Ashya King showed we still don’t know the limits of liberty

Almost every week, the Family Division hears cases of a mind-scrambling sensitivity

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The Independent Online

Truth may be stranger than fiction, but fiction can intertwine with truth. Among the legal authorities consulted by Ian McEwan for his new novel The Children Act, in which a High Court judge orders medical treatment for a non-consenting minor in order to protect him “from his religion and from himself”, was Sir James Munby. And this week Sir James, as president of the Family Division, unusually allowed the wardship proceedings in the matter of five-year-old Ashya King to be held in public. The hearing was adjourned until Monday.

Let’s be clear: the coincidence that the families in both the actual and the imaginary cases are Jehovah’s Witness appears to be just that. We have no evidence that faith has played any part in the Kings’ struggle with the NHS and British, even European, law over the best therapy for their son’s brain tumour. Still, McEwan’s lapidary fable about choice, justice and reason in headlong collision with loyalty, emotion and belief uncannily holds up a mirror to the tangled times. Above all, he digs into the mindset of an enlightened, secular judge, Fiona Maye, who “in her optimistic moments” took it “as a significant marker in civilisation’s progress to fix in the statutes the child’s needs above its parents’”.

With the Kings, the entire family appears to be united against meddlesome state power. Maybe their plight has caught the world’s attention not because of its complexity but because of its relative simplicity. The forces of the law waded in mob-handed when, it seems, they ought to have applied a lighter, more consensual touch. In these resentful and suspicious times, we like to think the worst of all professional authority. In due course, we may understand more.

Meanwhile, the power that the High Court retains through wardship – much rarer than before the Children Act of 1989, but still a heavy weapon in the armoury of child protection – reminds us that the state still has the right to intervene in the pulsing heart of intimate lives. Whatever the upshot of the Ashya imbroglio, even more densely ravelled cases will pass through the hands of anguished arbiters such as McEwan’s judge. She opts to define “welfare” against the expressed wishes of a sick teenager who needs a blood transfusion and his devout parents, insisting that “his life is more precious than his dignity”.

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Almost every week, the Family Division hears cases of a mind-scrambling sensitivity. Often they make the dilemmas spotlit by headline news look almost like plain sailing. In June, Sir James Munby had to decide whether to authorise a termination for a “very damaged and impaired”, pregnant 13-year-old with a mental age of seven and an estimated IQ of 54. At the outset of the hearings, the girl wished to have the baby. Known as “X”, she seemed to lack “Gillick competence” – a child’s capacity to make a meaningful consent to treatment.

Yet Sir James ruled that “a child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings”. Later, “X” changed her mind. The termination went ahead. Another day, another conscience-shredding session at the Family Division. Don’t hold the front page for another episode of Judge Dreadful against the Plucky Parents.

Can we always know our own best interests? In theory, and usually in law, society consists of autonomous individuals who in complete self-consciousness opt to help – or harm – themselves as they see fit. In practice, age, incapacity or disability can in effect transfer the responsibility of defining welfare to another party – carers, relatives, or the state via its various agencies. At the ends of life, or in the depths of crisis, we will sometimes cease to be masters of our fate.

From wardship or court orders over young children to involuntary “sectioning” under the Mental Health Act and the exercise of “lasting power of attorney” on behalf of elderly people with dementia, modern life still abounds in situations in which the assumption of autonomy breaks down. And many of the bitterest disputes over choice and consent turn on the question of the legitimate proxy, advocate or guardian. Who is empowered to speak for someone with restricted capacities? Whose life is it anyway? The challenge posed by Brian Clark’s euthanasia-themed stage and screen drama still awaits a definitive answer.

In some areas, we have settled the question of a person’s ownership. In English common law, you could definitely not do as you wished with yourself. In essence, God commanded your body and thus the law, in the name of the anointed king or queen, exercised stewardship over it. To abuse it was, in this light, to violate the norms of a community of faith. Hence the persistence of victimless crimes – male homosexuality, abortion (yes, I do know the opposing arguments), suicide – deep into modern times. Interestingly, in Britain all three common-law and statutory prohibitions governing what adults choose to do with themselves broke down within a few years in the 1960s: suicide in 1961, abortion and homosexuality (the latter both with restrictions) in 1967.

To a degree, that era of reform marked the belated high-water mark of the liberalism given its classic statement by John Stuart Mill in 1869. In his tract On Liberty, Mill splendidly defends our right to go to hell (or heaven) in our own sweet way. So long as we don’t harm others, there cannot be any “rightful limit of the sovereignty of the individual over himself”. Moreover, the tyranny of state or religious control exceeds in its ill-effects the injuries of self-indulgence for the reckless: “All errors which he is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good.” Nonetheless, Mill accepts that “acts injurious to others require a totally different treatment... These are fit objects of moral reprobation, and, in grave cases, of moral retribution and punishment.”

Mill is still a handy remedy against censors, bigots and busybodies, with his breezy willingness to sacrifice social convenience or consensus for “the greater good of human freedom”. But once you start to care for vulnerable others – those in sickness, in confusion, in distress – he won’t always get you very far. True, the thrust of policy reform has been to widen the circle of individuals who benefit from the exercise of unimpeded choice. The ranks of Mill’s sovereign subjects have grown, from children deemed to possess the “Gillick competence” to decide on their treatment to the people in the final stages of life whom Lord Falconer wishes to empower via his Assisted Dying Bill.

That still leaves substantial numbers for whom public institutions must from time to time act not just in loco parentis but in the place of spouse or child, too: the million-plus affected in some way by dementia; the 92,000 “looked-after” children; the 50,000 adults subject to detention under mental-health legislation. Yet all the bodies charged with their welfare are currently mired in some kind of crisis of trust. Not all wise heads agree with this. To the philosopher Onora O’Neill, this breakdown of respect feels more like mood-music than profound change: “We often express suspicion, yet we constantly place trust in others.” However, she first voiced caveats about our loss of faith during her Reith lectures in 2002. Since then, surely, confidence has plunged through yet another floor.

Whatever the rights and wrongs of the Kings’ ordeal, its overnight elevation into a symbolic drama of state against family bears witness to the temper of the times. The hardest cases do matter, because they expose the rawest nerves. So we lurch from anger at excess intrusion (with the Kings the latest prima facie victims) to a matching horror at negligence (Rotherham, Rochdale, Savile, ad infinitum). Behind the manic swings of the pendulum between calls for action and pleas for inaction lies a refusal or inability to decide who should wield authority, and how institutions should apply it. Onora O’Neill makes the crucial point that strengthening “accountability” in the NHS, social services or the police (even in the media, perhaps?) can never make all our doubts vanish. Genuine trust, at heart, does not depend on external guarantees. 

At forks in the road of care or control, the well-being of the vulnerable will still often rests in the hands of a corps of expert guardians. No amount of transparency, consultation or even democracy, however worthwhile in themselves, can exempt professionals from the loneliness of those crunch moments. Sometimes they will blunder. All the same, a culture of grievance and victimhood will do nothing to restore their authority or to bolster our trust.

For that, we need to debate like grown-ups. In The Children Act, McEwan helps us do exactly that. He makes the bold move of portraying a bulwark of the legal and welfare establishment not as a smug cipher but as a woman of compassion and integrity who strives to bring “reasonableness to hopeless situations”. Yet even she falls short. Why? You’ll have to read the book.

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