Should Doctors Kill....

The way in which legal logic works itself out of the boxes in which it has been set is intriguing to me. These past days, occasioned by a horrible story of a child murdered at the hands of her mother for being disabled, I found myself asking about the way in which the power to kill had devolved upon doctors.

Doctors tend to be default arbiters in this country. That is to say, when the abortion legislation was put through the commons and lords in 1967, it didn't convey a right to abortion. Instead, it formalised a longstanding defence to a charge of illegal abortion, which was that such a thing was available at the discretion of a doctor on the terms normal to the medical community. That's still the case, and only one doctor has ever been prosecuted for performing an abortion on demand (R v Smith [John] in 1973).

In 1992, the law of England and Wales went a little further. The result of Airedale v Bland was that doctors were allowed the option of switching off a life-support machine when a football supporter injured in the Hillsborough disaster, Tony Bland, was in a persistent vegetative state.

So, doctors had now had two powers formalised ; to withdraw treatment, and to abort. These practices were not introduced by the cases, whatever lawyers pretend. They had always gone on. Battlefield triage had, from credible wartime stories, often consisted of 'taking care of someone' by putting them away with a gun or a needle. Yet recognising them and in some cases celebrating them as something different was a step towards viewing human beings as bed-blockers or career impediments in some economic, relativist game that we all started playing in the sixties.

The third step was Re A. This was a very troubling conjoined twins case. Doctors knew that both twins would die if left joined; one twin would die if they were deliberately separated. Deliberately taking action that will certainly result in the loss of a life is, on the face of it, murder. So the issue landed in the laps of the Law Lords. Doctors, who often are very deeply marked by the decisions which they have to make, have been thinking about it ever since.

I have read and re-read the Re A judgments this week and have been intrigued by the attempts to justify medical killing. These revolved around the use of arguments of necessity and duress, which English law never allowed for murder. Even when starving sailors lost on a boat at sea ate a cabin boy to survive, the law had convicted them and then commuted sentence rather than allowing a situational morality.

The sailors' case, by the way, Dudley and Stephens, is bizarre; four days after their moral drama ended in cannibalism, a huge ship reared out of the mist and wave and rescued them, with the evidence of what they had done still around.

Right into the twentieth century, legal minds like Lord Hailsham had refused to suggest that taking life was not an absolute evil. Something changed, however, in the the late twentieth century. Their lordships now, apparently, think that either this sort of thing happens and should be confined to functioning, reasoning conjoined twins, or that doctors can sometimes look to necessity as a way of justifying deliberate actions that will kill. The confusion isn't surprising; criminal law is just made of the same crooked timber as the rest of us.


The ethical dilemmae are profound. I have to confess, even if I sometimes purport to know what I should do, I'm not sure what I would do. In the run-up to the American Civil War, there were cases like these, which brought profound issues of slavery to a head; Dred Scott, Ableman v Booth and Lemmon v Virginia all gradually cheapened American lives, formalised and federalised slavery, and created a foundation that would have made congressional action to stop it impossible.

In this country there has been a similar creep. Hard, difficult cases have now given rise to a quarter of all pregnancies ending in termination; to doctors who, under huge personal and financial pressures and for ethical, situational reasons, withdraw life support; to the creeping expansion of the arguments used in Re A to other cases; and to suspended sentences for some who commit euthanasia.

At the same time, doctors have been tested, drilled, and academicised to the point of brainwashing, from the first UKCAT or BMAT or GAMSAT exam they sit to the certificate of completion of training and beyond. Yet many now spend a fraction of the time learning about bodies by dissecting than they would have even twenty years ago. That many of them come from social strata that have always relished the chance to kill or condemn the working classes or who are susceptible to god complexes is even more worrying.

Something is very wrong. Parliament is avoiding debates, or proceeding by government-whip votes to a future upon which debate is obviously avoided, lawyers--which is all Law Lords are--are granting and devolving power after power to doctors, and ordinary members of the public can't escape an establishment which can now kill them or their children even without their consent. Meanwhile, Doctors stumble stunned from one academic test to another whilst occasionally managing to do some good, but also much harm.

Is this what happens in countries in rapid decline, or has life always been this cheap in England? I can't pretend to know the answer, and nor, for that matter, do people much more senior than I.

The questions are as chilling as the morning fog outside my window.