Jacqueline A. Laing

Airedale NHS Trust v Bland establishes three principles among which is the controversial idea that people in a PVS, though not dying, have no best interests and no meaningful life. Accordingly, it is argued, they may have their food and fluids, whether delivered by tube or manually, removed, with the result that they die. Laing challenges this view arguing that not only is this bad medical science, it is unjustly discriminatory and at odds with our duties to the severely disabled. Laing highlights research by Keith Andrews et al and points out that Andrew Devine, in the same Hillsborough disaster, woke up some years after Tony Bland was decided.(Post script) Laing argues elsewhere that after the Mental Capacity Act 2005 the case has become a dangerous springboard for new third parties' to require the removal of food and fluids from the vulnerable incapacitated.

An analysis of the concept of law, its source and connection with human positive law. The article begins by noting that “law” relates not only to prescriptions governing the behavior of human individuals. The term has a far wider sense. It can also refer to a standard or rule that binds things or events. This sense of the term covers the laws of the physical as well as the moral sciences. There is a distinction to be drawn between scientific laws of nature and moral laws. Regularities in natural occurrences are often regarded as laws of nature even though what we ordinarily think of as laws are those rules that govern human behavior. We speak, for example, of the “law” of gravity and of Newton's, Einstein's, and Kepler's laws. In so doing we emphasize the regularity and binding nature implicit in each of their formulas. The thought that there are laws of the natural sciences as well as moral laws has traditionally been seen as implying a creator and regulator of all things, and an eternal source of these laws. Equally it raises the disputed question of the place of miracles, or those suspensions of regularities, in the natural scheme of things. In the same way, sacred scripture speaks of Divine Wisdom as directing all actions and movements. This article considers the physical and moral laws more generally and considers human law and its connection with the natural law.

A consideration of monotheism. The term ordinarily suggests belief in one God and derives from the Greek monos meaning “one” and theos meaning “god.” In the Abrahamic religions, Judaism, Christianity, and Islam, the one god is regarded as supreme lord and creator of the universe, almighty, all-knowing, and all-good. Traditionally, Christianity has taught that God revealed himself to our first parents, Adam and Eve, as the one true God in Genesis. The Old Testament reveals a jealous God who forbids the worship of strange and multifarious gods. God's chosen people, the Jews, are destined to prepare the way for the coming of the universal religion available not just to a privileged few.

The Liverpool Care Pathway is intended as a palliative care regime at the end of life. Even its critics agree that certain of its recommendations may be useful and appropriate. Additionally, critics are aware that there are occasions when death may be a foreseen side effect of perfectly licit palliation whose primary ends are not homicidal at all. It is evident that treatment may be over-expensive, over-burdensome or simply futile. There is no suggestion that critics of the Pathway adhere irrationally to what is known in medical ethics as the error of vitalism, the commitment to excessive, extraordinary or futile treatment, or over-burdensome care at the end of life. However, to ask whether treatment is futile, over-burdensome or over-expensive is very different to the discriminatory question about the futility, burden or expense of a frail and vulnerable patient. The sedation-dehydration aspect of the Pathway attracts much proper opposition. Doctors and families have found that those on the Pathway recovered when they intervened to take the patient off it. Senior medics have stepped forward, in the face of managerial opposition to argue that it is often impossible to know with certainty whether a person is imminently dying. One problem with the Pathway is that where a patient is misdiagnosed as terminal, the combination of morphine and dehydration has a self-fulfilling character and is likely to undermine a patient’s capacity. Persistent dehydration of even fit and healthy sedated patients will kill them. This was the difficulty highlighted by concerned medical professionals many years ago. The independent inquiry ordered in response to Freedom of Information Act requests performed in 2012 demonstrating a staggering increase in the number of people dying on the Pathway once it was financially incentivised needs to ensure certain investigations take place. What is needed, however, is not a whitewash but an independent inquiry with all interests declared and data sets interrogated and collated. These will cover a time-series medical history of each anonymised patient on the Pathway, duration until death, information about interventions provided during the period, monthly raw data from each trust, hospice or care home, medical histories, removals from the Pathway, information about journals that were corrected once a patient recovered, demographic data, location information and an audit trail of all data management.

The Mental Incapacity Bill not only paves the way for euthanasia, but invites wholesale abuse and homicide, writes Jacqueline Laing. On 19 October 2004, when the Mental Capacity Bill was at its crucial committee stage, the Law Society issued a statement of ‘strong support’, claiming that it empowers patients and in no way introduces euthanasia. Laing argues that the Bill threatens the incapacitated by granting a raft of new third parties power to require that health professionals withhold ‘treatment’, which, after the controversial decision in Airedale NHS Trust v Bland [1993] AC 789, includes food and fluids delivered both by tube and, in certain cases, by spoon. The Bill further endangers the vulnerable, first, by allowing non-therapeutic research on the non-consenting mentally incapacitated, in breach of the Nuremberg Code and First Declaration of Helsinki, and secondly, by permitting new agents power to undertake on people with learning disabilities certain questionable procedures currently authorised by the High Court, such as non-voluntary sterilisation.

On the sixtieth anniversary of the Universal Declaration of Human Rights, Laing contends that the practice of eugenics has not disappeared. Conceptually related to the utilitarian and Social Darwinist worldview and historically evolving out of the practice of slavery, it led to some of the most spectacular human rights abuses in human history. The compulsory sterilization of and experimentation on those deemed “undesirable” and “unfit” in many technologically developed states like the US, Scandinavia, and Japan, led inexorably and most systematically to Nazi Germany with the elimination of countless millions of people for their race, class, political views, sexuality, religion or disability. She argues that the new eugenics collapses into the old variety because of its fixation on producing “the better” or even more implausibly, “the best”. It was this very idea that drove much of the injustice of the twentieth century. Ethically questionable strategies were at the time viewed as progressive and socially evolutionary. The new eugenics, she thinks, fares no better and spells disaster for people regarded as deficient in some way. She rejects the idea that autonomous efforts to choose “better” or the “best” children are less problematic for being freely chosen. The fact that one freely chooses to give one’s children away into slavery or medical experimentation or to end one’s life, is no bar to the action’s being part of a eugenic agenda and independently at odds with intergenerational justice and the common good. She points out that misinformation, propaganda and behaviour modification techniques, subliminal or otherwise, are celebrated ways of getting people to act in a way that destroys their own interests. Laing regards eugenics as an ongoing threat to the defenceless in particular, but the ‘deficient’ classes more generally.

Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless?