The Liverpool Care Pathway provides a rubric for managing the care of the terminally ill as they approach death.  A helpful pamphlet explaining what it is and what it does is available here.  Ideally, I’d quote the lot; but for the sake of efficiency, I’ll make do with an edited quotation:

What is the Liverpool Care Pathway (LCP)?

The LCP is a pathway/ document that outlines this best care, irrespective of your relative/ friend’s diagnosis or whether they are dying at home, in hospital, in a hospice or a care home.

Medication/ treatment

Medication will be reviewed and any medication that is not helpful at this time may be stopped and new medication may be prescribed so that if a symptom should occur there would be no delay in responding.

It may not be possible to give medication by mouth at this time, so medication may be given by injection or sometimes if needed, by a continuous infusion by a small pump called a Syringe Driver, which will be tailored to individual needs.

It may not be appropriate to continue some tests at this time; these may include blood tests or blood pressure and temperature monitoring.

The staff should talk to you about maintaining your relative’s/ friend’s comfort; this should include discussion regarding position in bed, use of a special mattress and regular mouth care. You may want to be involved in elements of care at this time.

Diminished need for food and drink

Initially, as weakness develops, the effort of eating and drinking may simply have become too much and at this time help with feeding might be appreciated.

Your relative/friend will be supported to take food and fluids by mouth for as long as possible.

When someone stops eating and drinking it can be hard to accept, even when we know they are dying. It may be a physical sign that they are not going to get better. Your relative/friend may neither want or need food and/or drink and decisions about the use of artificial fluids (a drip) will be made in the best interests of your relative/friends for this moment in time. This decision will be explained to you and reviewed regularly.

This can be paraphrased further: medically futile treatment may be withdrawn; the main criterion for administering drugs will be symptom alleviation rather than life extension; some testing may be discontinued; it’s possible that there’ll come a point when artificial nutrition and hydration are no longer in the patient’s best interest, and they might be withdrawn if and when that point is reached.

None of this is particularly cheery; but death rarely is.  more…

Guest post by Sorcha Uí Chonnachtaigh

I am going to, rather controversially, agree with one aspect of the statements of pro-life activists commenting on this case. That is not something I thought I’d ever say. Like, ever ever.

A statement issued by Youth Defence (one of Ireland’s most radical pro-life organisations) made the valid point that “Irish doctors are always obliged to intervene to save the life of a mother, even if that risks the life of her baby”. Because of some misconceptions about the reasons for Savita’s maltreatment, it is assumed that Ireland needs to reform its abortion law so that this never happens again.  While I would strongly support abortion law reform in Ireland, it is not necessary to ensure this never happens again.  Mere legal regulation of the status quo on abortion would prevent this.  As the (limited) law stands, this should never have happened at all. While some believe that legislation to regulate access to already lawful abortions constitutes law reform, any such legislation would not alter the current legal position – it would merely give meaningful access to abortions.

I don’t agree with anything else that has been included in pro-life posts/articles (stop throwing things at your computer screens), but more on that later.  First, I want to elaborate on this to clear up some of the misconceptions about Irish law that have been expressed in condemnations of the case around the web.

If you have clicked through to this post, it is very likely that you’ve already read about the facts of Savita’s case, first reported in the  Irish Times on 14 November, and at least some of the estensive commentary pieces available on the issues arising from this case (like this, and this, and this).  (These links here are to pieces by Irish people with more informed knowledge of the legal situation.)

For the sake of comprehensiveness, I’ll provide an edited summary of the facts of the case (as reported to the Irish Times by Savita’s husband Praveen): more…

The Malaysian Parliament has just approved a law about traditional medicine.  The Traditional and Complementary Medicine Act is largely about the regulation of practitioners of TCM – notably, setting up a regulatory Council.  According to section II (5)

The Council shall have the following functions:

(a) to advise the Minister on matters of national policy relating to traditional and complementary medicine practice;

(b) to establish the eligibility requirements for each practice area;

(c) to recognize qualifications conferred by any institutions of higher learning established under any written law in Malaysia or any institutions of higher learning recognized and authorized by any countries outside Malaysia for the purpose of registration under this Act;

(d) to specify the appropriate academic qualifications or recognized skills certificate issued pursuant to the National Skills Development Act 2006 [Act 652] which are or is necessary before a person may apply to be a registered practitioner;

(e) to specify the necessary apprenticeship and training requirements including rules for undergoing apprenticeship, the scope of responsibilities and permitted conduct or activities of apprenticeship, duration of apprenticeship and post-qualification apprenticeship;

(f) to register individuals who will provide traditional and complementary medicine services to the public;

(g) to issue practising certificates to registered practitioners who have satisfied the prescribed conditions and paid the prescribed fees;

(h) to develop codes of professional conduct, rules relating to the professional conduct of registered practitioners, including penalties for breach of such codes or rules;

(i) to develop, undertake, prescribe and mandate any matter relating to or connected with the practice of traditional and complementary medicine or the professionalism of such practice;

(j) to specify, provide for and administer a complaints procedure and process;

(k) to develop rules upon which registered practitioners are to refer their patients to medical practitioners or dental practitioners, as the case may be;

(l) to obtain such relevant information from practitioners, and to provide the same to the Minister;

(m) to carry out such functions as may be specified by this Act; and

(n) to carry out all such other activities as may be directed by the Minister and such direction shall be consistent with the purposes of this Act.

Section IV (21) says that

(1) No person shall practise in any practice area which is not a recognized practice area.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—

(a) in respect of a first offence, to a fine not exceeding thirty thousand ringgit [approx £6000] or to imprisonment for a term not exceeding two years or to both; and

(b) in respect of a subsequent offence, to a fine not exceeding fifty thousand ringgit [£10 000, or thereabouts] or to imprisonment for a term not exceeding three years or to both.

Is this a good law?  Clearly, it is not a particularly exciting piece of legislation; and there might be problems with it – there’re problems with a lot of laws. more…

Readers are probably aware of the consultation that the HFEA launched this week on the use of mitochondrial replacement to prevent certain illnesses.  John Harris has a piece on it in The Guardian – and by gosh golly, he’s right*; the article is well worth a quick look.

My own ha’p'orth: some of the stuff in the consultation is a bit odd.  One of the sets of questions it asks has to do with what such a procedure would do to a child’s concept of identity.  But why is this a concern?  Suppose a child discovers that she’s been the recipient of a mitochondrial transplant: so what?  Why would that make the blindest bit of difference to her sense of identity?  Isn’t it wholly plausible that, if there is any impact, it’s not because of the source of the genes qua genes, but because of all the people around her telling her that it’s tremendously important and she should give a stuff?  But they might be wrong.  I’d stick my neck out and say that they probably are.  Genetic origins simply don’t matter.

(Ah – but if she’s brought up to think that they’re imporant, isn’t that enough to establish that they’re important to her – and so are important in some sense after all?  Well, no.  Imagine someone is brought up to think that the fortunes of West Ham United are important; they’ll be important to him.  But it doesn’t follow that they’re important; and it might be that, in treating them as important, our hapless Hammers fan ends up making himself much more miserable than he need be by worrying about things that don’t merit worry.  It could be that he ought not to think the football important.  The same applies to genes: if a person’s genetic origins are important to her, it doesn’t follow that they’re important, or that there’re no good reasons to think them less important.)

But lots of people seem to think that genes do matter, and so we get questions like this; and asking questions like this perpetuates the idea that it’s a question worth asking… and so it goes on.

*I’ve found myself saying that increasingly often of late.  Scary stuff.

Earlier today, Sarah Catt was jailed for 8 years for inducing the termination of her own pregnancy at 39 weeks’ gestation.  The transcript of the comments of Mr Justice Cooke, sentencing, is available here.

I don’t want for this to get bogged down in questions of the moral rights and wrongs of abortion, at whatever stage during the pregnancy it takes place, or with what the law should permit.  Rather, I just thought that I’d highlight a couple of aspects of Cooke’s comments.

12. You could well have been charged under Section 1 of the Infant Life (Preservation) Act 1929 for destruction of a child capable of being born alive. Section 1(2) of that Act provides a presumption in law that if a woman is pregnant for 28 weeks, the child en ventre sa mere is capable of being born alive.

[...]

16. There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners. more…

Unsurprisingly, the ruling handed down last week in respect of Tony Nicklinson and “Martin” has generated a lot of comment.  A lot of that comment has disagreed with the ruling.  David Allen Green, the Staggers‘ legal correspondent and also known as the blogger Jack of Kent, tweeted that it was a “dreadful court decision… depriving a person of basic dignity“; and in the wake of Nicklinson’s death, added that he thought it was still “entirely open for courts to rule in his favour rather than blame Parliament“.  Over at the Practical Ethics blog, Roger Crisp suggests that the High Court might even have acted unlawfully.

Sympathetic as I am to Nicklinson’s basic moral claim, I think that such responses are mistaken.  Not in the sense of their being in any way disreputable – it’s just that I’d argue for a different conclusion.  But, as such, it’s the possibility of an argument that matters, and there’re arguments to be had either way, some of which will be powerful, and some of which will be less so.  That’s the nature of debate.

There are others, though, whose response seems to me to get things entirely wrong.  I’ll give one example from each side. more…

The ruling, and a summary, are available here.

I wouldn’t want to say that I told you so… but I did.  Twice.

And I can’t help but to wonder if this case should ever have come to court.  Sympathetic as I am to the moral arguments in favour of assisted dying, whether those arguments can be successfully translated into law is another matter (I mean: I think they probably can, but that doesn’t follow naturally even if the moral arguments are watertight) – and whether that law is something that the courts are in a position to determine is another one still.  Judge-made law is often perfectly fine – but there’s a world of difference between a judge tweaking the law in respect of section 17(1)(a) of the Arcane and Obscure Insurance Regulations Act 1957, and altering the law on murder, which is what the judges in this case were being asked to do.

Saimo Chahal, Tony Nicklinson’s solicitor, admitted in a Channel 4 News item earlier in the year that the arguments being presented on his behalf were “extremely novel and far-reaching” (skip to about 2:05).  In the same way, a lot of the coverage of the last 24 hours has mentioned that the case was described as “a full-frontal assault on the law of murder”.  I can’t actually find where that turn of phrase was used, or by whom (The Guardian quotes Andrew Fergusson of Care not Killing as saying that this is how the case had been described in court – a quotation that seems to come from his piece on the CMF blog but which isn’t currently linked there; I’d welcome any other pointers) - but in a Dispatches film in June, the narrator did call the case “a fundamental challenge to the law on murder” (go to about 9:20).

Irrespective of the precise phrasing, though, the fact that the case would have generated such a huge change in the law – that it was novel and far reaching, and was a fundamental challenge to the extant law – is pretty obvious.  And it’s for that reason that, I suspect, the case was doomed before it was opened.  The courts can only work within the law as it stands, and even when judges create law, they tend to do so only in the context of established law.  Anything more, and they’re likely to say, “Whoa, matey: this ain’t my role.”

Thus Toulson at para 150 in the ruling:

To do as Tony wants, the court would be making a major change in the law.  To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role.  These are not things which the court should do.  It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place.  Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.

And thus Royce at para. 151:

Some will say the Judges must step in to change the law.  Some may be sorely tempted to do so.  But the short answer is that to do so here would be to usurp the function of Parliament in this classically sensitive area.

And that’s why – as I predicted on this blog before – irrespective of the moral merit of the ruling, it was pretty much inevitable.  And that being the case, you have to wonder what the point was of bringing the case to begin with.

What with Seb Coe’s Sports Day dominating the news at the moment, it was only by chance that I noticed this story: Ann Pettway, convicted of kidnapping a 19-day-old child from a hospital 23 years ago, has been sentenced to 12 years in prison.

Pettway’s defence team had suggested that the child, Carlina White, had been brought up in a stable, loving and happy home; this was disputed by the prosecution.  But we can imagine all kinds of questions based on this sort of scenario: if A kidnaps a child from B, and provides that child with a better life than it would have had had it stayed with B, would that be a defence?  A mitigation at least?  In effect, this is what happens (or, at least, is the intention) when a child is taken into care.  Clearly, there’s a difference in that such removals are endorsed by the law and the state; but if that’s the only difference, then the kidnapping itself seems to have dropped out of moral contention – who did it becomes much more important.

Anyway: there’s something else – related to these questions, I suppose – that struck me about the way that this case has been reported.  It has to do with how we think about family dynamics, the role of the family, and the status of children.  It’s the matter of who the victim is.

Much attention has been paid to Joy White, Carlina’s biological mother.  So, for example, the New York Daily News has an article that emphasises Joy’s distress:

“I had only spent 19 days with my daughter,” Joy White told Ann Pettway as family members on both sides stifled sobs or formed their hands in prayer.

“I bathed her. I changed her. I put lotion on her. I put bows in her hair. She got a 104-degree fever, and we brought her to the hospital, and the doctors said she would have to be treated for a week. How could anybody rip intravenous tubes out of a sick baby and take her?

[...]

“Every day I wondered, would the person treat her like a mother? Every day I wondered, was my baby fed? Doctors gave me sleeping pills, but sleep never came.”

White didn’t get to see her daughter’s first steps, or help her blow out birthday candles. She didn’t get the hugs, the kisses, the valentines drawn with crayon. She couldn’t help her shop for her prom dress. But maybe there was a reason she was named Joy: at least, Carlina didn’t die when she was stolen, feverish, from the nursery. She’s alive.

Now, admittedly, it’s possible that attention is being paid to Joy because Carlina seems to have distanced herself from the whole case.  This seems understandable to me; Carlina could quite coherently treat Pettway as her “true” mother in at least some sense – it was Pettway who, after all, brought her up and socialised her – in which case, it wouldn’t be surprising that she’d want to avoid close involvement with the trial, for pretty much the same reason that anyone would want not to get too close to a high-visibility trial in which their mother-in-some-sense would probably end up going to jail.  So already there’s a range of interesting questions suggested here about “true” motherhood (or parenthood) and what that implies.

But even so… Suppose you or I were kidnapped.  There wouldn’t be much question but that you or I were the victim of the crime.  Our families might attract sympathy, but they wouldn’t be the centre of moral attention.  Now go back to the A and B example from a moment ago, in which B’s child actually ends up benefitting from the kidnap.  We’ll assume that the child was too young to have formed any deep attachment to B, and so would not be traumatised by the move.

In a sense, it would be strange to describe the child as the victim of a kidnapping, just as it would be strange to describe a child taken into care as a victim of that process (again, assuming that it goes well).  Note that this would be the case even if B was, overall, a good enough parent, despite being not quite as good a parent as A: the child would still be better off after the kidnapping, albeit not by as much; so its status as a victim would still be open to question.

So we seem to be left with two options: either there’s no victim to this crime, or the victim is B.  The first option is counterintuitive.  The second is also a bit strange – but we do seem to focus on the distress of parents of the very young if and when they’re kidnapped in a way that we don’t in respect of those who’re older.

All of which raises a question: what’s the gradient of the shift in attention?  What is it that leads us to worry more about the child than the parent?  When does that happen, and is that point morally important?  Does the child only really matter when it can be distressed by the kidnap?  And if it is better off as a result, what happens then?

What’s the place of the kid in the kidnap?

Søren Holm sometimes jokes that, if you want your conference well-attended, you should have a paper on the ethics of circumcision.  I don’t know how well-attended the recent IAB satellite on the topic was – the first half clashed with Peter Singer doing his thing, which can’t have helped it, and I couldn’t go to the second because I was giving a paper of my own.

Anyway: though I mentioned the decision of the German court that ritual circumcision constituted assault, I’ve wanted to stay clear of saying more about it.  Partly it’s because I’ve been busy; but there’s another reason: it seemed too potentially toxic.  For example, Jonanthan Sacks’ column about the decision in the Jerusalem Post noted that many attempts to ban circumcision have been motivated by antisemitism; the not-so-subtly made claim is that there’s an undercurrent of antisemitism here.  (An appeal to human rights is, he claims “is the only form in which an assault on Jews can be stated today”.)  Of course, that won’t show that such attempts have to be motivated by antisemitism, or that thinking the court’s decision correct is an indication of latent antisemitism: they don’t, and it isn’t.  Even if it’s true that the only way to launch an assault on Jews is to use the language of human rights, it doesn’t follow that every human-rights claim is an assault on Jews – even when it touches on something that is associated with Judaism.  I didn’t want to open myself to an accusation of antisemitism, so thought it best to keep quiet.

But the debate is rumbling on (it was featured on the Today programme today, for example); and one of the notable things is the poor quality of most of the arguments brought against the decision.  This doesn’t in itself mean that the decision is correct – poor arguments might accidentally bring you to the correct answer – but if the general direction of the poor arguments is the same, and there haven’t been many decent arguments produced that go the same way, then that does raise questions about the conclusion in which they’re headed.  Having said that, there has been one better argument against the decision that I’ve come across; I’ll come to that later.  It’s some of the poor arguments, rather than the position in the service of which they’re advanced, that I have in my sights here. more…

I’m writing this while listening to Mary Warnock talking at the IAB, so it’ll be unusually short and to the point: a court in Germany has ruled that male circumcision for religious reasons “amounts to bodily harm”.

In a decision that has caused outrage among Jewish and Muslim groups, the court said that a child’s right to physical integrity trumps religious and parental rights.

The ruling doesn’t quite say that the procedure is illegal – but

the court’s judgement said the “fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents”.  Circumcision, it decided, contravenes “interests of the child to decide later in life on his religious beliefs”.

Predictably enough, this ruling has not been warmly welcomed by the Jewish and Muslim communities:

The president of Germany’s Central Council of Jews, Dieter Graumann, called it “an unprecedented and dramatic intervention in the right of religious communities to self-determination”.

That’s telling.  The rights of the child give way to the right of a community to cut him.  Can communities have rights anyway?  I’m not at all sure.  If they can, and if self-determination is one of them, does that always have to come out trumps?  Again, I’m not at all sure.  It’s strange to see rights-talk brought to the table in defence of unconsented, irreversible, and non-therapeutic body modification.  If a boy decides that it’s important to get himself circumcised later in life, then that’s a different matter entirely: good for him.  But without any choice?  I may have missed something, but I don’t understand how the claim is supposed to work.  Can anyone help out?

There’s a satellite meeting on boys’ circumcision here at the IAB.  I’ll miss it: I’m speaking elsewhere at the time.  But if anyone reading this goes (or went), will (was) this case mentioned?

UPDATE: Contrarian-for-hire Brendan O’Neill ham-fistedly disagrees with the ruling in The Telegraph.  Ophelia tears him a new one at B&W.