I was at a Gresham Lecture yesterday, To Die or not to Die (whether ’tis nobler in the mind to suffer the slung arrows of outrageous fortune, or to take arms against a sea of troubles…). The speaker was Sir Allan Ward a judge with a 60 year career behind him who is now retired with time to give interesting talks.
He started by saying how awful the death penalty is and described two of the prisoners he had met in South Africa who had completely crumpled and been destroyed just by the sentence, even before the actual execution. This was moving, but also, in the UK, safely dated, we have gotten rid of the death penalty now because we all agree it’s bad. This was the jumping off point though, he had thought he would never have to deal with life and death issues again, but they do still exist.
The first story was about a 16 year old Jehova’s witness, who, with his parents, didn’t want a life saving blood transfusion as part of his treatment for leukaemia. The doctors did want him to have the life saving blood transfusion so the case came to court. In some ways it seems like a no-brainer to say of course the child should be ‘forced’ to have the blood transfusion, However, Sir Allan went to visit the boy in hospital, made sure the 16 year old understood the risks and issues, and discussed and listened for some hours. He also wanted to make sure that if he judged that the child should have the treatment, the boy would accept the judgement and not try ripping the tubes out. Indeed he argued that because the decision had come to him, the judge, this was the heavenly equivalent of a sick note that he could hand over to St Peter at the pearly gates to excuse his sin (I’ve deliberately left the quote marks off there). So when he left the hospital and wrote up the brief on Friday night, the appeals court were all ready and set for the appeal. But there wasn’t one. The family’s solicitor, himself a Jehovah’s Witness, said they had planned to appeal because they had thought their opinion would be dismissed, but when their views and values were taken seriously and listened to, even if ultimately the judge didn’t agree, they were satisfied.
However, there was a sober epilogue. The leukaemia returned 10 years later, and as an adult he refused a transfusion and did die. So the judgement gave him a decade, but ultimately didn’t save him. It seems to me that the boy might have felt that an external court could override him as a child, but as an adult man, his path was clearly to stick with the tenets of his religion.
The second story was the longest and concerned conjoined twins. The parents came from a small village in Malta which has an agreement with the NHS that their complex cases can come here for treatment. You probably heard about it at the time, the twins were Jodie and Mary (not their real names).
The twins were joined up around their tummies with their legs sort of stuck out at the sides and grown all wrong, it did look quite bad. Indeed, very understandably, it took the mother days to be able to be in the same room with them and to touch them.
Jodie was well but Mary was brain damaged. Jodie’s heart was beating for Mary which doctors suggested was equivalent to her little baby heart pumping blood round a 10 foot tall person. The doctors thought they could save Jodie and carry out complex surgery to give her a healthy normal body. Mary would have to die. I did think this moral dilemma was somewhat reduced by the possibility that Jodies heart could fail under the double strain and they could both die. It seems then it’s choice of saving one instead of none. However, in this or another case it might be that Jodies heart would grow strong and they could both live, though with a limited quality of life and being bed bound.
So the parents thought they should wait things out and if the babies died that was God’s will, while the doctors were sure they could save Jodie. A very cynical person might wonder if some parents might prefer a dead child to a severely handicapped child and might wonder if this influenced the parent’s feeling that Mary should not be sacrificed (though the doctors were confident Jodie would be healthy, the parents were not so sure).
So it came to court. Three days in Sir Allan raised a further point: if the doctors take up a scalpel to separate the twins and save Jody, but knowingly kill Mary, is that murder?
This could have been argued very differently a century ago. Murder involves killing a ‘rational human’ i.e. I guess killing animals is ok. So was Mary a rational human? Her brain damage would, a century ago, have disqualified her as a ‘monstrous birth’. Perhaps it might then have been perfectly ok to let her go quietly, and maybe even to help her along. Nowadays it was quickly agreed that Mary’s brain damage didn’t apply and she definitely counted as a rational human.
So having described this much, I’d like to stop discussing the actual case, take a step back, and say, I think it’s quite right for the state, for the taxpayer, indirectly for us, to take this time and effort and money to discuss these cases and go into the issues. For example, far better to get into the issues of whether the operation is murder or not before hand, so you can figure it out without any doctor having to sit in the dock and wonder if he will wind up in prison (in the end they decided that because Mary was such a drain on Jodie, and could kill her, it was ‘self defence’ for Jody to be separated and the doctors were acting as a proxy for Jody’s self defence). And after all, if the taxpayer spends a fortune in wages, you do get 20-40% of that right back.
Michael Sandal argued at the end of one of his books on ethics, that when you have a knotty, thorny ethical dilemma, perhaps the exact decision you reach is not the most important thing. The whole point of a difficult choice is that there are arguments either way and that perhaps the most important thing is to honour the difficulty with thought, attention, time and effort. You must think carefully every which way, but ultimately there might not be a clearly right or wrong answer. He illustrated this with two men who each had brother who had committed murder and might do so again. Ultimately one man dobbed his brother in, while the other refused to do so. In the end you could agree with both men.
However, Sir Allan argued this was not exactly the case for Jody and Mary. The question was not what was moral, the question was, what was legal. And he raised this again in a question at the end. Currently assisting suicide is illegal so if someone brings their wife to a Dignitas clinic in Switzerland, this is illegal, even if we all agree the law needs to be changed (and clearly we don’t all agree otherwise we would change it).
I did wonder about all the cases we never hear about because the parents and doctors agree. If the doctors had just gone ahead without any court cases, would they maybe have been up for possible murder (even if Mary’s death turned out to be indirect self defence) or would nobody have thought to raise the issue?
The difference between law and morals also comes out very well in this paper: No Child Left Alone, about mothers and father who leave their children alone. Surprisingly, it is actually readable, even though it’s science! But don’t worry, no children where harmed in the making of this science. The children were only left alone in scenarios that were read and graded by amazon Mechanical Turk (what a brilliant way to get research subjects). The authors, Ashley Thomas et al., conclude that in the US today there is a new moral code and it’s totally immoral to take your eyes off your child for even five minutes, even when the risk of kidnapping/murder is around 0.0007% or 1/1.4 million a year (fairly low) and that when police were called out to bring two lone children home, the kids were more at risk being driven in the car than they had been walking home alone (with the permission of their parents). This even comes up in Patrick Ness’s new novel More Than This. Two brothers are left home alone for a short time, in those few minutes an escaped prisoner pops by and something terrible happens to the younger brother. The parents then spend the next 10 years blaming the older brother, who was eight at the time. The older brother discusses it twice, and both friends are assure him he was not at fault (obviously) but they are entirely happy to throw all the blame on the mother while ignoring the actual person who committed the terrible crime. That was a bit annoying.
The last author of no Child Left Alone, Barbara Sarnecka, concluded that their findings “should caution those who make and enforce the law to distinguish evidence-based and rational assessments of risk to children from intuitive moral judgments about parents — and to avoid investing the latter with the force of law.” So leaving your children alone in sensible circumstances (not neglect) is now immoral, but should not be made illegal.
Phew that was a lot of thought from one lecture. I’m looking forward to more of these.