The man on the Clapham omnibus, as common lawyers know, was a late nineteenth and early twentieth century image of the ordinary reasonable man who played an important part in fixing common law standards. As a lawyer with a continuing but general interest in medicine, biotechnology, ethics, and the law, I offer the following comments on the conference's topic of “Health Resource Allocation” from what may approximate the standpoint of an ordinary reasonable man.

How much “health” can a society afford? I do not think that it is possible to maintain that there is a right to health, expressed as an unqualified right to treatment—though I understand that the argument has been raised in the United States that there is a constitutional basis for a claim of entitlement to treatment for civilly committed mental health patients. So far as English law is concerned, the answer to this question is clear. In 1980 the English Court of Appeal dealt with a case in which four people in Staffordshire argued that the health services were insufficient in their area.

In Mount Isa Mines Limited v. Pusey, Windeyer, justice of the High Court of Australia, wrote of “[l]aw, marching with medicine but in the rear and limping a little.“ This remark, characterizing the stumbling approach of the law in providing damages for nervous shock occasioned by negligence, may be too kind when applied to the response of family law to the remarkable advances of knowledge and technology affecting human sexuality and conception.

Nowadays, there is a growing sense of urgency and impatience about the response of the law to medical developments. One writer trained both in law and medicine observed from his informed standpoint:

Over the past three years there has been a flurry of legislation in Australia to provide answers for some of the legal questions and issues emanating from the new birth technologies. The chief of these is in vitro fertilization: the formation, in the laboratory, of a human zygote. The final result is, sometimes, a live birth. The test-tube baby process, as it is usually described in the media, has developed to include not only fertilization of a wife's ova with her husband's sperm but also the employment of donated gametes; cryopreservation of ova, sperm, and embryos; and, in terms of the possible, the employment of women to bear, deliver, and surrender a baby developed from a couple's laboratory embryo.

The publicity given to the new birth technologies, and the concern (and sometimes consternation) they have aroused, has been accompanied by renewed examinations of those older responses to infertility: AID (artificial insemination by donor) and surrogate mother arrangements effected either by the euphemistically and misleadingly labeled NID (natural insemination by donor) or by artificial insemination.

The rapid pace of medical innovation has raised the question: Can existing institutions, such as law reform commissions and other official bodies, and existing techniques, such as traditional legislation, deal effectively with the regulatory problems of today's world?

The New Biology has exhibited the capacity to arouse storms of public debate and to paralyze politicians or impel them towards unwise legislation. Examples of new and problematic technologies are the treatment of grossly defective newborn babies, live organ transplantation, cloning, the diagnosis of brain death, and, perhaps most important of all, manipulation of genes. But if there is one procedure that typifies the extreme reactions roused by the New Biology, it is in vitro fertilization (IVF), the technique whereby human eggs are fertilized outside the human body.

At the epicenter of the storm over IVF is the public debate concerning laboratory research and experiment on fertilized human eggs.

Modern developments in biomedical science and technology have raised legal problems regarding the initial phase of human life. The possibility of genetic manipulation and of influencing the human genome is in sight, embryos are already being treated in utero, and in vitro fertilization and embryo transfer have been successfully performed. Embryos have been fertilized in vivo, flushed from the womb. and implanted in surrogate mothers.

These developments have raised questions not only for family law but also for health law. These questions include the permissibility and regulation of genetic manipulation, the equitable distribution of the new techniques, the consequences for future generations of present-day decisions, the right to procreation, the role of the state, and the freedom of parents, especially the pregnant woman, in relation to the embryo. Other problems involve confidentiality and privacy, the relationships among the several people who are producing the child, and the status of the embryo in vivo and in vitro.

Research on the embryo offers the prospect of important medical advances. The first and most immediate prospect is in improving the success rate of in vitro fertilization. Without the prospect of such improvement, it may be doubted if the muchapplauded IVF program is worth the resources now being allocated to it. Embryo research is also needed to ensure that embryos created from frozen human ova will develop normally, and to test techniques for micro-injection of sperm directly into the ovum, which could overcome the problem of male infertility due to low sperm count or abnormal sperm. The next area of research will be into the prevention of genetic defects. If defects can be identified in early embryos, couples who carry defective genes and would otherwise seek testing during pregnancy, followed by abortion if the test is positive, will be able to use IVF followed by the transfer only of those embryos that are free from the defect. Further research may lead to the development of gene therapy, which could be effective in those cases where an individual has already been born with a single-gene defect like thalassemia, sickle-cell anemia, ADA and PNP deficiencies, and Lesch-Nyhan syndrome.

