Commentary 3: A response to Lowe.

It may help to remind ourselves why I and others would be writing over twenty years ago about turning off respirators. The short answer is that the law needed to take account of, and take a view on, what was becoming a growing practice. The law, of course, is dynamic. It grows and reshapes itself over time. Medical law is particular proof of this. There is little in the old books on criminal law, for example, which will help the intensive care doctor, save at the most general conceptual level. So, the law had to take a view. This largely consisted of working from first principles, against a background of certain ethical assumptions and the realities of medical care. Turning off respirators needed to be accommodated within the legal scheme of things, in those circumstances where it was deemed proper to turn them off. By the same token, the limits of the permissible had to be mapped out. This was not a process that could be conducted in a vacuum. The law had to be applied to new circumstances and, if necessary, developed. But, it could only be developed according to the rules of its own internal structure. What this means is quite complicated. Those like me who were commenting on the law were seeking to state what the law was. Some would describe this as "finding" the law. More honestly, it is a matter of creating it. But, this process of creation or development is always made against the background that the issue at hand could go before a court for decision. Thus, the single most important determinant in developing the law is the sense of what a court would decide. Prediction becomes the key. And, critical to that prediction is the awareness that courts move interstitially. They are reluctant to engage in wideranging reform of the law, regarding that as a matter for parliament. They nudge the law instead, conscious that they have at least three roles in any particular case. They must do justice as between the parties, they must not do violence to the conceptual integrity of the law which they inherit and they must at the same time shape