Victoria Butler-Cole: Anticipating, identifying, and responding to ethical controversy and uncertainty

The following is an edited version of Victoria Butler-Cole’s remarks at a UK Pandemic Ethics Accelerator event on 23rd May 2022, discussing the place of values in public policy during a pandemic

Victoria Butler-Cole KC is a barrister at 39 Essex Chambers where she specialises in health and social care law. Her work ranges from judicial review of decisions by local and central Government, to the Court of Protection, to regulatory cases and inquests. She is a member of the council of JUSTICE and a member of the Nuffield Council on Bioethics.

I was asked to think about what contribution the law can make to anticipating, identifying and responding to ethical controversy and I want to offer a few thoughts by way of contribution to this discussion. I’m afraid my overall conclusions have been fairly negative.

The law and the context of pandemics

The reason for this is that one thing the law is really bad at is anticipating things. Judges like facts and evidence and certainty. They don’t like speculation, and worries, and general problems. They want something that they can focus on and grapple with.

On top of that, the courts have a wide range of formal and informal strategies for avoiding answering questions that are difficult, or which raise ethical issues or matters of social policy or public policy.  Judges often consider they are not the right people to make these types of decision, and there are a number of procedural barriers in the way of them getting involved.

Procedural barriers to intervention

There are questions of standing. It can be hard to establish who can bring a claim in challenge to a government policy or piece of legislation, particularly when the claim is being brought on behalf of a large group of affected people.

There are also aspects ofjudicial review (which is the mechanism for challenging government decisions) which make a claimant’s job more difficult.  For example, there is no testing of evidence in judicial review cases generally, and the defendant’s evidence in a judicial review is, in effect, assumed to be correct.

Deference and caution

These procedural problems are then compounded by a general sense of deferenceto government policymakers, which is enhanced in the midst of a pandemic when there are obviously a large number of complex and urgent decisions required.

There were many discussions about possible legal challenges during the height of the pandemic, with a frequently-expressed concern that the courts would say that the government had other things to worry about and be even more hesitant about intervening. There was a sense that the courts might feel that the last thing government needed was a judge footling around in just one area of decision-making on the basis of a single claim, whatever its apparent merits.

There is an inherent tendency among judges to be cautious, and to recognise that policymakers have many competing obligations. They are very aware that the person in front of them is just one of the people to whom the government has obligations, and there are many others who aren’t there who may have equally valid things to say that pull in different directions.

Adding to that is the judges’ permanent worry that they mustn’t get into the question of resource allocation.

Legal challenges in the pandemic

All of these factors combined to make bringing legal challenges during a pandemic very difficult. There were some examples where courts intervened, or where the threat of legal action was enough to see decision altered. The most obvious was the change to National Institute for Health and Care Excellence (NICE) guidelines on critical care admissions. The original draft suggested using a frailty scale which had been developed for older adults, but which did not take account of the fact that the scale was inappropriate for use in relation to people with long-term disabilities. That only needed a pre-action letter and media coverage for the government to make changes. But that was a one-off, focussed problem, where it was clear there had been a mistake and experts could confirm that in a straightforward manner – it wasn’t just those famous “lefty lawyers” pointing out the problem.

But there were a lot of potential challenges that weren’t brought, or didn’t go anywhere, during the pandemic.

Beyond the pandemic

Now that we know what has happened, and we have more evidence, and much more will come out during the Inquiry, there may be more challenges brought.  These may be about what happened during the pandemic – for example the recent challenge to the decision to send people back to care homes without proper testing and isolation. There may also be attempts at legal challenges to do with the next pandemic, where courts might be more willing to say something about what should happen in the future, because there is something concrete to base it on. 

There may also be evidence from the pandemic which supports challenges in respect of wider issues which have been known about for some time, in particular racial inequalities in healthcare.