Mark Twain once said of Wagner's music, “It's not as bad as it sounds.” Likewise, it may be said of Peter Singer and Helga Kuhse's stroll through the issues involving embryo research: “It's not as easy as it sounds.”

Today it seems clear that Aldous Huxley's version of a Brave New World is much closer to the mark than George Orwell's 1984. We will not have to be dragged into a technologically dominated future by a totalitarian government; we will go willingly, cheering almost any change as “better” and accepting science as always “improving” on nature. This childlike faith in science is at the heart of Prof. Singer and Dr. Kuhse's hymn to embryo research. They seem to believe that embryo research will not only lead to the prevention and cure of genetic disorders but also to a cure for cancer, and cultured tissues for transplantation. Even if one accepts this rosy view, the acquisition of important scientific knowledge is only a necessary, not a sufficient justification for experimentation.

What has happened to death? Why is this subject—virtually taboo in social and even in medical conversations a few decades ago—now so much a matter of debate in public policy settings, especially the courts? Four factors are primarily responsible, in my view. The first two—changes in the locale of death and development of ever more sophisticated forms of life-support—are by now familiar. Of growing significance are two further factors: increased fear of liability and the polarization of decisions about life-support as those decisions get swept up (at least in the United States) in the ferocious battles between freedom-of-choice and right-to-life supporters.

This paper attempts to analyze these four factors and, I hope, to uncover some of the confusion they have produced. I will then argue that despite consistent judicial endorsement of the right of competent adults to decide what medical care they wish to receive—even if they decide to forgo life-sustaining treatment, that is, to die—legal (like medical) attitudes are in fact ambivalent.

I want to begin by making the fundamental point that the question is not whether decisions to end human lives ought to be made but, rather, who makes these decisions, and on the basis of what principles or values. For the fact is that such decisions are already being made, and inevitably must be made, in modern hospitals.

For almost any life-threatening condition, modern medical technology can now delay the moment of death. Death will often not occur until and unless the decision has been made to withhold or withdraw life-sustaining treatment. In other words, when and how a patient dies is increasingly the outcome of a deliberate human decision. Such decisions—not to resuscitate a terminally ill patient, not to continue to sustain the life of a permanently comatose patient. or to withhold antibiotics from the deaf and blind octogenarian—are all instances of the intentional termination of life and, if done for the patient's sake, are cases of passive euthanasia.

It is often said that all human life, irrespective of its quality or kind, is equally valuable and that our life-and-death decisions for seriously ill or handicapped infants must not be based on the quality or kind of life in question. As the Protestant theologian Paul Ramsey has put it:

The view that all human life—irrespective of its quality or kind—has equal worth may well be the simplest answer to the difficult issues raised about the treatment of infants born seriously ill or with major handicaps; but there are two questions that need to be asked about this simple answer.

I agree with Dr. Kuhse and Prof. Singer on many points. It is of course ethically defensible to decide sometimes that a seriously handicapped newborn baby may be better off dead, that medicine can do no more to help, and that to stop or not initiate medical treatment may be the best we can do. It is equally true and ethically defensible that these decisions are sometimes based at least in part on predictions about the baby's present and future quality of life. It would be foolish to pretend that quality-of-life considerations should be or can be excluded from these decisions. I argue that the interests and wishes of the family must be given serious consideration, if not that they should be decisive at the expense of the newborn's best interests.

I do, however, seriously object to the claim that some infants with severe disabilities should be killed. I will not repeat the familiar philosophical and other arguments as to why there is arguably, given certain conditions, a significant moral difference between not treating and killing. Instead, my refutation of infanticide will take a more indirect route.

The question in my title—a deliberate inversion of Kuhse and Singer's now-famous question, “Should the baby live?”—is one that is being asked more and more frequently. As Gerald Gruman has observed:

The medical care needs of aged persons, and how we, as individuals and societies, will fulfill these needs in an era of a perceived scarcity of medical resources, are a frequent topic of discussion today. The “scarcity” of medical resources is frequently a given in discussions of allocation priorities.

