter of medical law was barely touched upon in the Hart-Devlin debate, but Devlin himself observed that if Harts argument that private morality was none of the laws business were to prevail, amongst the areas that would be likely to be challenged would be the law on abortion.18 At the time of the debate, society was largely content to leave medical ethics to specialists. Now it has become a matter for wide public debate. As social divisions on the morality of practices such as abortion and euthanasia become more prominent, the debate over the enforcement of morality becomes increasingly relevant. Either an account is needed of the legitimacy of medical law within the prevailing framework of the harm principle, or, if that is not successful, an alternative critical morality is needed to explain which moral values should be enshrined in law. Is Health Care a Public or Private Enterprise? One solution would be to deny the premise that health care is fundamentally a private activity, personal to the patient, which should not normally be regulated by the state without special justication. If health care is essentially a public matter, then the morality that underpins it could be said to be public too. In a system such as the UK, this is plausible as most health care receives public funding and health professionals working within the NHS have a public as well as private function. Mill was alert to
18 See p. 139. Euthanasia and suicide were also identied at various points as raising similar issues meriting consideration e.g. Devlin at p. 125, Hart at p. 25.

First Do No Harm

this type of issue when he discussed the wrongs of a policeman drinking while on duty no person should be punished for being drunk, but a soldier or policeman who was drunk on duty ought to be punished because they would not be engaged in a purely self-regarding activity. Rather, they would have disabled themselves from performing their duty to the public.19 Particular conduct may be required from those in public roles even where as private citizens they should be free to act as they wish. In so far as health professionals exercise authority that is legally recognised as peculiar to their status, such as permitting the use of prescription only medicines, it can be said that there is a particular role the law permits them to play that they should not be allowed to undermine. An argument of this sort is sometimes offered by doctors who oppose physician-assisted suicide. It suggests that if doctors were known sometimes to take active steps to kill their patients, then it would undermine the trust that is essential to a therapeutic relationship. On this argument, the enterprise of health care has a moral content that it is permissible for the law to defend because it is essential to securing the future of health services. While it would not be permissible to prohibit patients and relatives from performing voluntary euthanasia, because their actions affect only those involved, when a professional participates, it impacts on the profession as a whole. Thus, physician-assisted suicide could legitimately be regulated. The plausibility of this approach is enhanced by consideration of the codes of professional ethics under which doctors and others work. Continued registration and therefore licence to practise depends on adherence to such codes. Membership of the profession carries a commitment to a specic set of moral values that are additional, and possibly different, to the broader ethical requirements on citizens. No one is obliged to become a health professional, but if they do so they promise to follow the prescribed morality and can legitimately be held to their promises. Patients are not obliged to avail themselves of health services, but if they do they must accept that the people treating them are bound by their professional ethics. There are at least two reasons why this approach seems unlikely to resolve the difculties in justifying the enforcement of morality. The rst is that we already accept the possibility of a more pluralistic professional morality than this account implies. The clearest evidence of this lies in the provision of a conscience clause permitting those who object on moral grounds to participation in abortion services to opt out from their provision.20 This heterogeneity of moral approach has not caused the destruction of medical and nursing ethics. In a less formal way, a similar recognition of the fact that ethical issues do not necessarily require a uniform solution can be seen in the decision in Airedale NHS Trust v. Bland.21 In that case the House of Lords declared that it was permissible for doctors caring for a young man in a persistent
19 On Liberty chapter IV. 20 Abortion Act 1967, s 4. 21 [1993] 1 All ER 821. For a defence of this interpretation of the case, see Montgomery, J., Health Care Law, Oxford, Oxford University Press, 2003, chapter 20.

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vegetative state to withdraw hydration and nutrition because that was a course of action regarded as acceptable by a responsible body of medical practitioners. It was not suggested, however, that to continue to administer such care would have been unlawful. This course of action too would have been regarded as acceptable by a responsible body of medical option. Thus, different views were equally acceptable to the law as being within the legitimate scope of clinical freedom. The implication is that even if practising medicine is an inherently public activity, it can accommodate considerable divergence of ethical views. Consequently, the argument that the integrity of medical ethics needs to be maintained by the enforcement of common principles is undermined. More needs to be given by way of justication for the imposition of homogenous views. The second reason why relying on the moral content of doctors public role looks a weak justication for the legitimacy of medical law (as traditionally practised) can be seen in the case of Burke v. GMC.22 The case concerned a challenge to guidance issued by the GMC on decisions about withholding life-sustaining treatment. Leslie Burke was concerned that treatment might be withheld from him when his health deteriorated (he had spino-cerebellar ataxia, a congenital degenerative brain condition) against his wishes. In one sense the arguments seemed hypothetical in that it was highly probable that doctors who followed the guidance would have cared for him in the way that he wished.23 However, this was not guaranteed because the guidance allowed for clinical discretion as to what treatment was appropriate. In the High Court, Munby J accepted the validity of Burkes challenge arguing that the GMCs guidance paid insufcient regard to patients rights to require the treatment that they wanted. The Court of Appeal held that there was no such right, although in the particular circumstances in which Leslie Burke was likely to nd himself the duty to preserve life was likely to guarantee that he would be treated. Nevertheless, as a strict matter of law, in the unlikely circumstances that doctors believed that articial hydration would cause him harm, then they would not be obliged to provide it even if he requested it.24 The importance of this litigation for the question considered in this paper lies in three aspects. First of all, the moral code under which medicine operated was seen as a legitimate issue for legal challenge. If medical ethics were a private matter, then it would not matter whether it precisely matched the strict legal position. Leslie Burkes challenge to individuals caring for him might have breached his rights and be ripe for litigation, but there was no need to challenge the general guidance because it was merely guidance. Only if the issue became real in relation to the actions of individuals would the rights become justiciable.25 The acceptance of the case by the

22 [2004] EWHC 1879 (Admin); [2005] EWCA Civ 1003. 23 [2005] EWCA Civ 1003, para 13. 24 See paras 49-55, especially 55. 25 There is some indication that the Court of Appeal thought that he should have been advised in these terms, see paras 13-14.

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courts implies that professional norms are seen as a component of the quasi-legal structure of medical law and therefore a public issue. Secondly, the case demonstrates the controversial nature of the issues. The Court of Appeal sought to restrict the issue to matters directly affecting Leslie Burke and criticised the judge for elevating it into an exploration of general principle. Concern was also expressed about the way in which the case drew attention as talismatic of broader debates in society.26 Interventions were made to the litigation by parties believing that they had a stake in the issues beyond the private matters concerning Leslie Burkes care. These included the Disability Rights Commission (contending that the issues exposed the devaluing by the health professions of the lives of those with disabilities), the Catholic Bishops Conference of England and Wales and ALERT (concerned to protect the sanctity of human life). These interveners were seeking to promote a particular moral view in a way that Lord Devlin would have understood. In their view the case was more than a private matter affecting only patient and doctor. Finally, the Burke case draws attention to the possibility of a drift away from the enforcement of morality into a consumerist rights based approach.27 Munby J sought to move the concept of best interests away from being an application of value judgement working through the traditional imperatives of medical ethics to do no harm and, if possible, do some good. Instead, in Munbys account, the issue became a more content-neutral question of autonomy and the right of patients to decide what happens, whether or not it was good for them. He argued that the only circumstance in which life-sustaining treatment should be withheld was where it was subjectively intolerable to the patient. This protects the right to choose irrespective of what is chosen. While this approach was rmly rejected as a solution to the Burke case by the Court of Appeal, that Court recognised that this principle is signicant in relation to refusal of treatment. Competent patients are entitled to choose to refuse treatment that is objectively good for them, even irrationally. This protection of their autonomy ensures that treatment is not imposed upon them for their own good and is consistent with Mills liberty principle as a bastion of individuality. In Millian terms it could be said that reason why it does not work for demands for particular treatment is that requiring a health professional to act moves the question from being purely self-regarding (and private) to having an impact on others (public). This shift to the public domain could be the justication for moralistic regulation, but it seems unlikely that requiring health professionals to stand by and let patients whom they could save die has any less impact on them than requiring them to give treatment
26 This has been interestingly described as a stigmata effect, see Lee, R. and Morgan, D., Regulating Risk Society; stigmata cases, scientic citizenship and biomedical diplomacy, (2001) Sydney Law Review, 297-318. 27 This is connected to a wider debate about the connection between law and morality in the regulation of medicine. See Montgomery, J., Law and the Demoralisation of Medicine, [2006] JLS, forthcoming.

