Ashya King: religion, parental responsibility and medical care

Yesterday, police launched a Europe-wide manhunt for a five-year old boy with a brain tumour whose parents removed him from Southampton General Hospital, in spite of his continuing need for life-sustaining medical treatment. Ashya King was last seen boarding a ferry for France with his parents and siblings and is believed to be heading for southern Spain. Finding him is critical as he is artificially fed through a battery-operated machine with a limited charge life. It has transpired that Ashya’s parents, Brett (51) and Naghemeh (45) are Jehovah’s Witnesses, but it is unclear whether they removed their son from medical care for religious reasons.

Were his parents right to remove him?

The law relating to parental responsibility for the medical care of their children has been relatively well-settled for the past 20 years. Where children are not old and mature enough to choose for themselves, parents have a legal responsibility to choose for them in their ‘best interests’. Normally, this is perfectly straightforward. Parents are presumed to be the best judges of their children’s best interests. It is assumed that they wish their children well and not harm and that medical advice will be followed. Where children are very young (as Ashya is), parents have a great deal of discretion. As children get older, however, their opinions begin to weigh heavier into the balance, until they reach the point known to lawyers as ‘Gillick-competence’ (named after a celebrated legal case), viz. they are intelligent and mature enough to understand the nature and implications of the medical treatment being proposed to them. At this point, they are legally entitled to consent to medical treatment. By a curious quirk of the law, however, parents are still entitled to override the refusal of a Gillick-competent child, and to consent to treatment on their behalf, as they still by law retain proxy authority to do so.

Nevertheless, there are limits. Although parents have wide discretion to make medical decisions for their children, parental discretion is not absolute. There are occasions when a parental refusal of medical treatment is so manifestly not in the best interests of the children concerned that court authority is sought to override the parental refusal. Classic examples of the latter in the UK and USA are parental refusals of potentially life-sustaining treatment on religious grounds (usually Jehovah’s Witnesses). The reigning legal principle was pungently-expressed in the 1944 US Supreme Court case of Prince v. Massachussetts:

“Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children…”

There is no evidence at this stage that Ashya’s removal was religiously-motivated. That remains to be seen. Moreover, it is not an offence for a parent to remove a child from hospital per se. However, if Ashya has died for lack of medical treatment, his parents could be open to a charge of manslaughter on grounds of gross negligence, a heinous failure of parental responsibility. If he is still alive and his parents continue to resist the medical treatment he so badly needs, then social services and the family courts are bound to get involved. He may be placed into foster care, and a court order sought authorising the life-sustaining treatment Ashya requires.

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‘A Guilded Cage’: The Decision of the Supreme Court in the Cheshire West case

Introduction

This case note reviews the decision of the Supreme Court in P v Cheshire West and Chester Council and another’ P and Q v Surrey County Council [2014]. This is an important case in the field of health and social care. It simplifies the meaning of ‘deprivation of liberty’ in the context of social care and extends safeguards to mentally incapacitated adults for whom the state has provided protective care in a domestic setting.

The Facts

The Supreme Court heard two appeals. The first concerned two sisters with moderate-to-severe learning difficulties known, respectively, for legal purposes as MIG and MEG. They lacked mental capacity to make decisions about care and residency. They had had a troubled and abusive family background involving excessive physical chastisement, neglect and deprivation. As a result, they both came into local authority care. MIG was placed into foster care and was devoted to her foster mother whom she called “mummy”. She attended college daily, was not on medication and though making no attempt to leave this domestic setting would have been restrained had she attempted to do so. MEG, while initially placed in foster care, was transferred to a “small group home”. She occasionally required physical restraint and medical tranquilisers for challenging behaviour, was not allowed out without supervision and was subject to staff control.

The second appeal concerned an adult male with cerebral palsy and Down’s Syndrome known for legal purposes a ‘P’. Like MIG and MEG, he lacked mental capacity to make care and residency decisions. He was placed by the local authority in a small group home as opposed to a registered care home, thus outside the scope of Deprivation of Liberty Safeguards (DOLS), needing the review and authorisation of the Court of Protection (COP). The distinctive feature of this case was  P’s proclivity for removing his incontinence pads and placing them in his mouth. This required his carers to restrain him physically, to conduct a finger sweep, and to place him in a body suit which could only be opened from the back.

 

The Legal Issues

The question arose whether the nature of these placements amounted to a “deprivation of liberty” (DOL) attracting the procedural safeguards set out in the Mental Capacity Act 2005, known as Deprivation of Liberty Safeguards (DOLS), or the authorisation of the Court of Protection (COP). As none of the appellants was accommodated in a registered care home, or hospital, the authorisation of the Court of Protection was sought.

 

In the case of MIG and MEG, the High Court (per Parker J.) held that none of the appellants  was deprived of their liberty, emphasising their happiness, lack of subjective sense of confinement and the fact that they were living the sort of lives that they would otherwise have lived given their cognitive limitations. The Court of Appeal upheld the High Court (HC) judgement that neither were deprived of their liberty holding that the purpose of the restrictions placed on them, the degree of their compliance with that restriction, and the fact that they were being ‘rescued’ from a horrific situation,  were not factors relevant to the determination of the existence of  a DOL. However, the use of potentially wish-supressing medication was a key factor as was the ‘relative normality’ of their placement.

 

The High Court and the Court of Appeal

In the case of ‘P’, the High Court (per Baker, J) held that even though ‘P”s living arrangements were appropriate, lawful and conducive to as normal a life as possible given ‘P”s condition, it did constitute a DOL. ‘P”s life was completely under staff control and was subject to intrusive procedures such as finger sweeps and the body suit. However, the Court of Appeal held unanimously that ‘P”s care and residency arrangements did not amount to a DOL. Following Parker J in the MIG and MEG case, the court held that the objective purpose of the arrangements was a relevant factor as was their ‘relative normality’ (i.e. who ‘P’ should be compared to in order to determine whether it is a DOL or not. There was no realistic alternative to the arrangements made in ‘P”s case. Rejecting the reasoning of the High Court judge, the appeal court held that the restrictions and limits place on ‘P’ in his setting was nothing more than “the inevitable corollary of his various disabilities.” ‘P”s life was as normal as it could be for somebody in his situation. The proper comparator was not the objective one of the ‘man on the Clapham omnibus’ but somebody comparably restricted by their circumstances and leading the kind of life that somebody life ‘P’ would normally expect to lead.

 

The Supreme Court

1. Lady Hale and the majority judgement

The Supreme Court unanimously agreed that ‘P’ had been deprived of his liberty and allowed his appeal. The court by a majority (4:3) agreed that MIG and MEG had, respectively, been deprived of their liberty, and upheld their appeal. Thus both appeals were allowed. Lady Hale delivered the leading judgment (with whom Lords Sumption, Neuberger and Kerr agreed) and from which (in the case of MIG and MEG), Lords Carnwath, Hodge and Carnwath dissented. There are a number of key themes in her judgement.

1. Human rights are universal and there is therefore no legal basis for treating disabled people any differently from their able-bodied counterparts. She rejects the idea of using a comparator or employing a test of ‘relative normality’ to determine whether there has been a DOL.

2. The meaning of DOL is to be established by reference to the case law of the European Court of Human Rights (ECtHR) and its interpretation of Article 5 of the European Convention on Human Rights (ECHR) which enshrines the ‘right to liberty’. This is required by the Mental Capacity Act.  This case law lays down three elements: (a) the lack of ability to consent (the subjective element); (b) whether the state is involved in, or knows about, the deprivation; and (c) whether there has been confinement in a restricted space for a non-negligible amount of time (the objective meaning).

3. In elucidating the objective meaning of the right to liberty the Strasbourg case law distinguishes between a restriction on liberty and a deprivation of liberty. This is a matter of fact and degree, rather than a matter of kind. Deciding which side of the line a particular set of living arrangements falls will be a matter of judgment. This will involve reference to the concrete situation of the vulnerable adult, and the nature, frequency and intensity of the interventions.

4. On the basis of this case law, Lady Hale distils an ‘acid test’ viz. that the person was “under continuous supervision and control and was not free to leave” (Lady Hale, para.49).

5. Lady Hale also identifies a range of factors which are not relevant to a DOL determination. These include: (a) the nature and extent of the disability (the equality point); (b) a comparison between the conditions of the able and disabled (i.e. the ‘relative normality’ test); (c) the quality and suitability of the residence and care arrangements (“a gilded cage is still a cage” );  (d) whether or not the person is aware that she has been deprived of her liberty; (e) whether or not the person for whom arrangements are made is compliant or not. Lord Neuberger points out that it would be a nonsense of rule out from a finding that there is a DOL simply because they are incapable of being non-compliant (Lord Neuberger, para.67). On the basis of previous case law, two additional non-relevant factors could be added:  (e) the reason or purpose behind the restriction is not relevant to whether it is a DOL or not; (f) the distinction between the current situation and the previous situation; and (f) the non-availability of an alternative.

6. Applying the ‘acid test’, Lady Hale held that all three appellants were deprived of their liberty because each of them was under complete supervision and control and were not free to leave. There was no suggestion that the local authorities had behaved inappropriately. Rather, it would be lawful to act as they had acted, subject to proper process and scrutiny. MIG and MEG, having been deprived of their liberty were therefore entitled to the proper safeguards.

7. As a matter of policy, the state should err on the side of caution as to what constitutes a DOL and that MIG and MEG require an independent periodic check that the arrangements are still in their best interests in view of their extreme vulnerability, and those in a comparable position.

 

2. The minority judgement

1. Three of the judges (Lord Carnwath, Lord Hodge and Lord Clarke) did not think that MIG and MEG were deprived of their liberty. Although they agreed with the majority that ‘P’ had been deprived of his liberty, they were rather equivocal, indicating that though they might have come to a different conclusion to the High Court judge, it was within his discretion to have made the decision he did and that therefore the Court of Appeal was wrong to overrule him.

2. They argued  that the Strasbourg case law did not go as far as the majority thought it did.

3. They applied an ‘ordinary language’ test to the effect that it could not be said that MIG and MEG, who were living happily in a domestic setting, had been deprived of their liberty.

 

3. Children

1. The ‘relative normality’ test might still have some applicability in the case of children over whom parental responsibility is exercised, even though they are under continuous supervision and control and are not free to leave the domestic setting.

2. Lady Hale suggested that such constraints would probably not amount to a DOL under Article 5 of the ECHR if they were employed by parents in the ordinary course of exercising parental responsibility. Lord Kerr suggested that a child should be compared to other children of similar age and background who are not disabled and have access to a range of freedoms typical of children of that age and background (Lord Kerr, paras. 77-79).

 

4, A clear test?

Although Lady Hale’s ‘acid test’ is clearly expressed, there may be a number of situations where it is difficult to apply in practice:

1. Is there a DOL where, for a example, a disabled person is not free to leave, but not under continuous supervision and control? Lady Hale insists that both elements are required for a DOL finding. However, this requirement is potentially discriminatory if a disabled person is not free to leave his restricted situation.

2. Is there a clear distinction between ‘support’ and ‘control’? It could be argued that the function of a protected care environment is to support the subject of those arrangements to do what otherwise they wouldn’t be able to do (i.e. ‘support’), as opposed to what the authorities want the subject of these arrangements to do (i.e. “control”).

3. Is ‘freedom to leave’ a negative or a positive right? While a person may not be prevented from leaving (i.e. outside interference), It could be the case that a person is o severely disabled that they can’t exercise their freedom to leave without considerable support from a ‘third party’ (i.e. outside intervention), which would be tantamount to ‘control’.

4. Will there be an abiding reluctance to called residency and social care arrangements in a domestic setting a DOL? It may be widely felt that to do so is to stretch ‘ordinary language’ to breaking point.

 

5. Practical  implications

This case will have considerable practical implications for local authorities with oversight of the care of disabled and vulnerable adults, e.g. review of existing care packages, and an increase in DOLS referrals and COP applications.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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A Case of Assisted Suicide: The Decision of the Supreme Court in the case of Nicklinson and Lamb

Introduction

This is a landmark decision. Nine judges were assigned to the panel (the most there can be), rather than the usual four or five.The judgement is extremely long (132 pdf pages and 366 paragraphs). Although it does not change the law (voluntary euthanasia and assisted suicide remain criminal offenses in all cases), the judgment hints that Parliament may need to change the law to make it human rights compliant. The case was decided in the context of wide public debate about the law of ‘assisted dying’, e.g. Lord Falconer’s Private Members’ Bill on assisted dying which Parliament is currently considering.

 

The Facts

Three severely disabled men wished to die because they found their condition unbearable. Tony Nicklinson suffered a catastrophic stroke that had left him in a ‘locked-in’ state.  Paul Lamb was rendered immobile following a car accident. He wished to die because he found his condition a “mixture of monotony, indignity and pain” (para. 8). A third (anonymous) party, ‘Martin’, suffered a brainstem stroke and was capable only of communicating laboriously through an eye-blink computer. He described his life as ‘undignified, distressing and intolerable’ (para.9). He saw only two ways out of his predicament: self-starvation (the avenue which Mr Nicklinson eventually pursued), or an assisted suicide in Switzerland at the Dignitas clinic (to which his family were firmly opposed). Tragically, Mr Nicklinson died shortly after his failure to secure relief in the High Court. Accordingly, his widow, Jane, was added as a party to the proceedings in the Court of Appeal and Supreme Court.

 

 The Legal Issues

There were two central issues. The first related to the state of the law of assisted suicide. The second concerned the clarity of the Director of Public Prosecutions’ (DPP) prosecution policy in cases of assisted suicide.

  1. Nicklinson and Lamb argued that the law should allow them to die at their own hands with assistance. They wanted to court to declare the law making assisted suicide a criminal offence (s.2 Suicide Act 1961) was incompatible with their human right to autonomy, dignity and privacy that was protected by Art. 8 European Convention on Human Rights.
  2. Martin wanted the DPP to clarify his prosecution policy that sets out the factors that will weigh in favour or against a prosecution for assisted suicide. In particular, he wanted the DPP to confirm that she would not normally prosecute strangers, e.g. carers and doctors, providing compassionate help.

Both cases had failed in the High Court. In the Court of Appeal, Nicklinson and Lamb failed, but Martin’s case against the DPP succeeded by a majority of 2:1. Accordingly, Nicklinson and Lamb appealed to the Supreme Court on the first legal issue. The DPP appealed on the second legal issue. Martin cross-appealed on the second issue because even though he had won in the lower court, he did not think that the order in the Court of Appeal had gone far enough.

 Human rights law was central to the case. Previous case law had established that interference with one’s freedom to choose the manner and timing of one’s own death ‘engaged’ Article 8 of the ECHR, which protects the right to respect for ‘private life’.  Any interference with that right must be necessary, proportionate and in accordance with a law that is sufficiently clear and foreseeable in its operation. 

By a majority of 7:2, the Supreme Court dismissed the Nicklinson and Lamb appeal, upheld the DPP’s appeal, and dismissed Martin’s cross appeal.

 

The Supreme Court’s reasoning

On the first central issue, the majority of the court held that the UK’s absolute rule against assisted suicide (i.e. a “blanket ban”) under section 2(1) of the Suicide Act 1961 was compatible with the right to autonomy, dignity and privacy protected by Article 8 of the ECHR and was therefore human-rights ‘compliant’. The Supreme Court stated that UK courts had the jurisdiction to determine issues of compatibility because Parliament had explicitly granted them that legal power in the Human Rights Act 1998 (HRA) (sections 3 and 4). Taking the case law of the European Court of Human Rights (ECtHR) into account, the court affirmed that states had considerable freedom to decide (called a ‘margin of appreciation’) as to what extent, and how, it would interfere with a person’s human right to autonomy, dignity and privacy. In this case, the UK’s decision to interfere with this right by imposing a blanket ban on assisted suicide fell within the state’s margin of appreciation to decide and was a proportionate response in order to protect the vulnerable.

 

On the second central issue, the court unanimously held that the DPP was not obliged to clarify his prosecution policy, in spite of the ambiguity as to whether carers and doctors would be vulnerable to prosecution if they assisted a suicide. The court held that it was one thing to get the DPP to publish a policy, but quite another to dictate what should be in the policy.

 

Commentary

This is a rich judgement in terms of both legal analysis and ethical complexity. It has been handed down in a climate of moral controversy concerning issues of voluntary euthanasia and assisted suicide. These have been matters of heated public debate for over a decade.  Lord Joffe introduced a private members’ bill on two occasions in 2004 and 2005 (the latter going to a second reading in 2006), seeking to liberalise the law in this area. In 2009, Lord Falconer attempted, and failed, to amend the Coroner and Justice Bill to allow assistance to a person wishing to travel to a country where assisted suicide is legal. The issues have been considered by House of Lords Select Committees on three occasions. Lord Falconer is attempting currently to steer an assisted dying bill through Parliament seeking  to “enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes.”

 

  1. Issues of constitutional legitimacy – The judgement addresses with unprecedented intensity questions of constitutional legitimacy. How far do judicial powers extend in deciding matters of legal and ethical controversy of this sort?  Should the decision to change the law be left to unelected judges or undertaken by  democratic representatives in Parliament, accountable to an electorate, and working according to a rigorous parliamentary procedure, which includes copious debate and wide public consultation?

 

Parliament significantly augmented the role of the courts when  it passed the HRA. This obliges the courts (s.3(1)) to interpret any UK statute consistently with human rights protected under the ECHR. If the courts conclude that they cannot do so without doing unacceptable violence to the meaning and intention of the statute in question, then they are obliged under s.4 to make a “declaration of incompatibility” (DOI). This does not have a direct legal effect: the legislation stands as it is until Parliament decides to change it. The UK courts do not under this provision have the powers of the US Supreme Court which is empowered to ‘strike down’ legislation it declares ‘unconstitutional’. However, a DOI does have political significance. Following the issue of a DOI, the UK parliament has to decide whether it will do nothing (which is politically risky) or ‘cure’ the incompatibility either with a ‘remedial order’ under s.10 of the HRA (a ‘fast-track’ system) or with a ‘full-blown’ Act of Parliament. The majority of the court held that this was a topic that was a matter properly for Parliament to debate, a matter on which the Court of Appeal had been unanimously, and crystal, clear. However, there are nuances in their positions which have implications for the assisted suicide debate. Two judges (Lord Reed and Lord Hughes) were, like the Court of Appeal, clear that this was a matter for Parliament alone to determine. Four other judges (Lord Neuberger, Lord Wilson, Lord Clarke and Lord Sumption) were prepared to take a ‘wait and see’ approach. They would be prepared to consider issuing a DOI if the right case at the right time arose in the future, or if Parliament refused to debate the issuealtogether. Another two (Lady Hale and Lord Kerr) were prepared to issue a DOI there and then and allow the appeals of Nicklinson and Lamb.  The point of interest here is that even if Parliament were to debate the issue and decide not to change the law, or even change the law within the limits envisaged in the current Falconer Bill, it would still, in principle, be open to the UK courts to issue a DOI if they judged that the legal position was not compliant with the European Convention. It is notable that what this Bill envisages would not address the appalling predicament in which the three appellants find (or found) themselves.

 

  1. Issues of ethical debate – the judgement reveals under the surface of the legal analyses real ethical tensions between the judges, especially Lord Neuberger, Lord Sumption, Lord Wilson and Lady Hale. A number of  issues are touched on: the relationship between law and morals; the  sanctity of life argument, the ‘slippery slope’ argument; the distinction between killing/letting die; and the distinction between medical killing and assisted suicide. The judgment is not a philosophical treatise, but it is possible to discern the influence of ethical argument on the legal analysis. For Lord Sumption, ethical analysis is unavoidable in the context of assisted suicide (para.207). The law against assisted suicide is the legal expression of a moral consensus about the ‘wrongness’ of suicide’ (Lord Wilson, para.200; Lord Sumption, paras.212-13). Whether the law has this kind ‘sign’ value, however, is disputed by Lord Neuberger (para.91). Moreover, while Lord Neuberger sees the decriminalisation of suicide by the Suicide Act 1961 (s.1) as a qualification of the sanctity of life principle (para.91), Lord Sumption rejects the view that suicide had thereby become morally acceptable, regarding this legal development as a humane and pastorally sensitive response towards those who (in reality) had attempted (and failed) to take their own lives (para.212). He points out that its decriminalisation did not at the same time invest people with a ‘right’ to commit suicide (para.213). There are widespread moral instincts which account for treating differently the person committing suicide and the person helping him (para.214).

 

Lord Wilson (paras.198-201) advances the sanctity of life and slippery slope arguments against the ‘incompatibility’ positions of Lady Hale and Lord Kerr. The sanctity of life principle, he contends, is deeply embedded in the foundations of the legal system and still commands widespread public support. For Lord Wilson, the slippery slope argument is really a form of ‘precautionary principle’ that places the onus on proponents of change to offer a persuasive case that a change of the law would involve an acceptably small risk of the vulnerable being pressured into an assisted suicide. Lady Hale’s incompatibility argument is founded on her view that the universal ban on assisted suicide is disproportionate and reliant on ethically dubious distinctions between ‘killing’ and ‘letting die’. In the context of the distinction between ‘positive’ and ‘negative’ action, and with extensive reference to the case of Re B (2002) (a case in which doctors acceded to the request of a mentally capable tetraplegic woman to have her life-sustaining ventilation switched off) Lady Hale states (at para. 304):

“While this distinction may make sense to us, it must often make little sense, especially to those who suffer the cruel fate of paralysis: those who can breathe without artificial help are denied a choice which those who cannot do so may make, should they wish to do so. For some of the people looking after them, it will be a mystery why they must switch off the machine or withdraw artificial nutrition and hydration if this is what the patient wants, but they may not painlessly administer a lethal dose of medication which the patient wants just as much.”

 

Lord Kerr (at para. 334), in support of a similar position, dissolves the ethical distinction between the capacity to die at one’s own hand and the capacity to die at one’s own hand with assistance:

 

“Being freely capable of acting on a decision to end one’s life does not therefore mean being physically capable of so acting unaided. A person is just as capable of ‘freely acting’ in consequence of his decision to end his life by recourse to informed and willing assistance to bring that about as he is by drawing exclusively on his own resources. If I wish to die and am physically unable to bring the medication that will end my life to my own lips but have someone who will do that for me, I am acting just as freely by having them do so as if the hand that bore the draught was my own.”

 

Conclusion

This case is a very good illustration of Francis Bennion’s dictum that “law is the hard-edge of ethics”. Some of the most fundamental ethical principles (sanctity of life, autonomy, dignity etc.) admit of different interpretations, whether from a secular or religious perspective (Lord Neuberger, para.49). Although the courts have repeatedly stated in ethically-contentious cases that they are ‘courts of law’ and not ‘arbiters of morals’, in reality, ethics and law are inextricably bound up with each other, and even the most rigorous legal analysis will be influenced to a certain extent by the judges’ basic ethical orientation, as this case demonstrates.

 

[1] Institute of Clinical Education, Warwick Medical School, University of Warwick

[2] R (Nicklinson and Lamb) v Ministry of Justice, R (AM) v Director of Public Prosecutions [2014] UKSC 38 (25 June 2014). The judges were Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes.

 

 

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Speaking with Authority

Rector’s Reflection

 

Taylor Mali is a teacher by day but, by night, he is a comedian specialising in a genre known as ‘slam poetry’ or ‘poetry jam’. In one of his sketches (or should I call it a composition?), he addresses the issue of authority. He points out the way among young people “it has somehow become uncool to sound as if you know what you’re talking about”, who “invite us to join them on the bandwagon of their own uncertainty.” He ends his hilarious set piece on a serious note. It will not do, he says, simply to “question authority”. We “need to speak with authority too” (see https://www.youtube.com/watch?v=pKyIw9fs8T4&feature=kp)

 

Who today speaks with authority? Is it the politicians? Many of us (I hope”) will have voted in the local and European elections. No doubt too many will have stayed away from the polling booth, dispirited with the political process, contemptuous of political rhetoric, yet again striking an disagreeably plangent chord. For many, the great appeal of Nigel Farage is that he sounds as if he believes what he’s taking about and expresses himself in language understandable to the ordinary man and woman. In contrast, the Westminster politicians give many people the impression that they just saying what they think we want to hear in order to secure our votes. Whatever we may think of Farage’s politics, he appears to speak with conviction and determination.

 

The Gospels describe Jesus as one who taught “with authority”. The word ‘authority’ is a translation of the Greek word ἐξουσία (exousia) which, when broken down, means “out of” (ἐξ-) one’s “being” (ουσία). There seems to be an inherent relationship between authority and authenticity. When our words emerge from the fountain of our own personal integrity, they carry a power and weight that transcend ideology. They claim our attention with a power quite unlike the well-worn tropes of Westminster politics.

 

However, speaking with conviction is not enough. Hitler spoke with great conviction. He mesmerised the masses because his words had their source in the deepest streams of his own being. They were tributaries of fire, borne of humiliation and anger, murderously focussed on the Jew and the ‘undesirable’. In contrast, the authority with which Jesus spoke was borne of God’s inexhaustible love for the created order and the human race. Jesus spoke with authority against the grain of conventional wisdom because his message of the Kingdom of God bubbled up from the inexhaustible spring of his own divine being. Whether we count ourselves as believers or not, Jesus words are still resonant after two millennia.

 

Who today speaks with authority? Perhaps it is the comedians. Humour is what the sociologist Peter Berger has called a ‘sign of the transcendent’, revealing the incongruity of life, and hinting at the truth beyond where things fit together in God.

 

Mark Bratton

Rector

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Rector’s Reflection

 

Taylor Mali is a teacher by day but, by night, he is a comedian specialising in a genre known as ‘slam poetry’ or ‘poetry jam’.  In one of his sketches (or should I call it a composition?), he addresses the issue of authority. He points out the way among young people “it has somehow become uncool to sound as if you know what you’re talking about”, who “invite us to join them on the bandwagon of their own uncertainty.” He ends his hilarious set piece on a serious note. It will not do, he says, simply to “question authority”. We “need to speak with authority too” (see https://www.youtube.com/watch?v=pKyIw9fs8T4&feature=kp)

 

Who today speaks with authority? Is it the politicians? Many of us (I hope”) will have voted in the local and European elections. No doubt too many will have stayed away from the polling booth, dispirited with the political process, contemptuous of political rhetoric, yet again striking an disagreeably plangent chord. For many, the great appeal of Nigel Farage is that he sounds as if he believes what he’s taking about and expresses himself in language understandable to the ordinary man and woman. In contrast, the Westminster politicians give many people the impression that they just saying what they think we want to hear in order to secure our votes. Whatever we may think of Farage’s politics, he appears to speak with conviction and determination.

 

The Gospels describe Jesus as one who taught “with authority”. The word ‘authority’ is a translation of the Greek word ἐξουσία (exousia) which, when broken down, means “out of” (ἐξ-) one’s “being” (ουσία). There seems to be an inherent relationship between authority and authenticity. When our words emerge from the fountain of our own personal integrity, they carry a power and weight that transcend ideology. They claim our attention with a power quite unlike the well-worn tropes of Westminster politics.

 

However, speaking with conviction is not enough. Hitler spoke with great conviction. He mesmerised the masses because his words had their source in the deepest streams of his own being. They were tributaries of fire, borne of humiliation and anger, murderously focussed on the Jew and the ‘undesirable’.  In contrast, the authority with which Jesus spoke was borne of God’s inexhaustible love for the created order and the human race. Jesus spoke with authority against the grain of conventional wisdom because his message of the Kingdom of God bubbled up from the inexhaustible spring of his own divine being. Whether we count ourselves as believers or not, Jesus words are still resonant after two millennia.

 

Who today speaks with authority? Perhaps it is the comedians. Humour is what the sociologist Peter Berger has called a ‘sign of the transcendent’, revealing the incongruity of life, and hinting at the truth beyond where things fit together in God’

 

Mark Bratton

Rector

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May 24, 2014 · 12:57 pm

‘Christian’ England?

The Prime Minister recently caused an Easter stink in the nostrils of 50 well-known figures who wrote a letter of protest.  They objected to his characterisation of England in a recent article in the Church Times as a ‘Christian’ country.  The PM had argued that the UK should be more robust about its Christian heritage and values.  The author Philip Pullman, journalist Polly Toynbee and performer Tim Minchin, amongst others, thought this expression of ‘muscular’ Christianity potentially divisive and alienating, and, therefore, irresponsible.  They point to a number of recent national polls and surveys which in their view demonstrate that England is not a Christian, or even a religious, country, but rather non-religious and plural.

 

Of course, it all depends on what you mean by ‘Christian’. No doubt  there are fewer people today, than there were 30 years ago, prepared to self-describe as ‘Christian’ or even ‘religious’; indeed, an increased number make a point of describing themselves as having  no religion at all. However, defenders of the PM against these ‘cultured despisers of religion’ say that even with the decline in Christian observance, England is still Christian culturally and structurally. In a recent lecture, Lady Hale, the Deputy President of the English Supreme Court, described England as a paradoxical country. She pointed out that while England has an established Church, bishops in the House of Lords and, until recently, a blasphemy law protecting only the Anglican faith, it is, unlike the US, largely non-observant, and shy of public expressions of religiosity. Until David Cameron’s intervention, politicians weren’t meant to ‘do God’, as Alistair Campbell once famously put it.

 

As a Christian priest, I not only describe myself as ‘Christian’ but I am also very grateful for our Christian heritage and the Christian values that underpin so many of our historic institutions. I am also acutely conscious that Christianity is historic achievement, which means that it could very easily be unravelled by historical forces, and according to some, is unravelling as we speak, at least in Europe. It is worth reflecting, were Christianity to unravel completely from the fabric of our national and cultural life, what would be lost as a result. How long, for example, would the values which currently underpin our legal system – fairness, equality, democracy, the rule of law –survive the evisceration of the Christian tradition out of which they first emerged?  The riposte of the cultured despiser would no doubt be that the country could better be served by many pre-Christian, post-Christian and non-Christian values.

 

I am not so sure. Even Richard Dawkins, the Archbishop of Atheism, acknowledges that Christian religious literacy is essential to appreciating many aspects of the Christian cultural heritage he himself cherishes.  He just wants to ditch the metaphysics. Without the metaphysics, however, I doubt Christianity would have gotten off the ground. Indeed, Easter faith declares that God is Real, God is Love, and God so loved the world that he became one of us that we might have life in all its fullness in this and in our risen existence.  Christ is Risen! He is Risen Indeed! Alleluia!

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Suicidal Thoughts

Yesterday, at a meeting of a book club of which I am a member, I got into a debate about the legal status of “attempted suicide”. Another member (not a lawyer) was convinced that while suicide was not a crime, attempted suicide was.  I thought him plain wrong. But I was a little perturbed when we appealed to the opinion of another book club member, a very distinguished High Court judge (now retired) who seemed to confirm that attempted suicide was still criminal but that the DPP had issued a statement or guidelines (I can’t remember precisely what he said) indicating that he (or she) wouldn’t prosecute in such cases. As a former practising barrister and having just complete a PhD in medical ethics and law I felt deeply embarrassed about my apparent mistake. Luckily, they knew nothing of my legal background. However, I am now convinced that my non-lawyer interlocutor was wrong, and that the High Court judge had misunderstood what the question was.

I had always thought that it could not be the case that attempt suicide was still a crime because the whole point of section 1 was to decriminalise suicide (and with it presumably attempted suicide). Section 1 of the Suicide Act 1961 stipulates that:

“The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated”.

The Act was passed precisely to relieve those who had failed in the deliberate attempt to end their own lives of the burden of the criminal justice system. It was recognised that what these unfortunates required was not the force of law, but medical help and pastoral care. Those who succeeded, obviously, were beyond the reach of law, though, in days of yore, their families weren’t – their property being forfeit to the crown. So how could attempted suicide remain criminal? I have always assumed that the decriminalization of the principal offence automatically includes the attempt to commit it (I am still checking this out), and that to make attempting a non-crime criminal would require explicit statutory sanction.

However, a little bit of research has put my doubts to bed. In the case of Pretty [2002] Lord Bingham states (at para.35):

Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide’s family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so.

This view is reflected in para.2  of  the DPPs Policy for Prosecutors in Respect of Cases Encouraging or Assisting Suicide (2010):

Committing or attempting to commit suicide is not…a criminal offence.

This opinion is cited in the Court of Appeal Case of Nicklinson (2013) where the Lord Chief Justice, Lord Judge states (at para.153):

As a result of primary legislation suicide and attempted suicide were decriminalised over half a century ago, but simultaneously, assisting another to commit or attempt to commit suicide remained and was expressly identified as a criminal offence.

This may be the source of the misunderstanding. While attempted suicide is not a criminal offence, assisting an attempt is. The Suicide Act at the time of its enactment was unique in being the only statute on the books which made it a crime to assist the commission of a non-crime (or attempted non-crime). This distinction is now shared by the Female Genital Mutilation Act 2003.

This history of the legal development of suicide is a fascinating one. From about the 13th century, suicide constituted the crime of ‘self-murder’ and attracted the death penalty. As late as 1944, the survivor of a suicide pact was executed by hanging  – a draconian stance ameliorated by the Homicide Act 1957, which transmuted the murder charge to manslaughter.

For a fascinating cultural history of suicide, I recommend A. Alvarez’ The Savage God.

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