The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and therapeutic intentions with the Barney Clark implant, the permanent procedures rapidly became little more than publicity stunts used to advertise Humana, Inc., a for-profit hospital chain. Indeed, on the night Mr. Schroeder died, Humana Hospital Audubon sent its public relations director to justify the experiment to a national television audience on Nightline, apparently because no physician at the hospital was willing or able to publicly defend the experiment.

Jeremy Bentham, the founding father of utilitarianism, would have been delighted by technology assessment. Contemporary health policy planners are, unwittingly, aping the great man's felicific calculus, as they attempt to discern the efficacy and safety of magnetic resonance imaging or cardiac bypass surgery or extracorporeal shockwave lithotripsy. They try to design methods to calculate the effects of these technologies on mortality and morbidity and to compare the costs of one to the costs of alternatives. In recent years, the methods of technology assessment have been refined, but they remain, in essence, a copy of Bentham's proposal to plan and effect a rational course of action and to create a rational world.

The great philosopher and social reformer is, of course, still with us in a dessicated form. He bequeathed his body to the fellows of University College, London, and to this day his mummified figure is encased in a glass box, sitting in his favorite chair, dressed in his own clothes, his waxen face peering out with a bemused smile.

Most medical practice in the United Kingdom is carried out within the National Health Service (NHS), which offers a comprehensive service essentially free of charge to all citizens. Courts of law cannot take the availability of free care into account in determining the level of damages to be awarded to the patient—in other words, in assessing the cost of putting right the damage sustained by the patient, it is assumed that the restorative treatment will be obtained privately. Nevertheless, the fact that the patient did not have to pay directly for the treatment in the first place is in itself a disincentive to bringing actions in negligence against a doctor or health authority. As Professor Miller has put it, “Since disposable income is not diminished by paying for medical services patients are less likely to express their unhappiness about unsatisfactory results in a manner that seeks monetary results.”

Is it possible to have an effective legal safeguard within an inherently therapeutic context? This is the issue underlying a significant contrast in the way that similar provisions of the Mental Health Act 1983 (England and Wales) have been interpreted and applied in two different settings: in the purely legal setting of the High Court and by a judicial body in a hospital setting, namely, the Mental Health Review Tribunal.

Before dealing explicitly with the legal framework adopted by the 1983 act, I will briefly set out the kinds of strategies the law can employ to regulate behavior. One technique used in some areas of the law is to draw up an exhaustive list of rules and principles in an attempt to determine the outcome of cases. In this respect the law is concerned to achieve substantive justice; little discretion is vested in decision- makers. Alternatively, the law may confer complete discretion on decision-makers, and insist merely that the rules of natural justice be complied with in the process of making decisions.

Canadian mental health law has traditionally held many themes in common with the mental health law of other Commonwealth countries such as Britain, Australia, and New Zealand. Until recently, this body of law bore only a passing resemblance to the system of mental health law that has emerged in the United States.

The existence of an entrenched Bill of Rights in the United States has meant that many major issues relating to the rights of mental health patients have been dealt with as constitutional matters of great import. Consequently, the 1960s and 1970s witnessed the burgeoning of an exciting body of case law establishing a number of critical rights for a constituency that had hitherto been powerless and tragically neglected. While many of the rights established in the so-called landmark cases were subsequently limited in their scope or were just not affirmed by the appellate courts, the widespread use of constitutional challenges by mental health advocates wrought wholesale changes in both federal and state legislation and permanently altered the balance of power between mental health professionals and their patients.

The law has characteristically defended life and proscribed any act to end it, for whatever reason. But sustaining life is increasingly a medical question, and decisions to end it are now cast as “treatment” decisions. Some treatment decisions that leave basic biological needs unmet are clearly intended to end a life that is “over.” The provision of food and water has a particularly intimate association with the nursing function of nurturance and care. The surgeon general, in another context, has said that nourishment in all cases is “the bottom line” and that removal of sustenance is medical neglect per se. I intend here to explore two questions: Have the courts endorsed, and should they endorse, decisions by or substitute decisions for patients who choose intentionally to end their lives in health care settings? And what rights and duties do the hospital and professional staff have to decline to withdraw artificial feeding?

A pharmacist may be liable to a patient for negligence in filling a prescription, even if the pharmacist correctly fills the prescription as written by the prescribing physicion. The holding in Riff v. Morgan Pharmacy is that each member of the health care team “has a duty to be, to a limited extent, his brother's keeper.“ The court in Riff boldly and eloquently justifies this position by noting: