Abstract
Lord Justice Stanley Burnton was called to the Bar in 1965, was appointed Queen's Counsel in 1982 and was subsequently appointed to the High Court Bench in July 2000, and he was nominated to the Administrative Court shortly after that and as a High Court judge most of his work was in that court, the Administrative Court, and he heard a number of early cases concerning the Human Rights Act 1988 and although that was a 1988 Act, of course it didn't come into effect until the beginning of October 2000. He was promoted to the Court of Appeal in 2008. He is a member of Her Majesty's Privy Counsel and an Honorary Fellow of St Edmund's Hall, Oxford. He is also a Trustee of the British and Irish Legal Information Institute, which, as lawyers among us will know, is a superb resource, as it makes judgments and a lot of other legal material freely available to us on the Internet; it is available to everybody; and I can add that a search in BAILII this afternoon of Burnton LJ brings up a large and very diverse number of cases. But tonight he is going to focus on
The lecture is named after Leonard le Marchant Minty, a barrister who specialised in medical law and was generous to the Society in his will, but who tragically was the victim of a mugging and then, shortly before his death in 1985, an aggravated burglary in the course of which he was badly beaten up. It was particularly appropriate of the Society to give his name to the annual lecture that stimulates the study of and practice in the area of law in which he was so interested and involved.
Introduction
It is perhaps no understatement to suggest that the connection between medicine and jurisprudence, and an understanding of the impact developments in one field have on the other, is more important now than ever before. In this regard 2010 was a significant year. It marked the tenth anniversary of Collins’ and Venter's announcement that the human genome had been sequenced. It was also the tenth anniversary of the coming into force of the Human Rights Act (the HRA), which incorporated into our domestic law the provisions of the European Convention on Human Rights, of which this country was an original signatory, which we had largely drafted and to which we had been a party since it came into force in 1953. 1
Last, and perhaps least, 2010 was the tenth anniversary of my appointment to the High Court Bench. Thus this lecture has provided me with an opportunity to review, from the point of view of a judge, the impact of the Human Rights Act 1998 on at least some aspects of our medical law.
Mapping the human genome has opened up fields of moral, ethical and social issues and concerns which could previously only have been the subject matter of fiction. Aldous Huxley's Brave New World comes to mind. The enactment of the HRA has required our Courts to address ethical and social issues which English law had previously only fully grappled with in specialist fields, and with a degree of removal from developments in Continental Europe.
The intersection of these medical and legal developments poses many challenges for us all, for doctors, patients, lawyers and society at large. At the most prosaic level, the two developments mean that no future Secretary of State for Health could rely on a comment attributed to one of their predecessors that, “The only place for a lawyer in the NHS is on the operating table”, 2 as anything other than the punch line of a joke. At a more serious level, they raise novel and complex legal and ethical questions, such as whether and to what extent we have a right to genetic privacy. 3 Difficult and sensitive issues, such as those which the courts grappled with in the proceedings that culminated in the case of S and Marper v The United Kingdom, 4 to which I shall refer in a moment, are likely to become increasingly common, as our scientific knowledge advances and our jurisprudence, under the influence of the European Court of Human Rights in Strasbourg, develops. It seems to me, that what the Austrian philosopher Ludwig Wittgenstein described as our “complicated form of life” is likely to become ever more complex in the coming years of the 21st century. 5
It is, as a consequence of this, all the more important that lawyers, medics, philosophers and social scientists continue to develop the type of dialogue which the Medico-Legal Society has for over a hundred years encouraged. As a small part of that dialogue, I intend to consider the impact of the Human Rights Act on the principle of individual or personal autonomy; and some of its impacts on mental health law and on disciplinary proceedings. Finally, I should like to say a few words on a subject that is not related to the Human Rights Act 1998, but which I hope you will find of interest, namely a problem that has arisen in relation to the new test for diminished responsibility in cases of homicide.
The relevant provisions of the Convention
I have heard so many cases on the Convention that I tend to assume that the text of its provisions is common knowledge; but it is not. The provisions to which I propose to refer are Articles 8, 5 and 6 and 3. Article 8, the vaguest, least defined, and most controversial provision, confers the right to respect for private and family life. It provides:
Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; … (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; … … Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Article 5 is much clearer. It confers the right to liberty and security. So far as relevant, it is as follows:
Article 6 confers the right to a fair trial. It provides, principally:
Article 3 is the shortest and most easily understandable provision: “Article 3. Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Individual or personal autonomy
The principle of individual, or personal, autonomy is well-known, so well-known that in talking about it I run the risk, of being both boring and dangerous; a paradoxical combination. If Charles Foster, author of a recent searching critique of the principle of personal autonomy were here – and given that he has been described as the Jake La Motta (of Raging Bull fame) of medical ethics I might perhaps hope he is not 6 – he might wearily note how “modern debates in medical ethics are often very boring” 7 because of the pre-eminence which they give to personal autonomy; a pre-eminence which if accepted by society (or Minty lecturers) perhaps renders it (or them) “unreflective, shallow and dangerous”. 8 I shall try to be none of these things.
Put bluntly, the principle of personal autonomy is that we are all (or nearly all) individuals whose choices should be respected. It is a principle which has been said by some to be the primary paradigm in medical law and ethics,
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not least because of the ECHR. Its importance, indeed its status as the pre-eminent right of individuals, is well-recognised in the context of medical treatment, and was emphasised, for instance, both by Lord Goff in Bland
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and by Lord Donaldson MR in Re T,
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cases dating from the early 1990s. Long before this, however, the common law had recognised the principle. In 1914, a plaintiff, Mary Schloendorff, was admitted to New York Hospital. She consented to being examined under ether to determine if a diagnosed fibroid tumour was malignant. She withheld consent for removal of the tumour. The physician examined the tumour, found it malignant, and then disregarded her wishes and removed the tumour. Ms Schloendorff's claim was based on the assertion that she had not consented to anything other than exploratory surgery. On this point she won: the doctor had removed the tumour without her consent. Justice Cardozo, one of the great judges of the common law, gave this classic statement of the principle: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.”
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The claim may well have been based in tort – trespass to the person – but at its heart was a rights-based principle; that of personal autonomy. More specifically, it rested on one specific instance of the right: the right to physical integrity.
The principle that underpins the right to refuse treatment, even if such refusal might result in the patient's death, was recognised by the European Court of Human Rights in Strasbourg in 2002 in its judgement in Pretty v The United Kingdom. You will remember that Mrs Pretty suffered from motor neurone disease, and wanted to ensure that if she chose euthanasia, with the assistance of her husband, he would not be prosecuted for the offence of assisting suicide. The Court's judgement illustrates the width, and lack of definition, of the right conferred by Article 8. The Court said: “61. …, the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person … It can sometimes embrace aspects of an individual's physical and social identity … Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article. … Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world …. Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”
In relation to consent to treatment, the Court stated the principle in more European and less clear terms than had Cardozo J: “In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8(1) of the Convention. As recognised in domestic case law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life.”
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It is obvious that placing personal or individual autonomy centre stage has wide ramifications; not least because, as one critic has put it, the courts have repeatedly treated it as a “fundamental axiom of medical law”. 14 However, fundamental is not the same as absolute. Equally, to hold that something is a fundamental principle is not to suggest it is the fundamental principle. It is only in a qualified sense that we may be said to be master or mistress of our own destiny. We are so within a social, moral and legal framework. This is recognised in Article 8 ECHR itself. It confers a qualified right: paragraph 2, concerning its limitations, is as significant as paragraph 1. The right may be subject to limitation and restriction where they are, for instance, necessary in a democratic society and the means by which they are implemented are proportionate. 15 Equally, it is clear that the law does not permit us to develop our personalities in any way we choose.
Let us then move to an issue which has generated, and continues to generate, a great deal of debate: whether there should be a right to commit suicide, and if so, a right to be assisted in doing so. As we all know Switzerland permits this. The argument in favour of both assisted suicide and legalised euthanasia is often put on the basis of individual, personal, autonomy. An individual wishes to end his or her life, and requires assistance to achieve that from a family member or from a doctor. Why should that instance of personal choice not be respected? If personal choice was an absolute principle there would perhaps only be one answer to that question. But fundamental though it may be, it is not an absolute axiom.
The facts of the Pretty case illustrate this. The Court held that the refusal of the State to undertake not to prosecute Mrs Pretty's husband, if he assisted her to commit suicide, was an interference with her rights under Article 8. However, the interference was justified as being “designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life”. And the liability to prosecution applies to doctors just as much as to husbands.
The question whether those suffering from serious disease, or simply the extremes of old age, should be permitted to end their lives as they choose, and if so in what circumstances, raises very difficult ethical and religious questions. In the Bland case, which concerned the question whether the life support system of an insensate patient, with no quality of life or hope of recovery, could be switched off, thus killing him, Lord Brown Wilkinson said, in the House of Lords: “The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules can be applied to individual cases. The rapid advance of medical technology makes this an ever more urgent task, and I venture to hope that Parliament will soon take it in hand. Meanwhile, the present case cannot wait. We must ascertain the current state of the law and see whether it can be reconciled with the conduct which the doctors propose.”
Despite this clarion call for legislation, the issue has frankly been avoided by Parliament, on whom is the primary responsibility for determining it. It was addressed by the House of Lords in R (Purdy) v The Director of Public Prosecutions. 16 Mrs Purdy suffered from primary progressive multiple sclerosis, and wanted to know whether, if her husband assisted her to go to Switzerland, where she could be helped to end her suffering, he would be prosecuted for having assisted her to commit suicide. The House of Lords held that her right under Article 8 was engaged, and that paragraph 2 of that provision required the State to define the circumstances in which there would be a prosecution for that offence. It therefore ordered the DPP “to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution”.
The DPP duly did so. The policy may be accessed on his website. 17 It lists factors for and against a decision to prosecute. For example, a prosecution is less likely to be required if “the victim had reached a voluntary, clear, settled and informed decision to commit suicide” or if “the suspect was wholly motivated by compassion”.
I have to say that I have some difficulty with the kind of quasi-legislation that we now have on this subject, in which in effect the rules as to whether the State will consider that an offence has been committed are defined by the DPP instead of by Parliament. However, on a purely practical and pragmatic level, it is clear that relatives and conceivably medical staff concerned with patients such as Mrs Purdy and Mrs Pretty, faced with difficult ethical and emotional questions, will be assisted by the guidance provided by the DPP. I am not comfortable with a prescription that tells us that a criminal law is broken, but that it will not be prosecuted. I do not think that medical staff can be comfortable with the situation in which they may be asked to break that law, even though no prosecution is likely. However, what the case of Purdy does illustrate is the enlargement, by the instrumentality of Article 8, of the scope of the principle of individual autonomy in the area of criminal law.
We live in a society in which personal autonomy operates against a wide backdrop of social, ethical, moral and philosophical norms. Commitments to moral and ethical codes which go beyond the individual, but are rather based on the relationships each of us has with each other, with our families, with society as a whole, are facets of the life we live in society. Commitments to duty, to justice and a sense of responsibility for others, equally are facets of that complicated form of life. Examples can be multiplied. 18 They often come into conflict with each other, or at the least they place limits on each other. When they do there must, some have said, be “an accommodation between principles”. As Lord Justice Hoffmann, later Lord Hoffmann, put it in the Bland case in 1993, “There is no morally correct solution which can be deduced from a single ethical principle like the sanctity of life or the principle of self-determination”. 19
Cardozo J was clearly right to say that every adult human has the right to determine what happens to their body. But he expressed himself in too absolute terms. The rights we have, rights under the common law or under the HRA and ECHR, are rarely absolute rights. They are rights which operate against, and to a large degree gain their content from, a wider socio-cultural tradition. Both medicine and the law would do well to hold that in mind when considering questions of medical intervention, medical research, designer babies, gene therapy, genetic privacy or euthanasia, in the years to come. Neither discipline operates in a vacuum, just as individuals do not live in a vacuum. We all live a complicated form of life; reliance on individual autonomy as the trump card in medico-legal debates fails to recognise that truth. With this in mind, it is perhaps more than likely over the coming years that we will all have to pay more careful considerations to the parameters within which the principle of autonomy operates; its limits and the way in which it relates to other rights guaranteed by the ECHR, such as the right to life, to fair trial, to thought, conscience and religion, for instance.
I said earlier that I would consider the case of S and Marper v The United Kingdom. It illustrates a divergence between the judges of this country and of Europe that is at least interesting and is clearly significant. The case concerned the retention by police authorities of DNA and fingerprints of persons who are subsequently acquitted. The European Court of Human Rights held that the indefinite retention of the claimants’ DNA and fingerprints was incompatible with their rights under Article 8. This case too illustrates the increasing ambit of Article 8: the Court held that “The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8”. It proceeded to consider whether this interference was justified. The UK Government argued that the retention and use of such data authorised by statute for “purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution” was justified. This argument had been upheld by all of the judges who had considered the case in this country. Nonetheless, the European Court held that: “the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences … fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”
I have some difficulties with this decision. I have seen cases in which serious crimes have been solved, and dangerous criminals convicted and imprisoned, as a result of the availability of DNA taken as a result of the most insignificant crimes, such as driving offences, and even as a result of the availability of the DNA of a relative, who may well have been arrested for an alleged minor crime and never even charged. It seems to me that the increase in the chances of identifying and convicting a murderer, or a rapist, who is thus prevented from again inflicting the most serious harm, justifies the retention of DNA. Like Lord Justice Sedley, I consider that “the relatively modest invasion it involves of their right to respect for … private life is proportionate; and that insofar as the selection of such people from the unconvicted population at large discriminates against them, it is objectively justified”. 20 I wonder whether the judges who decided this case in Strasbourg had the experience of criminal trials that we English judges have, and whether this does not explain the difference in result.
You may have read that the Faroe Islands propose to become the first country in the world to read the entire DNA code of every willing citizen. The resulting information is to be used for medical purposes. If this country were to do the same, difficult questions would arise as to whether the police should have access to this valuable treasure trove, for very different purposes. I propose to avoid answering that question today.
Mental health, detention and release from detention
One particular area where the need to consider the relationship between a number of provisions of the ECHR came under scrutiny is that of detention of patients on mental health grounds.
Before the Human Rights Act, the law imposed the burden on any mental health patient detained in a hospital who applied for his discharge to prove that it was no longer necessary for him to be detained. In R (H) v Mental Health Review Tribunal for North and East London Region, 21 the Court of Appeal considered whether this was compatible with Article 5 of the European Convention on Human Rights. Following his conviction for manslaughter in 1988 H had been detained as a restricted patient under the Mental Health Act 1983. In 1999 he applied for discharge under s 73 of that Act. The Tribunal rejected his application. A judicial review of that decision also failed. H appealed that decision. There was one substantive issue before the Court of Appeal: was the applicable provision of the Mental Health Act 22 compatible with H's rights under Article 5 of the Convention? The Court held that placing the burden of proof on the patient was incompatible with Article 5. Article 5 requires the State to justify the detention of any individual, and therefore it was for the State to prove that it continued to be necessary to detain H. As a result, the Act was amended by the Mental Health Act 1983 (Remedial) Order 2001, to place the burden on the authorities to justify the continued detention of patients detained under the Mental Health Act. That reform has been retained in the amendment to the 1983 Act effected by the Mental Health Act 2007.
The case of H illustrates one of the innovations of the Human Rights Act 1998. Previously, the Courts had to accept legislation as lawful, however objectionable or contrary to principle it might be seen to be. Now, the Courts can declare legislation to be incompatible with the Convention. The Court cannot annul primary legislation or declare it void. It continues to be the law until amended by Parliament. We rely on Parliament to correct deficiencies in legislation, such as that shown by the judgement in H, as it did indeed do so in that case, and the Human Rights Act established a special simplified procedure for it to do so.
The common law has always conferred a right to compensation if an individual is detained without legal authority. Another innovation of the Human Rights Act 1998 was to confer a right to seek compensation not only when there was no legal authority for a person's detention, but where the State has failed timeously to review the need for his detention. In R (KB and others) v The Mental Health Review Tribunal, 23 I held that the rights of patients under Article 5 had been infringed because of delays in hearing their applications for discharge from detention. Awards of damages were subsequently made in their favour. 24 These delays were in large part not due to any fault on the part of the Tribunal, but to the failure of the Government adequately to resource the Tribunal. The judgements and awards of damages gave the Government a powerful incentive to provide the resources that were necessary to enable the Tribunal to hear applications within a reasonable time. I suspect that this was an unintended consequence of the Human Rights Act 1998, but it was nonetheless welcome.
Another area in which the legislation of the European Convention on Human Rights has conferred rights on detained mental patients concerns the conditions of their detention. At common law, provided the detention of a patient in a hospital was lawfully authorised under the Mental Health Act, he could not bring a claim for damages in relation to the conditions of his detention. He could not, in particular, claim damages if he had been the subject of seclusion, i.e. confined alone in a room that might be, and often was, locked, rather than being kept on a ward. In S v Airedale National Health Service Trust
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I said: “The objections to seclusion are well-known. If the patient is kept in a room devoid of entertainment or diversion, he may suffer sensory deprivation. Detention in a small and featureless room is oppressive for anyone, but is liable to be more objectionable and more damaging in the case of a person whose mental health is at best vulnerable. It may lead to feelings of increased despair and isolation, anger and worsening of delusions and hallucinations (see p. 45 of the Mental Health Act Commission's Ninth Biennial Report 1999 – 2001). Its effects may be aggravated by uncertainty as to whether or when the seclusion will come to an end. Seclusion may bring about the violent behaviour that it is intended to prevent. If there are no washing or toilet facilities in the room, conditions may become at best unpleasant and at worst difficult or impossible to bear.”
Following the coming into force of the Human Rights Act 1998, however, a patient who claims he was unjustifiably or wrongly secluded, may have a claim for damages under Article 3, on the basis that his treatment was inhumane or, more likely, degrading, but more probably under Article 8, on the ground that there was an unjustified interference with his right to respect for his private life. 26
Disciplinary procedures and Article 6 ECHR
I would now like to turn to the procedures of the General Medical Council. Many of you will have seen the Despatches programme on Channel 4 last week, which raised real concerns as to the effectiveness of the GMC's supervision of general practitioners, and the question whether it is appropriate for a single body to be, as it was said, investigator, prosecutor and judge in disciplinary matters. Those questions deserve more substantial consideration than I am able to give in this paper, and I do not propose to embark on them. My focus will be narrower.
Before the Human Rights Act came into force, our Courts were unable to scrutinise the disciplinary proceedings of the General Medical Council for compliance with the Article 6 right to fair trial. However, they did not escape scrutiny. In 1998, the European Commission of Human Rights, in Stefan v The United Kingdom,
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cast doubt on the independence of the Health Committee, the predecessor of the Fitness to Practise Panel. The independence of the court or tribunal is an essential requirement of a fair trial. The Commission said: “There remain, however, areas in which the independence of the Health Committee may be seen to be open to doubt. In particular, there is no indication that any attempt is made to ensure that the members of the Health Committee determine cases independently of the GMC's general policies, and members of the Health Committee appear to be appointed on an ad hoc basis, rather than for any particular term. Moreover, the President of the GMC plays an extensive, though not necessarily direct and personal, role in the investigation of complaints at the earlier stages of proceedings. Further, the sole legal advisor in the case – the legal assessor – is given no role whatever in the deliberations of the Committee. Given these factors, the Commission does not consider that the guarantees of independence which do exist – principally the limitation on individual members sitting where they have had personal previous contact with the case – suffice to ensure the required appearance of independence.”
These defects were not however fatal. They did not amount to a breach of Article 6 ECHR because of the provision for an appeal to the Privy Council. This remedied the defects. The Privy Council subsequently gave the GMC's Professional Performance Committee, insofar as independence and impartiality was concerned, a clean bill of health when it considered the issue in Sadler v General Medical Council in 2003. 28
However, the decision of the Privy Council in Sadler was distinguished in Watson v GMC. 29 In 2003 a health committee had found that the doctor's fitness to practise was seriously impaired by virtue of her depressive disorder, alcohol dependence syndrome (currently abstinent) and opioid dependence syndrome (currently abstinent). Conditions were imposed on her registration for two years. The Committee directed that it would meet to consider her case before the end of the period of conditional registration and it required her to submit to medical examination by medical examiners chosen on behalf of the Committee. In 2005 she came before the Committee again. She had been examined by four medical examiners, who were psychiatrists, all of whom supported her application to have the conditions of her registration revoked. Since none of their evidence seemed to be controversial, none of them attended the meeting of the Committee. Having heard Dr Watson's evidence, the Committee retired with their two medical assessors, who were also psychiatrists. They returned some hours later, and the chairman asked the assessors to summarise the advice they had given to the Committee during their retirement. Their views went beyond a general explanation of the medical science involved in the case, and included opinions on Dr Watson's condition that differed from those of the medical examiners. Dr Watson's counsel objected to this. His objection was rejected, and the Committee then announced its decision to maintain stringent conditions on her registration.
In my view, the case casts doubt on the practice of the GMC not to ensure that cases such as Dr Watson's are heard by a panel that includes a specialist in the area of expertise in question, but instead to have specialist assessors, who are not members of the panel. I quashed the Committee's decision. It was worrying that they had acted on the opinion of assessors on Dr Watson's fitness to practise on the basis of Dr Watson's relatively brief evidence, as against the opinions of the medical examiners who had had a far more thorough opportunity to examine her. But the basis of my decision was that the hearing had not been fair. Her right to a fair hearing, guaranteed by Article 6 of the Convention and by common law, had been infringed. Dr Watson had had no opportunity to address the views of the assessors. She had not been able to call the highly qualified medical examiners to address the assessors’ views. Her counsel could not cross examine the assessors. The fact that the assessors had advised the Committee in the absence of the parties supported the impression that they had exercised a decisive influence on the outcome of the case.
It is gratifying to see that, perhaps in consequence of this decision, the guidance for specialist advisers, issued by the GMC in November 2009, appropriately advises:
Specialist advisers may, with the consent of the panel chairman, ask questions of the doctor or other witnesses. Questions asked must be restricted to the medical significance of information relevant to the doctor's performance or health and be limited to the issues before the panel. Specialist advisers do not sit in camera with the Panel when they retire to make their findings. Specialist advisers must not do any of the following:
Give evidence, for example: their own clinical opinion about the doctor's health or the adequacy of his practice; Express an opinion as to whether or not the doctor's fitness to practise is impaired.
Human rights scrutiny has had an impact on GMC procedures in respect of equality of arms, the right to a public hearing, the right to a reasoned decision, the duty to ensure a hearing within a reasonable time, interim measures and sanctions imposed as a result of disciplinary procedures.
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Such scrutiny has not been confined to the GMC. Disciplinary proceedings against solicitors and members of the bar, dentists, nurses and others have also been subject to such scrutiny over the past ten years. This has produced a degree of principled analysis which those disciplinary processes have perhaps lacked in the past. Many of those processes, as with our common law, had been the product of ad hoc evolution over many years. As with the common law, it is always beneficial for reasoned scrutiny to be applied every so often to assess whether reform is necessary and if so what form it should take. In the world we now find ourselves in, a less deferential, more transparent and questioning one than that which was the backdrop to the evolution of our laws, regulatory and disciplinary procedures, this is no bad thing. Not all our systems will be found wanting. But some will be, just as some will require amendment to render them properly compliant with modern standards. It is interesting to see that having only revised its fitness to practice procedures in 2004, the GMC has recently issued a consultation on further reforms, the aim of which is to ensure that they remain robust, fair to doctors and properly able to protect patients and thereby maintain public confidence in the medical profession.
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Healthy self-reflection by the medical profession as a consequence of legal developments is I think to be welcomed. Medico-legal developments are not however a one-way street. Medical developments can equally highlight defects in the law. With that in mind I turn to my final subject for tonight's lecture: diminished responsibility in murder.
Diminished responsibility in murder
Diminished responsibility as a partial defence to murder first entered the statute book as recently as 1957, through s 2 of the Homicide Act 1957. It provided that a person who killed or was party to a killing was to be convicted of manslaughter instead of murder: “… if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
It is worth bearing in mind that in 1957 some murders were still capital offences. An important practical effect of the defence of diminished responsibility was therefore to save from execution those who had committed such murders but were able to establish the defence.
The provisions of s 2 were always problematic, a point underlined by the Law Commission in 2006 in what is colloquially known as its Murder Report. 32 First, the section gave no indication of what was meant by “substantial impairment of mental responsibility”. It mixed, and some would say confused, the ethical (responsibility) and the medical. It provided no guidance as to how such an impairment could reduce culpability. Furthermore, the definition of abnormality of mind had not been drafted with the “needs or practices of medical experts in mind, even though [their] evidence is crucial to the legal viability of any claim of diminished responsibility”. More problematically, the very term “abnormality of mind” was not a recognised psychiatric term. 33 Sir Richard Buxton, a retired Court of Appeal judge, probably summed it up most pithily when he described s 2's wording as “disastrous” and “beyond redemption”. 34
To some extent, these defects were understandable given the time when the provision was enacted. In 1957, psychiatry was in many ways a subject which had its future well in front of it. The WHO's International Classification of Diseases (ICD) was only just on its sixth edition and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM version one) was only five years old. It would be another three years before RD Laing would publish his seminal work which spearheaded the anti-psychiatry movement: The Divided Self: An Existential Study in Sanity and Madness; 35 an anti-movement is perhaps a key sign that a subject is on the road to maturity. But time and scientific development have since that time increasingly called for s 2 to be revisited. Medical and scientific developments increasingly showed it to be drafted in, what might be described as, anachronistic terms.
In the light of those developments, the Law Commission sensibly canvassed expert opinion. Its reform recommendations were, as a consequence, “drawn up with the help of the Royal College of Psychiatrists and other expert consultees”. The Labour government accepted the Law Commission's view, and by s 52 of the Coroners and Justice Act 2009 replaced s 2 of the 1957 Act. The new section came into force in October last year. It provides: “(1) A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
arose from a recognised medical condition; substantially impaired D's ability to do one or more of the things mentioned in subsection (1A); and provides an explanation for D's acts and omissions in doing or being a party to the killing. to understand the nature of D's conduct; to form a rational judgment; to exercise self-control.
(1A) Those things are—
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.”
Medical advances called the previous law into question. Medical expertise helped to reframe the law. The amendment replaced the vague term “abnormality of mind” with the more appropriate “recognised mental condition”. As such it provides clearer guidance as to what might fall within the ambit of the defence. Reference will now be made to, for instance, the WHO's International Classification of Diseases (ICD-10) and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM IV-TR and version V when it is published next year), in assessing whether the defence arises. Equally, the amendment clarifies how and in what ways the defence applies if the defendant was suffering from a recognised medical condition.
However, the new law is not without its difficulties. Perhaps a minor quibble is with the reference to the exercise of self-control, and impliedly to the failure to exercise self-control. Although I am no psychiatrist, I am sceptical of the validity of the notion of self-control. It seems to assume that every individual has at least two parts of his personality, one of which exercises control over the other. I do not recognise that as a valid assumption, supported by objective experimental data. But you are more qualified than I am to comment on this.
More important is the problem inherent in the unqualified reference to “a recognised mental condition”. This confers on the medical profession the power to decide what conditions may give rise to the defence: a kind of delegated legislation. But the medical profession recognises and categorises medical conditions for the purposes of diagnosis, treatment and prognosis, not for the purposes of determining the gravity of criminal offending. For example, Chapter 5 of ICD-10 includes “acute intoxication” among mental and behavioural disorders. Alcohol intoxication is a condition also recognised in the Diagnostic and Statistical Manual of Mental Disorders. However, voluntary drunkenness has never been regarded as a mitigating factor in crime, but if anything as an aggravating factor. Should a man who gets himself drunk on Friday night and deliberately beats another man, or his wife, to death, be able to escape a conviction for murder? I do not think so. Similarly, mental disorder due to cocaine or another illegal drug is a recognised condition. What about F99 “Mental disorder, not otherwise specified”? It may be that the Courts will be able to avoid these difficulties by holding that mental dysfunction due to voluntary intake of alcohol or drugs is not “an abnormality of mental functioning” within the meaning of the statute. A man tried for murder has already sought to rely on the defence of diminished responsibility because he was drunk when he carried out the killing. I understand that the case may be on its way to the Court of Appeal. Watch this space.
Conclusions
Why has the domestication of the European Convention on Human Rights by the Human Rights Act 1998 had such profound effects? I think that one reason, indeed the main reason, is that it has enabled relatively unpopular groups to rely on the general rights conferred by the Convention in circumstances in which no government would have enacted those rights specifically for that group. One can see this clearly in the cases on serving prisoners, which I have not mentioned: on their rights to vote, and to have decisions as to their release from custody determined by tribunals independent of politicians, to have decisions made within a reasonable time frame. Similarly mental health patients: I cannot see that any government would have conferred a right to compensation for delays in the hearing of their cases by mental health review tribunals. The principled decision that it is for the State to justify the detention of any person detained, even if he has previously been diagnosed as mentally ill, is another example. This general application of the rights conferred, which is blind to the popularity or to the political influence of those on whom the rights are conferred, is the great advantage of a Bill of Rights, which is effectively what the European Convention on Human Rights now is.
I started this lecture by commenting on the importance of dialogue. Medicine and law have enjoyed a long and fruitful dialogue. This organisation, and this lecture series, has played a key role in that. It will, I have no doubt, continue to do so.
Over the coming years, this dialogue will become ever more important, as legal developments have an impact on medical practice and regulation, and medical developments have an impact on the law and its evolution. Neither law nor medicine will remain static. They are dynamic subjects, which both shape and are shaped by our complicated form of life. As such I look forward to the continuing dialogue, its nuances and its contribution to life and society, to doctors and patients and to our understanding and application of the Human Rights Act. 36 Thank you for listening to me. (Applause.)
Discussion