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they believe is inappropriate. Indeed it could be said to be more difcult for them to deal with.28 Most fundamentally, however, the problem with an argument for the legitimacy of medical law based on the public nature of the enterprise is unsatisfactory because it does both too much and too little. Too much, in that it would suggest that all moral issues in medicine can be resolved by enforcing a moral viewpoint. This ies in the face of the existing recognition of plurality in some areas. Too little, in that it cannot distinguish those aspects of the public choices where requiring a homogenous morality is permissible. A second approach which could emerge out of the approach taken by Munby J, but with less extensive disruption to current legal approaches, would draw the legitimacy of medical law from its protection of a limited set of particularly important moral principles. The established legal acceptance that the value of autonomy prevails over the principles of best interests or the sanctity of human life is based on another possible solution to the enforcement of morality problem.29 This operates by distinguishing between particular moral principles and regarding some of them as enforceable even though people do not personally hold them. This is, of course, what Hart actually argued in the debate over the enforcement of morality that there was a critical morality (in his case liberalism) that it was permissible to enforce. It is therefore necessary to see whether such an approach can be used to delineate the legitimate scope for medical law. Status Claims The Role of Rights? The strongest candidate for such an approach would be based on human rights. Such rights have already been identied as deserving of special protection in law and medical law would be working through the implications of this prior commitment to preserve a fundamental morality. Whether or not you accept that human rights are objectively valid, they have been accepted by society and can draw their force from a contractarian basis of (implied or imputed) mutual consent. Legitimising medical law through this strategy can be seen as defensible on either the Hart or the Devlin account. In relation to the latter, human rights law could be said to represent the codication of those aspects of prevailing morality that are seen as essential to its common life and therefore properly protected against challenge. In Hartian terms, human rights can be said to describe those aspects of peoples well-being where infringement is seen as causing the sort of harm that justies intervention (in Millian terms, the assignable interests of individuals).

28 Consider the difculty members of the team had in accepting the patients wish to die in Re B [2002] 2 All ER 449. 29 For an explanation of this prioritisation and some of the problems in applying it, see Montgomery, J., Health Care Law for a multi-faith society, in Murphy, J. (eds) Ethnic Health Minorities, their Families and the Law, Oxford, Hart Publishing 2000, 161-179.

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A human rights based approach to medical law would be able to accommodate the claim that health care decisions were largely private. It would be insufcient merely to show that others disapproved of actions, or that they were affected by them. Only if their human rights were compromised would be law be entitled to intervene. Rights claims would be privileged over other moral arguments and the general claims of society to cost-efciency and homogeneity.30 Medical law might be conned to a more limited scope, as it would need to build (for the UK) on the range of rights recognised in the European Convention of Human Rights (ECHR), but it could be condent of the moral high ground in doing so. There are, however, a number of problems with this approach. The rst concerns the difculties of interpreting the documents. Early champions of medical law as a species of human rights law stressed the importance of the right to autonomy, yet it was only in the Pretty case (over 50 years after the European Convention on Human Rights was drafted) that the European Court of Human Rights nally recognised a right of autonomy implicit in Article 8 of the Convention. This suggests that reliance on human rights might not forestall the debate over legitimacy. So long as the interpretation of convention rights is controversial, the legitimacy debate is recast as an argument about what rights mean. Thus, the abortion issue remains hotly disputed as a human rights matter because it is not clear whether the fetus or unborn child is a life in relation to Article 2.31 If it is, then abortion is clearly a human rights issue and a legitimate matter for medical law to regulate. If not, then it may not be. The second difculty with the human rights strategy to provide medical law with legitimacy arises within the texts themselves. Human rights law can be a powerful tool in controlling medical power. One of the few areas of medical law that has seen signicant challenge since the implementation of the Human Rights Act 1998 is mental health law. Of particular importance has been the development of jurisprudence that ensures that doctors cannot impose treatment merely because the criteria in the mental health legislation are met but must either secure consent or demonstrate medical necessity.32 In general, however, the English courts have so far shown themselves reluctant to make major changes.33 The reality is that the drafting of the European Convention is quite friendly to paternalistic medicine. Article 5 permits detention for the purposes of disease control. Most importantly, Article 8 sees privacy (now including autonomy) as needing to be balanced against public health and morals. Applying this to abortion, while the law has shied away from dealing with the issue on the basis that the fetus has its life protected, it has not resolved the matter in terms of womens right to choose. It is perfectly possible to
30 This conception of the role of rights is explained in Montgomery, J.,, Patients rst: the role of rights, in Fulford, K., Ersser, S. and Hope, T. (eds), Patient Centred Health Care, Oxford, Blackwell Scientic, 1996, 142-152. 31 Vo v. France App No 53924/00 [2004] 2 FCR 577. 32 R (on the application of Wilkinson) v. Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419; R (on the application of N) v. Doctor M [2002] EWCA Civ 1789, [2003] 1 FCR 124. 33 NHS Trust A v. M; NHS Trust B v. H [2001] 1 FCR 406.

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11

justify regulating abortion on the basis that the right to privacy under Article 8 needs to be balanced with the needs of public health and morals. Thus, the appeal to human rights has given some structure to the debate but it cannot legitimate an answer because the texts are too ambiguous. The third concern about the human rights approach arises from the range of rights that are actually recognised. Many argue that the ECHR is a dated document and does not fully cover the needs of the twenty rst century. Supplementary human rights documents, such as the Oviedo Convention on Bioethics,34 seem to be needed to cover the territory populated by medical law. Yet to look to such developments brings the problem that the UK has declined to sign the Bioethics Convention, so the argument that prior commitment to human rights justies its subsequent enforcement breaks down. There has been no such commitment. These issues highlight the risks of basing the legitimacy of medical law on human rights it may force us to contract the scope of the subject to those areas where the texts are clear. Legitimacy at such cost may not be attractive. Indeed, some would argue that to look to human rights for a solution is inappropriate for matters that are properly part of public debate. The reluctance of the House of Lords in the Pretty case to hold that human rights were even engaged was partly fuelled by such concerns. To resolve the case by appeal to human rights law designed for a non-health care context was to exclude proper debate of the issues. As Lord Steyn put it:
Any proposal that the Universal Declaration should require states to guarantee a right to euthanasia or assisted suicide (as opposed to permitting states by democratic institutions so to provide) would have been doomed to failure in the eld of fundamental beliefs the European Court of Human Rights does not readily adopt a creative role contrary to a European consensus, or virtual consensus. The fact is that among the 41 member states north, south, east and west there are deep cultural and religious differences in regard to euthanasia and assisted suicide. The legalisation of euthanasia and assisted suicide as adopted in the Netherlands would be unacceptable to predominantly Roman Catholic countries in Europe. The idea that the Convention requires states to render lawful euthanasia and assisted suicide (as opposed to allowing democratically elected legislatures to adopt measures to that effect) must therefore be approached with scepticism. That does not involve support for the proposition that one must go back to the original intent of the Convention. On the contrary, approaching the Convention as a living instrument, the fact is that an interpretation requiring states to legalise euthanasia and assisted suicide would not only be enormously controversial but profoundly unacceptable to the peoples of many member states.35

Such issues were for Parliament not the judges to determine. To hold that human rights dictated the outcome would be to extend the function of the Convention too far into the legitimate margin of appreciation that states have to determine the nature
34 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, signed at Oviedo, 4.4.1997, European Treaty Series No. 164. 35 R (Pretty) v. DPP [2002] 1 All ER 1, Para 56.

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of their own societies. This could be said to be a view that the key to legitimacy lies in democracy not human rights. Democracy and Legitimacy? Pleas for greater democratic accountability have been made in the course of the debate over reform of the Human Fertilisation and Embryology Authority, but they need to be considered carefully because there are weaknesses as well as strengths in democracy as a source of legitimacy. Consideration needs to be given to aspects of the democratic case that are a response to perceived failures of regulation (a negative case), to the positive case for democratic legitimacy, but also to the limits of legitimacy. The negative case challenges the legitimacy of an unelected judiciary to determine issues of public importance. Judges, it holds, should apply the established law, not invent policy solutions. Nor can experts (health professionals and scientists) be trusted to regulate themselves. Their very expertise makes them different and undemocratic in the populist sense. Further, self-regulation is now generally equated with self-interest and a series of medical scandals have undermined condence in the professions. It is not clear, however, that parliamentary democracy is superior. The Select Committee, however:
Remain[ed] convinced that a larger role for our democratically accountable Parliament would give the public greater condence that the big ethical issues of the day are being given adequate attention.36

Yet Parliaments track record in the eld raises cause for concern. While the Human Fertilisation and Embryology Act 1990 was passed after a prolonged period of policy development, into the debates were introduced two unexpected clauses dealing with issues not initially part of the preparatory phases.37 There was vote on amendments to the law of abortion that relaxed controls on late terminations, probably in a way that MPs did not appreciate. The reforms were presented as being about lowering time limits but the changing of the relationship between the Abortion Act 1967 and the Infant Life Preservation Act 1929 made signicant differences to terminations for abnormality, extending their availability to birth. Section 30 of the Act introduced provisions designed to accommodate an individual case from one MPs constituency caseload, but which are not easy to reconcile with the policy implicit in the wider Act. Five years earlier MPs had picked on the controversial issue of surrogacy without establishing broader principles, debating the Surrogacy Arrangements Act 1985 in moralistic terms worthy of the most sensational of tabloid journalism.38 It is far from

36 See note 4, this text is from Recommendation 87, the fuller discussion is at Paragraph 357. 37 Montgomery, J., Rights, restraints and pragmatism, (1991) 51 MLR 524-534. 38 Morgan, D., Who to be or not to be: the surrogacy story, (1986) 49 MLR 358-368.

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13

clear, therefore, that democratic processes can be expected to deliver either careful consideration of ethical issues or technical competence in legislation. There is a more fundamental problem, however. On the face of it, turning to democracy as a solution to the problem of the legitimacy of medical law brings us rmly back to where we started. Mill drew attention of the problems of democratic legitimacy in the phrase tyranny of the majority. If democracy is merely a matter of majority vote, then those who think differently are likely to have their choices curtailed by the imposition of the morality of others. Mills formulation of the harm principle was precisely an attempt to delineate the limits to the power of the people. Dworkin has given an illuminating account of how the problem looks from a utilitarian perspective. He suggests that while it is appropriate that equal weight is given to peoples preferences as to how to live their own lives, it would be wrong to give such weight to their views on how other people should live. That would be to double count the views of moralistic people and undermine the egalitarian attraction of utilitarianisms claim to treat all peoples views as being equally important.39 The trouble with the parliamentary and broader democratic solution to the legitimacy of medical law is that it seems to work not by ensuring that ethical issues are properly debated but almost the opposite by ensuring that experts (be they health professionals, bioethicists or lawyers) do not make decisions. It does not root medical law in moral principles, as Ken Masons work has tried to do, but in the raw power of votes. It is an essentially political rather than ethical process and likely to benet politically astute and effective campaigners. The assault on the democratic legitimacy of the Human Fertilisation and Embryology Authority may be based on criticism for doing precisely what it was established to do try to resolve moral and scientic problems within a principled framework established by Parliament. Democratic pedigree may provide a reason to follow the rules that are based on a general obligation to be law-abiding or upon the more pragmatic fear of the consequences of disobedience. However, it cannot root the substantive provision of medical law in moral obligations and thus cannot legitimise medical law as most scholars approach it. Towards Resolution This brief exploration of the problem of legitimacy in medical law has so far thrown doubt over the enterprise. It has suggested that the most familiar justications for enshrining moral positions in law, so that they are imposed on people who do not share them, do not provide convincing solutions. It might be tempting to respond by one of two extreme approaches. The rst would deny the legitimacy problem and move directly from moral debate to legal rules without concern for moral pluralism. On this approach medical law would be littne more than the technical application of bioethics. It would also be increasingly vulnerable to challenge by those who
39 Dworkin, R., A Matter of Principle, Oxford, Oxford University Press 1986, at pp. 359-365.

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First Do No Harm

campaign for the imposition of particular moralities (for example on abortion) as it could give no account of why their moralism should be resisted. The other extreme view would be to accept that the legitimacy problem is insuperable and allow medical law to collapse into a combination of consumer law (in relation to private relationships) and public law (in relation to state spending). Neither leaves much scope for the approach that Ken Mason embodied of careful exploration of moral issues with recognition of the limits of the law. Fortunately, it is not necessary to drift to either of these extremes. The key to the legitimacy problem in the modern context is to see medical law as a tool to ensure the recognition that its subject matter is morally charged and to protect the ability of individuals to grapple with the ethical issues that arise. It maintains the pre-conditions for moral agency. To impose a particular moral position will usually be to deny people who think differently the possibility of working through their own ethical responsibilities. It would consequently foster the view that the questions were not ethical so much as a matter of compliance with societal requirements. Medical law needs to make clear that its protagonists are morally accountable for their decisions and not merely following rules set down by others. In that sense the legitimacy of medical law lies in its attempt to preserve the possibility of morality, not to enforce a particular version of the good. The difference between this approach and consumerism can be seen in its implications for the relationship between patients and health professionals. In the Burke case, Munby Js acceptance of a right to require treatment would have subordinated the judgments of professionals to those of a patient. That would have compromised the ability of professionals to make moral choices. Equally, the moral independence of patients is protected by the requirement that treatment cannot be given without their consent (provided that they are competent). The resulting partnership is one of moral equals, neither of whom necessarily takes precedence. The assumption is that both will use the opportunity to grapple with their consciences. The expectation that health professionals will do this lies behind the generally benign judicial attitude to regulating health care.40 No such assumption is made about patients, who may refuse treatment even for irrational reasons.41 However, the Kantian tradition from which modern respect for autonomy is drawn would value choice as the expression of independent reason, not mere whim. The laws reluctance to explore patients reasoning can perhaps be explained as an illustration of the limits of proof rather than a morally important feature in its own right. On this understanding, the legitimacy of the Human Fertilisation and Embryology Act 1990 turns on its creation of a framework within which different decisions on morally signicant matters are taken at different and appropriate levels.42 The permissibility of some matters, such as cloning or keeping embryos alive in vitro for
40 This point is developed further in Montgomery, J., Law and the Demoralisation of Medicine, [2006] JLS, forthcoming. 41 Sidaway v. Bethlem RHG [1985] 1 All- ER 643, per Lord Templeman. 42 See the account of the Act in Montgomery, J., note 37.

The Legitimacy of Medical Law

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more than 14 days, was determined by Parliament. Others were within the gift of the Authority subject to Parliamentary oversight. Members are expected to exercise their judgment on difcult moral issues and be free to do so reasonably freely provided that they observe the legal limits to their powers. Those judgments can be exercised through licensing and also through guidance in the Code of Practice. Some things remain open for decision by individual clinicians and patients. At every level the framework makes moral judgment possible, while rarely resolving the moral issues denitively through law. Adopting such a view of the proper function of medical law offers a more satisfactory solution to the problem of legitimacy, but it requires lawyers to be prepared to accept a signicant degree of indeterminacy. Such uncertainty has sometimes been seen as a failure of legal regulation.43 However, the more certain the legal requirements, the more likely the legitimacy problem is to be raised. If the job of medical law is to provide a structure for moral decision making, then the key questions will concern the allocation of the power to decide and the mechanisms for making decisions accountable. Failures in medical law would be identied not so much in relation to what is permitted to occur, but in the way key protagonists are disempowered. The law should protect both patients and professionals rights to exercise their judgment and prevent outsiders from dictating to them what should happen. This is something different from consumerism because it recognises the moral integrity of health professionals as well as patients. It preserves a degree of private space, but is compatible with external regulation on the harm principle in extreme cases where such harm can be clearly demonstrated and on the basis of human rights where those are clearly dened. However, where such regulation is based simply in imposing substantive moral views it would defeat the legitimate purpose of medical law because it would defeat its object. Moral decision making would be taken away from patients and professionals and consequently those claiming the moral high ground would also be destroying the basis of moral responsibility in giving care.

43 Miola, J., Medical law and medical ethics complementary or corrosive?, (2004) 6 Medical Law International 251-274.