The price of saving J
The dangers of 'common-sense' solutions were well illustrated by the recent debate over a 16-year old's right starve. The girl, 'J', suffering from the 'slimmer's disease' anorexia nervosa, went to the appeal court in a bid to win the right to refuse life-saving treatment. Common sense screamed that she should be forced to have the treatment.
The case of 'J' was particularly awful. Her father died from a brain tumour, her mother died from cancer and she suffered 'unfortunate experiences in foster care'. She began to lose weight two years ago after the death of a much-loved grandfather. Finally, anorexia was diagnosed. Last year, when doctors decided that her condition was life threatening, she was force-fed through a nasal tube with her arms encased in plaster to stop her removing it. But after her sixteenth birthday she demanded the legal right to make her own decisions on treatment.
Anorexia is a particularly tragic condition. Most of its sufferers are girls in their teens. Doctors claim that the disease, characterised by a relentless search for thinness through self-starvation, affects as many as one in a hundred young women. There are conflicting theories about why girls become anorexic, but there is a consensus that its roots are psychological, and that its victims need help to come to terms with their lives as well as their condition.
Recent research suggests that one in five anorexia sufferers will eventually starve themselves to death. The recovery rate for those treated early is between 75 and 90 per cent. But once anorexia takes hold the prognosis is far worse. A girl aged 18 suffering from anorexia for a year would lose 20 per cent of the density of her bones, making them as fragile as those of a 60-year old. Specialist centres treat anorexia by forcing the girls to eat and trying to address the reasons for the self-starvation.
'J's case was that she wished to remain living where she was in council care, and did not want to be removed to a specialist medical centre. Those responsible for her feared that unless she received specialist treatment she would die. 'J', on the other hand, argued that she did not want to get better, that she wished to remain in control of her life, and that she would cure herself when she decided it was right to do so.
If 'J' had been over 18 there would have been no legal case to argue about. Adults have the right to refuse medical treatment, even if the result is certain death. Jehovah's Witnesses routinely refuse blood transfusions because it is against their beliefs, and any doctor violating an adult's consent could be sued for assault and battery.
In J's case, doctors and social workers felt they could not stand back and 'watch a child die' knowing that she suffered a psychological problem and there was a strong likelihood that if she was given help she would live and, in time, thank them. The voice of common sense demanded intervention and the Court of Appeal, to the relief of everybody who had followed the case through the papers, complied. Who could doubt that in this case the doctors knew best?
The Court of Appeal ruling, that doctors could carry out treatment against the girl's will, was greeted as a victory for common sense. And so it seemed, especially when 'J' then backed down and agreed that she had no alternative but to cooperate, and enter the specialist residential centre.
However, common sense is not necessarily the best standard by which to judge a problem or its solution. Far from being the natural font of wisdom which its name implies, common sense is in fact a loaded term reflecting the dominant political mood of the times. And its application can often do more harm than good.
In the case of 'J', common sense may have helped to save one young woman's life. But at a potentially tremendous cost to many others.
Through their apparently common-sense attitude to the case of 'J', the authorities have established a further right to interfere in the private life of the individual. This is not just a matter of high principle, it has immediate practical consequences, especially for young people.
Until now, for example, young people have had the right to obtain contraceptive advice, whether or not their parents know or approve. Since the late 1960s the law has accepted that 16 and 17-year olds have the same rights as adults regarding medical consent. The House of Lords ruling against moral crusader Victoria Gillick in 1985 extended this right to under-16s who are capable of understanding the treatment proposed. Where does the 'J' ruling leave this? Ian Kennedy,
Professor of Medical Law and Ethics at Kings College, London has stated that it could give Gillick just the legal precedent she needs to mount another attack on young people's right to contraceptives.
In recent years we have seen the law systematically used to erode areas of individual rights. Of course the authorities never say that this is their intention. The police and judges are only ever given new powers in order to 'combat crime' or 'protect the public' in some way. But the state is always pursuing its own agenda of extending control over our lives. The authorities are particularly keen on using emotive issues - like child abuse, rape or the 'J' affair - to win public approval for 'common-sense' new powers. When cases like 'J' come up, the political consequences of legal precedents tend to get lost in a fog of humanity.
The day 'J' lost at the Court of Appeal was paradoxically a good one for her. But it may well turn out to have been another bad one for the rest of us.
Reproduced from Living Marxism issue 46, August 1992