Best Interest, Discrimination and Religious Views – Is the Judicial View

of Religion Uninformed?

Søren Holm

Manchester & Oslo & Aalborg

An NHS Trust v. A [2005] EWCA Civ 1145 18 Statements were also prepared on behalf of the second defendant, who was acting on

behalf of the family in resisting the withdrawal of treatment. Those statements appear in the bundle. They are, so far as this stage is concerned, all dated 11th August. The statement was from SA, one son; from GS, a wife of SA; from RIA, another son. They expressed the view in various forms that Mr A was a fighter. They expressed the view that they thought that Mr A would still get better. A summary of their views can be obtained from the statement of the solicitor acting for them, his statement being at B57. He summarised the family's position in the following way:

"(a) The family are interested in these proceedings and would wish to be joined as a Respondent through their brother, [SA].

[…] (e) Mr [SA] and his family do not agree or consent to the discontinuance of life-sustaining

measures currently being given to Mr [A] because: • All of the family still believe that there is at least some hope of improvement in Mr

[A]. • None of the family believe that Mr [A] is currently suffering any pain. (This is based on their observations of and dealings with Mr [A] in hospital).

• The family are all practising Muslims. The family have taken advice from at least one Imam, (a religious scholar). He has advised that discontinuing Mr [A's] current treatment regime would be contrary to the Islamic religious faith and belief system.

• Finally, all of the family believe that if Mr [A] knew and appreciated the Applicant's proposed course of action he also would not consent. This is based on the family's discussions with Mr [A] in Hospital and their own knowledge and understanding of Mr [A's] religious and ethical beliefs before he took so seriously ill.“

Waller LJ

An NHS Trust v. A [2005] EWCA Civ 1145

84 The final criticism made by Mr Glancy is that the judge failed to take into account the family's feelings and their religious beliefs. The fact that the judge put these at the end of his judgment does not in my view show that he did not have them properly in mind. It should be remembered in particular that the treating doctors had themselves had very much in mind the religious concerns of the family, and indeed all the concerns of the family. He was clearly right to consider what was certainly the key question first, as to whether there was in his view any chance of recovery of any quality of life so as to make the discomfort to which Mr A was being put justified. Once he had formed that conclusion -- that it was not justified -- it was obviously going to be difficult for the religious views and the views of the family to overcome the obvious point that, since any decision to put Mr A through further suffering would produce no benefit to Mr A, it would be difficult to see that it could be in Mr A's best interests. But on any view he did consider the family's position and their religious beliefs.

Mummery LJ

Question 1: Where should we place religion in ‘best interest’?

Is religion best placed inside or outside ‘best interest’ considerations? Model 1: Court to decide whether X is in A’s best interest Religion enjoins / prohibits action X Can religion outweigh best interest? Model 2: X is a possible action Court to decide whether X is in A’s best interest, taking into account

whatever guidance A’s religion provides concerning what is in his best interest

Do not go gentle into that good night, Old age should burn and rave at close of day; Rage, rage against the dying of the light. Though wise men at their end know dark is right, Because their words had forked no lightning they Do not go gentle into that good night. Good men, the last wave by, crying how bright Their frail deeds might have danced in a green bay, Rage, rage against the dying of the light. Wild men who caught and sang the sun in flight, And learn, too late, they grieved it on its way, Do not go gentle into that good night. Grave men, near death, who see with blinding sight Blind eyes could blaze like meteors and be gay, Rage, rage against the dying of the light. And you, my father, there on the sad height, Curse, bless, me now with your fierce tears, I pray. Do not go gentle into that good night. Rage, rage against the dying of the light. Dylan Thomas

O Lord! of Thy courtesy, Send me ill-health! Let me have quartan fever, The continuous and the tertian, The double quotidian With a great hydropsy. May I have toothache, Headache and belly-ache, In my stomach sharp pains, And in my throat angina. Pain in my eyes and in my flank, With an abscess in my left side, Phtisis be added furthermore And at all times frenzy. May I have a burning liver, An enlarged spleen and a swollen belly, My lungs be plagued By a great cough and paralysis. Grant to me fistulas, With thousands of pustules, And so many cankers That I am covered with them. Send me podagra, [podagra-gout] With painful eyelids Aggravating my condition, Let dysentery plague me, Likewise haemorrhoids. May I also suffer asthma, To which be added spasms, Like a dog let me have rabid pruritus; And in my mouth gangrene. Let me have the falling sickness, So as to make me fall into the water and [the fire, And let there never be one spot In which I am not afflicted. The devils of hell shall be my nurses, To make yet more sharp, The pains which my folly has earned me. Until the end of the world, Make hard for me this life, And at the final separation, Grant me a hard death. Choose for my burial, The belly of a wolf who shall devour me, That my remains be reduced to dung Among the thorns and the rocks.

Let those who come here, expecting miracles after my death, Be accompanied by evil spirits, Feel howling terror, have doomsday visions. Let anyone who hears the mention of my name shudder And cross himself to ward off the danger of an ugly encounter. All this I call down on myself, O Lord, is not adequate vengeance, For You created me as Your beloved, An I, ungrateful wretch, put You to death Jacopone da Todi

Question 2: Is there a conflict between different ‘best interests’?

a. Is there always one course of action which is in the best interest of the patient?

b. Is that course of action always the same as the action seen as ‘medically best’?

c. Should the courts adopt the widest account of best interest, even against medical opposition?

Re S (Adult Patient: Sterilisation) [2001] Fam 15

“Held, allowing the appeal, that while a number of different courses might be lawful in any particular case, there could only logically be one best option and it was for the court to decide which that was; that, once satisfied that the proposed treatment options were within the range of acceptable opinion among competent and responsible practitioners, the court should move on to the wider and paramount consideration of which of them was in the patient's best interests;…”

Doubts 1 – The one best option

• No reason to believe that there is always one and only one action being in the patient’s best interest

• No reason to believe that even if there is, the courts (or anyone else) will always be in an (epistemic) position to discern what this action is

Doubts 2 - The danger of ‘the standard view’

Observation 1: What is medically best is not ‘objectively best’, it is just ‘best when taken a limited range of factors into account’

Observation 2: What most of us think is best, is not best

for those who do not share our evaluations There may be cases where the option which is best for

the patient, given his or her valuations falls outside of the “options […] within the range of acceptable opinion among competent and responsible practitioners”

The medical role

No medical doctor should be forced to provide treatment she (medically)deems as futile or harmful to the patient

Is this right? And, if it is what weight should it be

given in a court’s reasoning when in conflict with a diverging account of best interest?

No right to demand treatment, but right to be

transferred?

Best interest

“Official position” – Wide definition of best interest, e.g. Mental Capacity Act 2005: “4 Best interests 1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination

must not make it merely on the basis of— (a)the person's age or appearance, or (b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions

about what might be in his best interests. (2)The person making the determination must consider all the relevant circumstances and, in particular, take the

following steps. […] (6)He must consider, so far as is reasonably ascertainable— (a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by

him when he had capacity), (b)the beliefs and values that would be likely to influence his decision if he had capacity, and (c)the other factors that he would be likely to consider if he were able to do so. (7)He must take into account, if it is practicable and appropriate to consult them, the views of— (a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b)anyone engaged in caring for the person or interested in his welfare, (c)any donee of a lasting power of attorney granted by the person, and (d)any deputy appointed for the person by the court, as to what would be in the person's best interests and, in

particular, as to the matters mentioned in subsection (6). […]” Best Interest ≈ Wide consideration of A’s welfare interests

Question 3: How do we find out what A’s religion might say about the matter?

How not to do it:

“46. That this, or something like it, is the sense in which the Tribunal regarded “core” is demonstrated by what then follows. Two situations must be contrasted: first, evaluating how important the belief is, so that it may be described as “core”; the second asking how many people who are adherent to the faith believe in that particular aspect or requirement of it. The first is qualitative, the second is quantitative. The difference between them is significant for a Tribunal when assessing proportionality. Whereas it has no right to determine matters of faith qualitatively, the weight to be given to the degree of interference with religious belief of a certain kind will inevitably differ depending upon the numbers of believers who will be affected by the particular PCP concerned. If, for instance, on the evidence before a Tribunal, it is shown that a minority of those who ascribe to a particular belief have a specific view of that which it requires them to do in particular circumstances, then a PCP which affects the whole group, but only that small part of the group of believers adversely, will be of lesser weight than a PCP which adversely affects every one. To illustrate, if a PCP affected virtually every Christian to a given extent, it would have a greater discriminatory impact than if the same measure affected only a much smaller number of Christians to that extent. The greater the discriminatory impact on the group as a whole, the more that has objectively to be shown by the employer to demonstrate that the PCP is necessary, and proportionate.

47. When the Tribunal goes on to say that as much was accepted in paragraph 9 of the Bishop’s statement, it caused us to ask to see a copy of the Bishop’s statement, which had been admitted into evidence and accepted by the Tribunal without requiring the Bishop to attend. He said:

“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”

That is evidence that many Christians will work on the Sabbath. It was, therefore, appropriate for the Tribunal to have regard to that in weighing the impact of the PCP. That this is what the Tribunal had in mind is emphasised by its underlining of the word ‘some’. “

MBa v THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF MERTON UKEAT/0332/12/SM

Why is religion important?

Because it matters to individuals and is identity forming Knowing whether X is enjoined / prohibited by A’s religion

a. As part of dogma / theology b. As evidenced by religious leaders c. As practised by most people belonging to that religion

is primarily relevant in order to decide whether A’s valuations are ideosyncratic

If A’s valuations are not ideosyncratic and honestly held, we

should give them the same weight irrespective of whether they are endorsed by a, b or c